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Its proper use necessarily always preserves to the people their inherent right to repeal or modify the laws under which they must live through representative legislative bodies directly responsible to them.
It was never intended to affirmatively legislate by the amending clause itself or to force such legislation by means of it (repealable by no democratic process) upon unwilling sections.
Such use of the amending clause destroys "representative government" by taking from the people acting through their responsible legislative agencies (Congress and State legislatures) the power to repeal or modify.
In Rhode Island v. Palmer (253 U. S. p. 286) finding No. 6 reads:
"The first section of the Amendment-the one embodying the prohibition* * * of its own force invalidates every legislative act-whether by Congress, by a State legislature, or by a Territorial assembly-which authorizes or sanctions what the section prohibits."
Such use of the amending clause clearly lacks all democratic sanction, is in its very nature unrepresentative, and may accurately be called "irresponsible government by constitutional amendment."
It is no substitute for popular sovereignty under the Constitution. It will destroy the Constitution without substituting any democratic form which responds to the desires of the people and accurately records their legislative will.
It ties a great democracy in a political strait-jacket and therefore foments revolutionary ideas.
The Wadsworth-Garrett amendment prevents its use for any purpose for which there is not a clear and unmistakable popular mandate.
Whether we are Democrats or Republicans, Federalists, states rights' men or New Nationalists, Prohibitionists or suffragists or antis we should all desire political action to express only the will of the people and be free from dictation by well organized minorities. We should all desire "legislative action" which is repealable in response to popular desire and not written like a religious truth in unchanging tables of stone. So believing, we should all pull together for the proposal and ratification of the Wadsworth-Garrett amendment.
GEORGE STEWART BROWN.
[From Baltimore Sun, January 16, 1923.]
SHALL THE PEOPLE BE CONSULTED?
As a rule, the less fooling with the Federal Constitution the better; but Senator Wadsworth's amendment is not another fool measure designed to alter that instrument radically, but a proposal to safeguard it against the raids of theorists and political propagandists. It is intended to guarantee the people a voice in the adoption of amendments and to prevent their being excluded from a share in such decisions. It changes the present requirement of submission of amendments to the legislatures of the States by providing 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: 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 that no State, without its consent, shall be deprived of its equal suffrage in the Senate."
The justification for this amendment is found in our experience with the eighteenth and nineteenth amendments, especially the eighteenth, National prohibition had not been an issue in the election of members of most of the legislatures to which this amendment was submitted, and there was no direct way in which existing popular sentiment could be tested.
There can be no reasonable objection to the safeguards the Wadsworth amendment proposes. It will not operate to the disadvantage of any element except such as fear a popular verdict and desire to take snap judgment. In view of the revolutionary departure from all previous constitutional theories illustrated in the incorporation of the eighteenth amendment in our fundamental law, and in view of such strange doctrines as are embodied in the Oregon school act, there is no telling what may be attempted hereafter in the way of Federal amendments. Who knows but that a union of church and State may be proposed, that some particular form of religion may not be proclaimed, or that States whose morality is under suspicion may not be subjected to some form of constitutional discipline or punishment? Any and all of these fears may appear visionary to us now, but 25 years ago the eighteenth
amendment would have seemed an impossibility to the great majority of the people of this country.
All that the Wadsworth amendment proposes is to take the people into partnership in the ratification of future changes in the Constitution. To vote against it will be equivalent to an effort to exclude the people from participation in the remaking of their own Government.
[From Boston Evening Transcript, Friday, January 12, 1923.]
THE WADSWORTH AMENDMENT.
There is to be a hearing by the United States Senate Judiciary Committee on Tuesday, the 16th, on the so-called "Wadsworth amendment" (S. J. 21), which involves a matter of fundamental importance. Under Article V of the Constitution, amendments proposed by Congress go to the several State legislatures for ratification, and if the legislatures of three-fourths of the States ratify, the amendment becomes effective. In recent years several States have adopted one form or other of the referendum, or initiative, or both, and, in a recent case, the question arose as to whether, in a State having the refendum law, the action of its legislature, in ratification of an amendment, might be reviewed by popular vote. The Supreme Court of the United States held that it could not, as such a course would, in effect, be unwarrantably grafting something on to the Federal Constitution.
