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The subcommittee reconvened pursuant to the taking of recess at 2.30 o'clock p. m. Senator COLT. Mr. Wheeler, were there any others?
Mr. WHEELER. Mr. Chairman and Senators, I have two editorials I would like to put in the record, one from the Boston Transcript of the 12th of January, and one from the Baltimore Sun of the 16th of January.
(The matter referred to will be found printed at the end of this hearing:)
Mr. WHEELER. There is a gentleman here from Boston, Mr. Chairman, Mr. Barton Corneau, who represents the Constitutional Liberty League of Massachusetts, and we would be glad to give him a few minutes.
STATEMENT OF MR. BARTON CORNEAU, REPRESENTING THE CONSTITUTIONAL LIBERTY LEAGUE OF MASSACHUSETTS.
Mr. CORNEAU. Mr. Chairman and members of the committee, the members of the Constitutional Liberty League of Massachusetts, which I represent, are lawyers, doctors, architects, bankers, brokers, real estate men; in general, men and women representing practically all the professions and all lines of business. The purpose, at least one of the fundamental purposes, of the organization is to strive for the maintenance of those standards of personal liberty, thought, and conduct which were established by the founders of our Government. That is the purpose as stated in the constitution of the league. It is solely a nonpartisan and independent organization. It represents no special interests, it holds no brief for anyone, and it has sent me down here to present to you its views in reference to the matter pending before you to-day. Its treasurer, Mr. Alexander Lincoln, of the Boston bar, has prepared a very careful and thoughtful résumé in reference to the proposed amendment of the Constitution, which I shall not take the committee's time to read, but which I present and ask to have incorporated in the record of the meeting.
Senator COLT. It may be incorporated in the report.
Hon. LEBARON B. COLT,
Senate of the United States, Washington, D. C.
JANUARY 13, 1923.
DEAR SIR: I am informed that the subcommittee of the Senate Committee on the Judiciary will give a hearing on the proposed Back-to-the-People Amendment on Tuesday next. I am strongly in favor of the proposed amendment, and I sincerely hope that favorable action on it will be taken by the Senate Judiciary Committee. It is a well understood principle that the people possess all sovereign power, and that constitutions are made only by proposal in convention and subsequent ratification by the people themselves. The Constitution of the United States was framed in the Constitutional Convention of 1787, and was submitted to the people of the several States there assembled in conventions.
See McCulloch v. Maryland, 4 Wheat., 316, 403, 404. It was indeed proposed in the Convention of 1787 that the Constitution framed by it should be submitted to the legislatures of the several States, but that plan was rejected. (Madison's Notes, 3 Documentary History of United States Constitution, pp. 405, 409, 410.)
In most if not all of the States constitutions are amended by proposal in the legislature or in convention and by ratification upon submission to the people directly. Article V of the Constitution of the United States, however, provides an alternative method of ratification either "by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by Congress." The reason why this power was given to Congress to submit the proposal for an amendment to the State legislatures, seems to have been that the framers of the Constitution did not intend by Article V to authorize the making of any radical change or addition to the Constitution as an amendment, but to provide merely for the curing of defects.
See 3 Elliot's Debates, pp. 176, 177; 5 Elliot's Debates, p. 182; Madison's Notes, Farrand, Vol. II, p. 558; The Federalist, No. 43, sec. 8.
The views held by the Convention of 1787, however, have not prevailed. In the exercise of the amending power conferred by Article V, its scope has been very much broadened, and the authority to introduce almost any conceivable change into the Constitution by the means provided by that article has been sustained by the Supreme Court in the prohibition cases.
The growing power exercised over legislative bodies by powerfully organized groups of people, seeking to secure the passage of permanent laws or the introduction of fundamental changes in our system of Federal Government by amendments to the Constitution, is apparent to all. There are notable instances in the past where this power applied to the legislature has prevailed against the wishes of a majority
of the people, and now that the way has been learned it seems probable that attempts to make further amendments, by organizations wielding great political power, will be increasingly prevalent. To the minds of many this constitutes a grave menace to the Republic.
