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PROPOSAL AND RATIFICATION OF AMENDMENTS TO THE
TUESDAY, JANUARY 16, 1923.
UNITED STATES SENATE,
SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,
The subcommittee met, pursuant to call, at 10.30 o'clock a. m., in the Judiciary
Present: Senators Colt (chairman) and Overman, of the subcommittee; also, Senator Wadsworth.
Present, also, the following persons: Barton Corneau, representing the Constitutional Liberty League of Massachusetts; Hon. Oscar Leser, of the Maryland State Tax Commission; Thomas F. Cadwalader, of Baltimore, Md.; Everett P. Wheeler, representing the Back-to-the-People Amendment National Committee; J. S. Eichelberger, representing the Woman Patriot Publishing Co.; Mrs. John Balch, representing the Massachusetts Public Interests League; Irving H. Brown, of Plainfield, N. J.; Louis A. Coolidge, of Boston, Mass., representing the Sentinels of the Republic; Mrs. Leo H. Fallon, representing the Women's Constitutional League; Henry H. Glassie, of Washington, D. C.; and others.
The CHAIRMAN (Senator Colt). The subcommittee of the Senate Judiciary Committee has met this morning to consider the joint resolution introduced by Senator Wadsworth proposing an amendment to the Constitution of the United States. We have appointed to-day for a hearing on this proposed amendment. The joint resolu tion relates to an amendment of the present amendatory clause of the Constitution. The resolution is as follows:
[S. J. Res. 40. Sixty-seventh Congress, first session.]
JOINT RESOLUTION Proposing an amendment to the Constitution of the United States. Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article, in lieu of Article V, be proposed to conventions of delegates in each State chosen by the people thereof, as an amendment to the Constitution of the United States, which, when ratified by said conventions in three-fourths of the several States, shall be valid to all intents and purposes as part of the said Constitution, namely:
"The Congress, whenever two-thirds of each House shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Con- . stitution, when ratified by three-fourths of the several States through their legislatures of conventions, as the one or the other mode of ratification may be proposed by the Congress or the convention: Provided, That the members of at least one house in each of the legislatures which may ratify shall be elected after such amendments have been proposed; that any State may require that ratification by its legislature be subject to confirmation by popular vote and that, until three-fourths of the States have ratified or more than one-fourth of the States have rejected or defeated a proposed amendment, any State may change its vote: And provided further, That no State, without its consent, shall be deprived of its equal suffrage in the Senate."
There are a number of those who desire to be heard, and we will hear Mr. Wheeler
STATEMENT OF EVERETT P. WHEELER, REPRESENTING THE BACK-TO-THE-PEOPLE AMENDMENT NATIONAL COMMITTEE.
Mr. WHEELER. Mr. Chairman and Senators, I feel that it is a great honor to be called on to lead the van; but I can assure you that while, in the apportionment, it has fallen to me to speak first, our friends who gather together here from different States of the Union are equally in earnest in asking Congress to recommend to the people the ratification of this proposed amendment.
Let me say in the first place that Joint Resolution No. 40 is the one which, on the whole, after very careful consideration, we have come to think is in the better form. There are some differences between it and No. 21, but I will not go into that, for the time is short. That is the form that we consider, on the whole, is the most desirable; and that, retaining the present provision of Article V in regard to the proposition of amendments and in regard to the ratification of amendments by the States, adds two requirements and one proposition to clear up a dispute that has been pending ever since 1870, but never has been settled.
Senator Cour. I desire also to state that, by invitation, the committee of the House who have, I believe, a similar amendment in charge-have been invited to sit with the subcommittee of the Senate, and the representatives of the House are now present.
Mr. WHEELER. We highly appreciate that they should have come; for certainly the subject is one of very great importance, and we all feel that too much and too careful attention can not be given it.
The requirement, in addition to the present Article V, is that no legislature shall vote upon an amendment submitted by Congress until after the people of the State have been heard in the election of the legislature. The point of that is, as we all know, that when members of the legislature are selected by the people they are chosen for various reasons, often for local reasons, often for their influence in purely local matters, and not with a view to voting upon an amendment to the fundamental law; and it does seem just and right that the people should have an opportunity to vote in the selection of their representatives in the legislatures with reference to the fundamental law.