The theory of the original Constitution (including Article V) was that we should have a representative form of government—that the people could properly and wisely choose their representatives, but that those so chosen could, as a deliberative assembly, probably represent and act for the people more wisely than the people could act as scattered units for themselves. A hundred and more years passed, and the laws in certain States (Massachusetts included) were changed so as to permit a popular review of legislative action.
If adopted, the Wadsworth amendment 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, and that any State may require that ratification by its legislature be confirmed by popular vote."
Often in the past the Transcript has expressed itself in connection with the principles of our popular government and more specifically with the so-called "I. & R." We will neither repeat nor review at length here. There are undoubtedly many matters of legislation which can not possibly be either intelligently or wisely dealt with except by a well-informed, deliberative body. There are other questions on which the ultimate, good, sound sense of the American people can be trusted with full confidence. The Constitution is the foundation of our political house and of our national being. Changes in that Constitution commonly involve principles upon which the people are capable of forming and expressing intelligent opinions.
The referendum exists, and there is no present indication that it is not going to continue. Much can surely be said in favor of the proposition that in Massachusetts, for example, there would indeed remain a strange anomaly if the people of the State had power to review any and all acts of its legislature except the one of perhaps greatest importance, and the one perhaps most likely to be fairly understood and dealt with on popular vote.
[From New York Herald, January 12, 1923.]
SENATOR WADSWORTH'S PLAN FOR AMENDING THE CONSTITUTION.
There is now pending before the Judiciary Committee of the United States Senate a joint resolution of such merit that it ought to be reported favorably. It was introduced by Senator Wadsworth of New York. It proposes an amendment to the Constitution which would make the process of amending that document more satisfactory to the people.
The amendment offered by Senator Wadsworth has not the fault of making it easier to tinker with the Constitution. In fact, the adoption of the substitute he proposes for Article V of the Constitution would in many cases make it more difficult to amend the national charter than it now is. For that reason the Wadsworth amendment should appeal to all who believe that our Constitutions, Federal and State, should be stable in their character and susceptible to change only when change is absolutely necessary. The Wadsworth plan would not change radically the initiative now provided in Artivle V. An amendment could be proposed by two-thirds of each House of Congress
(Article V says "two-thirds of both Houses") or could originate in a convention called by Congress on the application of the legislatures of two-thirds of the States. Ratification would be by three-fourths of the States through their legislatures or their conventions, as Congress or the convention might propose. But-and this is the heart of it-the Wadsworth idea provides 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."
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 FORMATION OF THE FIRST STATE CONSTITUTIONS.
The American Revolution got well under way without any formal declaration of hostilities. Fighting had occurred, military preparations were active, and armies were in process of assembly, while nominally the Colonies were still under the political dominion of Great Britain. In consequence of this anomalous situation, there was a period, between the Battle of Lexington and the Declaration of Independence, when conditions of local government fell into a state that was almost chaotic. All pretense of obedience to the authority of the Crown had been cast aside, but nothing definitive had taken its place. Royal governors were in flight, or had been besieged, imprisoned, or deposed; executive authority was in abeyance. In some localities courts and magistrates continued in the exercise of their functions. But elsewhere, from real or pretended scruples as to the validity of their commissions, now that rebellion walked abroad and there was no executive power to support them, they were in a state of suspense. The general administration of affairs was in the hands of the popular branch of the legislative assemblies, or in self-styled conventions, or even in committees of safety, or in any two of these conjointly. One or two incidents will suffice to show the complete confusion of governmental powers at this time, with some of the consequences. In June, 1776, one Gautier was arrested, tried, and convicted by the "General Committee of the City and County of New York" for the offense of refusing to accept continental paper currency, and the judgment was affirmed on appeal to the New York Provincial Congress. So in Virginia at about the same time, the convention granted a pardon to two persons who were in jail, charged with capital offenses, but who could not be brought to trial because, as it was said, the royal authority having been dissolved, the courts could not be held for want of a proper commission, "and no method is yet adopted for the trial of criminals;" but "this act of grace shall not hereafter be drawn into consequence or example. Civil disorder followed as an inevitable consequence of this confusion and relaxation of government. In April, 1776, Francis Lightfoot Lee wrote to Landon Carter:
