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tution meant a constitutional legislature-constitutional according to the constitution of the State.

The fathers were impressed with the idea that it was a Federal Government. It is a Federal Government, and it ought to be, and it should remain so. Therefore, because it is a Federal Government, they would have said, had the question been asked them— and I think the debates show it-they would have said that the legislature referred to meant such a legislature as the laws and constitution of the State should regulate, and one subject to regulation by the State itself. But now, of course, we bow to the decision of the Supreme Court. That is the arbiter under our Constitution. They have held otherwise. They have held that no State has any power to regulate the action of its legislature in this matter, and it is to meet that decision, it is to meet that literal view which seems to us unwise and unfortunate, that this amendment is introduced so as to put us back into the position where most Americans thought we were. The proof of that is found in the fact that so many States attempted to regulate their legislatures.

Senator COLT. Mr. Wheeler, you are criticizing now the decision of the Supreme Court.

The Supreme Court paid no attention to what the States might do with regard to what constitutes a valid ratifying legislature. The Supreme Court merely read the Constitution, and the Constitution says "when ratified by the legislatures of the States." Well, if you should permit such an entering wedge as that the States can regulate as to what constitutes a legislature; the States might declare, if they wanted to defeat an amendment, that it should be ratified by a legislature elected 20 years from that time. Mr. WHEELER. Why should they not, if that is the popular will? I never could see any objection to that. I think the popular will should control.

But let me answer the Senator's question. Hawke v. Smith was this: The people of the State of Ohio provided by constitutional enactment that it should be competent for a certain number of persons in that State to ask for a referendum upon any action of the legislature, including the ratification of Federal amendments. They did have a referendum on this proposal to ratify--I think it was the suffrage amendment; no, the prohibition amendment-and this suit of Hawke v. Smith was brought to test the question of whether or not that provision in the constitution of Ohio was valid.

The Supreme Court of Ohio held that it was valid and the case was appealed to the Supreme Court of the United States, which reversed the decision of Ohio and held that it was not competent for the people of the State to regulate in any way the action of the State legislature upon amendments to the Federal Constitution; that, when it said here in the original fifth article that the legislature should do it, it meant a legislature without any control from the constitution of the State.

It seemed to many of us, as I said, that was a surprising decision. It is a literal decision. But the Supreme Court has not always contrued provisions of the Constitution literally.

Senator OVERMAN. Did you give the page and book where that case is to be found? Mr. WHEELER. In 253 U. S., page 221.

Then in Leser v. Garnett, in 32 Supreme Court Reporter, page 217, the Supreme Court went further and held that the States had no power to provide by their constitutions that no legislature should ratify a Federal amendment until after a State election had been had for that legislature.

So that the effect of those two decisions is to declare that this clause in the Constitution as it now stands means that the States have no power to regulate the matter of ratification of the Federal amendments.

Now we are seeking to restore what most of us think

Senator OVERMAN (interposing). That is, the people of the State have no right to regulate their own legislature?

Mr. WHEELER. Precisely. That is what they did hold. Of course, we lawyers, as every judge knows, are very apt to think when we are in a case that we are right. I certainly did think I was right there, and I have no doubt that many distinguished lawyers in the case thought so too.

Anyway, we bow to the decision of the court, and the court having decided as they have, it seems to me that the amendment we are now proposing is necessary and wise in order to bring us back to where we thought we were before and where, by the general consensus of opinion of the people of this country, we ought to be.

Senator WADSWORTH. May I ask the witness a question there, Mr. Chairman?
Senator COLT. Certainly.

Senator WADSWORTH. In order to illustrate, if possible, through the instrument you have just described, the practical effect of the deprivation of the people of the State of any control over their legislature, will you state what the result of that referendum in Ohio was?

Mr. WHEELER. It was adverse.

Senator WADSWORTH. In other words, the people of the State voted against the ratification of the Federal amendment?

Mr. WHEELER. Precisely.

Senator WADSWORTH. And the lagislature thereupon ratified it?

Mr. WHEELER. The legislature did ratify it.

Senator WADSWORTH. Which proves that the people of the State are deprived of any control over their legislature.

Mr. WHEELER. Yes. The question of law was whether the referendum did not become a part of the legislative process. We thought that it did, and we argued that it did, but the court was of a different opinion.

It all turns upon whether you construe literally that provision. We argued that it might as well be said that when the Constitution gave power to declare war it meant only with the weapons of war in use at the time the Constitution was framed, and excluded airplanes and submarines and the rest of the modern appliances of war. Senator OVERMAN. This amendment will give a chance to the people to instruct their own legislators.