The back-to-the-people amendment proposes that Article V shall be amended by introducing a proviso to the effect that the members of at least one house in each of the legislatures which may ratify an amendment shall be elected after such amendment has been proposed, and that any State may require that ratification by its legislature shall be subject to confirmation by popular vote. As the provision is at present the people of the States have no control whatever over the action of their legislatures in ratifying or rejecting a proposed amendment. In many cases they have not even the opportunity to select their legislators with a view to their action on such amendments. This proposed amendment will give them a substantial and I believe a adequate control. I am therefore heartily in favor of it and earnestly hope that it will be approved by the Senate Judiciary Committee.
Mr. CORNEAU. I think that I may state very briefly the views of the organization which I represent. We find that in the last analysis the Federal Constitution is nothing more nor less than a contract between the people and the Government, and that, therefore, that contract, like every other contract, but partly expresses the will of the contracting parties.
Experience has shown, however, as the speakers preceding me have very fully demonstrated to the committee, that the legislatures of the various States may not always be relied upon to sense or, at least, to carry out the will of the people, and, therefore, the organization which I represent feels that the measure now before the committee should take effect, because through that proposed amendment to the Constitution the people of each State will be afforded an opportunity to express in an unmistakable and effectual way their opinion in reference to proposed amendments to the Constitution.
Now, in view of the suggestion made this morning, I wish to point out that this measure does not in any way alter the method of amending the Federal Constitution. If this measure should be adopted amendments would still have to be proposed only after a two-thirds vote of the Congress. They would still have to be ratified by threefourths of the States through the legislative action. The proposed amendment does not change that. It merely affords to the people of the different States a method of expressing their opinion upon those proposed amendments to the Constitution and a method in those States where the initiative and referendum prevail of reviewing the action of their legislatures in case that action is not in accord with popular will. In other words, the sole purpose of this amendment, as we see it, is to prevent legislatures, either ignorantly or intentionally, from misrepresenting the people of the States they represent.
Senator COLT. This proposed amendment, though, does not pursue the ordinary method of ratification. This amendment as worded proposes to submit the ratification to conventions called by the different States.
Mr. CORNEAU. Yes.
Senator COLT. Which is the second method provided by the Constitution for the ratification of amendments.
Do you indorse the proposition that this proposed amendment should be submitted for ratification to conventions called in the different States, or would you prefer that this proposed amendment should be submitted for ratification in the manner in which Congress has submitted all other amendments for ratification, namely, to the legislatures of the States?
Mr. CORNEAU. I would feel that in view of the nature of this amendment, the very purpose of which is to give the people an opportunity to express their view, made it natural and consistent to suggest the convention method of ratification. I feel satisfied myself, and I feel sure that the organization I represent would be perfectly satisfied to have the amendment submitted in the usual way. In other words, I think that consistency rather than policy is the purpose of the clause providing for submission by convention.
Senator COLT. Would not you obtain substantially the end which you wish if Congress should adopt the method of submitting all amendments to the Constitution to conventions called by the different States, which conventions would be composed of delegates elected by the people of those States-would not that method of ratification meet the very purposes of this proposed amendment?
Mr. CORNEAU. I think it would. But I believe that there might be practical difficulties in the way of that procedure that would not exist if the amendment in its present form were adopted, which merely requires the election of the legislatures
before the ratification of the amendment, and gives the privilege of referendum to the people of those States, where referendum is a part of the fundamental system of government.
Senator COLT. I might say that I have considerable doubt in my mind as to whether you would secure the speedy ratification of this amendment by pursuing the method proposed of submitting to conventions called by the States. We have had no experience as to that method of ratification and, indeed, I do not know how it would work practically.
I am saying that with this thought in mind, that, as you know; we have numerous proposed amendments to the Constitution. I do not know how many there are before the Judiciary Committee. I think somewhere about 20. And there are many others that have been introduced into the House.
Now this thought is in my mind, that if this amendment as it stands must be ratified by the conventions of the different States I do not know how long it would be before its adoption. Whereas, if it should be submitted to the legislatures of the different States, you might secure speedy ratification.