"It makes me uneasy to find from your letter that licentiousness begins to prevail in Virginia, though I have always expected it from the mismanagement of the government. The old government being dissolved, and no new one being substituted in its stead, anarchy must be the consequence. * * * New Hampshire and Massachusetts Bay, whose governors and other officers were appointed by the Crown, were getting into the utmost disorder; but upon their assuming government, by the advice of Congress, they are restored to perfect harmony and regularity. The Southern Colonies, by delaying the remedy will, I fear, have violent symptoms to encounter." Both the crisis and the "remedy" engaged the earnest attention of the foremost statesmen of the day. The first positive step toward the establishment of separate State governments appears to have been taken by the Provincial Congress of Massachusetts, which addressed a letter to the Continental Congress, dated May 16, 1775, which was read in Congress on the 2d of June following. This memorial recited that the
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Colony had been "reduced to great difficulties, being denied the exercise of civil government according to our charter or the fundamental principles of the English constitution. As the question equally affected our sister Colonies and us, we have declined, though urged thereto by the most pressing necessity, to assume the reins of civil government without their advice and consent, but have hitherto borne the many difficulties and distressing embarrassments necessarily resulting from a want thereof. We tremble at having an army (although consisting of our countrymen) established here without a civil power to provide for and control them. We are happy in having an opportunity of laying our distressed state before the representative body of the continent, and humbly hope you will favor us with your most explicit advice respecting the taking up and exercising the powers of civil government, which we think absolutely necessary for the salvation of our country, and we shall readily submit to such a general plan as you may direct for the Colonies, or make it our great study to establish such a form of government here as shall not only most promote our advantage, but the union and interest of all America."
John Adams was at this time in Philadelphia attending the Continental Congress, but it is easy to discern the influence which he had already exerted in bringing the minds of his fellow citizens in Massachusetts to the taking of this step. In his "Autobiography" he tells us that: "This subject had engaged much of my attention before I left Massachusetts, and had frequently been the subject of conversation between me and many of my friends, Doctor Winthrop, Doctor Cooper, Colonel Otis, the two Warrens, Major Hawley, and others besides my colleagues in Congress, and lay with great weight upon my mind, as the most difficult and dangerous business that we had to do (for from the beginning I always expected we should have more difficulty and danger in our attempts to govern ourselves, and in our negotiations and connections with foreign powers, than from all the fleets and armies of Great Britain). When this letter was read, I embraced the opportunity to open myself in Congress, and most earnestly to entreat the serious attention of all the members and of all the continent to the measures which the times demanded." In this address Adams declared that "we must invite the people to erect the whole building with their own hands upon the broadest foundation. This could be done only by conventions of representatives chosen by the people in the several Colonies in the most exact proportions. It was my opinion that Congress ought now to recommend to the people of every Colony to call such conventions immediately and set up governments of their own, under their own authority, for the people were the source of all authority and original of all power. These were new, strange, and terrible doctrines to the greatest part of the members, but not a very small number heard them with apparent pleasure, and none more than Mr. John Rutledge, of South Carolina, and Mr. John Sullivan, of New Hampshire." There were, of course, others who concurred in Adams's views. About this time Roger Sherman wrote to Governor Trumbull: "I want to know what measures the ministry will take after hearing of the battles at Concord and Lexington, but if they don't relax, but order reinforcements, I hope every Colony will take government fully into their own hands until matters are settled."
John Adams was the more urgent about this matter because he was ardently looking forward to the independence of America, and conceived the setting up of separate State governments as essentially the proper step to be first taken. This done, he thought, independence would be both a legal and a political fact, and the rest of the program would follow naturally. This thought is fully shown in his letter to Patrick Henry of June 3, 1776. "It has ever appeared to me," he says, "that the natural course and order of things was this: for every Colony to institute a government; for all the Colonies to confederate and define the limits of the continental constitution; then to declare the Colonies a sovereign State, or a number of confederated sovereign States; and last of all, to form treaties with foreign powers. But I fear we can not proceed systematically, and that we shall be obliged to declare ourselves independent States before we confederate, and indeed before all the Colonies have established their governments. It is now pretty clear that all these measures will follow one another in a rapid succession, and it may not perhaps be of much importance which is done first."
