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upon State authorities the vital need for the assertion and exercise of all their constitutional prerogative, and upon the people the equally vital need of retiring all who neglect this overpowering duty. We can require the Federal authorities to observe and obey the limitations of the Constitution. We can forecast the consequences that must ensue once the barriers reared against the transient outbursts of passion or of emotion, or the ill considered desire for immediate change in governmental structure shall have been overthrown. We can revive in American hearts and homes that reverence for our institutions, that love of justice, and that appreciation of liberty regulated by law which are the bases of the prosperity of the communities, the happiness of peoples, and the greatness of nations. Now, as never before in our country's history, should we recall the solemn warning and heed the sagacious counsel of the Hebrew prophet:

"Keep in the old paths, walk in the ancient ways; observe them well, and be ye not given unto change."


[Editorial, Baltimore Sun, June 29, 1922.]

Now is the opportune moment for the friends of constitutional government to move to take out of the Judiciary Committee, where it has slumbered long enough, and put on its passage the new bill of rights amendment, House Joint Resolution No. 69, introduced in the House by Finis J. Garrett, of Tennessee, and in the Senate, as Senate Joint Resolution No. 40, by James W. Wadsworth, jr., of New York. These bills are intended to (1) prevent any State legislature from ratifying a Federal amendment unless at least one house thereof was elected after its proposal by Congress, thus giving their constituents some say in the matter; and they are designed (2) to permit any State to submit a proposed Federal amendment to popular vote.

While this neither affects any pending controversial issue nor digs up any old issues, it safeguards the Constitution for the future. At least 13 State legislatures elected on other issues before it was submitted by Congress, ratified the eighteenth amendment without a popular mandate. Thirty-four of the thirty-six legislatures which ratified the nineteenth amendment were likewise elected upon other issues before it was proposed by Congress. Five of these ignored express provisions of their own State constitutions forbidding them to ratify. Thirteen of them ignored unfavorable referenda by their own people against State suffrage.

No statesman up for reelection, now mindful as they all must be of the newlyawakened interest in preserving our Federal plan of government, would care to vote against this proposal and thus admit he was opposed to popular government on constitutional questions.

Now is the time to protect the Constitution from future assaults by well-organized minorities. It is in line with the awoved declararion of President Harding favoring a return of "constitutional principles" and should be supported by the leaders and members of both parties.

If the prohibitionists insist that because they obtained the eighteenth amendment without a popular mandate, all other well-organized minorities must be allowed the same privilege, they should be put on record, for then they are self-confessed "enemies of the Constitution" and admit thay are opposed to "popular government" and to our strictly Federal plan. They will hardly dare to assume such an untenable attitude.

Let us have a roll call on the issue as to whether the Constitution is to be preserved. The Wadsworth-Garrett new bill of rights amendment raises this issue squarely, so that none can evade it.


(1) Because it guarantees representative government, by providing that only legis latures of which at least one branch is elected on the issue shall hereafter ratify Federal amendments.

(2) Because it permits a referendum in addition to legislative action, in any State that desires such referendum, without forcing a referendum on States that do not desire it.

(3) Because it restores to the people their basic right to make and alter the Constitution, and abolishes the power of minority lobbies to amend the supreme law of the land.

Respectfully submitted.

Vice President Woman Patriot Publishing Co. (Inc.).

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The distinguished Senator from New York, James W. Wadsworth, jr., and the able Representative from Tennessee, Finis J. Garrett, believers in our "industructible Federal Union of indestructible States" have, respectively, introduced in the Senate as Joint Resolution No. 40 and in the House as Joint Resolution No. 69 the following proposed amendment to Article V of the Federal Constitution:

"The Congress, whenever two-thirds of both Houses 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 or the other mode of ratification may be proposed by the Congress or the convention: Provided, That the members of at least one House in each of the legislatures which may ratify shall be elected after such amendments have been proposed; that any State may require that ratification by its legislature be subject to confirmation by popular vote; and that, until three-fourths of the States have ratified or more than one-fourth of the States have rejected or defeated a proposed amendment, any State may change its vote: And provided, That no State, without its consent shall be deprived of its equal suffrage in the Senate."

The necessity for this proposal is in part political and in part legal. The political cause arises from the startling action by our "legislative amending agents" in ratifying the eighteenth and nineteenth amendments. The legal cause arises from the holdings by the Supreme Court in the cases growing out of the ratification of these two amendments.1

These holdings seem to shift the source of political power from the "people of the several States" who ratified the Constitution, the only "people of the United States" known to our history, to their uncontrolled and unrestrained "amending agents."

