Senator COLT. That is your inference.

Mr. ADRIAANS. That is the deduction that I draw.

Senator COLT. Well, that is your deduction.

Mr. ADRIAANS. Yes; that is the deduction I draw from Elliott's Debates.

Senator COLT. There is nothing in the language of article 5 itself which positively states any such thing.

Mr. ADRIAANS. Why, Senator, if you read article 5 you will see

Senator COLT. There is nothing there which says that the proposals made by Congress shall be within the limited powers conferred on the Federal Government by the Constitution.

Mr. ADRIAANS. It presents this question which has been debated very frequently in the Congress: Is there a limited amending power or is there an unlimited amending power?

Now I contend there is a limited amending power.

Senator COLT. You belong to that school?

Mr. ADRIAANS. Yes.

Senator COLT. But supposing I should say to you there is conferred upon it certain national powers. You know that.

Mr. ADRIAANS. That is right.

Senator COLT. Suppose that in the development of this Federal form of govermnent the people thought that there should be an additional national power conferred, taking away one reserved power in the State, have you any idea that that was beyond the purview of the amending power?

Mr. ADRIAANS. If the Senator will permit me to use an illustration I can make very clear what I have in mind.

Suppose now if you read the article relating to the declaration of war, the Constitution gives the Congress the power to declare war but it does not give the Congress the power to declare the termination of war. Now suppose that somebody would offer a resolution that would amend that article to read this way: The Congress of the United States shall have the power to declare war and the termination thereof. Then that is a cure of a defective power granted to the Congress.

Mr. Woodrow Wilson contended that the Congress could only terminate the war by a treaty. There was a large number of gentlemen who took the liberal view of the Constitution and said, why, if the Congress can declare war it can declare a condition terminating the war. Yet the language is not there.

Now, that is an illustration of where the Congress could propose such an amendment. Take the other view of the case. Here is somebody who comes in and says, why, the Congress of the United States should have power to provide uniform laws relating to marriage and divorce. Now everybody knows that the laws relating to marriage and divorce are laws that pertain to each State. The Federal Government has no jurisdiction over the laws pertaining to marriage and divorce. There has been much talk along that line in the direction of uniformity, and the American Bar Association has worked along that line to get the States to adopt some desirable uniform law, but they have, on the other hand, been very solicitous to prevent the Federal Government from interfering in the matter.

I would contend, and do contend, that if we are supposed to amend the Constitution of the United States so that the Congress of the United States could pass laws relating to marriage and divorce, that when the Congress was confronted with this proposition it would be the duty of the Congress to call a constitutional convention of the States and let the States propose such an amendment by two-thirds of the States proposing it and three-fourths of the States ratifying it, and then it becomes a part of the Constitution without any action by Congress at all.

Now that is what I call the jurisdictional prerequisite, the first prerequisite, of a valid amendment.

Senator COLT. No; Congress would still have power to direct how this proposed amendment should be ratified under that amendment.

Mr. ADRIAANS. I do not understand it that way, Senator.

Senator COLT. Oh, very well.

Mr. ADRIAANS. I contend that the duty is passed upon Congress to determine if the matter in respect of which an amendment is sought is within the enumerated powers or is it within the unenumerated powers, within the reserved powers. If it is within the reserved powers belonging to the States then the Congress has no function in the matter at all except the one function of calling the constitutional convention. Senator COLT. You would hold that the eighteenth amendment was beyond the power of amendment.

Mr. ADRIAANS. Yes; and the nineteenth and the fourteenth and the fifteenth. Senator COLT. Does that help us at all in considering the question we have here? The Supreme Court brushed those questions aside. You know it was argued by Elihu

Root and other counsel that it was beyond the amending power of the Constitution; in other words, it was a broad fundamental power that ought to go to the States, etc. Mr. ADRIAANS. Well, Senator, I am contending my interpretation of Article V as it was formulated by the constitutional convention.

Senator COLT. Yes.

Mr. ADRIAANS. And I say there were three tests intended to be created by them whereby we might know whether an amendment squared with article 5. I have gene through the first test, which is the jurisdictional test. I claim where it is once apparent that the proposed amendment does not relate to the prescribed powers granted to Congress and is within the reserved powers retained by the States, that then the Congress has no function whatever except to call a constitutional convention of the States to which delegates are selected by each State to attend. The constitutional convention is not in the State, it is a national constitutional convention to which delegates are accredited by every State, and if two-thirds of those delegates propose it and three-fourths of the delegates ratify it, then it becomes a part of the Constitution without any action by Congress at all and is entitled to be enforced just the same as any other amendment.

Now the second test is the proposal test.