Senator OVERMAN. How would it do to have the legislature pass it and then have a referendum to the people, the amendment not to be ratified until the people vote in favor of it?
Mr. WHEELER. We propose that any legislature, any State, may require that to be done; and I am frank to say, Senators, that it seems to me for many reasons it would be wise to require that in all cases; but the friends of the proposed change, some of them, have felt that that was going so far that it might be more difficult to get general support for that proposition, and they thought it wiser to leave the regulation of that matter to each State. The proposition is, however, that each State shall have a right to require it.
Senator COLT. Mr. Wheeler, under the present amendatory provision of the Constitution it is within the direction of Congress to submit all amendments to conventions held in the different States.
Mr. WHEELER. Yes; but Congress never has done it. That is the practical difficulty that we encounter. It could be done under the present law, and there are many reasons for doing it. I suppose the reason that has been urged against it is that it would involve expense to call a special convention in each State.
Senator OVERMAN. There would be danger of a convention interfering with its own constitution. If you got a constitutional convention in the States, it might upset everything.
Senator COLT. No. What I am now dealing with is the provision that is in the Constitution for amending the Constitution, namely, Article V. The framers there provided two forms for the ratification of a proposed amendment. One was to submit it to the States, which required a vote of the legislatures of three-quarters of the States; and the other was to submit it to conventions of the States, which, of course, would require affirmative action by three-quarters of those conventions.
Senator OVERMAN. Or by a convention of the whole country?
Senator COLT. No; that is another provision. The present amendatory clause of the Constitution provides two methods of proposing amendments. One method is to have Congress pass a proposed amendment by a two-thirds majority of each House. The framers of the Constitution did not quite want to limit to that form the methods of proposing amendments. As I understand, the framers thought that the States themselves might want to propose amendments to the Constitution. Therefore, it was provided that upon the application of the legislatures of two-thirds of the States, Congress itself shall call a convention, in which all the States shall be represented, for the pur
pose of framing proposed amendments to the Constitutuion. That, of course, would open a pretty wide door, and that never has been acted upon.
Mr. WHEELER. No; never.
Senator COLT. Then the framers of the Constitution went further with regard to the ratification of a proposed amendment, and they provided two methods. One was that it should be submitted to the legislatures of the States and ratified by threequarters of the States; or Congress could direct that it should be ratified by a convention held in each State. The second method never has been adopted, as you know, with respect to the amendments which are already in the Constitution.
Mr. WHEELER. No.
Senator COLT. I notice, however, that in this joint resolution, the Wadsworth resolution, it is proposed, so far as this particular amendment is concerned, to submit it to conventions called in the different States. In other words, so far as this particular amendment is concerned, you have departed from the practice which has heretofore prevailed with regard to the submission of amendments, and have provided that this particular amendment should be submitted to conventions of the States. Is not that true?
Mr. WHEELER. Yes.
Senator COLT. Now I will not interrupt you further.
Mr. WHEELER. Not at all. That is carrying out our general view, which is fundamental, that the people should be heard in regard to changes in their fundamental law. That has been done, as you know, in all the States except Delaware. In every State except that an amendment to the State constitution, after it has been considered by the legislature or in convention, has to be submitted to the popular vote. A very interesting article has just been published in a periodical called the American Constitutional Review. Here it is, the Constitutional Review, for January, 1923. It is published in Washington. Mr. Black is the editor. I should be very glad to
call the attention of the committee to the article on "The
formation of the first State constitutions," which shows clearly that at that time, as long ago as 1776, the people of this country generally were convinced that in the formation of their constitutions they should be heard. There is no question of that as a historical fact. Senator OVERMAN. Let that article be put in the record.
Mr. WHEELER. Yes.
(The article referred to will be found printed at the end of this hearing:) Senator COLT. Mr. Wheeler, you are here to present this case to the committee, to convince the members of the committee, to show the importance of it, and as a member of the committee I should rather like to take the other side just for a moment, so that you may answer or convince me in regard to it. I want to start with this proposition that I hesitate to change the Constitution of the United States unless for very strong reasons. I feel that the framers of the Constitution were the strongest body of men that ever met to frame a form of government.
