A similar attempt was made in vain by Senator Dixon of Connecticut, when the fifteenth amendment was under consideration. His objections seemed directed against the unequal system of representation in the Connecticut legislature. He therefore urged his plan when the House suffrage amendment was before the Senate, and he also presented it as an amendment to the resolution which later became the fifteenth amendment. Congress had power, he said, if it ordered the ratification of the amendment to be by conventions, to declare that "the convention should be chosen in such a manner that it should represent the people." He further maintained that this was a question upon which the people had never had an opportunity to canvass or to express their opinion, therefore the body called upon to ratify it should be chosen subsequently to its submission. The previous amendments which were submitted to the State legislatures for ratification, especially the first twelve, did not relate to the States at all, but simply curtailed the powers of Congress. Now the proposition is to provide that a power which has always heretofore been held by the States as their own power and their own right shall be taken from them. It is therefore proper that the people should have an opportunity of making known their will in regard to the proposed change. He was answered by his colleague, Senator Ferry, who declared that the question had been discussed before the people, and he further asserted that the same reason that prevented this mode of ratification from being adopted in the previous cases was pertinent now. Congress and the people have never used that power of submission to convention, because the machinery of conventions was dilatory, expensive, and unwise. The Constitution has provided for the speediest correction by the submission of an amendment to the legislatures. The delays incident to the assembling of a convention may be so many that it may be years before the evil can be removed which the amendment was proposed to remedy.3

180. REGULATION OF THE RATIFICATION BY LEGISLATURES.

Several attempts have been made in Congress to specify that a proposed amendment should be brought before legisla

1 App., Nos. 1268, 1286.

2 Globe, Fortieth Congress, third session, pp. 828, 855, 1040. See post, par. 180.
3 Ibid.

tures hereafter elected for ratification. On May 23, 1866, when the fourteenth article was under consideration in the Senate, a resolution providing that this amendment should be submitted to legislatures which shall be chosen, or the members of the most popular branch which shall be chosen next after the submission of the amendment, and at its first session, was presented by Mr. Buckalew of Pennsylvania.2

The resolution further stipulated that no acceptance or rejec tion shall be reconsidered or again brought in question at any subsequent session; nor shall any acceptance of the amendment be valid if made three years from the passage of this resolution. This last clause was doubtless suggested by the recent action of New Jersey in regard to the thirteenth amendment. That amendment had been rejected by the legislature of that State, December 1, 1865, and notice of its action had been duly sent to the United States Secretary of State. When that officer proclaimed the adoption of the amendment by the ratification of twenty-seven States on the 18th of December, 1865, no mention was made of New Jersey. However, on January 23, 1866, the legislature of New Jersey reconsidered its previous action and approved the amendment.3 When the fifteenth amendment was before Congress, the Democrats made a systematic attempt to render its success doubtful by endeavoring to secure its submission to the States for ratification by some untried method. Propositions similar to the one previously presented by Mr. Buckalew were now submitted by several of the Senators, and gave rise to an extended discussion. The argument in favor of the measure, as presented by the various Democratic speakers, was based on the ground that the question ought to come

5

1 The form of proposal adopted in 1789 has usually been observed in the resolutions proposing amendments. It is as follows: "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the following articles be proposed as amendments to the Constitution of the United States, which, when ratified by three-fourths of the State legislatures, shall become valid to all intents and purposes as a part of the same." Sometimes, a little variation in the language, as in No. 931, the "Corwin amendment," or No. 1057, the latter as follows: "Resolved by the House of Representatives (the Senate concurring), that the following amendment to the Constitution of the United States, be, and the same hereby is, proposed to the legislatures of the several States for ratification. Another, devised during the reconstruction period as No. 1196 (1867), reads: "Be it resolved, etc., that upon the ratification of this amendment by three-fourths of the States represented in Congress," etc.

2 App., No. 1154.

3 Jameson's Constitutional Conventions, p. 624.

4 App. Nos. 1263, 1297, 1298, 1302.

5 Senators Davis, Hendricks, Saulsbury, Dixon, and Bayard. Globe, Fortieth Congress, third session, pp. 1309-1314.

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. 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

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

2 Globe, pp. 1311-1313.

3

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.

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

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 exist ing legislature and say that the legislature in existence in 1869 shall not act upon it, but that those of 1870 or 1872 may act. 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.

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.

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 legislatures 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." 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.

2 App., 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 gov ernor 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.

3 App., No. 1323.

4 Jameson, Constitutional Convention, p. 635.

6 See ante, par. 13.

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