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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, prescribing 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

1 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.

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.

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.

2 Globe, App., p. 38, et seq. See Rhodes, vol. 1, 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.

5 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.2 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.5 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. App., No. 358.

2Cong. 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 resolution 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 valid. ity," as well as of "the merits of the article." Wilson, Slave Power, III, p. 659. 5 Memoirs, IV, pp. 463-464.

Ibid., VII, p. 302.

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