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'APRIL, 1919
The Commoner
raaaniMNnwMMMMM
Is a Referendum on a Federal
Amendment Constitutional?
5
This question -will bo before the courts in
rpveral states in the near future, because of the
proposed referendum to the 18th amendment in
fourteen states.
Article V of the rederal constitution provided:
"The congress, -whenever two-thirds of both
houses doom it necessary, shall propose amend
ments to this constitution, or on the application
of the legislatures of two-thirds of the several
state?, shall call a convention for proposing
amendments, which, in either case shall be valid
to all intents and purposes, as part of this con
stitution, when ratified by the legislatures of
three-fourths of the several states, or by con
ventions in three-fourths thereof, as the one of
the other mode of ratification may bo proposed
by the congress."
This prpvides two methods for proposing
amendments. One, by congress and the oth6r a
convention upon the application of the legis
latures of two-thirds of the states. In either
case the proposed amendment must be ratified
by the state legislatures or a state convention
as congress specifies. No other method is out
lined or provided in the fed-ral constitution.
It is clear that a propo l of a referendum
imp ses a limitation and a -estriction, unau
thorized, and hence contrary to Article V.
This article i rovid jsth' L. i "1 amendments "shall
bo valid to all intents and purposes WHEN
RATIFIED. BY THE LEGISLATURES of throe
fourths of the states The propositi n to
refer to the people means that such amendment
shall not be valid when ratified by the legis
latures but that such ratification by the legis
lature shall in no event be effective until a cer
tain number of days after it has been adopted,
and that if a petition nskinj tha't it be referred
is filed within a certain time, that "SAID
AMENDMENT TO THE CONSTITUTION OF
THE UNITED' STATES SHALL NOT GO INTO
EFFECT UNTIL AND UNLESS APPROVED BY
A MAJORITY OF THOSE VOTING UPON THE
SAME." It would be -hard to imagine a more
direct interference with a provision of the con
stitution of the United States. The attempt to
change the method of ratifying amendments has
been made on many occasions. In every instance
it has failed because the conclusion invariably
reached was that the federal constitution itself
must be amended before an new plan to ratify
an amendment could be adopted.
EACH STATE ACCEPTED THE PROVISION
RELATING TO RATIFICATION IN THE
FEDERAL AMENDMENT
When a state became a part of the federal
government It agreed to accept the provisions in
the feleral constitution. One of those provisions
is that an amendment may be adopted to the
federal const." ition by the legislatures of three
iourths of the states. Tbre was no provision
referring to the acceptance or rejection of 'the
amendment to -the people. A state cannot pre
scribe a different method for amending the con
stitution than that which is found in the federal
constitution, Any ref-rendum on the ratification
resolution is unauthorized, unprecedented and
J meaningless plebiscite to delay the operation
i J ate when tUe federal amendment will go
Into effect.
RAnS?,!?ATI0N IS N0T A LEGISLATIVE ACT'
CONTEMPLATED BY A CONSTITUTION
The ratification of a federal amendment is
finMn f islatiVQ act involving legislative power
Ian ii a referendum. It involves ik legis
aiive i uiscretion as to form, penalty or substance
bofiv amendirent. It is the act of a delegated
nomin Maccept or TeiQct tne amendment just as
Jec4 i r0ns of a sovemor are accepted or re
lav 1;efercndums are applicable only to legis
94 o qCJl- The case of Ohio vs. Hildebrandt,
endmn i ' quoted y e advocates of a refer
conerne i not in Vint' That case involved the
tion 4 ?n5 Gerrymander Act. Article 1, sec-
"Tlmti federal constitution provides:
electlnL Jmes' aces and manner of holding
be nrl?rJsenators.and representatives, shall
but thn in each state by tue legislatures;
or altpr on.BreW raay at any time bylaw-make
' chooa???1 regulatIns)s except as to the places
"loosing senators." ' .
Under this authority the Ohio constitution
and -the legislature provided for a referendum
on an act adopted by the legislature. Tho Gerry
mander Act was a legislative act. Tho federal
constitution gave tho Jegislaturo this specific
authority to provide the time, place and manner
of holding elections. The only limitation on this
power was the authority of congress to alter
these regulations except as to the place of choos
ing senators. In 1911 congress amended the
federal act to specifically provide for just such
a contingency as was used. It amended tho law
so that the redisricting in a stato "might bo
made in the manner provided by tho laws there
of." There is no such provision authorizing a
referendum on tho action of tho legislature rati
fying a foderal amendment. Tho federal con
stitution simply provides that tho amendment
"shall bo valid to all intents and purposeB, whon
ratified by the legislatures of throe-fourths of
the several states."
There is no provision that the legislature may
provide tho time, place or manner of conducting
an election relating to ratification. Nor has con
gress provided that ratification may be completed
in the manner provided by the laws thereof. It
simply points out one method of ratification, to
wit: tho legislature itself. Any referendum or any
other method which the legislature might choose
as a means of ascertaining tho sentiment of tho
people, would have no binding effect. The legis
lature has this duty impressed upon it by tho
fcieral constitution. It cannot tide-step, equi
vocate or shirk tho responsibility. Until the
federal constitution is changed, tho legislature
must act and no other authority can be sub
stituted for it. Tho United States supreme court,
in tho case of McPherson vs. Blacker, 146 U. S. 1,
in referring to article 1, section 4, above men
tioned, quoted with approval tho action of the
committee holding that tho word "legislature"
did not mean legislative power.
