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[Boston Herald, January 17, 1923.]
A GOOD AMENDMENT.
The one amendment to the Federal Constitution which we most need is that which would improve the process of amendment itself. The situation is now intolerable. The Boston men who appeared yesterday in behalf of Senator Wadsworth's "back to the people" amendment are on the right track.
Our present arrangement is jughandled. A legislature may vote againat the adoption of an amendment, and that action only defers it for future consideration; whereas an affirmative vote settles the question for all time. This is not fair play. The proponents of a change ought not to be able to prevail if they can carry any one legislature, without time limit, no matter how many they lose in the interim. And yet the effect of the Ohio and New Jersey decisions, made just after the Civil War, amounts to that.
Acceptance of an amendment should be accompanied by a time limit, or else provision made for a single test within a given period. In one of the recent amendments Congress specified that the States must signify their approval within seven years. This was probably unconstitutional. Congress had no right to place such a limitation. But there ought to be one. It is hard to conceive of any projected change with any vigilant group of supporters which would not eventually obtain the adhesion of the necessary number of States so long as any one legislature's favor sufficed to offset any number of defeats.
We are not ordinarily strong for the referendum. But we believe it would be a good plan to have an amendment to the Federal Constitution thus ratified rather than by the legislature itslf. There is always such a thing as the point of view of a representative body in distinction from the point of view of people who stand only for themselves. Congress is a representative body; its Members know they are voting in a representative capacity. So far, so good. When the same question comes to the States we think it would be desirable to take a different sort of test, or that which the action of the people themselves rather than of their representatives in the leg islative would afford.
Pass the "back to the people" amendment.
BACK TO THE PEOPLE.
The Senate Judiciary Committee at Washington begins to-day hearings on one of the most important questions relating to popular government that has come up for decision in a long time. This is the back to the people" amendment proposed by Senator Wadsworth some time ago as a check to the vast number of proposed amendments to the Constitution, many of them trivial or absurd, that are continually coming before Congress.
This change, after providing for the present methods of amending the Constitution, either by the usual submission of an amendment to State legislatures, or by the equally valid, but never yet employed, calling of a constitutional convention at Washington to propose amendments to the States, goes on to declare:
"The members of at least one house in each legislature 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 rejected or defeated a proposed amendment any State may change its vote."
There we have the "back to the people" element of the proposition. It is reasonable, logical, and fair. It simply insists that a part of each legislature be elected when the proposed amendment can be made an issue; and it permits a popular referendum to whatever States wish to give their people a chance to express their opinions on matters that vitally concern them.
It is a matter of history that in the adoption of the eighteenth amendment, for instance, large numbers of legislatures were elected with prohibition not an issue in the choosing of their members. It was so here in Massachusetts. And, although we had the referendum, it could not be employed on a legislative act ratifying a consti tutional amendment. So the will of the people on the eighteenth amendment was never definitely known.
It should go without saying in these days of growing political enlightenment that whatever intimately and importantly concerns the people should not go into the organic law of the land without their approval. Legislatures may be really repre
sentative or they may not be. A popular referendum, however, is the final word of a nation's determination. As you can not indict a whole people, so you can not get any further back than its decision.
It is for these reasons that the Post is in favor of the Wadsworth amendment or one that will serve the same purpose.
Senator Wadsworth, of New York, suggests an improvement in the established method of amending the Federal Constitution. He would provide 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 threefourths have ratified or more than one-fourth of the States have rejected or defeated a proposed amendment, any State may change its vote.
Commenting upon the Wadsworth resolution, the New York Herald says:
"These proposed reforms in the method of amending the Constitution are at once conservative and liberal. The rights of the States and of their people are considered. It would not be easier to amend the Constitution and it would be harder for a legislature to fall into the error of ratifying something disapproved by the majority of the citizens of its State. The several States could, if they so desired, use the referendum to confirm the act of the legislatures. At present the Federal Government ignores such referendums.