These "amending agents" under these decisions are constituted the ultimate soveriegn power which formerly was supposed to reside only in the people themselves. As Marshall said:


"The people made the Constitution, and the people can unmake it. It is the creature of their will. But this supreme and irresistible power to make or unmake resides only in the whole body of the people, not in any subdivision of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated the power of repelling it" (i. e., the courts). This has unfortunately all gone by the board, and in its place a brand new theory of sovereignty in government has been set up. The passage of the Wadsworth-Garrett amendment is now required to restore the sovereignty of the people.

Daniel Webster said: 3

"The sovereignty of government is an idea belonging to the other side of the Atlantic. No such thing is known in North America. Our governments are all limited. In Europe sovereignty is of feudal origin and imports no more than the state of the sovereign. It comprises his rights, duties, exemptions, prerogatives, and powers. But with us all power is with the people and they erect what governments they please and confer on them such powers as they please. None of these governments are sovereign in the European sense of the word, all being restrained by written constitutions." That can no longer be said, since the holding that the people of Ohio could not, by provision of the State constitution, compel a referendum upon a proposed Federal amendment, but were bound by the action of their own agents in their legislature. Nor since the further holding that the Legislatures of Tennessee, Missouri, Texas, West Virginia, and Rhode Island were not bound by the provisions of their State constitutions forbidding them to ratify the nineteenth amendment.

In other words, it has for the first time been affirmatively held that the "people of the several States" who ratified the Constitution, when directly submitted to them assembled in their State conventions, in fact, transferred to their "amending agents" (that is, to two-thirds of a quorum of Congress and a majotity of 36 legislatures) a power supreme over themselves.

These "amending agents," without the semblance of a popular mandate, can not only take away from the people of the States any inherent State power reserved to them by the tenth amendment, as a condition of Federal Union, and shift it to congressional control; but they can embody in the Constitution itself an alleged moral

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commandment in main part beyond the reach of legislative modification by either Congress or State legislatures, after the fashion of the laws of the Medes and Persians, which alter not. A mere handful of legislators distributed among 13 States-not more than about 200 men-can forever prevent repeal. This sets up an impossible irresponsible method for the exercise of legislative power which has no place in the democratic Government of these United States.

In the political ratification of the eighteenth and nineteenth amendments the Congress passed the responsibility to the "State legislatures," refusing to submit them directly to the people of the States (who are the States) acting in State conventions as authorized by the amending clause itself.

The failure of Congress to invoke this form of popular referendum so as to obtain the sanction of the people themselves to these radical changes in the organic law is, inexplicable.

Ratification by State conventions necessarily chosen after proposal would have made the issue direct and certain and the popular mandate complete.

In the debate in Congress (such as it was) upon proposing the eighteenth amendment many members said they considered themselves bound to permit a vote upon ratification even if personally opposed to it. Strange, unless mere desire for haste was to control, that they did not make sure of popular approval by proposing to State con


In very few, if any, legislatures was the question of fundamental policy in ceding "State police power" to our Federal governmental agency adequately debated.

The original 13 States had enjoyed the exclusive control of their "local police" for about 300 years.

Even in legislatures where the eighteenth amendment met with the strongest opposition the debate on fundamentals was meager. Instance the absence of such debate in Louisiana with one majority in the senate, in New York where a party caucus threw two deciding votes, in California and Maryland where the vote was close, and even in New Jersey and Connecticut, which rejected. The remarkable Rhode Island resolution instructing her attorney general to test the legal right of the legislatures of other States, by Federal amendment, to take from her people, without their consent, control of their "local police" excited no serious comment in the press. When noticed at all it was called a desperate legal move on the part of liquor interests, a trifling way of disposing of the arguments of the constitutionalists.

Many of the so-called "dry" States, either through various provisions permitting limited import for personal use or through lack of general enforcement, were not "dry" in fact. Yet their legislatures ratified after little or no debate. The Mississippi Legislature ratified in both houses 15 minutes after receiving the proposal. The local adoption by the people of these States of some form of State prohibition in order to abolish the saloon was accepted as authority from them to their legislative amending agents

(1) To embody a "local police regulation" in form and effect irrepealable into the Federal Constitution.

