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to pass on a proposed amendment to the Federal Constitution, shall have been elected subsequent to the submission of such amendment was void. These provisions were wise and salutary, as proven by the events out of which these cases grew, and it is difficult for the practical mind to comprehend the reasoning in these cases, or how they could be in conflict with the fifth article of the Federal Constitution respecting amendments to the same. It looks in these cases as if the court had succumbed to the clamor of the noisy minority, supported by the executive authorities of the governments and the politicians who were competing for votes without regard to fundamental right or the best interests of constitutional government.
There is no question of greater fundamental importance to the people than amendments or changes in the constitutional structure of their government.
Our Constitution was the product of very wise minds, acquainted with all the precedents and experiments that had been made in human government in past ages. They were familiar with the causes that had brought disastrous failure, and had made men despair of ever securing orderly government under which the life, liberty and property of the individual would be safe, and protected from arbitrary power of kings, nobles, or what not. They had personally suffered from the oppressions of arbitrary rule, and of unjust government; and it was their purpose out of this abundance of knowledge and experience to create among us a government under which would be secure and safe-guarded individual liberty, and the right of the people to rule over themselves, not only for themselves but for posterity as far as they could be declared and safe-guarded in a government controlled by a written constitution.
The present generation seem ignorant of and indifferent to the value of these great principles bequeathed to them. Change and innovation appear to be the order of the day with a daring contempt for the lessons of the past, and with a reckless indifference to the results or consequences of the future. A so-called reform will dazzle the imagination of some of our people, who will want it regardless of the results like a child that cries for a pretty but dangerous toy, and when they are reminded of constitutional limitations that were designed to prevent in their interests the very things they desire they think the Constitution is obselete and a stumblingblock in the path of human progress, and begin to denounce it, and secure its change to meet their untutored wishes by organization and insiduous propaganda.
The primary purpose of this resolution is to preserve popular government, and to the people the right to determine more directly the changes that shall be made in their organic law and the charter of their liberties. It is inconceivable that any intelligent person who desires solely the general welfare could oppose this resolution. It preserves the federative theory of our institutions, but at the same time secures to the people the right to pass upon proposed amendments, and then only after an opportunity to thoroughly discuss and consider them, thereby insuring greater wisdom in their action, and minimizing the power of the propagandist, and the influence of the organized and militant but selfish minority.
This is secured in conformity with that provision of the Constitution of Tennessee, which was destroyed by the Supreme Court of the United States, 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; and that any State may require that ratification by its legislature be subjected to confirmation by popular vote." by the provision allowing a State to change its vote if done before the proposed amendment shall have been ratified or rejected as therein provided.
In the light of recent events the value of the resolution seems too manifest to need argument or debate: and as a means to safe-guarding the ark of our covenant and the charter of our liberties it is my earnest hope and request that it be favorably reported by your honourable committee.
[From American Bar Association Journal, July, 1922.]
PROPOSED CONSTITUTIONAL AMENDMENT.
A. S. LANIER.
BROOKLYN, N. Y., May 5.-To the editor: There is now before Congress a proposed amendment to the Federal Constitution introduced by Senator Wadsworth, of New York, and Representative Garrett, of Tennessee, known as the new Bill of Rights amendment, to which every lawyer or layman who believes in preserving the "home rule," "local self-government" plan of our Federal Constitution and is opposed to a "consolidated National Government" with an "omnipotent Congress," such as the fathers feared and believed they had forever safeguarded themselves against, should give his approval and support.
It provides (1) that no State legislature shall vote for a Federal amendment unless at least one house thereof was elected after submission, thus compelling them to give their constituents some say in the matter. This adopts the rule of the Tennessee State constitution, which the Supreme Court struck down in Leser v. Garnett; (2) it also permits any State to submit a Federal amendment to popular vote. This adopts the principle of the Ohio State constitution, of which the Supreme Court made a "scrap of paper" in Hawke v. Smith. The vital necessity of "recalling" these two decisions by adopting the Wadsworth-Garrett amendment becomes apparent when we consider that out of the 38 legislatures which ratified the nineteenth amendment 34 were elected on other issues before it was proposed by the Congress, and therefore had no semblance of a popular mandate for their act. While a very considerable number of State legislatures similarly lacked a mandate from their people when they ratified the eighteenth amendment.