"If the manner of amending the Constitution were fixed on the lines of Senator Wadsworth's resolution it would end the possibility of an honest legislature mistakenly 'putting over' an amendment not desired by the people of the State. It would give to the States the opportunity to submit great national questions directly to the voters, but only after the legislatures approved.
"The Wadsworth proposal should be put before the States."
The Wadsworth proposal is fair and equitable. It will prevent hasty ratification by legislatures that have not been specifically authorized to act upon an amendment submitted to it. At present a legislature may vote against ratification repeatedly and finally vote to ratify. That is a one-sided proposition. Once it votes to ratify a legislature can not recall its decision.
It is presumptuous for a legislature, elected before a Federal amendment is proposed, to ratify that amendment. This is a callous disregard of popular rights. The Constitution is the people's fundamental law, not merely the fundamental law of officials. The Constitution describes a system of government. Theoretically it represents the settled views of the people as to what their government should be like. Yet by disreputable log-rolling methods, by pressure from lobbies who are responsible to no one but the organizations which they represent, an amendment may be run through without regard to public opinion.
The Wadsworth amendment is fair in that it gives each amendment an opportunity to be thoroughly considered before it is ratified.
A member of the legislature or of Congress has the privilege of recalling and changing his vote. Why should not a State have the same privilege, or right, in respect to constitutional amendments, which usually are far-reaching in character?
POPULAR VOICE IN AMENDMENTS.
The hearing scheduled for to-day will bring before the Senate Judiciary Committee at least one strong declaration in favor of Senator Wadsworth's resolution to regulate the procedure in amending the Constitution. Everett P. Wheeler, former president of the New York Bar Association, will have a very strong body of eastern legal opinion behind him when he speaks for the amending of amendment.
The Wadsworth plan, in order to effect its purpose, must protect the country as a whole against confusion of the Constitution's clarity by the disturbing inflow of incessant amendments. It seeks to do this by regulating and by rendering in some respects less hasty or casual the process by which States ratify constitutional changes that Congress proposes. The plan submits the draft of an amendment to replace the Constitution's Article V. The draft proposes, besides the ratifying restrictions, that the right be given to the State legislatures to initiate Federal constitutional amendment by demand in three-quarters of the whole number of States. But the regulations to control the process of ratification promise to play the larger part in our future. The draft contains a clause permitting each State to require a referendum by popular vote as its final step in confirming constitutional changes. New York stands among
the number of States that require such a vote to ratify changes in their State constitutions. The safeguard of popular vote that protects the people of New York State under Article XIV, of their present Constitution against fundamental changes too lightly made has been actually and vigorously applied in recent years. People believe it a prop to the stability of the State structure. It would seem but natural to them that the still deeper foundations of the Federal Constitution should be likewise anchored against the shifts of legislatures.
The draft provides that at least one house of each State legislature be elected after Federal passage of an amendment before that legislature may ratify. Thereby it assures each State that the lawgivers will not take sudden action before the popular will in the State shall have been interrogated.
A little over three-eighths of the country's 917 State senators and a little over onefourth of its 5,643 assemblymen can ratify a Federal amendment if the vote happens to fall a certain way. A far smaller number of these for the most part not nationally known persons can, under conditions favoring the minority, prevent the repeal of an amendment that the bulk of the country does not want or the passage of one that the country needs. No wonder Senator Wadsworth believes that the time has come for giving the popular voice a direct say in these matters.
[New York Times, January 18, 1923.]
AMENDING THE CONSTITUTION.
"We, the people of the United States," ordained and established the Constitution. In their several States they ratified it. From the process of amending it they seem to have disappeared. In their stead, State legislatures, assuming to act as their agents, without caring to ascertain the will of the people of their several States, are driven by organized minorities, and in some cases ratify in express violation of their State constitutions. After the methods used in the ratification of the eighteenth and nineteenth amendments, how outworn, how ludicrous, seems John Marshall's statement that "the people made the Constitution and the people can unmake it. It is the creature of their will." The rights of States are tossed away carelessly by legislatures acting as "amending agencies" without knowing whether their principals, the people, want an amendment ratified or rejected.
