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The figures for the remaining 12 States are shown in the following table:
The 2,316 legislators in 36 States who can amend the Federal Constitution amount to less than 32 per cent (31.5) of the total number of legislators, 7,403, in 48 States.
To block repeal of any amendment requires only 167 votes in the 13 State Senates of Arizona, Delaware, Maine, Maryland, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Utah, Vermont, West Virginia, and Wyoming. (See table above, Senate majorities.)
Mr. EICHELBERGER. We find that in the entire membership there are just 7,403 members. It does not require a majority of those 7,403 members. It requires a majority in 36 States, and that may amount to 673 State senators and 1,643 State representatives. In other words, 2,316 legislators, or less than 32 per cent of the 7,000 legislators in the entire country can amend the Constitution. And in regard to that I wish to invite the committee's attention to the fact that the Supreme Court has held that the action of a State legislature in ratifying a Federal amendment is a Federal function and transcends any limitations sought to be imposed by the people of the State.
In the case in which that came up, the Leeser v. Garnett case, it was shown in several parts that West Virginia, for example, had violated various rules and also the Constitution. The State Legislature of Tennessee had acted without a quorum. Various other State legislatures had acted in defiance of constitutional provisions.
Missouri, in 1870, as well as Tennessee, and, I think, Florida had, subsequent to the railroading, you might say, of the fourteenth and fifteenth amendments through their legislatures, adopted constitutions which they thought would safeguard them from any such ratifications in the future. But while those constitutional provisions remained in the constitutions of Tennessee, Missouri, Texas, and Vermont, I believe, and everybody probably thought-that is, the great majority of lawyers, as Mr. Wheeler has stated-thought that those constitutional provisions did apply to Federal amendments, we have found out that they do not apply; that the action of the State legislature is a Federal function, and on that Federal function, very strangely, we find but one law. That law is the Revised Statutes 205, I believe, which simply declares that when the Secretary of State of the United States shall have received certificates from the officials of three-fourths of the States he shall proceed to proclaim the amendment as valid to all intents and purposes.
He has no judicial power. He has declared that he has no discretionary power. And the former Secretary of State under the last administration, when asked point blank the question in regard to Tennessee as to whether he would proclaim the amendment on a telegram, declared he would.
And, as Judge Leser has pointed out this morning, in the case of the fourteenth and fifteenth amendments, they were ratified in some cases on a telegram.
And we feel very strongly that that situation should be corrected, this twilight zone. where certificates can be sent in without any State or Federal law covering who shall send in the certificates, and the Secretary of State compelled by law to proclaim an amendment whenever he receives certificates, no matter practically from whom, because in the case of Tennessee, we had the governor sending in one certificate one week saying they had ratified, and in another week sending in a certificate declaring that they had not ratified.
And it seems to me that this twilight zone, where everything goes, where there is no limitation, where you do not need any quorum, do not have to obey any rules, as far as you can see, because the State can not make any, and the Federal Government has not made any, requires something to safeguard the people in somewhat similar form to the amendments which they have made in their various State constitutions, to secure themselves from having changes made without their consent.
In 24 of the States, I believe, they have adopted a referendum clause. Under that clause a certain percentage of the voters are allowed to submit any act of the legislature to the entire electorate, and at least 100 years before anybody ever heard the word "referendum," I believe, applied to popular elections we did have a referendum to the people on the constitutions, their fundamental laws.
Senator COLT. But, Mr. Witness, you would not say that in the view of the framers of the Constitution a referendum on the subject of an amendment to the Constitution would represent the feelings of the convention of 1787, would you?
Mr. EICHELBERGER. That a referendum on
Senator COLT. On an amendment. My reading and reflection has led me to this proposition-that the framers of the Constitution, while believing in a representative republican government, were distrustful of direct votes by the people, distrustful of lodging the power of passing measures and electing officers in the people. Now, we find in the present Constitution that the matter of amendment is referred not to the people but to the legislatures. We also find in the original Constitution that the Senators are elected not by the people but by the legislatures. But, more than all, in the choice of a President of the United States, we find the popular voice is removed three or four stages away from the voice of the people. We find that the choice of a President did not rest upon the votes of the people but rested upon the judgment of an independent body of men, called presidential electors, meeting in each State. Yes, further, those presidential electors were not chosen by the people but by the legislatures of the States. We find the judges of the Federal courts are not chosen by the people. The judges of the Federal courts, as you know, are nominated by the President and confirmed by the Senate. It is not strange that the framers of the Constitution in 1787 were distrustful of what we call primary democracy. Why? Because every form of democratic government that had existed prior to that time had been short lived, and only extended over a small territory.