The proposal test is that when the amendment is within the enumerated powers granted to the Congress, then it requires two-thirds of both Houses to propose it.

From the very earliest period we have gone astray right there. The first 10 amendments came up under one resolution, and what happened? All three of these tests that I have enumerated were violated in the first 10 amendments. I am in favor of the first 10 amendments, but I say they did not get there right, and since that time those first 10 amendments have been the precedents of all subsequent amendments. Of the first 10 amendments there was a tie vote and the Vice President of the United States cast a ballot on a tie vote.

Mr. LESER. Were there not 12 amendments?

Mr. ADRIAANS. There was one resolution offering 10 amendments at one time.
Mr. LESER. There were 12.

Mr. ADRIAANS. Yes; there were 12, but 2 of them had insufficient ratification and they were dropped.

On that resolution there was a tie vote in the Senate which was decided by the Vice-President in the face of arricle 5, which says there must be a two-thirds affirmative vote.

Then on the eleventh amendment Senator Stone called the attention to the fact that there was not a two-thirds affirmative vote; and later on, when Mr. Jefferson Davis got in the Senate he called attention to the fact that in his judgment two-thirds meant two-thirds of the total membership, and later Mr. Ebenezer Hill, of Connecticut, had the same view.

I have talked with Senator Brandegee, of Connecticut, and he has the same view, that two-thirds means of the total membership.

And right at the threshold, we have not gotten an amendment in our Constitution where there was a two-thirds vote of both Houses, and I am frank to say that in my judgment we haven't got one valid constitutional amendment to-day. They all of them are void; all of our nineteen amendments are absolutely void.

Now, what is the third requisite? The third requisite is a valid ratification.

Right there, Senator, is the question of ratification. There has been a great deal of talk here about whether the ratification should be by constitutional convention. That constitutional convention business relates to the proposal. It does not relate to the ratification.

Senator COLT. But the ratification amendment proposes that it may be ratified by conventions in each State.

Mr. ADRIAANS. Right there, if you will permit me, the fact has been lost sight of by those who have interested themselves in the matter of amendments that a Federal amendment has a duality of function. Primarily it amends the Federal Constitution; secondarily, it amends every State constitution of the whole number of States, as well those assenting as those dissenting. The consequence is that the Federal amendment operates to amend every State constitution.

If there was the word "black" or the word "white" in any State constitution and the fourteenth and fifteenth amendments are valid, then that word "black" or the word "white" was stricken out, and if the word "male" was in any State constitution and the nineteenth amendment is valid, then that word "male" is stricken out.

The consequence is that the secondary effect of a Federal amendment is to amend the State constitution.

We have three classes of States in our Union. The first class is where a tentative amendment is proposed to the first legislature, and is, after passage by the legislature, submitted to the people on a direct referendum.

The second class of States is where the tentative amendment is approved by the first legislature and it is then submitted to the people on an 'indirect referendum, so that the next legislature if elected with reference to the attitude of the people on the proposed amendment, and if the people favor the amendment they will vote in the man who stands for the amendment, and if the people do not favor it they will vote for the man who is against the amendment.

The third class of States is that where the tentative amendment is approved by the first legislature it is then passed on to the second legislature, the following legislature, and if it is approved by two successive legislatures it is then passed to the people on a direct referedum.

There is not a single solitary State in this Union where you can attach an amendment to the State constitution except with the approval of the people.

Now, since the Federal amendment has the effect, the necessary, the logical effect of amending the State constitution, the only deduction that I can draw, is that a Federal amendment should be consistent both with the Federal Constitution and also with the State constitution. If there is any limitation upon the legislature of a State that directs it to do a certain thing in a certain way, that limitation follows upon the legislature and may be shown in the United States Supreme Court as producing an ineffective ratification. In other words, we must judge between an effective ratification and an ineffective ratification.

We have a right to say in the case of Missouri that the constitution of the State forbids the legislature to do anything that embarrasses the autonomy of the State. We have the right to show in the United States Supreme Court when that case comes there for review that that State constitution had been violated, and we have the right to show

Senator COLT. Mr. Witness, how does your discussion here bear on this amendment? The first 10 amendments have nothing to do with State constitutions; the eleventh, about a suit brought by an individual against a State by citizens of another State, has nothing to do with a State constitution; the twelfth amendment changing the manner of choosing a president and vice president has nothing to do with a State constitution. Will you please come down to what you have to say bearing on this amendment here? Mr. ADRIAANS. I am very glad to have you call it to my attention. I am coming right to it now. My proposition is that the proper construction of Article V would prevent the necessity of passing this proposed amendment at all, because I say you can not legally ratify a Federal amendment except in consistency with the State constitution, and since the State constitution requires a referendum to the people and since the Federal amendment has a duality of function, it is absolutely necessary that the proposed amendment shall be in harmony both with the Federal Constitution and also

Senator COLT. But what is the use of our doing something that is right in the teeth of the Supreme Court?

