a two-thirds majority of the two Houses of Congress could not be secured to recommend his constitutional amendments to the States. This proposition was warmly seconded by Douglas.2

Even if the people had expressed their indorsement of a certain proposition by an overwhelming majority, this would not legally have secured the amendment, but would have been, so to speak, a plebiscite on the question, and simply made known to Congress the temper of the people at large. This undoubtedly would have great weight in influencing the action of Congress and the other constitutional bodies to which an amendment might be submitted for ratification.

Another form of the same desire to consult the people is seen in a proposed amendment to the fifteenth amendment, suggested in 1869 by Mr. Davis of Kentucky. It provided that

this and all future amendments should be submitted to the vote of the people of each State; a majority of the people entitled to vote in three-fourths of the several States should be necessary for its ratification.

In support of his resolution, Senator Davis asserted that "it was unseemly, not in accord with the principles and analogies of our system of government, and unsafe in practice to submit amendments either to legislatures or conventions," but the safest method, the one most in accord with the principles of our Government, "is to submit a proposition which can not be changed, nor modified nor altered, to the sovereign people themselves." As it would plainly be unconstitutional to apply this method of ratification to the fifteenth amendment before Article v of the Constitution had been changed, this resolution failed to receive the support of the members of Mr. Davis's own party.

1 Globe, p. 264.

5

2 Globe, App.. p. 38, et seq. See Rhodes, vol. III, pp. 254, 260, 265, with notes, who maintains that if the measure had been adopted, the Crittenden compromise "would have carried the Northern States by a great majority," and its results would have been "to impel a majority of the Republican Senators and Representatives to give it their support." The preamble of a similar resolution, submitted by Mr. Cochrane in the House (No. 874a), recited the same facts and declared whereas it is a cardinal principle of our representative system that the representatives shall obey the will of the people, it is deemed proper and necessary to ask the opinion and judgment of the people of the several States in the proposed amendments to the Constitution, etc.

3 For the Swiss Referendum, see Hart's Federal Government, par. 189, to some extent adopted in some of the States. The legislature of California, in November, 1892, called for a popular vote on the question of choosing United States Senators by popular vote. The people voting in favor, the legislature passed resolutions favoring the " plan to be presented to Congress." Influence of State action here seen. See Bryce, 1, chap. 39. E. P. Oberholtzer, The Referendum in America. Also Bryce, 1, p. 101, note 1.

4 App., No. 1288.

Globe, p. 674.

183. WHAT CONSTITUTES THE TWO-THIRDS MAJORITY REQUIRED BY ARTICLE V?

The question as to what constitutes the "two-thirds of both Houses," required by Article V for the recommendation of an amendment to the Constitution by Congress, was first raised at the time of the action of Congress submitting the twelfth amendment to the States. This amendment was passed by a two-thirds vote of the members of each House present, but not by a two-thirds majority of all the members of the Senate and House, respectively. The Federalists therefore claimed that the constitutional majority had not been obtained. In reply to this the friends of the amendment appealed to precedent, showing that some of the most important of the first ten amendments had been passed by a two-thirds vote of the members of the House present." This failed to silence the Federalists, and the legislatures of the three Federal States of Massachusetts, Connecticut, and Delaware, in their resolutions rejecting the amendment, reiterated the charge of unconstitutionality. The question does not seem to have been raised again until 1861, when it came up in connection with the vote of the Senate on the so-called "Corwin amendment." It was held by the Chair that two-thirds of those present was the constitutional requirement, and in this opinion he was sustained by the Senate. This ruling does not seem to have been questioned since.1

184. IS THE SIGNATURE OF THE PRESIDENT ESSENTIAL TO CONSTITU. TIONAL AMENDMENTS?

This question was first raised in the case of Hollingsworth v. The State of Virginia, in which case the validity of the eleventh amendment was called in question, in that it appeared that the "amendment was never submitted to the President for his approbation." The court, however, unanimously held that the amendment had been constitutionally adopted, and Mr. Justice Chase, in his opinion, declared that the President "has nothing to do with the proposition or adoption of amendments to the Constitution." The question, however, has since been several times the subject of discussion in Congress. The

See ante, par. 38.

2 Randolph's speech, Annals of Congress, Eighth Congress, first session, pp. 632-633. See Journal of the House of Representatives for August 21, 1789, and Journal of Senate, September 9, 1789.

3 App., No. 931. For similar ruling in connection with the passage of bills over the veto, see Mason's Veto Power, p. 119.

4 See speech by Mr. Ashley, January 6, 1865, Globe, p. 138.

3 Dallas, 378.

first time, in 1803, when the amendment in regard to the election of President and Vice-President, which later became the twelfth amendment, was under consideration. A motion in the Senate to submit the amendment to the President for approval was rejected by the decisive vote of 7 to 23. In 1861 President Buchanan signed the proposed amendment prohibiting Congress from interfering with slavery in the States. This act failed to call out any protest or objection.

When the thirteenth amendment had been passed by Congress, it was inadvertently submitted to the President and he signed it and notified Congress to that effect. The Senate, on the motion of Senator Trumbull, immediately passed a resolution "that such approval was unnecessary to give effect to the action of Congress in proposing said amendment, * and shall not constitute a precedent for the future." This opinion of the Senate coincides with the decision of the court, and was in harmony with the practice in the case of all the amendments proposed-with the single exceptions noted-and is based on sound common sense.3 President Johnson acted in accordance with this view in 1866 in the case of the fourteenth amendment. In a message to Congress, he informed that body that in submitting the amendment to the States for ratification, his action, and that of the Secretary of State, were "purely ministerial and in no sense whatever committing the Executive to an approval or a recommendation of the amendment to the State legislatures or to the people."4

John Quincy Adams even questioned the propriety of the President recommending amendments to Congress, inasmuch as the Constitution gives him no share in framing them. In 1817, when Secretary of State, he opposed President Monroe's intention to propose an amendment on internal improvements partially because of this reason. Later, while President, he refused to recommend an amendment in regard to the election of President for similar reasons. The majority of the Presidents, both before and since, have not shared his scruples.