They had no example to go by and, therefore, they were afraid of the factions of the people, and they organized the Federal Government upon the representative system, that the representatives of the people could make laws better, that the legislatures would choose better senators, that a body of select people, like the Electoral College, would elect a better president.
If the organization that you represent is going back and undertaking to frame an amendment in the spirit of the framers of that Constitution, it seems to me that you are out of harmony with those framers and that this very amendment which you propose is out of harmony, because when they framed that Constitution they provided that the legislatures should represent the States. But times have changed. Popular government has advanced. Why, 100 years ago there was not a popular government except the United States of America on the face of the globe except two or three small Cantons in Switzerland. Great Britain was an aristocracy. But in the last 100 years, and especially in the last 50 years, we have had this decided trend or tendency toward popular government, or democracy, until now we no longer argue that a monarchy is the best and most stable form of government.
It is admitted now that four-fifths of the world, you might say, is governed by popular government. But still, in one sense, it is in an experimental stage. It has not accomplished all that its framers expected it to accomplish, and one reason why it has not accomplished it is the very fundamental reason which I brought out this morning, that while there is oppression the people will rise to a high plane of patriotic endeavor and to an interest in public affairs. But just as soon as you reach a plane of peace, then you find this indifference and apathy on the part of the people, until you find in France they have introduced a measure that a person who does not vote loses his franchise. I think it is in Argentina they are fined for not voting. Thus you find distinct tendencies that you can tell something about; you find a distinct tendency in popular government, as it has been carried on during the last 50 years, that the average citizen is neglectful of his public duties. It seems to be almost impossible to overcome that objection.
I believe in popular government, but at the same time I am not certain but what you will have the same propaganda if you rely upon the referendum to the people, although perhaps not in as acute or aggravated a form as you have in the legislature. You read something from Madison. The framers of the Constitution did not believe in electing a president by the people or electing senators by the people or electing judges by the people. But you know the whole basic frame-work of the Constitution is built upon the representative system.
Mr. EICHELBERGER. Mr. Chairman, I have greatly misled the committee if I have in my remarks brought the chairman to the conclusion that I was preaching Populism or that I disagree with the actions of the constitutional convention as to other matters besides the Constitution. The fathers believed, of course, in a representative government, as the chairman has brought out so clearly, but in the letter of transmittal signed by George Washington on September 17, 1787, it was declared that it was the unanimous decision of the convention that the Constitution should be submitted "to conventions of delegates chosen in each State by the people thereof," and that was done, Mr. Chairman, and when Madison and Hamilton and those great men wrote those articles in the Federalist, and they had those great debates in all the States as to electing and calling those conventions, there was no trouble then about getting the voter to take an interest in constitutional conventions, because he knew that he had a voice. I think that one of the evils or drawbacks of the popular system is because no voter, unless he thinks that he has some sort of a chance, is going to take an interest in any measure, especially where he believes that the cards are stacked against him, and the very fact that there has not been any amendment submitted to conventions in all these 100 years, that while the framers of the Constitution were willing to trust the people to that extent, it seems to me
Senator COLT. To what extent did the framers of the Constitution want to trust the people?
Mr. EICHELBERGER. That they submitted the Constitution itself to conventions chosen by the people.
Senator COLT. Oh, that they submitted the Constitution itself to conventions chosen by the people. Of course, it is "We, the people of the United States."
Mr. EICHELBERGER. That is the one thing we are contending for in this amendment, that principle that the people should have the right to confirm amendments as they did the original Constitution by some form of expressing their popular approval. Senator COLT. I am not going to interrupt you again, but I am afraid I might be misunderstood. You said something about what the framers wanted and I rather disagreed. I thought the framers were distrustful of the people. Now there have been great changes in more than 100 years, and the changes, as you know, have been toward making every government democratic, and I thoroughly share in that tendency, and I am in full sympathy here with this amendment in getting a little closer to the people. I do not know that I would say that the election of senators by the people has produced a better Senate than we formerly had when they were elected by the legislatures. That question is not before us. But to my mind you have demonstrated with regard to amendments to the Constitution that it would be a little better if we could ascertain, in view of what happened as to the last two amendments, what the views of the people are. From what I said about the framers, I do not want it understood that I do not believe the world has advanced along democratic and popular lines since their time.