This proposition will go a long way to preserve the "Federal" nature of our Union and prevent further "irresponsible government by constitutional amendment" by legislatures who undertake to pass local "laws" for other constituents than their own, some of them 3,000 miles away from the persons their action affects-a process the very antithesis of "self-government" and essentially tyrannical and undemocratic in its nature.
GEO. STEWART BROWN.
[From American Bar Association Journal, October, 1922.]
ON AMENDING THE CONSTITUTION.
STOCKTON, CALIF., July 25.-To the editor: In the issue of the Bar Association Journal for July, 1922, my attention is attracted to an article on page 448, column 2, thereof, written over the name of Geo. Stewart Brown, which concerns a certain proposed constitutional amendment, and which said amendment was proposed by Senator Wadsworth, of New York, and Representative Garrett, of Tennessee.
Directing your attention to this said article, it would seem that while that proposed amendment should receive attention and support, still, in adherence to the psychological essence of our Federal Constitution, there seems to be cause for caution with respect to the said proposed amendment in this:
First, it would seem under the general understanding and purpose of strict republican representative form of government that legislators, like other public officeholders, should be entrusted to act upon such business as may come before them in an official way, regardless of whether the proposition to be acted upon was proposed before or after their election to office, so long as the proposition comes properly before them within the scope of their official duty. This, on the theory that we have enjoyed the fruits of what our forefathers outlined as a great republican representative form of government and faith in our representatives, whether they be of State or Federal, should remain firm during their incumbency with regard to all matters officially coming before them. Second, while I am personally in harmony with the States having power to submit a Federal constitutional amendment to their electorate, that in itself does not leave the proposition secure, but such power should be qualified by providing that notwithstanding such submission to any State electorate the amendment should not be considered as ratified by any such State except that the legislature ratify the same in the mode now prescribed by the United States Constitution, for without this qualification we would lead up to a condition by which we would subject the United States Constitution and amendments thereto to a hazard akin to the initiative.
A proper understanding of the United States Constitution is obtained only by a careful study thereof, in conjunction with a study of American history and preceding British history, that we apprise ourselves of the conditions which led to, and existed at the time of, the preparation and inauguration of our United States Constitution. There seems to be a general tendency outside of the legal fraternity to amend the Constitution with greater ease, but I believe that on the contrary it is only proper and would constitute the greater and more logical safeguard to our Republic to make amedments more difficult.
[From American Bar Association Journal, January, 1923.]
THE WADSWORTH-GARRETT AMENDMENT.
G. C. ALLEN.
BALTIMORE, MD., October 31.-To the editor: In the issue of your journal for October, 1922, on page 649, there appears a letter from Mr. G. C. Allen, of Stockton, Calif., criticizing the proposed Wadsworth-Garrett amendment to Article V of the United States Constitution. Mr. Allen deprecates the tendency either to limit the scope of the
powers of legislatures, and hence their sense of responsibility as representatives of the people, or to substitute for that responsibility the appeal by the referendum to the irresponsible individual voter.
I fully agree with his sentiments but not with his construction of the proposed amendment, for it seems to me that this measure carefully avoids giving way to either tendency. The necessity for legislative ratification of Federal amendment is just as strong under the Wadsworth-Garrett amendment as under the existing article. The only substitute permitted is, as now, ratification by conventions to be called in each State for the purpose, if Congress chooses that method. A noticeable improvement is that in the always possible event that a national convention for proposing amendments should be called, that convention may exercise the choice, now limited to Congress itself, between the two possible means of ratification.
The principal changes to be wrought by the Wadsworth-Garrett amendment are, first, to require the submission of amendments to substantially new legislatures, instead of hold overs, and, second, to permit the States to hold referendum elections after ratification by their respective legislatures. These elections can not operate as substitutes for legislative ratification, but merely afford to the voters a practical veto power over ratifications in defiance of their sentiments. They can not ratify what the legislature has rejected, but may reject what the legislature has ratified. Even this can only be done if the State constitution or statutes provide that it may.
The first provision for a legislature with a fresh mandate is not only in line with our early institutions where legislative elections were much more frequent than now and hold-over legislatures almost unknown in many States, but is also in accord with the workings of the present British constitution. In England constitution changes, such as the abrogation of the veto of the House of Lords, by common consent require a general election and adoption by a House of Commons bearing a fresh mandate on the issue. It surely is a proper provision to afford the people a voice as to the constitution or form of government they are to live under, especially since amendments with us are practically irrepealable.