1 App., No. 358.

5

Cong. Globe, Thirty-eighth Congress, second session, p. 588.

See discussion of this in Jameson, Constitutional Convention, pars. 559-560; Mason, Veto Power, par. 106.

4 Message of June 22, 1866. In this message he alluded to "the fact that the joint reso lution was not submitted by the two Houses to the approval of the President, and that of the thirty-six States which constitute the Union, eleven are excluded from representation in either House of Congress." He waived the question of "its constitutional validity," as well as of "the merits of the article." Wilson, Slave Power, III, p. 659. & Memoirs, IV, pp. 463-464.

Ibid., VII, p. 302.

185. IS THE SIGNATURE OF THE GOVERNOR ESSENTIAL TO AN AMEND. MENT TO THE FEDERAL CONSTITUTION APPROVED BY THE LEGISLA TURE OF THE STATE?

There has been a great lack of uniformity in the actual practice by the governors of the States in this respect. This lack of uniformity can be observed in the action of the States upon the various amendments submitted to them. In the case of the thirteenth amendment, for example, the act of ratification of the legislature of Massachusetts was approved by the gov ernor, while the signature of the governor of Pennsylvania does not appear upon the certified copy of the similar act of the legislature of that State, although the executives of both States possessed the veto power.1

That this question might become an important one, is shown by the action of the governor of New Hampshire in vetoing the resolutions of the legislature of that State ratifying the twelfth amendment. As the vote of the State was not needed to make up the three-fourths vote required for the ratification of the amendment, the question does not seem to have come up for judicial determination. It is believed that the framers of the Constitution did not anticipate that the chief executives of the States would participate with the legislative bodies in the approval or disapproval of amendments submitted, for at the time the Constitution was framed but one of the States conferred upon the governor the veto power. Moreover, the language of the Constitution is that the amendment shall be valid "when ratified by the legislatures of three-fourths of the States." Although at the present time in all but four of the States the governor possesses the veto power, and to that extent is a part of the lawmaking power, is it not well to bear in mind that the language of the Federal Constitution is not that amendments shall be valid "when ratified by the lawmaking power of threefourths of the States." Governor Bramlette of Kentucky seems to have adopted the view that his duties were merely ministerial, at the time the resolutions of the legislature of that State rejecting the thirteenth amendment were presented to him for approval. Although he regretted the action of the

1 Bulletin of the Bureau of Rolls and Library of the Department of State, No. 7, pp. 538, 547. The same lack of uniformity appears also in the case of resolutions passed by the legislatures of the States, proposing amendments to the Federal Constitution. In some cases they are signed by the governor of the State; in others he simply transmits them as requested by the legislature.

McMaster, History of the United States, III, p. 787. 3 Massachusetts. See Mason's Veto Power, par. 8. 4 Rhode Island, Ohio, Delaware, and North Carolina.

legislature, he declined to return the resolutions with his dissent "on the ground that the action of the legislature was complete without his approval."1

Is not the legislature, when passing upon an amendment to the Federal Constitution, acting in the capacity of a convention rather than exercising its ordinary legislative powers? If this be true, why should the governor have anything more than a ministerial function to perform? The most reasonable view would seem to be that the signature of the chief executive of a State is no more essential to complete the action of the legislature upon an amendment to the Federal Constitution than is that of the President of the United States to complete the action of Congress in proposing such an amendment.

186. WHAT CONSTITUTES THREE-FOURTHS OF THE STATES?

This question first seriously arose at the time the proposition which afterwards was adopted as the thirteenth amendment was before Congress. At that time several of the States being in rebellion against the Government they were without representation in Congress. It was held by some that such States should not be counted as included in the Union.3 Thus we find amendments presented with the following enacting clause: "Be it resolved that upon the ratification of this amendment by three-fourths of the States represented in Congress it shall become valid to all intents and purposes as part of the Constitution."4

The question was undecided when the thirteenth amendment was sent to the States. When the legislatures of twentyseven States had ratified this amendment, which was exactly three-fourths of all the States in the Union, the Secretary of State issued a proclamation declaring it a part of the Constitution. Of these States, however, several had been in rebellion

1 Jameson, p. 630. For discussion of the question whether the signature of the governor is necessary in amending a State constitution, see ibid., pars. 552, 561, 562. In such cases, in general, the governor does not have any opportunity to pass upon the actual amend ment, but in some States the resolution of the legislature proposing an amendment for popular approval comes before him for his approval. Black, Const. Law, p. 47.

In the case of the eleventh amendment, it was for some time uncertain whether Tennessee should be counted, but it was finally found that twelve States had ratified before Tennessee had been admitted, and hence adopted by the action of twelve States. App., No. 321.

3 See speech of Ashley, January 6, 1865, on the thirteenth amendment, Congressional Globe, p. 140; Scofield's speech, January 11, ibid., p. 144; Sumner's resolution of February 4, 1865, Congressional Globe, p. 588.

4 App., No. 1196 (in 1867).

& December 18, 1865. See list of States ratifying, App., No. 985.