Mr. EICHELBERGER. Well, that was exactly my point, only very much better expressed by the chairman than I could express it, that we wanted to give the people a chance at least to express themselves on future changes.
In regard to the last amendment, the Senator from Alabama (Mr. Underwood) proposed that it be submitted to convention, and that was defeated. He declared: "We challenge you to go to the hustings.' Well, no one wants to go to the hustings on an amendment if they can get it through in any other way, and that is probably a reason why the framers of this amendment originally submitted it to conventions of delegates and followed the language of the original constitutional convention.
Now, Mr. Chairman, I would like to ask the committee if it would be possible to incorporate the two editorials which I have here? One is from the Nashville Banner, one of the leading papers of Tennessee, and I have just had a letter from the editor of the Banner declaring that he stands by that editorial. It is an editorial which was written when this amendment was first introduced, and it expresses the purpose of the amendment very clearly. And here is another one from the New York Herald, and this table, if the committee will allow that to go in-this table of the legislative votes. Senator OVERMAN. I would like all of these documents to be printed in 8-point type, so it will be easy to read.
(The editorial referred to is as follows:)
A WORTHY AMENDMENT.
[Editorial, Nashville Banner, May 18, 1921.]
Many people of good sense and mature judgment in the United States have felt that there was pressing need of providing some means of preventing recklessness in the adoption of amendments to the Constitution in the future, and to all such the so-called Back to the People Amendment," recently introduced into the Senate by Senator James W. Wadsworth, jr., Republican, of New York, and into the House by Repre
sentative Finis J. Garrett, Democrat, of Tennessee, will seem worthy of commendation. The movement is strongly backed by such organizations as the American Constitutional League, the Maryland League for State Defense, the Constitutional Liberty League of Massachusetts, and other State and national bodies. In brief, the amendment will modify Article V of the Constitution, so that future Federal amendments may be acted upon only by new legislatures, and will provide that "any State may require that ratification by its legislature be confirmed by popular vote." There are three distinct features to the proposed Wadsworth-Garrett amendment that seem entirely worthy of mention and that will certainly be a move toward better things if the amendment is adopted. They are: First, it will apply the "Tennessee plan" to the Federal Constitution of having Federal amendments acted upon only by new legislatures; second, it will apply the "Ohio referendum plan" to the Federal Constitution that the Supreme Court decided, in the Ohio referendum case, could not be applied under the present article; third, it will be submitted to "conventions of delegates chosen in each State by the people thereof, as the original Constitution was submitted by the convention presided over by George Washington, September 17, 1787. It is especially noticeable that the Wadsworth-Garrett amendment will be the first Federal amendment thus submitted to the people since the original Constitution was so submitted and ratified.
There have been other suggestions made along the same line, and they have covered a very wide range of action. In this connection it is hardly possible to do better than quote a paragraph or two from a special bulletin issued by the American Constitutional League from its headquarters in Washington. The league is in favor of the amendment very heartily, but its statements on the subject are remarkable for the impartiality and clear logic they show. The virtues of the new amendment are clearly outlined as follows:
"Various other proposals for the registration of the popular will on Federal amendments have ranged all the way from 'gateway' amendments involving a national 'initiative and referendum' and ratification by Congressional districts to the proposal that a mere majority of the States should have the power to ratify.
"The Wadsworth-Garrett amendment, however, which is the result of months of study and debate on the part of some of the country's leading constitutional lawyers, does not abolish either representative or popular action, but guarantees both. In a State where the people desire action by their legislature alone the Wadsworth-Garrett amendment allows that, providing it is a new legislature in at least one branch. In States like Ohio, where the people desire a referendum to themselves, in addition to legislative action, the Wadsworth-Garrett amendment allows that. The basic idea of the new amendment is not to abolish the convenient method of ratification by legislatures, as all other proposals along this line do, but to guarantee representative legislative action, with a referendum in addition in any State where the people want it.
Recent practical experience with the present method of adopting constitutional amendments have convinced many people of the United States that we need a curb along such lines, and the proposal under discussion seems, by all odds, to furnish us more nearly what we need than anything that has been brought up for consideration. The changes that are proposed in Article V are all such as to increase the power of the people and make it entirely certain that a change in the constitution is wanted by a majority before the same is adopted. The Wadsworth-Garrett amendment seems undoubtedly a move in the direction of more conservative government by all the people, and the American Constitutional League deserves and will receive a great measure of support in its campaign to insure its passage.
Mr. WHEELER. Mr. Chairman, I can only say on behalf of our many citizens who are here present that we are very much indebted to the committee for the careful and painstaking attention they have given to the proposition, and we are very willing to submit the case.