T. F. CADWALADER.
[Address by Senator Charles S. Thomas before New York State Bar Association, January, 1920.] The Articles of Confederation between the original Colonies were ratified in 1781. They christen the Confederacy as "the United States of America." They begin and end with a declaration of "perpetual Union." Their scheme of government, having proven wretchedly ineffective was succeeded by the Constitution of 1787, whose first and controlling purpose was "to form a more perfect Union." It was born of an imperious necessity and molded by political conditions altogether unique. The people of 13 independent sovereignties yearning for domestic tranquillity, needing a common defense, anxious for the general welfare, and determined to secure the blessings of liberty to themselves and their posterity, ordained and established it. Ardently jealous of their own prerogatives, they delegated to a Federal Union a few comprehensive powers; and by appropriate amendments immediately adopted, expressly reserved all others to the States respectively and to the people. The "more perfect Union" thus formed supplanted the original imperfect United States of America. Amid the conflict of opposing views entertained by the members of the convention which framed the Constitution one was ever predominant. Its cleavage ran through the entire membership. On the one side were those with whom the principle of State sovereignty was controlling. These opposed its diminution only so far as needed additions to the Articles of Confederation seemed essential. Upon the other were ranged those whose experience rejected these articles in toto as wholly unsuited to any efficient scheme of goernment, and who therefore demanded the merger of States into a nation equipped with sovereign authority, sharing its powers and responsibilities with no subordinate organizations. Neither of these positions was tenable. The wisdom and practical common sense of the delegates and the exigencies of the occasion compromised the conflict. The autonomy of the States was harmonized with the government of the Nation by correlating their powers and jurisdictions. The central Government became the custodian of all subjects of common interest, of foreign affairs, and the like, while the States reserved their sovereignty over all matters of internal and domestic concern. The National Government with ampler power would act upon the citizen, while the older Confederation with much less power acted only upon the States. These were independent of the Confederation but are subordinate to the Union in all matters assigned to its authority. Both Governments "are in fact but different agents and trustees of the people, constituted with different powers and designated for different purposes."
It is common knowledge that the bitter opposition which the new Constitution encountered upon its pathway toward ratification centered largely around its apprehended effacement of State sovereignty. The people, sensitive to the need for unqualified control of their own Government agencies, quick to imagine and to repel any encroachment upon their newly acquired freedom, readily listened to every suggestion of undue influence or authority delegated to a superior State. Hence the advocates of the Constitution were compelled not only to combat these apprehensions, but to pledge the immediate adoption of amendments clearly and unequivocally defining the limitations of Federal power and safeguarding the States against all invasion of their reserved rights by the General Government. Thus Mr. Hamilton declared that "the proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty by allowing them a direct representation in the Senate and leaves in their possession certain exclusive and very important portions of sovereign power." Mr. Madison was equally emphatic. He said: "Several important considerations have been touched in the course of these papers which discountenance the supposition that the operation of the Federal Government will by degrees prove fatal to the State governments. The more I revolve the subject, the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale."
Mr. Madison also declared that the State governments would have the advantage of the Federal Government in any conflict of authority whether we compare their immediate dependence on each other, the weight of personal influence on each side, their respective powers, the predilection of the people, or the faculty of resisting the measures of each other. He thought that the principal branches of the Federal Government would owe their existence largely to the favor of the State governments, thus feeling a dependence, a too obsequious rather than overbearing disposition toward them; emphasized his conclusions by what now appears the humorous assurance that the number of persons employed by the General Government would be so much smaller than the number employed by the States that there would be "much less of personal influence on the side of the former than of the latter." And he encompassed the whole argument in this summary:
"The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiations, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people and the internal order, improvement, and prosperity of the State. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of new powers to the Union than in the invigoration of its original powers. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose and from which no apprehensions are entertained."
In the light of history it may be safely asserted that the commerce clause of the Constitution to which Mr. Madison so briefly refers embodies the most far-reaching and tremendous powers possessed by the Federal Government.
The arguments and the assurances of the proponents of the new Constitution proved ultimately persuasive. It was ratified, and the first 10 amendments were almost immediately proposed and accepted. These were made possible by Article V, which provided methods for proposing and accepting amendments. Certain limitations were placed upon the power to amend, the most important of them being that no State without its consent shall be deprived of its equal suffrage in the Senate. This, coupled with the 10 amendments, and notably the ninth and tenth, seemed to establish adequate barriers against Federal invasions of State sovereignty.
