is final, and it can no more withdraw its assent than it can withdraw from the Union." 107 Two years later the atempt of New York to rescind its action in ratifying the Fifteenth Amendment was before the Senate. Senator Conkling (N. Y.) said that if at any time the right exists to undo, or revoke or rescind the ratification of a constitutional amendment, it must be found in the Constitution itself either expressly laid down, or resulting necessarily from words which are laid down. That it is not in the former we know, that it is in the spirit cannot be proved, and, therefore, that it can be found in either, is legally untrue. It follows that the right to retract did not depend on the diligence of its exercise for it was wanting from the beginning.' All the states cannot together at any stage aid or permit a single repenting state to revoke its ratification. No state can of itself prevent an alteration of the Constituion, nor can it even avert from itself the action of alterations which the other states may sanction.1 108 109 The only act allowed by the Constitution is ratification. To do or not to do this act is the whole latitude. A refusal to ratify is only an omission to ratify. No matter what the form may be, the sole alternatives are ratification or omitting to ratify. A legislature can do nothing more. Ratifying and unratifying constitutional amendments are different proceedings. The whole truth lies in the statement that the Constitution does give the power to ratify, and does not give the power to cancel a ratification. This absence of power is fatal to the attempt to undo a ratification, whether the attempt be made before three-fourths of the states have ratified an amendment, or afterward. At all times such an attempt is usurpation, not because it is unreasonable, but because it is inexpedient, not because it is illogical, but because it is unauthorized, because no warrant for it exists." This same provision which is said to endow the states with this continuing discretion to rescind, would uphold a majority of the two houses of Congress in withdrawing the Fifteenth Amendment from consideration altogether, at any hour before it had been ratified by three-fourths of the states. This is part of the unseemliness of a doctrine never conceived in our history before." 111 George Ticknor Curtis, in discussing the ratification of the Fourteenth Amendment, pointed out that Secretary Seward in his proclamation declaring the result of official documents on file in his department showing ratification of the Fourteenth Amendment, invited attention to the fact that the legislatures of Ohio and New Jersey, after having ratified the amendment, rescinded their action; that this, in the judgment of the Secretary, made it a matter of doubt and uncertainty whether such resolutions were not improper, involved and ineffectual for withdrawing the consent of the two states, or either of them, to the amendment. He said that if the resolutions ratifying the amendment were to be deemed as remaining of full force and effect, notwithstanding the attempted rescission, then the amendment had been ratified in the manner required by the Constitution. On this theory the Congress declared the amendment adopted, although in its proclamation it noted that Ohio and New Jersey had passed resolutions withdrawing their consent to the ratification.112 John A. Jameson, in 1866, wrote a rare book on the subject of constitutional conventions. He said that the right of a state after a negative vote on a federal amendment to recede from it and ratify the amendment, is, upon principle unquestionable. By the language of Article V there is conferred upon the states a special power. When exercised by ratifying, it ceases to be a power and any attempt to exercise it again must be a nullity.113 The view that rejection forms a barrier in the way of afterwards ratifying an amendment has no real foundation. The real question here is what, under the Constitution is the consequence of rejection? Does it, or does it not, as to the rejecting state, definitely settle the fate of the amendment? A state has the right at some time to ratify an amendment submitted to it. That, the author says, is precisely what is asked of it by Congress, and it is that which the Constitution empowers it to do. The authority charged with inspecting such votes, therefore, cannot refuse to receive one, certainly if offered within a reasonable time, until after a ratifying or three-fourths vote shall have been received." 107 78 Cong. Globe 877 (1868). 108 89 Cong. Globe 1477 (1870). 109 Ibid. 110 Ibid. 111 Id. at 1478-9. 113 2 Curtis op. cit. 379-80. 113 Jameson, Constitutional Conventions, § 579, page 628 (4th ed. 1887). 114 Id. at § 581, pages 629-30. 114 So, when the state legislature has done the act or thing which the power contemplated and authorized-when the power has been exercised-it ceases to exist; for the language of the Constitution is that an amendment proposed by Congress shall be valid, "when ratified by the legislatures of three-fourths of the several states". When an amendment has been ratified by the legislatures of three-fourths of the states, it has become valid as a part of the Constitution and the power of the state legislatures over the subject matter is gone. If a state were permitted to rescind its act of ratification each state afterwards ratifying would have the same right, and one or more of them would be pretty certain to exercise it. Such a mode of transacting business of so transcendent an importance would be puerile. What would be the consequences of withdrawal, the author asks. If a state may withdraw its ratification, at what time may it do so? If a change of circumstances should occur such as to make a change of its vote desirable, before three-fourths of the states have ratified, and if the power were conceded then to withdraw, why should not the same power be conceded at any time after a three-fourths vote has been obtained, upon a like change of circumstances? That such a rule is not correct was made apparent in 1860 and 1861, when the seceding states sought to repeal their several acts of ratification of the federal Constitution, passed by their conventions, in some cases seventy years before. What was then resisted as improper, in relation to the Constitution itself, cannot now be conceded as legal and proper in relation to amendments to the Constitution. Waiving the consideration of principles, the question may be regarded as settled by authority, if a resolution of Congress upon it is to be taken as decisive. By this action, Congress declared the Fourteenth Amendment ratified although Ohio and New Jersey had rescinded their acts of ratification. 