As I have heard Rufus Choate, in the days of my youth, say at the conclusion of an argument to the jury: We thank you for your attention and leave the case in your hands.
Senator COLT. Mr. Wheeler, I trust that you and those present will not think that any expression of views that the chairman has made represents his convictions on the subject. I was merely trying to help along the discussion and perhaps present both sides of the case.
Mr. WHEELER. Mr. Chairman, I am an old lawyer and have been brought up in the courts where the judges asked questions for the same purpose. It has always seemed to me that it aided very much.
Senator COLT. I have been on the bench a great many years and I think sometimes it shows ignorance, because the counsel know all about it and the judges know but very little.
STATEMENT OF MR. JOHN H. ADRIAANS, OF WASHINGTON, D. C.
Mr. ADRIAANS. Mr. Chairman and gentlemen, it has been my privilege for over 30 years to give extended attention to the subject of Federal amendments, and I have written several briefs on the subject. I have a brief here that was presented in the United States Supreme Court touching the fourteenth and fifteenth amendments, giving all the data concerning them, and I am going to leave that with this committee. Senator COLT. Have you several copies of it?
Mr. ADRIAANS. I will get more copies.
Senator COLT. If you will have enough copies for the members of the committee. Mr. ADRIAANS. While I am on that subject I want to say that the Supreme Court left the questions which I presented in that brief undecided, and to-day we do not know what are the essential requisites of a valid constitutional amendment.
For instance, I cite in there the proclamation of the Secretary of State, Seward, in his proclamation of July 21, 1868, of the fourteenth amendment; he himself expressed the view that in his judgment that amendment was not legally adopted. And seven days after that, July 28, 1868, he gave a further proclamation based upon an interim resolution of Congress, and he stated then in the second proclamation that it was his duty as the Secretary of State under the act of 1828 to proclaim the laws of Congress. So that the questions that he raised concerning the validity of the fourteenth amendment are to-day as unsolved and as undecided as they were then.
Senator COLT. You know the court never decides anything except it has to decide upon the case as presented.
Mr. ADRIAANS. Certainly.
I want to call attention, Mr. Chairman-and I want to say in this connection that we could not have a better chairman, from the fact the chairman has been a judge so long that he appreciates these things from a judicial standpoint. I have recently written a book, just about to be printed, on the subject of the Federal amendments. The title of the book is History and Validity of Federal Constitutional Amendments. That is the subject matter of House Resolution 345. I am going to leave that with the committee. And in that book I review all of the 19 amendments that have so far been proclaimed and give the complete history of each. My study of Elliott's debates
Senator COLT. Can you leave a number of copies of that?
Mr. ADRIAANS. They are exhausted. I have sent them all over the country and there is great demand for the book, but it has not as yet been published, and when it is published it will shed a great deal of light on the subject of amendments.
The view that I derive from a careful study of Elliot's Debates is that the framers of the Constitution in formulating Article V as a part of the Constitution intended to create three tests by which we might know whether an amendment squared with that article.
There was the utmost solicitude expressed in the convention lest through the amending power there might be an encroachment by the Federal Government on the reserved powers of the States, and so in framing this Article V, it was intended to frame it in such a way that obstacles would be created to the addition of amendments to the Constitution.
As the chairman very accurately stated this morning, it was intended by calling for a two-thirds vote of both Houses and three-fourths of the States-it was intended by the framers of the Constitution to make it difficult to amend the Constitution and place it beyond the power of a mere majority.
Now, that being so, we then ask ourselves what are those three tests.
The first test is a jurisdictional test. Now what do I mean by that? All through the debate this morning we have advanced the proposition that where there was a provision in Article V for a constitutional convention that related to a ratification. But it does not. It does not relate to the ratification; it relates to the proposal.
In other words, that no amendment to the Constitution could be proposed by the Congress unless it was within the enumerated powers granted to the Congress by the Constitution, by the reserved powers. All those powers that have not been granted to the Congress were reserved by the States. Now suppose that it was intended to amend one of those reserved powers. Was that a subject that could be proposed by the Congress? No.
When the Congress was concerned with the proposition to amend the Constitution the first duty cast upon the Congress was to determine whether the proposed amendment related to a subject within the enumerated powers granted to the Congress by the Constitution. If they found it did not, then it was the duty of the Congress to call a constitutional convention of the States, not in the States, but of the States, and each State was to send delegates to the constitutional convention of its selection.