(2) To legislate in this undemocratic form upon the local habits of people of other States, 3,000 miles away, whom they did not know, had never seen, and who could not hold them to political account-an absolutely irresponsible act.

(3) To surrender the local control of their own constituents, because forsooth they had already exercised their control locally, in a particular way suited to their own local conditions. Was there ever such an illogical non sequitur? Now, of consequence, their constituents are unable (except within very narrow limits and then only with the consent of Congress) to control its form, duration, and extent. They no longer enjoy self-government. On the contrary, Senators from Utah, Texas, Nebraska, et al., dictate the dining tables of the citizens of Maryland, New York, Massachusetts, and Rhode Island, interfere with their right to jury trial, and some times even invade their homes through minions sent from Washington.

Twelve State legislatures which were elected on other issues before the amendment was even proposed by Congress voted to ratify the eighteenth amendment. They of course, had no accurate means of determining the desires of their own people. But lack of a popular mandate did not given them pause. The people of California on referendum rejected State prohibition by a large majority at the same time they elected the legislature which undertook nevertheless to express "the assent of the people of California" to the eighteenth amendment. In Maryland a legislature elected on other issues before proposal, ratified in the face of a heavy majority against prohibition on referendum not long before. In Ohio the people, on referendum, repudiated their legislature's ratification of the eighteenth amendment itself. The subsequent adverse court ruling does not change that fact.

In the case of the nineteenth amendment the lack of a popular mandate on the part of the "legislative amending agents' appears even more strikingly. The delightful

theory was successfully advanced by both national committee chairmen that the women would vote solidly against that party whose legislatures refused to ratify; the absurd mythical sex-vote idea. Yet this produced about 30 specially called extra sessions to catch the women's vote. As a result 34 out of the 38 legislatures which ratified the nineteenth amendment were elected on other issues before submission by Congress with no popular mandate whatsoever. Five namely the legislatures of Tennessee, Missouri, West Virginia, Texas, and Rhode Island flatly ignored State constitutional provisions (under which constitutions they held their very existence) forbidding them to ratify. Thirteen legislatures ratified against the wishes of their own people expressed by unfavorable referenda on "State suffrage."

While the Supreme Court held in Hawke v. Smith that the legislature "merely expresses the assent of its State" to a proposed amendment, the people, for whom it speaks and whose assent it records, can not limit their agent's power to ratify or even fix the time it shall vote thereon by provisions in their State constitutions (the instruments through which the people create the legislatures) expressly enacted for that very purpose. This seems to be the only case in the law where the agent becomes all powerful over his principal, and it ought to be changed forthwith.

Outside the 10 States where the legislatures rejected and the two (Tennessee and West Virginia) which ratified by a majority of one in violation of State constitutional provisions, there was no constitutional discussion whatsoever. There was no debate over the policy of conferring new Federal power over suffrage nor of the dictation by distant States of the suffrage of the dissenting States. For the pleasure of meddling with the suffrage of Maryland, Delaware, Mississippi, Louisiana, et al., the Pacific Coast States, whose women already voted, bound themselves in perpetuity never to disfranchise Chinese and Japanese women born in the United States.

The Maryland Legislature passed a ringing resolution urging the other States to refrain from interfering with the suffrage of the people of Maryland under the guise of amending the Federal Constitution and challenging their power so to do. No newspaper in the United States published this resolution; only a very few mentioned it at all, and only one has been discovered which discussed it editorially.

The above should be sufficient to show the political and constitutional necessity of adopting the Wadsworth-Garrett amendment if the "home rule," "local selfgovernment" principles of our strictly Federal Union are to remain, and the establishment of the "Consolidated National Government," which the fathers feared and we in our hearts fear just as much, is to be prevented.

A roll call upon the proposal would accurately disclose how many friends of the American system of constitutional government remain in the Congress of the United States.

It can hardly be claimed even by the well-organized minorities who stampeded through "State legislatures," uncontrolled by any constitutional restraints and without popular sanction, two revolutionary Federal amendments that therefore the same privilege must be accorded to all other well-organized minorities. To take that position would be to declare themselves enemies of the Federal Constitution and enemise of the American system. They will hardly dare assume that attitude nor will the Members of Congress who supported those amendments care to record themselves as permanently opposed to "popular government" on constitutional questions. An hundred million people scattered over a continent can not be successfully governed in all their private intimate local affairs by an all-powerful legislative assembly at Washington. That would constitute the consolidated national government which the Federalists as well as the Democrats in the Constitutional Convention so vigorously opposed and thought they had forever guarded against.