Mr. ADRIAANS. The Supreme Court in the case of Hawke against Smith-
Senator COLT. I did not mean to lead you into that.

Mr. ADRIAANS. The Supreme Court in the case of Hawke against Smith had the two questions before it and they are both found in the same volume, 253 U. S. They sustained the Ohio constitution in so far as it required and permitted a number of people to sue out a referendum as to an amendment of the State constitution. They did not sustain the Ohio law as to a Federal amendment.

My position is that the Supreme Court erred in that decision and what we should do is to correct the Supreme Court. And it has not been the first time that the Supreme Court has erred. They have done it lots of times and they will do it lots of times more, and what we have got to do is to put some judges in there, and, Senator, I hope you will give your vote for some men to be put on that bench who will know when he sees an amendment.

Senator COLT. You would pack the court, then?

Mr. ADRIAANS. No, sir; I would not pack the court, but put men there who would know an amendment when he sees it.

Senator OVERMANN. What is your name?

Mr. ADRIAANS. My name is Adriaans.

Senator OVERMAN. Are you the man who furnished this brief?

Mr. ADRIAANS. Yes, sir.

Senator OVERMAN. Where are you from?

Mr. ADRIAANS. I came originally from Holland. I came here, a Dutchman, to tell you how to amend your own Constitution.

Senator OVERMAN. Where do you live?

Mr. ADRIAANS. I live in Washington.

Senator OVERMAN. You are not a Member of Congress?

Mr. ADRIAANS. No, sir; I would not be in Congress. I would sooner be a lawyer. I would like to call your attention to one thing more to show you how necessary and how vital it is that this question be decided now. I have here a table showing that in the Sixtieth Congress, 62 joint resolutions were introduced to further amend the Constitution; in the Sixty-first Congress, 51; in the Sixty-second, 84; in the Sixty-third, 120; in the Sixty-fourth, 71; in the Sixty-fifth, 87; in the Sixty-sixth, 63; and in the present Congress up to December 30, 1922, there have been 94 joint resolutions introduced to further amend our Constitution.

Now, gentlemen, you are up against it when you find out that 94 different propositions are urging your attention and you do not know what is necessary to make a valid amendment. It is time to come to the hill and see what is necessary to make a valid amendment in order to get the next ones there square.

Senator COLT. Senator Overman suggests the question whether you would demolish the Constitution altogether.

Mr. ADRIAANS. No; all I ask is that you put the correct interpretation on Article V. Senator COLT. Are there any other witnesses?

Mr. WHEELER. We are always glad, Mr. Chairman, to hear from Senator Wadsworth.

Senator COLT. I see Mrs. Frothingham, from Boston, whom I know very well, is with us, and I would like to ask her to say a word.

Mrs. FROTHINGHAM. No; I do not represent any Massachusetts body; thank you, very much.

Senator COLT. Senator Wadsworth.

STATEMENT OF HON. JAMES W. WADSWORTH, JR., UNITED STATES SENATOR, FROM THE STATE OF NEW YORK.

Senator WADSWORTH. Mr. Chairman, I have derived a great deal of information from this hearing, and I am very glad that the case has been so well set forth. It is with some hesitation that I embark upon a discussion of it, even though my discussion will be brief, because, unlike nearly all the witnesses, I have not been admitted to the bar. I am not a lawver and I have not even studied law.

I do not suppose I shall ever be accused of being hostile to a representative form of Government. I, like you, sir, am convinced that in the government of a great nation it is an utter impossibility for the masses of the people to acquaint themselves with the details of legislation. It would be utterly impossible, for example, for 100,000,000 people to pass upon the 130 pages of a War Department appropriation bill. The Committee on Appropriations has sufficient trouble in doing it. And I have never been in sympathy with the movements for the initiative and the referendum and the recall, as applied to complicated legislative problems, whether they be in the States or, if such a thing should be proposed, in connection with the Federal Government. That matter has been discussed a little this morning and this afternoon, and I only refer to it in order to give more emphasis to the fact, which I believe to be a fact, that this proposal is not in conflict with those who believe that the initiative and the referendum, and the recall, as applied to the legislative business of a State, is bad policy. This proposal is merely to retain for the people the power which they had in the beginning and which is fundamental, absolutely fundamental, in its nature.