In this article that we are considering in regard to amendments they made the Constitution of the United States more difficult to amend than any constitution of this nature which has been framed since that day. The majority should not controlno. It requires two-thirds of each House of Congress. It further requires a ratification by three-quarters of the States. That, on the face of it, makes the Constitution most difficult to amend.
Consider for a moment that this is a popular form of government; that we are dealing with the organic law of a democracy. We naturally turn, therefore, not for guidance but for instruction, to other popular governments. We find that Great Britain, Italy, Belgium, Holland, the Scandinavian countries, and New Zealand treat a constitutional law on a parity with a legislative act, and therefore the constitution in those countries is changed the same as a statute is changed. We find in France that the constitution is changed by a vote of the two houses of Congress in grand committee. We find that in Canada the constitution is changed by the act of the Imperial Parliament of Great Britain. We find, however, that in Switzerland the constitution is amended by a referendum to the people. We also find that that method prevails in Australia.
It does not, however, prevail in this country under the Constitution of the United States, though it does, as you say, prevail with respect to amendments of the Constitutions of the different States. But the framers, according to my understanding, had an idea that this was a Federal Government, a union of sovereign States, who gave up certain of their sovereign rights for the purpose of forming a national government; and therefore the framers dealt with the legislatures of the States as representing the States, or with conventions held within the States as representing the States; and there is no provision in the Constitution under which the people may vote directly on the question of an amendment.
I am perfectly aware of the tendency in the development of popular government in this country to fall back more and more, finally, upon the vote of the people. We see that tendency in the election of the President. I might say that out Constitution is modified in three ways: It is modified by construction by the Supreme Court, as, for example, by enlarging the meaning of the word "commerce, or by extending the scope of the taxing power. It is also amended, and amended fundamentally, by
The method of the election of President provided for by the Constitution practically has broken down. The Constitution contemplated that the Electoral College should exercise their own judgment in the election of President. We know now that through the agency of presidential conventions and through the popular vote for electors the Electoral College simply registers the will of the people of the different States. We know that in the election of Senators through the agency of primaries, before the constitutional amendment was adopted, the legislature did not choose the Senator in fact, but merely recorded the will of the people as expressed in the primaries. We know that the provision whereby the President shall nominate, and, by and with the advice and consent of the Senate, shall appoint officers, operates in such a way that no advice is given in the case of the Cabinet when a President comes into power. The members of the Cabinet are confirmed as a matter of course. I am only saying that the Constitution is modified not only directly through amendment, but is modified also through construction and through usage.
In the present condition of popular feeling in this country with regard to the Constitution I think there is a very strong body of public opinion that believes we ought to let it alone for awhile. I am only dealing with that phase of it. I am not expressing my own convictions on any of these points. I am merely trying to state the conditions with which we are confronted. The Constitution has been amended four times since 1813, between 1813 and 1920; and, as you know, more than 100 years elapsed before there was any change in the Constitution, from 1804 until 1913, except the three amendments growing out of the Civil War. In view of the number of amendments that have been passed since 1913, there is a pronounced public opinion to the effect that very strong and urgent reasons should be required for any further amendment to the Constitution.
With this too full digression, I wish you would proceed with your testimony.
Mr. WHEELER. This amendment, Mr. Chairman and Senators, is designed to meet the very condition to which your chairman has referred. Undoubtedly there is a general feeling that some of the recent amendments have not been the expression of a general public sentiment, but have been lobbied through legislatures by wellorganized minorities. I have seen, myself, in the legislature of my own State, in New York, committees representing particular interests pressing eagerly and zealously upon legislators, following them up to their houses and to their committee rooms, and, with a pressure that it was very hard to resist, endeavoring to secure, and in fact securing, their votes in cases where, if left free and unbiased, they would not have voted.
That is a condition. There is a sentiment, very strong and very just, that that is an evil condition; and that is something that our fathers who framed the Constitution could not have foreseen. It is possible only as a result of the great development in transportation and the great development of communication. We have the railroads, we have the telegraphs, we have the telephones, and we are beginning to have the airplane.
Senator COLT. Mr. Wheeler, I will not interrupt you after this, but now you are upon the point of propaganda.
Mr. WHEELER. Yes.
Senator COLT. Let me ask you this: Will there not be the same propaganda when the people are allowed to vote that is now addressed to the legislature?
Mr. WHEELER. It is not possible.