But in June, 1775, the Congress was not ready to embrace the very wide views of John Adams. It preferred to deal with the case of Massachusetts alone. On the 3d a committee was chosen by ballot to report on the memorial submitted by the Massachusetts congress, consisting of John Rutledge, Thomas Johnson, John Jay, James Wilson, and Richard Henry Lee. On the 9th Congress acted on the report of this committee, and advised Massachusetts: "That in order to conform as near as may be to the spirit and substance of the charter it be recommended to the provincial convention to write letters to the inhabitants of the several places which are entitled to representation in assembly, requesting them to choose such representatives, and that this assembly, when chosen, do elect councilors, which assembly and council should
exercise the powers of government until a governor of his Majesty's appointment will consent to govern the Colony according to its charter.”
But the problem returned in a more urgent form in the autumn of that year. On the 18th of October, 1775, the delegates from New Hampshire laid before Congress instructions from their Colony which required them, as soon as possible, "to obtain the advice and direction of the Congress with respect to a method for our administering justice and regulating our civil police. Thereupon, John Adams says: “I embraced with joy the opportunity for haranguing on the subject at large, and of urging Congress to resolve on a general recommendation to all the States to call conventions and institute regular governments. * * * Although the opposition was till inveterate, many Members of Congress began to hear me with more patience, and some began to ask me civil questions. There was a long debate in Congress, and finally the matter was referred to a committee consisting of Rutledge, Adams, Ward, Lee, and Sherman. On their report, on the 3d of November, Congress resolved: "That it be recommended to the provincial convention of New Hampshire to call a full and free representation of the people, and that the representatives, if they think it necessary, establish such a form of government as in their judgment will best produce the happiness of the people and most effectually secure peace and good order in the province during the continuance of the present dispute between Great Britain and the Colonies." the next day a recommendation was given in the same words to the convention of South Carolina, and, a month later, to Virginia.
In May of the following year (1776) Adams exulted in the fulfillment of his strong desire. For the following preamble and resolution were adopted, chiefly his own work, though with some assistance from his associates in the committee which drafted them, Edward Rutledge and Richard Henry Lee: "Whereas his Britannic Majesty, in conjunction with the lords and commons of Great Britain, has by a late act of Parliament excluded the inhabitants of these United Colonies from the protection of his crown; and whereas no answer whatever to the humble petitions of the Colonies for redress of grievances and reconciliation with Great Britain has been or is likely to be given, but the whole force of that kingdom aided by foreign mercenaries is to be exerted for the destruction of the good people of these Colonies; and whereas it appears absolutely irreconcilable to reason and good conscience for the people of these Colonies now to take the oaths and affirmations necessary for the support of any government under the Crown of Great Britain, and it is necessary that the exercise of every kind of authority of the said Crown should be totally suppressed and all the power of government exerted under the authority of the people of the Colonies, for the preservation of internal peace, virtue, and good order, as well as for the defense of their lives, liberites, and properties against the hostile invasions and cruel depredations of their enemies, therefore, Resolved, that it be recommended to the respective assemblies and conventions of the United Colonies, where no government sufficient to the exigencies of their affairs has been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular and America in general."
Adams wrote to James Warren: "This day the Congress has passed the most important resolution that ever was taken in America." To his wife he declared: "Great Britain has at last driven America to the last step, a complete separation from her, a total absolute independence, not only of her Parliament, but of her Crown, for such is the amount of the resolve of the 15th." In his "Autobiography" he notes that "opposition was made to it, and Mr. Duane called it a machine to fabricate independence, but on the 15th of May it passed. It was indeed on all hands considered by men of understanding as equivalent to a declaration of independence, though a formal declaration of it was still opposed by Mr. Dickinson and his party. * Mr. Duane called it to me a machine for the fabrication of independence. I said, smiling, I thought it was independence itself, but we must have it with more formality yet. The opinion of Oliver Wolcott was that "a revolution in government is about to take effect. If this recommendation takes effect, which undoubtedly it will, there will be an instance, real and not implied or ideal, of a government founded in compact express and clear, made in its principles by the people at large.' Carter Braxton wrote to Landon Carter: "He has waited to convey you a very important declaration and recommendation from the Congress, which you will say falls little short of independIt was not so understood by Congress, but I find those out of doors on both sides of the question construe it in that manner. The assumption of government was necessary, and to that resolution little objection was made, but when the preamble was reported, much heat and debate did ensue for two or three days. At length, I think by six to four (States) it was determined to be accepted and accordingly published." The Journals of Congress do not show how the vote stood on the preamble, but merely that "it was agreed to." The ground of the opposition was, of