But in 1793 the Supreme Court entertained jurisdiction of the great case of Chisholm v. Georgia, by deciding that a State may be sued therein by a citizen of another State
and judgment entered against it, in default of an appearance. This aroused a new storm of protest, widespread and alarming. It culminated in the adoption of the eleventh amendment in 1798, which declared that the judicial power of the United States should not be construed to extend to any suit in law or equity against any one of the United States by citizens of another State or the subjects of a foreign State. This closed the last gap to Federal aggression against the reserved rights of the States and the issue was seemingly determined. The limitations of national power were strictly defined, and made to conform with the reserved authority of the States. Only powers arising from necessary implication lay without the pale; and these, though of great importance, promoted more than they disturbed the development of the new Republic.
The right of secession from the Federal Union, confidently asserted and as confidently challenged, by different States at different periods, came to a final and bloody issue in 1861. Slavery was but an episode in that mighty struggle. That it provoked the issue was unfortunate, for the passions it engendered gave it undue prominence and obscured the fact now so clearly perceived that the conflict involved the integrity of the Union. It could be determined only by the sword. No other tribunal than the ordeal of battle could settle it. The ultimate trial by war was inevitable: it came with the exhaustion of controversy, and finally vindicated the indestructability of the Union.
The settlement of this mighty problem involved no invasion of the domain of reserved powers to the States. It rather emphasized their exclusion from the domain of the national sovereignty. Their separate authority and essential existence as an indispensable element of the Union was announced by the Supreme Court of the United States very soon after the Civil War, in the great case of Texas v. White, 7 Wallace 700. I quote from the opinion of Chief Justice Chase:
"The perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence or the right of self-government by the States. Under the Articles of Confederation each State retained its sovereignty, freedom, and independence and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still all the powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively or to the people. And we have already had occasion to remark at this term that 'the people of each State composé a State having its own government and endowed with all the functions essential to separate and independent existence,' and that 'without the States in Union there could be no such political body as the United States.' Not only, therefore, can there be no loss of separate and independent autonomy to the States through their union under the Constitution, but it may not be unreasonably said that the preservation of the States and the maintenance of their governments are as much within the design and care to the Constitution as the preservation of the Union and the maintenance of the National Government. The Constitution in all its provisions looks to an indestructible Union composed of indestructible States."
This vigorous doctrine was in 1907 reemphasized by Mr. Justice Brewer, speaking for the Court in Kansas v. Colorado (206 U. S. 46). The principle may not have required the sanction of that great tribunal, but when thus fortified it must be accepted and maintained by governments and by the governed.
Yet the pendulum has swung during the past 50 years toward the enlargement of the national prerogatives. Under a generous construction of the commerce clause and those relating to the public lands, the Congress has mightily extended its activities and assumed control of subjects clearly within the jurisdiction of the States. It has developed a police power necessarily incident to the exercise of its domestic legislation, sometimes supplementing, sometimes colliding with that of the States. It has multiplied and frequently duplicated statutory offenses. It has excluded the operation of State laws over vast regions of the public domain within their boundaries, while the Federal courts under the sweep of the fourteenth amendment have extended their jurisdiction even as Jefferson prophesied more than a century ago. Federal bureaus and Federal agencies have increased and multiplied until they share in or dominate the administration of many afairs wholly foreign to the purpose and to the genius of the central authority.
Yet it must be said that all these activities have been sanctioned by the approval of the courts as within the scope of duly delegated constitutional power; and many of them have been undertaken with the approval or by the invitation of the States; many of which too readily surrender their prerogatives to the Congress, thus avoiding the expense and the effort required for their exercise. The Federal Treasury has become the agency for this transposition of power, with appropriations as the watchword and diminishing local government as the consequence. This condition is not creditable either to American spirit or American patriotism, but it exists and is progressive. So general has it become that the measure and the limit of legislative authority seems to be the will or discretion of the Congress.
But the people have recently made a radical departure from legislative to constitutional encroachment. The event is embodied in the eighteenth amendment, popularly known as the national prohibition amendment, and designed through appropriate Federal legislation to prevent further indulgence in alcoholic beverages. This embodies a revolution in our constitutional scheme of government, quite as important possibly, and destined to prove as far reaching in its political consequences as the war between the sections. That it is peaceful and not bloody makes it none the less formidable; for as we have seen that the former conflict involved the integrity of