directly before the people in the election of their representatives; that it was unfair to submit the amendment to the legislatures now in session, for they had not been chosen with a view to the question or the principles involved in the amendment. In truth, the issue had not been raised in the late campaign, for the Republican party had declared in their platform that "the question of suffrage in all the loyal States properly belongs to the people of those States." Indeed, in some of the States, namely, Ohio, Kansas, Michigan, and Connecticut, the question of universal suffrage had been submitted to a popular vote and by large majorities had been condemned. Mr. Buckalew made the best constitutional argument in support of the measure. He claimed, first, that by necessary implication Congress had the power to make such regulations; secondly, that it is wise and expedient to adopt some general rule by which there shall be equal, fair, uniform, and timely action in the several States; thirdly, that the plan proposed would give all the advantages of a convention system without its disadvantages of inconvenience and expense, for it would give the people of every State a full and complete opportunity of passing upon the amendment; fourthly, that this plan, by designating the legislature which shall act upon the amendment, removes all possibility of question as to what particular legislature or legislatures are to act upon it, or as to the length of the time the amendment is open for ratification.3 The difficulty of having amendments ratified and then having the ratification rescinded, or having an amendment rejected and afterwards ratified by the legislature of the same State, both of which events had occurred in the case of the recent amendments in several of the States, would be avoided. The Republicans took up the defense of the customary method. Mr. Morton led the discussion for his party. He held that such a proposition was in violation of the Constitution, for it proposed to select a legislature in the future to which this amendment is to be submitted. What legislature does the

1 McPherson, History of the Reconstruction, p. 364.

2 Globe, pp. 1311-1313.

3 In 1873 the senate of Ohio passed a vote ratifying the amendment on the compensation of members of Congress, proposed by Congress in 1789, which had failed. Jameson, p. 635.

4Jameson, pp. 627, 628, 631; Manual and Digest, Fifty-first Congress, second session, pp. 37-40, Story, vol. 2, pp. 649, note 1.

Globe, pp. 1313.

H. Doc. 353, pt 2-19

provision in the Constitution refer to? Obviously those in existence at the time the amendment is submitted. If they fail to act upon it, it is possible that future legislatures may, but Congress has no right to withdraw the power from the existing legislature and say that the legislature in existence in 1869 shall not act upon it, but that those of 1870 or 1872 may Others based their argument upon precedent.' It was declared that the fourteen amendments then a part of the Constitution had been submitted in every instance to legislatures, and, without exception, an examination of the record shows that a majority of the legislatures had been chosen before the proposed amendment was sent out to the people. Naturally, these attempts all met with failure, receiving only Democratic support. Mr. Buckalew's resolution on division received 13 yeas to 43 nays.2

In the same year that the fifteenth amendment passed the new constitution of Tennessee was adopted. It contained a provision that no amendment to the Constitution of the United States may be ratified by any convention or assembly of the State which was not elected after such amendment was submitted. It may be an open question whether any such restriction imposed by a State constitution is valid, but Tennessee is the only State which has made such a provision, and there has, of course, been no opportunity to test its constitutionality. Mr. Buckalew's proposition was revived in 1882 by Mr. Berry of California, who, to obviate the question of constitutionality raised by Mr. Morton, proposed it as a formal amendment to the Constitution.*

The other method of proposal by Congress and ratification by the State legislatures has been adopted in the case of all the amendments which now form a part of the Constitution. The preference for this form is doubtless due to its manifest advantage, inasmuch as the bodies called upon to act are always in existence, and if not in session can be quickly summoned.

It would seem desirable, owing to the complications that may arise, that Congress should adopt a series of regulations governing the procedure to be followed by the legislatures in acting upon an amendment submitted to them for ratification. Mr.

Mr. Ferry of Connecticut.

2 Mr. Blaine, although he voted for the amendment, admitted afterwards that the point raised by the opposition was well taken. Twenty years in Congress, Vol. II, pp. 413, 414. 3 Constitution of 1870, art. 2, sec. 32.

App., No. 1550.

Morton of Indiana, recognizing this, proposed, in the next Congress following the discussion already referred to, a resolution prescribing the rules to be followed on such occasions. This resolution was without doubt directly suggested by the recent struggle in the legislature of Indiana, where the Democrats by sharp parliamentary tactics attempted to prevent the ratification of the fifteenth amendment. It provided that on the sixth legislative day of the session of any State legislature, each house should proceed, at noon, to the consideration of any amendment which may have been submitted by Congress to the legis latures of the States for ratification, "Provided, that such amendment may not have been acted upon at any preceding session of said legislature." If the amendment "shall receive the vote of a majority of the members elected to each house *** it shall be held to be duly ratified by such legislature."2 A similar resolution was introduced in the House a few days later by a Representative from the same State as Mr. Morton, but no important action was taken by either House upon this subject.3

The question how long an amendment is open to adoption or rejection by the States is raised by the action of the senate of Ohio, in 1873, which, "acting upon the theory that once proposed, an amendment to the Constitution is always open to ratification," passed, at the time of the popular disapproval with the passage by Congress of the so-called "salary grab act,"5 a resolution ratifying the amendment proposed by the First Congress, in 1789, in regard to the compensation of members of Congress. This amendment had failed at the time to