Mr. WHEELER. Precisely.

Senator OVERMAN. As to what the people want.

Mr. WHEELER. Precisely. Certainly on any theory of popular government we ought to have that as a fundamental law.

Senator COLT. This proposed amendment would accomplish two things. It would make the Constitution more difficult to amend, and it would give a popular expression as far as amendments are concerned.

Mr. WHEELER. Yes, sir.

Senator COLT. Those are the two ends?

Mr. WHEELER. Those are the two ends.

Senator COLT. If you want to make the Constitution more difficult to amend, you ought to favor this amendment.


Senator COLT. If you want the people to have a voice in the ratification of the amendment, this resolution leads in that direction.

Mr. WHEELER. Yes, sir. There is only one other point in this amendment and I will state it in a moment.

As long ago as the ratification of, I think it is either the thirteenth or fourteenth amendment, the Secretary of State in his proclamation declared that it was in doubt whether the State had the right to rescind a ratification.

That has never been settled, and it ought to be settled.

Senator OVERMAN. It has been settled by the action of the Secretary of State. New York, Ohio, and Indiana, as I recollect, recalled the action of the previous legislature. Mr. WHEELER. Yes.

Senator OVERMAN. Notwithstanding which the Secretary of State proclaimed it, and it has never been changed.

Mr. WHEELER. My friend suggests it was afterwards ratified by enough States to make up the three-fourths, so that the question of the validity of the amendment did not arise.

It would seem there could be no good reason why a legislature, before the amendment was ratified, should not rescind its previous action.

Mr. CHAIRMAN. I am sure I have taken as much time as I possibly could ask, and I am going to ask that Mr. Cadwalader, of Baltimore, who appears for the Maryland League for State Defense, might be heard.

Senator COLT. Mr. Cadwalader.


Mr. CADWALADER. Mr. Chairman, Senators, and Members of the House present: I was very much interested in the chairman's statement just now, because it agreed so completely with my own views of the Constitution.

I yield to nobody in reverence to the body of men who framed the instrument and for the wisdom of its provisions. If it were not for that deep reverence that I feel, I would not be here to advocate this particular amendment.

The necessity for this amendment, the chairman has very properly said, should be amply apparent before this or any amendment is proposed.

It is necessary under Article V of the Constitution that two-thirds of each House of Congress shall deem it necessary before they can even propose an amendment. Now, let us see. Why should they deem it necessary that this amendment should be proposed?

I would say that the answer to that is, as Grover Cleveland said, "It is a condition which confronts us-not a theory."

We have had four amendments adopted since 1913, two of them without any very serious opposition, two of them with very widespread opposition, and of these latter two, the eighteenth amendment was ratified by, I think, 45 States, of which 12, at least were ratifications by hold-over legislatures which had been elected before the amendment had been proposed.

When you come to the nineteenth amendment, the amazing fact appears that out of 36 legislatures reported by the Secretary of State as having ratified the amendment 34 were hold-over legislatures. And not only that, but 30 of those 34 were hold-over legislatures called into special session through political pressure brought to bear on the governors of those Ŝtates for the sole and exclusive purpose of ratifying the amendment.

It is immaterial whether woman suffrage is a good thing or a bad thing. The organization which I represent came into being to oppose it, and the Legislature of Maryland responded to our efforts and refused to ratify that amendment. But, putting that aside, is it not an extraordinary thing, certainly not contemplated by the fathers, the framers of the Constitution, that a very vital addition should be made to the Constitution through the action of hold-over legislatures?

Now, hold-over legislatures in the early days of the country, when people were awake to their constitutional rights, when constitutional questions were debated on soap boxes to enthusiastic crowds, were one thing, but hold-over legislatures to-day are something very different.

A hold-over legislature is a body of men, many of whom are through with politics, have no more interest in it; some of them have been defeated and are going back to private life; others are looking after their own private fences for reelection. But for whatever cause, they act without that sense of responsibility that the legislatures were expected to have by the framers of the Constitution.

Another point about that. At the time the Constitution was adopted elections were generally more frequent than they are to-day. Quite a number of States had annual elections; I think only very few have annual elections to-day.