Mr. CORNEAU. Yes, sir.
Senator COLT. The child-labor amendment is being pushed very hard. I happen to be one of the members of the subcommittee that has that amendment before it. Now, as to the child-labor amendment, I know you would all feel that you would like to have that amendment voted upon in some way or form by the people before it was adopted. But if you do not secure this change which you are asking for here and the child-labor amendment should be passed by the present Congress, why it would go out under the old method of ratification by the legislatures of three-fourths of the States.
Mr. CORNEAU. Why, certainly, the organization which I represent would continue to favor the amendment if it were changed so as to provide for its submission in the usual way to the legislatures. We are quite content to leave that matter without argument to the judgment of the committee.
I agree with the chairman that that would be speedier and a more practicable way of having the amendment adopted, and, as I say, I believe the other method was inserted merely for the sake of consistency. Here is an amendment which itself is proposed on the ground that the people should have a voice.
Senator COLT. Might I ask in this connection if Senator Wadsworth, whose name this measure bears, sees any objection to pursuing the ordinary method of ratification which Congress has always followed, with regard to this particular maendment, the object being this, that we are not embarking upon somewhat of an untried field where you submit it to the legislatures of the States, the object being to secure, if you please, its speedy ratification before any other amendment could be submitted. Senator WADSWORTH. I have not the slightest objection.
Senator COLT. Thank you.
Senator OVERMAN. I would like this to be adopted before the others.
Senator COLT. I have that in mind, you can see.
Senator OVERMAN. I think this is a very wise amendment, to submit this in the old way and then let the others come.
Senator COLT. As a matter of judgment I feel strongly that if you are going to submit this amendment for ratification to the conventions called by the several States it might be greatly delayed, and I think it might be interminably delayed.
Senator OVERMAN. Well, is there anything to be done that ought to be done more speedily than this?
Senator COLT. I might say that the child-labor amendment is being pressed very hard and I know of no other amendment which is being pressed as hard as that or as to which there is such a call for speedy action.
Mr. CORNEAU. I had completed what I had to say just before the chairman asked me his question.
Senator OVERMAN. What other States have similar leagues, do you know?
Mr. COOLIDGE. I think none others. The Constitutional League is confined to
Senator OVERMAN. But the one you spoke of while you were on your feet takes in other States?
Mr. COOLIDGE. The Sentinels of the Republic are all over the country and in Alaska.
Mr. WHEELER. Mr. Chairman, there is one gentleman present who has given attention to the details of the different amendments and their composition. He is the editor of the Woman Patriot of Washington, Mr. J. S. Eichelberger. I shall be glad if he might have a few minutes.
STATEMENT OF MR. J. S. EICHELBERGER, EDITOR OF THE WOMAN PATRIOT.
Mr. EICHELBERGER. Mr. Chairman, Senators of the committee, I would ask the permission of the chairman to file a letter in favor of the adoption of this amendment from one of our contributing editors, Mr. Rossiter Johnson, of New York, who is also the author of the "Story of the Constitution." He says he gave the book this motto from Jeremiah: "A covenant with all the people to proclaim liberty unto them." Senator COLT. You may put that letter in the record.
Senator LE BARON B. COLT,
414 CENTRAL PARK WEST, New York, N. Y., January 13, 1923.
Chairman Subcommittee on the Judiciary, United States Senate.
DEAR SIR: As I am not able to be present at the hearing on the subject of constitutional amendment which you have set for January 16, I trust you will permit me to offer briefly in writing that which I would say on the subject.
When I studied the Federal Constitution and published a history of it (1906), I gave the book this motto, from Jeremiah: "A covenant with all the people to proclaim liberty unto them"; and as almost every discussion is better if it begins with a clear definition, I wrote this, which I now see no way to improve:
"A constitution is a code of laws drawn up or adopted by a people for the government and guidance of their rulers. It assumes that sovereignty-that is, ultimate and supreme right and power-resides in the people, and that all officials are their servants. It is a 'Thus far shalt thou go, and no farther.""