That the action of legislatures which ratify though elected before an amendment is proposed or submitted, of legislatures that ratify an amendment though the constitutions of their States forbid them to vote on it, is constitutionally and legally correct, doesn't alter the fact that the will of the people is not expressed by them. There ought to be some restraint upon the activities of minorities and of "amending agencies that haven't consulted or refuse to obey the orders of their principals. The joint resolution introduced into the Senate by Mr. Wadsworth and into the House by Representative Garrett, and on which the Senate Judiciary Committee has been holding hearings, aims at such restraint. It proposes in place of Article V this sub
"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 Constitution when ratified by three-fourths of the several States through their legislatures or conventions, as the one of 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.
This article is to become part of the Constitution when ratified by three-fourths of the State conventions of delegates chosen by the people in each State. It is at least conservative enough. Both houses of a legislature should be elected before it is properly qualified to act on an amendment; and confirmation by popular vote shouldn't be permissive but compulsory. To that submission of amendments to the people we must come if constitutions are to be creatures of the popular will; and the sentiment of the people of the several States should have an opportunity to manifest itself when it has changed in regard to a particular amendment before that is hopelessly imbedded in the Constitution, subject to be kept there forever by the will of a few legislatures in a few States. Amending the fundamental law ought to be a most serious and not too easy a business.
[New York Tribune, January 18, 1923.]
The criticism of Article V of the Federal Constitution used to be that the framers had made the process of amending too difficult. But the passage of four amendments within the last 10 years has proved that the machinery is workable. Now the question is whether the method is not too facile.
Senator Wadsworth's resolution which is before the Senate Judiciary Committee proposes that no State may ratify an amendment unless the members of at least one branch of the legislature have been elected subsequent to its submission. The people of the State would thus have an opportunity to elect representatives who would express the popular will on the pending measure. There would be effectually a referendum. Such a check on summary action by a legislature elected without specific reference to a constitutional amendment seems entirely consonant with the theory of democratic government. Article V in its present form permits amendment through State bodies which may be unresponsive to prevailing public sentiment.
Senator Wadsworth also proposes that any State may submit the question to its voters, and he would further amend the amending process by making a State's ratification subject to withdrawal before two-thirds of the States (three-fourths being required) have ratified. Second thoughts are sometimes best. Here again the voice of the majority would find means to assert itself. If Mr. Wadsworth's resolution, carried out, would put the responsibility and the power of changing the fundamental law in the hands of the voters, as it appears to do on first analysis, it would be in keeping with present day conceptions of government by the people.
At all events, discussion of the amending apparatus is instructive. Many citizens have the vaguest ideas of it. How many have forgotten that there is a method alternative to the submission of amendments by the concurrent vote of two-thirds of both Houses of Congress? Governor Silzer has just exhumed it, recommending that New Jersey take steps to call a constitutional convention in order that the eighteenth amendment may be altered expressly in favor of beer and wine.
The convention for amendment may be called on the application of the legislatures of two-thirds of the States. But that method provided by the Constitution has never been employed. The other, with which we are becoming tolerably familiar, is the more convenient instrument to use whenever it is found necessary to tinker with "the most wonderful work ever struck off at a given moment by the brain and purpose of man."
MEMORIALIZING CONGRESS TO PROVIDE CERTAIN METHOD OF AMENDING THE CONSTITUTION OF THE UNITED STATES.
[H. C. R. No. 13, House Concurrent Resolution.]
Joining the legislatures of the several States of the Union in an application to Congress to submit to the several States a resolution proposing an amendment to the Constitution of the United States so as to provide that all amendments to the Constitution of the United States shall be submitted to the qualified electors of the several States for ratification or rejection.