Senator COLT. Well, now, one moment. Will you also, if you can, relieve my mind of this problem:
The fundamental defect in a popular government when the people are not aroused by war, but in time of peace the fundamental defect, which I do not know how you can overcome is the indifference, the apathy, the indolence, the neglect of the average citizen so far as his civic duties are concerned. If you will turn to the referendums on constitutional questions, whether in Switzerland or in the United States, you will find that it is a very rare instance when 50 per cent of the qualified electors have voted. You will find, I believe, as a matter of experience, that it is extremely difficult to get the average citizen especially interested in a constitutional change.
That premise leads to this: If you go to the people you will find that, owing to their indifference and indolence with regard to these questions, the propagandists, whether in favor of woman suffrage or in favor of prohibition, will have practically the same advantage that they have when they apply the propaganda to the legislature. I mean simply this, that I do not think you will realize the result that you hope to realize from having a popular expression in this form upon constitutional amendments.
Mr. WHEELER. Well, I have studied that subject very carefully, Mr. Chairman. It seems to me you overstate the case. At our last election in New York State much more than 55 per cent of the qualified electors voted on the constitutional amendments that were presented to us. They were not fundamental, but they were important, and we got out a very large vote. It is true you do not get out as large a vote on a constitutional amendment as you do for the man at the head of the ticket. That is one of the peculiarities of the average man that it is hard to account for. It certainly is a great deal more difficult to bring that personal influence and that pressure and persuasion home to an electorate of nearly 3,000,000 people, as we have in New York-smaller in number in other States, but large in all of them.
We have in our State senate in New York 51 members. There are 51 persons up in Albany and you can bring your batteries to bear on each one of those 51, but when it comes to the 3,000,000 voters through the State it is a different matter. I am convinced of that.
I have been in politics a great deal in my time, and I trust on one has ever been able to accuse me of that indifference of which you speak. I have certainly tried to do my share and I think I have done it, and therefore I think I am qualified as a witness. And I say you can depend upon it that when you have a campaign, when there are meeting on both sides and arguments presented on both sides, you do bring out the popular judgment, which is, on the whole, a great deal fairer than when there is made an attempt by persuasion and propaganda to push a particular measure through a limited number of legislators. You have there, in the latter case, a compact wedge without any definite and well-organized opposition.
But when it comes to the popular election and the discussion that precedes it you have an oppportunity of organizing the opposition, and it makes itself felt in public meetings and in the press, and you do get a pretty fairly intelligent expression of the popular judgment through the popular vote.
I do not mean to say that there have not been some minor amendments of the Constitution that have been neglected. I think it is one of the faults of this country that we try to regulate too much by amendments, and I agree entirely with the thought that we do not want to make any more amendments than are necessary. It is proposed here to regulate that for the future with reference to all these various amendments that are being pressed at this time. There has been one on hearing before this committee for several days, there are others that are being brought forward and discussed, and there will be others in the future.
We have an active people, full of thought, full of ingenious propositions. There is a large leisure class in this country, the professional reformers, as I call them sometimes, who find their occupation in trying to promote changes, and who have not had practical experience in life and do not realize the value of practical experience, and that is a class that can exert and does exert a very powerful pressure in legislative halls. You see them here in Washington, we see them in the capitol at Albany, and every State would tell the same story.
I want to say one thing more in regard to this pending proposition and about your very enlightening statement how changes have been effected. I am myself convinced from a very careful study of the debates on the framing of the Constitution, that if it had been submitted to the conventions in the eighteenth century as to whether the term that we were putting into the Constitution "The legislature of each State" meant a legislature without control, a legislature not subject to regulation by law, that convention would have said that it did not.
I venture to say that down to the time of the decision of the Supreme Court of the United States in Hawke v. Smith, in 253 U. S., page 221, the general impression in this country was that the action of the State legislatures in reference to constitutional amendments was subject to regulation by State constitutions. I was one of the counsel in that case, and I confess I thought the decision of the Supreme Court of Ohio, that it was competent for the people in Ohio to regulate by constitutional provision the action of the State legislature, was valid. I think the great majority of lawyers, as far as I can judge, and I meet a great many lawyers at the annual meetings of the American Bar Association-I think a great majority of lawyers were of that opinion. They took the view that the "legislature" in this phrase in the Consti