6

The Democratic Senators tried to break a quorum, but were prevented by locked doors. In the House of Representatives all the Democrats save ten resigned, thus reducing the membership to less than two-thirds of the members elected, in the hope of preventing or invalidating the action of that body. The Speaker, however, ruled that the House was competent to proceed, and two-thirds of the members present voted to ratify the amendment. The question as to its validity was raised in Congress. McPherson, History of Reconstruction, pp. 490-91, note; Foster, Com. on the Const., p. 329, note 24. 2App., No. 1321. The resolution further prescribed that in case final action was not taken on the first day, the houses should meet the next day at the same hour, and so continue to meet from day to day until final action was taken upon such amendment. "Nor was the action of the legislature to be hindered or prevented by resignation or withdrawal, or the refusal to qualify, of a minority of either or both houses." The second section made provision for the certified copies of the action of each house to be forwarded by the governor to the President. Two other resolutions were introduced by Mr. Bromwell of Illinois, "declaratory of the law and right of amending the Constitution." The text it has been impossible to find. App., Nos. 1113, 1211.

App., No. 1323.

4 Jameson, Constitutional Convention, p. 635.

See ante, par. 13.

6 App., No. 243. Ante, par. 13.

receive the necessary number of votes to secure its incorporation into the Constitution. In commenting upon this action of the Ohio senate, Judge Jameson urges the desirability of the passage of "a constitutional statute of limitation, prescrib ing the time within which proposed amendments shall be adopted or be treated," in order that "the danger of confusion or conflict" may be avoided.'

181. PROPOSITIONS TO CHANGE THE MAJORITIES REQUIRED BY ARTICLE V.

In view of the difficulty with which an amendment is secured, as has been shown in the previous pages, it is somewhat surprising that there has not been more effort to change the method of amendment. The first proposal of this character was made by the convention in Rhode Island at the time it ratified the Constitution, May 29, 1790.2 Rhode Island had remained outside of the Union until practically forced to come in, owing to the jealousy of their State's rights, and she now proposed, as a further guaranty to the rights of the State, to make it more difficult to secure an amendment. The stipulation was that after the year 1793 no amendment to the Constitution should be made "without the consent of eleven of the States heretofore united under the Confederation." Possibly also the admission of new States was kept in mind, and this article was designed to insure the preponderance of the original thirteen, even after they should be outnumbered.

On the other hand, two propositions have been made looking to a reduction both in the majority of the vote required or proposed and in the number necessary to ratify. The first, introduced by Senator Henderson of Missouri, on the 11th of January, 1864, in connection with the resolution for the abolition of slavery, which, as amended ultimately, was incorporated into the Constitution as the thirteenth amendment, was an article proposing a reduction of the majorities required for the proposal and ratification of amendments.3

Jameson, pp. 635-636. He raises the question, by what majority shall the resurrected amendment be adopted, by three-fourths of the States then in the Union, or what number? Another reason why a statute of limitation should be passed is suggested by the motion of Senator Anthony, in 1864, to repeal the joint resolution of the Thirty-sixth Congress (1861) submitting the so-called "Corwin amendment" to the States. (App., No. 1025). Jameson maintains that Congress does not possess the power to recall an amendment which has once been submitted. Constitutional Convention, p. 634. See ante, par. 107.

2 App., No. 107.

3 App., No. 984.

This article provided that whenever a majority of the members elected to each House, or a convention called on the application of the legislatures of a majority of the several States, should propose amendments,' these in either case should be valid when ratified by the legislatures of or conventions in twothirds of the several States, as Congress should direct. The committee reported a substitute for Mr. Henderson's abolition amendment, but made no mention of his proposition to change the method of amendment, and there is no record that Mr. Henderson advanced any argument in favor of the change. The other resolution, submitted by Mr. Porter of Virginia, in 1873, proposed a more radical change in the method of the amendment than the one just discussed, and suggested a system the characteristics of which were more national than federal. It provided that "Congress, whenever three-fifths of both Houses of Congress deem it necessary, may propose amendments to the Constitution, or may call a convention for proposing amendments and revising the Constitution," and shall be required to call such a convention "on the application of the legislatures of any number of States, embracing threefifths of the enumerated population of the several States." Amendments proposed by either of these methods were to be valid "when approved and ratified by a majority of the electors in the several States voting thereon, and qualified to vote for Representatives in Congress." It will be seen that this proposed a system analogous to that adopted by many of the States for amending their constitutions.

182. RATIFICATION BY POPULAR VOTE.

For seventy years after the propositions of the Rhode Island convention, no further suggestion was made for altering the method of amending the Constitution. In the session of 1860-61 there were five proposals to take the sense of the people on certain amendments. This novel proposition was first made by Senator Crittenden, who admitted that the reason for suggesting this unusual method was because of his fear that

1 As was the prevailing provision in the State constitutions.

2 The method of ratification of amendment provided for by article v of the constitution of the Confederate States, also fixed upon "the legislatures of two-thirds of the several States, or by conventions in two-thirds thereof, as the one or the other mode of ratification may be proposed by the general convention." McPherson, History of the Rebellion, p. 99.

3 App., No. 1364.

4 App., Nos. 852, 861, 874, 894, 909. A method provided in most of the State constitutions. In Delaware alone the people have no direct voice.