It evidently did not cross the minds of the framers that any considerable number or any large proportion of the States would pass on amendments which were hastily proposed and submitted to them in the interval between elections so that the people would have no opportunity of passing on the matter. And the mere fact that the legislators were then closer to the people than they are now was sufficient reason to consider that one of the minor possibilities that they could not look out for and should not provide for. Human minds are finite and they can not provide for everything. But they did provide for it in this way, by leaving discretion to Congress to submit Federal amendments to legislatures elected pro haec vice, which Congress, with one exception, has failed to avail itself of. That amendment was an amendment proposed in 1860 to get away from the issue of interference with slavery in the States by making it impossible by constitutional amendment. The amendment was proposed to conventions but never got any further than that. I think one or two States must have acted on it, but events moved too rapidly and the Civil War came on and it was forgotten, but that is the only occasion in our history where the convention method has been adopted that I know of.

Senator COLT. Would the method of calling conventions, provided Congress directed the convention method of ratification, reside in the State?

Mr. CADWALADER. I think so.

Senator COLT. Would the governor call the convention?

Mr. CADWALADER. I can not see that that is a matter that is regulated by anything but the State law, perhaps.

Senator COLT. I should think it would be regulated by the State law.

Mr. CADWALADER. For this reason, that the convention referred to in Article V must have been intended to be the same sort of convention as those which ratified the original Constitution.

Senator COLT. Yes. The word "convention" at that time had a well-known meaning.

Mr. CADWALADER. Yes; "convention" had a well-defined meaning.
Senator COLT. Now it has a good many different meanings, you know.

Mr. CADWALADER. Yes; we understand that.

One more matter relating to the necessity of this amendment, and I am using the suffrage amendment case not with any desire to criticize the substance of that amendment, but only the procedure that was adopted.

It is a fact that 9 States voted against the suffrage amendment and 36 States were recorded as voting for it. Of those 36 there were 3 States where the majority for the

resolution did not exceed 1 man in 1 House and 2 or 3 other men in the other House, so that it is a fact that a change of 1 vote-and if the Senators will remember, the election was coming on and there were 2 States whose governors would not call the legislature into extra session, and it was a question all along of 1 State, and any 1 of 3 men, 1 man in the Senate of Oklahoma, 1 man in the Senate of West Virginia, and 1 man in the House of Representatives of Tennessee could have changed the result from ratification to the opposite.

Senator COLT. But it did require three-fourths of the States, did it not?


Senator COLT. And it did require two-thirds of each House of Congress, did it not? Mr. CADWALADER. It did, yes.

We hear it frequently said in Congress, and it was said the other day, I believe, in the House of Representatives; Members will get up and will not say, "I am in favor of this amendment," but will say, "I am in favor of letting the people decide it."

I respectfully submit that is not the duty laid by the Constitution upon Members of Congress when it says "When two-thirds of each House deem it necessary they shall propose;" not submit, but propose amendments. But that is a matter which rests in the individual conscience of each Member of Congress, undoubtedly. When the two-thirds have voted to propose, it is proposed, no matter what their reasons may be.

But, when it is a fact, as it has been recently, that a number of Members of each House have voted for it on the plea that they want the States to pass upon it, the State legislatures are then called into session maybe, as they were, and the plea is then presented to them that Congress has proposed this in its wisdom, and they ought to ratify what national feeling has indorsed, we just simply lose the real force of Article V. It falls between the upper and the nether millstones. Neither body exercises the discretion that the Constitution clearly intended should be reposed in it. Now, to remedy that situation this article has been proposed, and you will notice that although there have been quite a number of propositions to amend Article V introduced in Congress in the last two years, some of them pretty radical, this makes fewer changes, practically the minimum of changes necessary to accomplish the end in view. The language of the article is virtually unchanged.

There is one slight change that I would call attention to in passing, and that is that the choice of the mode of ratification, whether by the legislature or by convention, is left, as now, to Congress, and the significant words are added or the convention," meaning the national convention, should one be called.

It always seemed to me, and I believe to a great many people, an anomaly that on the application of the legislatures of two-thirds of the States, Congress might call a convention for proposing amendments, if it saw fit, but Congress would have to decide on that. Nothing in there as to how it is to be ratified. If the national convention is called, it seems to me it should have the power to say whether this amendment should be ratified in one way or another.

Senator COLT. I noticed that.

Mr. CADWALADER. The next change, and of course one of the principal ones, "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."

Why does the amendment say at least one house? Because in a number of the States there are hold-over senators, as there are under the Federal Constitution, and it would put the thing off too long if the election of the whole legislature was necessary, and it is not necessary as the lower house represents the whole State and there is an election on the subject. The members of hold-over legislatures are not controlled by their constituents, they are not bound, except morally, by party platforms even; they exercise their own discretion. But we submit that after an election a legislature coming into its regular session, following its election, is a more responsible and a more representative body than a hold-over legislature called into special session.