Whereas it is clearly manifest that the sentiment of the people of the United States is in favor of submitting all amendments to the Constitution of the United States to the qualified voters of the several States for ratification or rejection; and therefore be it Resolved by the House of Representatives of the State of Texas (the Senate concurring), That the Legislature of the State of Texas hereby memorializes and formally applies to the Congress of the United States, in the manner provided in Article V of the Constitution, to submit a resolution to the several States proposing an amendment to the Constitution of the United States so as to provide that all amendments to the Constitution of the United States shall be submitted to the qualified electors of the several States for their ratification or rejection; be it further
Resolved, That the State of Texas hereby joins the several States of the Union in making this application to Congress.
Resolved further, That the secretary of the State of Texas is hereby directed to transmit a certified copy of this resolution to the several States of the Union, to the Congress of the United States, and to the Secretary of the United States.
NOTE. The enrolled bill shows that the foregoing resolution was adopted by the house of representatives, no vote given; and adopted by the senate, yeas 16, nays 11.
NEWPORT NEWS, VA., January 16, 1923.
Senator LE BARON B. COLT,
Subcommittee of Senate Judiciary Committee, Washington, D. C.:
WOMAN'S CONSTITUTIONAL LEAGUE,
WASHINGTON, D. C., January 8, 1923. Washington.
CLERK TO THE SENATE JUDICIARY COMMITTEE,
MY DEAR SIR: I am advised that the above committee will hold a hearing on the 16th instant on Joint Resolution No. 40, and have been asked by interested parties to appear before the committee in behalf of the resolution. I can not do this, but am handing you herewith a letter on the subject, which I trust you will see reaches them. Should the hearing be printed, please be so good as to put my name on your mailing list and send me some copies of same. By doing this you will greatly oblige,
Yours very truly,
A. S. LANIER.
To the SENATE COMMITTEE ON THE JUDICIARY,
Washington, D. C.
JANUARY 16, 1923.
GENTLEMEN: Permit me to add my word of approval of the Senate Joint Resolution No. 40, proposing certain amendments to Article V of the Federal Constitution.
I do not believe that the present method of amending the Constitution is consonant with the theories and changes wrought in our governmental structure by the results of the Civil War, or that it affords the proper protection to the people, or adequately safeguards the great principles of our institutions.
The General Government is now more National than Federal for all practical purposes, and is, unfortunately, destined to become more so in the future, for the reasons that the State governments are declining more and more in prestige and efficiency, and the tendency of the times is for the people to look to and rely more upon the General Government for promoting the general welfare in all matters pertaining to sociology, economics, and finance.
Never before in the history of human government were the powers of propaganda and of well-organized minorities, and the danger of both more manifest, than at the present time. Never before have we seen our legislatures so dominated by these dangerous and subtle influences, and by them coerced into doing things that are contrary to the better private judgment of the individual members of our legislative bodies.
We have in reality developed in our country governments by minorities, as evidenced by "farm blocs," "labor blocs," and other groups actuated by selfishness, and who have little regard for the general welfare or those individual rights that were supposed to have been at last obtained and made secure in our Constitution after centuries of struggle.
It is just such agencies that have wrecked governments in times past, and through whom the people have lost their individual liberties; and it strikes the thoughtful of to-day that we are rapidly tending in the same directions. Even the courts seem to no longer function, like in the days of the great John Marshall and his contemporaries, as the protectors of our individual and constitutional rights. They, too, have succumbed to the propaganda and noisy insistence of well-organized, militant, and at times fanatical minorities, whom they seem to think speak with the voice of the people, who through their own fault are without voice, organization, or leadership.
The decisions of the United States Supreme Court in the cases of Hawke v. Smith, 233 U. S. 221, and Leser v. Garnett, 42 Sup. Ct. 217, involving the most salutary provisions of the constitutions of Ohio and Tennessee, respectively, were very disconcerting to the friends of popular government. The court held in the Ohio case that the provision in the constitution of that State requiring a referendum to the people upon a proposed Federal amendment was void, and that the people were bound by the action of their own agents in their legislature. And likewise in the Tennessee case that a provision in its constitution requiring that their legislature,