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The new nationalists seem to have in mind the fiction of a 'mass people of the United States," which never had any existence in fact and which never acted directly or by representation.

There is no such political concept in this country as the people of the United States in the aggregate.

The people do not speak, never have spoken, and never can speak in their sovereign capacity otherwise than as the people of the States.

The so-called "National" House of Representatives is elected every second year by "the people of the several States."5

There are but two modes of expressing their sovereign will known to the people of this country. One is by direct vote the mode adopted by Rhode Island in 1788 when she rejected the Federal Constitution. The other is the method here generally pursued, of acting by means of conventions of delegates elected expressly as representatives of the sovereignty of the people.

• Supra.

5 U. S. Const. Art. I, § 2; Hawke v. Smith, supra, 228 .

Now, it is not a matter of opinion or theory or speculation, but a plain undeniable historical fact, that there never has been any act or expression of sovereignty in either of these modes by that imaginary community, "the people of the United States in the aggregate.'

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Usurpations of power by the Government of the United States there may have been and may be again, but there has never been either a sovereign convention or a direct vote of the whole people of the United States in the aggregate to demonstrate its existence as a corporate unit or self-contained political sovereignty.

Every exercise of sovereignty by any of the people of this country that has actually taken place has been by the people of the States as States.

No respectable authority has ever had the hardihood to deny, that, before the adoption of the Federal Constitution the only sovereignty political community was the people of each State.

When the confederation was abandoned and the Constitution was adopted by the people of the several States in their State conventions, the General Government was reorganized, its structure was changed, additional powers were conferred upon it, and thereby subtracted from the powers theretofore exercised by the State governments; but the seat of sovereignty-the source of all those delegated and dependent powerswas not disturbed. The only change was in the form, structure, and relation of their governmental agencies.

There was a new Government, but no new "sovereign people" was created or constituted.

The people, in whom alone sovereignty inheres, remained just as they had been before.

Madison said in the Virginia Ratification Convention: 6

"Who are the parties to it? The people but not the people as composing one great body, but the people as composing thirteen sovereignties."

Lee, of Westmoreland, said:"

"If this were a consolidated Government, ought it not to be ratified bya majority of the people as individuals and not as States?"

Charles Pinckney, in the South Carolina Convention, said: 8

"With us the sovereignty of the Union is in the people."

In McCulloch v. Maryland, Marshall said for the Supreme Court:

"They (the people) acted upon it in the only manner in which they can act safely, effectively, and wisely on such a subject, by assembling in convention. It is true they assembled in their several States-and where else should they have assembled?" Then, answering his own question, he conclusively disposes of any idea of a "mass people of the United States," in these words:

No political dreamer was ever wild enough to think of breaking down the lines which separate the States and of compounding the American people into one common


Of consequence, when they act they act in their States.'

Of course it may be denied that there were no such political dreamers then or are not now. But, after all these years, does anyone expect a new ultimate sovereign people a mass people of America different from and superior to the "people of the States" who ratified the Constitution, to be now discovered?

Or that the primary sanction upon which Marshall based the very supremacy of delegated Federal power, the action of the people of the States in ratifying the Čonstitution, has now been broken down?

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While the Supreme Court in the recent cases, it is true, held that the "amending agents" acted without constitutional restraint nevertheless they set up no mass people. On the contrary they still held that the "legislature" was designated as the agency to express "the assent of its State" to a proposed amendment.

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What is needed is to so far impose restraint upon these legislative amending agents" as to compel them to truly represent their people and record a real assent after popular sanction. This the Wadsworth-Garrett amendment accomplishes.

If the new nationalists who seem to visualize this mythical mass people as a basis of their political philosophy now wish to establish such "mass people" and bring them into power, they will have to find some other basis for their political action to operate. It can not reasonably operate to pass irrepealable local legislation for all of us and hamstring our democracy by so-called moral commandments in form and effect irrepealable through the amending clause of the Constitution. This clause was designed only for perfecting and improving our Federal "home rule"-"local self-government" scheme of government, and for shifting "governmental legislative powers" between our State and Federal legislative agencies.

63 Ell. Deb. 94.

73 Ell. Deb. 180.

84 Ell. Deb. 328.

94 Wheat. 316, 402.

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