It is the people and only the people who should create a government. In the first instance, although it was done through convention (that seeming to be a practical way at that time in 1789 and 1790) the people said yes or no to the Constitution of the United States as then proposed. And I hold that when any suggestion is made for changing the structure of the Government of the United States, the character of its powers, the only competent tribunal is the people themselves, who originally created the government and ratified the Constitution. And so, when we propose here that the people of the States shall have a right to vote directly on an amendment to the Federal Constitution, we are doing nothing more nor less than following out logically and consistently the original conception of the Constitution—obtaining the consent of the people who are to live under that Constitution.

You have heard described here this morning and this afternoon some of the extraordinary things which have occurred in connection with the ratification of amendments by legislatures. Regardless of what we think of the merits of recent amendments to the Constitution, I think no fair minded Senator or Member of the House will deny that in certain instances ratification was achieved in defiance of public opinion and by means and methods which can not be defended before any fair tribunal. As I look toward the future, especially as I view some of the amendments that are pending now in this Congress, I am wondering whether the more extended use of those ways and means of securing ratification may not become prevalent in this country.

In the treatment of amendments which may be proposed in the future, the success of recently employed methods will be a great temptation for the employment of them upon a larger scale. And it may very well be that while the great mass of the people are comparatively indifferent to a suggested amendment, groups, organizations, thoroughly financed, politically skilful, well and effectively led, endowed with the ability, financial and otherwise, to obtain publicity where publicity is needed in cases of that kind we might find the most amazing and perhaps destructive amendments adopted to our Federal Constitution.

The modern machinery of propaganda is very, very strong and it is growing stronger. Organizations of all kinds, good, bad, and indifferent, are resorting to it in ever increasing degree, and when the weight and force of propaganda is brought to bear upon a single legislative body, composed of a comparatively few men, in many instances it is almost impossible for that body to resist the pressure.

There is a harbor of safety and refuge, Mr. Chairman, in the voting booth with its secret ballot. As has been said here this morning, propaganda and its agents can not look over the voter's shoulder and guide his pencil. He votes as he thinks best. He may vote mistakenly, but nevertheless it is his vote. And above everything else, when people are called upon in one way or another to adopt or reject amendments to the fundamental law they should be left free to vote as they think best, free from those influences which upon so many occasions destroy all sense of proportion among legislators.

I think I can say that becomingly, Mr. Chairman, because I have been a legislator for 15 years and I know the pressure that has been brought upon me and upon those with whom I have served. Sometimes it is terrific.

There is another side to this that I want to call attention to-it may be somewhat theoretical. We are such an immense Nation with our 100,000,000, and we cover such a huge territory in what we call continental United States that our danger is that we shall be a provincially-minded people. The people in one section of the country have an especial set of interests with which the people in another section are not entirely familiar, and every so often, Mr. Chairman, I think you will agree with me, the spirit of sectionalism arises. As a people we fail to think nationally. The truth of the matter is there is seldom, if ever, presented to the people, except in some extraordinary presidential campaign where issues are more clearly defined than is usual even in that kind of a campaign seldom, if ever, are the American people called upon to pass directly upon one single national question.

Of course, the people could not pass upon the legislative questions which are national or in part national, and, as a matter of fact, only a very very small percentage of legislative questions are completely national. But an amendment to the Federal Constitution is most assuredly a national question.

I think it would be a healthy thing, in addition to being fundamentally right and in conformity with our conception of how constitutions originate-I think it would be a healthy thing, Mr. Chairman, if all amendments to be proposed to the Constitution in the future should be voted upon by the people of these United States in their several States. For upon those referenda, which would consume a comparatively brief space of time-two or three years, according to Mr. Cadwalader's estimate the average voter would be called on to think nationally and to vote on one thing that affected, in the most important degree, his entire country and its future. So I think that this thing is sound fundamentally. I think it is in conformity with our whole conception of Constitution-making. And, further, I think it will have the effect of bringing the people of the United States into a better understanding of the Constitution and its meaning.

We do not teach enough about the Constitution in our common schools, although it is the simplest thing in the world to teach

I hope our Federal Government will never attempt general supervision over education, but I should think that our States would see to it, through their common school systems and other educational agencies, that more is known and understood about the Constitution and the bill of rights. I think one way of expediting such a movement is to restore to the people of the several States the duty of passing upon amendments to the Constitution.

Senator COLT. I wish to say that the committee are very grateful for this attendance, that we have derived a great benefit from the testimony of the various witnesses, and that it does not seem to me and the committee that there is any necessity for any further hearing.

I am in receipt of several communications which I will have printed in the report of this hearing.

(The matter referred to is as follows:)