If this definition is correct, it follows that all parts of a constitution-whether that which is written at first, or any that may be added subsequently should come as directly as possible from the people. It is the fundamental law, to which all statutory law must conform. And when we entrust to chosen representatives the making of such statutes as may be wise to-day, but perhaps not adapted to the needs of some future day, it is utterly unreasonable to assume that those legislators may, of their own will or caprice, add to or change the fundamental law-the very rule by which the people, their masters, have defined and limited their powers and their duties.
Under such an assumption, entire disregard of whatever the people may desire is likely soon to follow. Indeed, it has already followed in recent years. For instance, the legislators of one of our largest States were somewhere induced to vote to put into the Constitution a measure which three times, by increasing majorities, their constituents had condemned.
If legislators can thus show contempt for the plainly expressed judgment of their constituents, and fasten upon them a clause of the fundamental law which is practically irrepealable, then we no longer have a Government of the people, by the people, and for the people.
As a community we are notably patient. We obey a statute which the majority of us may or may not approve, with the knowledge that before any great lapse of time it can be changed or repealed. But when a mandate is forced into the fundamental law, without popular approbation, leaving little or no hope of ever changing it, then we may expect to see widespread and persistent efforts to evade or defy it. I need not mention the actual examples of this.
A constitution so tinkered is no longer "a covenant with all the people, to proclaim liberty unto them." And unless such tinkering is made impossible, no great perspicacity is required to foresee the downfall of our Republic.
Mr. EICHELBERGER. The idea of the people having a vote on the Constitution is not new. It is not something that has just been gotten from a clear sky by some of the advocates of this amendment. It was argued in the Constitutional Convention of 1787 that the legislatures had no power to ratify the Federal Constitution. Madison declared, "the legislatures were incompetent to the proposed changes would be a novel and dangerous doctrine that a legislature could change the Constitution under which it held its existence.”
Mason agreed with him, "the legislatures have no power to ratify it. They are the mere creatures of the State constitutions and can not be greater than their creators. * * Whither then must we resort? To the people with whom all power remains that has not been given up in the constitutions derived from them. It was of great moment that this doctrine should be cherished as the basis of free government." Again, Washington, in his Farewell Address, declared:
"The basis of our political systems is the right of the people to make and alter their constitutions of government, but the constitution which at any time exists, till changed
by an explicit and authentic act of the whole people, is sacredly obligatory upon all." That was the ide of the Constitution as a contract, and the very nature of the Constitution as a contract precludes the idea of one party, the governing part, amending it without the consent of the other part.
And we find that in our State constitutions there is not a single State constitution which can be changed to the extent of a comma by any legislature without confirmation by popular vote.
The State of Delaware, the sole exception to the direct vote, has an indirect referendum, which, of course, amounts to the same thing. In the State of Delaware they require that an amendment to the State constitution must be proposed by at least two-thirds of one legislature, then there must be notice to the electors for a certain period before the next election, so that if they desire they can express their will at the polls upon the proposition, then the amendment must be ratified by the second legislature by a two-thirds vote, which gives them an indirect vote.
In other words, there is not a State in the country that has not some form of confirmation by popular vote. Most of them require two legislatures and then submission to a popular election. I think that is the case in New York, and in Pennsylvania they have the two legislatures and only allow it once every five years.
In Vermont I think the requirement is 10 years, and they can only submit constitutional amendments every 10 years, if I am not mistaken, under the constitution of Vermont; and they require their legislators to swear that they will never do anything to abridge or lessen the rights of the people under the constitution.
And yet, the people having safeguarded themselves since the very formation of our Government against any change whatever in their State constitutions except by these solemn and extended processes and confirmation by popular vote, it is a fact that there has not been a single vote cast by a private citizen in any precinct in the United States on these amendments that have been recently submitted to legislatures.
In that respect I would ask the committee to file a table which shows the membership of the various legislatures and the number of legislative votes required to amend the Constitution of the United States.
At the mercy of the lobby-Number of legislative votes required to amend the United States Constitution.
That is, 673 State senators and 1,643 State representatives, or 2,316 legislators in all, can ratify a Federal amendment, with all members of 36 legislatures present and voting.