185. IS THE SIGNATURE OF THE GOVERNOR ESSENTIAL TO AN AMENDMENT TO THE FEDERAL CONSTITUTION APPROVED BY THE LEGISLATURE 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 governor, 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.2 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.3 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.

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 amendment, 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.

2 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. 141; Sumner's resolution of February 4, 1865, Congressional Globe, p. 588.

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

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

and had not been readmitted to representation in Congress; in fact, it was not until three years later that the majority of them were restored to the full enjoyment of this right. "The question as to whether they could give valid assent to an amendment to the Constitution was one which might possibly be raised." "If they could not participate in the enactment of statute law, how could they participate in the far weightier duty of framing the organic law of the Republic?" In the case of the fourteenth and fifteenth amendments, the requisite majority was secured through the policy pursued by Congress of requiring from the States late in rebellion, as one of the conditions precedent to their recognition and the admission of their representatives in the Federal Legislature, the ratification of one, and in most instances of both, of these amendments. By this expedient the authoritative settlement of this question was rendered unnecessary.2

187. CAN A STATE RECONSIDER ITS ACTION UPON A CONSTITUTIONAL AMENDMENT?

4

Three States, after giving their consent to the fourteenth amendment, and one after similar action upon the fifteenth amendment, declared through resolutions passed by their legislatures that they withdrew their consent. In all but one of these instances this action was taken before the amendment had been ratified by three-fourths of the legislatures of the several States, and it was contended that such action could be taken previous to the incorporation of the amendment into the Constitution. The Secretary of State, in canvassing the votes upon the fourteenth amendment, being in doubt how such cases should be regarded, issued a certificate reciting the facts and declaring the adoption of the amendment in case the ratification of the two States which had attempted to recall their consent was still to be considered valid. Congress immediately passed a concurrent resolution declaring the ratification of the amendment valid and sufficient, and on the

5

1 Blaine, I, p. 540; 1, pp. 112, 113. Foster, Com. on Const., I, p. 227. The thirteenth amendment "never obtained the requisite ratification," "unless the validity of this action by the governments of the former insurgent States, organized by Lincoln and Johnson, is recognized."

2 Cooley, Constitutional Law, pp. 210-211.

New Jersey, Ohio, and Oregon, but the latter withdrew her consent after the adoption of the amendment. See App., Nos. 1135–1140.

28th of July, 1868, the Secretary of State issued a second proclamation declaring the amendment to be a part of the Constitution.'

4

3

On the other hand, in the case of the thirteenth amendment, one State, which had previously rejected the amendment, reconsidered its action.2 Four similar cases occurred in connection with the fourteenth amendment, and two with the fifteenth amendment, some even subsequent to the proclamation declaring the adoption of the respective amendments. All these States, where the action had been taken previous to the issuing of such proclamation, were included by the Secretary of State in the list of States ratifying.

From the above it would seem that practice has decided that a State having once given its consent the question is closed and it can not recall its action, but, on the other hand, that a State that has rejected an amendment can reconsider its action at any time previous to the incorporation of the amendment into the Constitution.5

188. THE DIFFICULTIES OF AMENDMENT.

In summarizing the results of the attempts to amend the Constitution during the first century of its history, we find that besides the fifteen amendments now a part of the organic law, only four have been proposed by Congress to the States for ratification. Two of these, one on the apportionment of Representatives, the other on titles of nobility, failed of adoption by only one ratification. In addition, nine have passed the Senate 10 and nine the House of Representatives."

8

9

The failure to secure amendments in the past does not seem to prevent the frequent introduction of new proposals to change the Constitution. In the Forty-ninth Congress there were no

Ibid.

2 New Jersey.

3 North Carolina, South Carolina, Georgia, and Virginia.

4Ohio, New Jersey. Pennsylvania reconsidered its action refusing to ratify the amendment in regard to the apportionment of Representatives, the first of the twelve submitted by Congress in 1789. Her first action was taken March 10, 1790. Senate Journal, First Congress, second session, p. 39. Her action in ratification of this amendment October 26, 1791. Senate Journal, Second Congress, first session, p. 11. See App., No. 295.

5 For full discussion, see Jameson, Constitutional Convention, pars. 576-584; also, Cooley, Constitutional Law, pp. 211, 212, with notes.

These constitute but four groups in point of time and purpose.

7 App., Nos. 243, 295, 399, 931.

App., No. 295, ante, par. 22.

9 App., No. 399, ante, par. 99.

10 App., Nos. 409, 485-486, 489-490, 505-506, 535, 545, 1308, 1676, 1691. App., Nos. 228, 230, 345, 359, 1055, 1079, 1250, 1401, 1477.

less than fifty-four resolutions, and in the Fiftieth Congress forty-eight, to amend the Constitution.'

In the light of the history of the different movements to secure amendments, we cannot believe that the expectation of the framers of the Constitution has been fulfilled. Nothing of strength has been added to the Constitution by amendment except in the case of the "reconstruction amendments," and these were carried only after a civil war.3

Why, it may be asked, have so few of the more than eighteen hundred propositions looking to the amendment of our fundamental law been successful? In part because some were suggested as cures for temporary evils, others were trivial or impracticable, still others found a place in that unwritten constitution which has grown up side by side with the written document, and whose provisions are often as effective as those contained in the organic law; but the real reason for the failure of those other amendments which have been called for repeatedly by the general public has been due to the insurmountable constitutional obstacles in their way. "It would

In the Fifty-second Congress even more-64 in the first session and 9 in the second session; 73 in all.

2 Speech of Iredell in North Carolina convention, July 29, 1788: The constitution of any government which can not be regularly amended when its defects are experienced reduces the people to this dilemma: They must either submit to its oppression or bring about amendments more or less by a civil war. The Constitution before us can be altered with as much regularity and as little confusion as any act of assembly-not, indeed, quite so easy, which would be extremely impolitic, but it is a most happy circumstance that there is a remedy in the system itself for its own fallibility, so that alterations can without difficulty be made, agreeable to the general sense of the people." Elliot, IV. pp. 176, 177. The experience of the first few years confirmed this view. In an article in the American Register for 1809, p. 8, discussing the question of amendments, is the following: "There is little doubt that in the lapse of a few generations the Constitution of the United States will undergo a total but gradual change."

3" The sovereign of the United States has been roused to action but once during the course of ninety years. It needed the thunders of the civil war to break his repose, and it may be doubted whether anything short of impending revolution will ever again arouse him to activity. But a monarch who slumbers for years is like a monarch who does not exist. A federal constitution is capable of change, but for all that a federal constitution is apt to be unchangeable." Dicey, Law of the Constitution (4th ed.), p. 140.

4 Such changes must be sought in the statutes, in the decision of the courts, and in the customs and practices of the several departments of the Government. See article by Prof. McMaster in Shaler's United States, 11, p. 500. "It is almost incorrect to say that throughout this period (1804-1865, during which the Constitution was not altered in either word or syllable) "the Constitution was unamended, for it was so expanded by the decisions of Marshall that they amounted to virtual amendments to its text." Report of a committee of the New York State Bar Association, 1890. Reports of the New York Bar Association, Vol. XIII, p. 140.

5. When we consider that these legislatures in turn act through two separate assem. blies, each at all times suitably impressed with its own importance and independence, and generally jealous and suspicious of dictation from the Federal Government, we realize the difficulty of securing the coincidence of so many assemblies and so many minds on a