This construction of the la 7 is corroborated
by the opinion of the Attorney General of Ohio
in 1917, after the decisionof the case relied
upon by the liquor intcrosts:
"Wherever a 'state legislature' is referred to
in the federal constitution merely as descriptive
of a body of public officers, or wherever powers
or privileges not c--:ontially legislative are con
ferred in terms upon a 'state legislature' the
presumption does not apply."
The function of the legislature in ratifying
constitutional amendments is not a legislative
function. It is tho executive act, as a designated
,agent of the people of the stato, in consenting
to an amendment framed and submitted by con
' gross. The legislature has no power to control
the form of the proposed amondment. "It may
ratify it in the exact form in which it has been
proposed by congress, or it may fail to ratify it.
Such a function is not legislative. It Is similar
to "the power of the legislature to accept or re
ject a nomination of an appointee by the
governor.
The ratification by tho legislature has never
taken even the form of legislation. The practice
has been for the houses of tho legislature to
ratify by joint resolution. The requirements as
to the reading, printing, etc., of the proposal,
absolutely essential in legislation, have never
been insisted upon. See Mathews Legislative
and Judicial History of the 15th Amendment,
p 68 The joint resolution, when passed, has
iever'been submitted to tho governor to accord
him the veto power. This practice, the legality
of which has never been, and is not now dis
puted is conclusive of the case, for if the word
" egisiature," as used in Article V, United States
constitution was meant to include all those who
do and may exercise any control over state legis
lation when the failure to accord the governor
tha veto power over these resolutions has been
Ulegl? and not a single amendment of the United
States constitution has been unconstitutionally
adopted.
ARTICLE FIVE SIMILAR TO ORIGINAL
SECTION THREE, ARTICLE ONE
The nower gi?en to the legislature by Article
Five is just as complete as that formerly given
to the legislature by Section Three of Article
One of the United States constitution, with
reference to tho election of senators, which If '
as follows:.
"Section 3. Tho senate of tho United Stafaa
shall be composed of two senators from oaoli '
stato, chosen by tho legislature thereof, for six
years; and each senator shall have one vote."
It was admittod by ovory one that it wmi
necessary to amend tho constitufloh of tho
United Statos, and not tho constitution of tho
various states, in ordor to provido for tho direct
election of senators, And tho amendment to tho
constitution of tho United Statos so providing
was adopted by tho legislature of Ohio after the
initiative and referendum was in effect in thin
stato. If the theory which is relied upon by op
posing counsel is correct, then tho ratification,
of -this amondment by tho legislature was en
tirely unnecessary.
If any authority outside of tho constitution of
the United States itself is needed in support of
tho proposition that tho word "legislature" ita
used In Articlo 5, and Section 3 of Artlolo 1,
meant tho legislature of tho stato composed of
tho sonato and houso of representatives as dis
tinct and separate from tho people and tho
popular vote, an examination of tho Federalist
alone will produce It. It is unnecessary to refer
to special papers, for It clearly rfppoarH. f rom tho
Federalist as a wholo that tho constitution
makors fully considered tho advisability of vest
ing the power of action in certain matters with
tho people as a wholo, to be exorcised by direct
vote, or with the legislature as the body repre
senting the people; rfhd that by express design
tho power to choose senators was vested not in
tho people but in the legislature; it is equally
apparent tlat Articlo 5 which vests tho complete
power as to ratifying amendments in the legis
lature was advisedly and designedly vostod in
tho legislature to the, exclusion of ,any direct
participation by tho podple except as the people
ratify or take part in tho oloctlon of tho legis
lature. The only way a referendum can bo legally
secured is to offer an amondment to tho federal
constitution In tho manner provided In the con
stitution. It Is an interesting fact that years ago '
a resolution was proposed in congress to provido
for a referendum of federal amendments. It was
defeated by the statos that are now most de
sirous of tho referendum. Any proposal for a
referendum on the 18th Amondment before tho
constitution itself is amondod is as abortive an
attempt to nullify the constitution as was made
by So.uth Carolina in 1808.
A referendum on a fedoral amendment is un
precedented and unauthorized. It would b a
Bolshevist attack on tho federal constitution
ovor-Idlng reason and tho orderly procedure by
which the government alone Is given stability
and worth. WAYNE B. WHEELER.
HEARTILY INDORSES CONSTRUCTIVE
PROGRAM
0. W. Newman, Idaho: You have my hearty
indorsement on all the paragraphs in your re
construction program. As you have led tho
reforms for moraL and good government Jn tho
past, I do hope you wilf 'continue to lead in tho
future. Some ono will have to lead the forces
of righteousness and truth against the cursed
monster that caused this awf-l war, namely
militarism. There is a. movement on foot in this
country trying to convert our nation to a w r
machine. Woe bo i us and the rest of tho
world if that policy carries. If we arc to tako
over Germany's milltarJs and England's naval
ism then all our sacrifices in the war are lost,
and our sons and brothers have bled and died
in vain.
In the gre-i fight for true Nomocracy and for
peace and good wll among the people on earth,
in the name of God I'll tland by you to the last
.ounpe of my ability.
SINE DIE ADJOURNMENT IN HONOR OF
'" MR. BRYAN
The Texas state senate concurrent resolution
by Senator McNealus providing that when tho
legislature adjourns sine dlo at 6 p. m March
19, that it do so In honor of the 59th birthday
of William Jennings Bryan, waa adoptod un
animously by the senate. William Jennings
Bryaa spent his 59th birthday, quietly with Mrs.
Bryn at their hotel, In Baltimore. The Dallas
Democrat.
LI3T FARMER BOYS OU3?
The farmers boys who want to return to tho
farm should be given the preference in the
muster out. Food comes first.
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