Senator COLT. May I ask you, is it Mississippi where they elect the State government every four years?

Mr. CADWALADER. I believe it is Alabama, sir.

Mr. LESER. And Maryland.

Mr. CADWALADER. We just adopted a measure to the same effect.

Senator COLT. If the legislature is only elected once in four years would it not prolong the adoption of any amendment?

Senator KING. Mr. Chairman, in many States where they have biennial elections, they elect senators to serve for four years.

Mr. CADWALADER. My State has adopted, I think unwisely, the policy of having only one State election every four years, which hereafter will be the case. I will say that is one State Alabama is another. So far as I know, there are no other such

States. Possibly Maryland and Alabama have disqualified themselves from voting on an amendment except at that interval, if the thing should go through. Senator COLT. I do not understand that.

Mr. CADWALADER. I mean to say, it does not injure the rest of the country. The amendment can be adopted in spite of that, and it certainly is true that the great majority of the States have elections once in two years or once in one year.

Senator COLT. Might I ask you this: With this amendment how long do you think it would take to get an amendment ratified by three-fourths of the States? Mr. CADWALADER. I should say at the outside three years.

Senator COLT. At the outside three years?

Mr. CADWALADER. Yes. And the Senator will recall that the eighteenth amendment contained a provision that its ratification would be void unless ratified within seven years. The Congress put that time limit into the eighteenth amendment itself, but I really think there is no question about it that three years would be the outside.

Senator COLT. You know we have one great Englishman who is a friend of this country, and that is Lord Bryce.


Senator COLT. In dealing with rigid constitutions, such as the Federal Constitution, he says that the danger of making it too difficult to amend is that it may lead to revolution. In other words, here is a rigid body and here is public opinion advancing and there is a wide chasm between them, and the people, if you please, want it amended, they want it amended rather speedily.

Mr. CADWALADER. Yes, sir.

Senator COLT. Of course, running it out theoretically, you can conceive of a situation where there would be an enormous demand for an amendment, we will say almost necessary for the safety of the country; and where you are hampered by a constitution which can not possibly be amended except you go through with a very complicated machinery, requiring a long time to bring it about, you have a serious situation.

Mr. CADWALADER. I am glad you made that point, sir, because it meets exactly what is in my mind. I deprecate very strongly any measure that would make the Constitution more difficult of amendment, and I disagree very respectfully with the chairman and with my learned predecessor, Mr. Wheeler, in the idea that this amendment makes it more difficult in general to amend the Federal Constitution. I qualify that statement and say that it makes it more difficult for organized propagandas to amend the Constitution, but it does not make it one whit more difficult to secure an amendment for which there is a genuine widespread popular demand.

Senator COLT. I am dealing with time only now.

Mr. CADWALADER. Well, time, sir.

Senator COLT. Say the Congress passes an amendment on the 1st of January and it goes right to the States; then say the legislatures are in session of course the constitutional provisions means the legislatures in existence shall take the matter up; it does not mean any succeeding legislature; it means the legislature that is thereand the legislature acts upon it. Do you not think it would prolong the time if there was to be a referendum to the people, or if you had to wait until one House was elected?

Mr. CADWALADER. Well, sir, I would answer that in the most direct and practical way. We will say that this very month Congress proposes an amendment, it would in a large number of States, whose legislatures are in session, be necessary for them to wait until either next year or year after until they could ratify, but except in two instances that I know of, no longer than year after next. The other large number of States, at least half of them, would have an election next November and they would be able to act next winter.

Senator COLT. But you see there you are not putting the States on an equality. Alabama has as much right to vote on the amendment as any other State.

Mr. CADWALADER. It can give itself the right, sir.

Senator COLT. You are assuming that certain States could not vote; that is, that there would be three-fourths without the votes of certain States.


Senator COLT. And those States could not vote because they could not conform to the provisions of this amendment.

Mr. CADWALADER. That is so to-day, sir. A State's constitution might always have provided that a State legislature should only meet once in 4 years or once in 10 years. Of course, that is an extreme case, but it might provide to-day that a legistnre should only meet once every four years and withhold from the governor the right to call special sessions. In that case the State would simply have prevented itself from acting on any constitutional amendments until its regular session came around. That is its own funeral, so to speak; it disqualifies itself from voting until a certain

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