115 116 Finis J. Garrett, for many years a member of Congress from Tennessee until his appointment in 1929 as Judge of the United States Court of Customs and Patent Appeals, in discussing Article V, pointed out that the states have a power of their own to initiate amendments independent of Congress, save as Congress should become the instrumentality charged mandatorily with the execution of their expressed will. It seems to be generally accepted as sound law, said he, that a state may reconsider an act of rejection, but not one of ratification; that a completed act of ratification removes the subject from the forum of the legislature and it may not be recalled; whereas, a rejection is not a finality and, pending final action of ratification by the requisite threefourths of the states, any state legislature may reconsider an act of rejection either by itself or by one of its predecessors, and ratify. Congress has accepted the principle that a state may not reconsider and annul an act of ratification once adopted, as in the case of the Fourteenth Amendment, supra page 167. In the case of the Fifteenth Amendment, New York was included in the secretary's proclamation as a ratifying state, although she had withdrawn her act of ratification before he issued it. There were three-fourths without New York, however, so that this incident was not of practical legal moment. From the beginning of the government under the Constitution in 1789 until the close of the 70th Congress on March 4, 1929, a total of 3,113 proposals of amendment had been presented.117 Hundreds of these are duplicates, while other hundreds are merely repetitions of proposals made in prior Congresses. Almost every article, section and clause of the instrument has, at one time or another, been made the subject of proposed amendment. Out of all these proposals covering a period of 140 years, only twenty-four had been submitted by Congress and of these twenty-four only nineteen had been ratified by the requisite three-fourths of the states." 118 THREE EPOCHS OF CONSTITUTIONAL AMENDMENT Former Senator Henry F. Ashhurst (Arizona), in an article in the Saturday Evening Post, April 25, 1929, which was published upon the expiration of his last term in the Senate, and in which he advocated the ratification of amend 115 Id. at §§ 583-4, pages 632-3. 116 Garrett, 'Amending the Federal Constitution", 7 Tenn. L. Rev. 286 (1929). 117 From 1929 to the end of the 82d Congress on August 18, 1952, 1071 proposals had been presented, making a total of 4184. 118 Since March 4, 1929, the Twentieth, Twenty-First and Twenty-Second Amendments have been ratified. ments by the qualified electors of the states instead of by the legislatures, said that any amendment should be acted upon within the lifetime of those interested in bringing about the change in our fundamental law; that the final action should be had while the discussions and arguments are within the remembrance of those who are called upon to act.119 Senator Ashhurst pointed out that there were three epochs of constitutional amendments. The first one was with the first ten amendments (1791) and the Eleventh and Twelfth (1794 and 1804), the latter two arising from the case of Chisholm v. Georgia, 2 Dal. 419, and the tie vote for thirty-five ballots in the House between Jefferson and Burr. The second epoch, sixty years later, was 1865-1870, in which the Thirteenth, Fourteenth and Fifteenth Amendments were proposed and ratified. Forty years thereafter came the third epoch, with the Sixteenth, Seventeenth, Eighteenth and Nineteenth Amendments (1909-1920). HAVE WE THE WISDOM TO SOLVE THE PROBLEM ? in 1787 a small group of men put their minds to a task never before undertaken in history and laid the foundation for a temple of liberty, both for this country and as an example for all other brave and enlightened nations. They would build for the ages a government of individual liberty for mankind. For more than a century and a half, through war, depression and internal strife, that temple has survived. Its builders knew it could not be perfect, as no work of man is perfect. Noting the tumult and revolution which many nations had suffered in order that a change in their form of government might be brought about when no such provision was contained in its charter, the Founders provided for a method of amendment, but only at the hands of the people who had delegated to the Federal Government the limited powers deemed necessary to preserve their liberty. That temple is now threatened through the unlimited power to tax extended to their government by the people, a power over which Congress by its own admission has lost control. The fear of the Founders has been realized. "When you give power, you know not what you give," thundered Patrick Henry. When the people in 1913 gave to Congress the unlimited power to tax they knew not what they gave. What is our remedy? By what peaceful means can we regain our liberty— liberty of mind and soul, which we have lost? We invoke the wisdom of the Founders. They provided a method by which the people can regain powers which they have extended to Congress and which Congress has used in a way destructive of their liberties. That method is the provision in Article V for a constitutional convention. Such a convention may lack the characters that met in 1787 to set up a model government for all the world. Will Congress in orderly course submit to the people an amendment to institute again a limitation over its power of taxation, or shall they demand for the first time in our history that Congress call a constitutional convention to end its oppressive powers? The issue is before us. Have we the vision and the wisdom to solve it? Mr. SMITHEY. Also to be submitted for the record are the following: Letter dated April 27, 1956, from Hollywood Women's Republican Club. Telegram dated April 25, 1956, from A. P. Fant, Jr., New Orleans, La. Telegram dated April 23, 1956, from We The Mothers Mobilized for America. Letter dated April 28, 1956, from Association for the Balance of Political Power, Inc. Letter dated April 26, 1956, from Dames of the Loyal Legion of the United States of America with attached resolution. 119 72 Cong. Rec. 3068 (1930). 78203-56- -9 Resolution adopted by Thirtieth Women's Patriotic Conference on National Defense, Inc., February 16-18, 1956, Washington, D. C. Resolution adopted by the American Coalition of Patriotic Societies, February 16, 1956, Washington, D. C. Resolution adopted by National Society Women Descendants of the Ancient and Honorable Artillery Company, April 10, 1956, Washington, D. C. Letter dated May 5, 1956, from National Society, Daughters of the American Colonists with attached resolution adopted April 11, 1956. HOLLYWOOD WOMEN'S REPUBLICAN CLUB, SENATE JUDICIARY COMMITTEE, Senate Office Building, Washington, D. C. (Attention: Mr. Wayne H. Smithey, Clerk.) GENTLEMEN: By resolution unanimously passed in June 1955 by the board of directors and membership of this organization, we are on record as favoring the repeal of the Federal income-tax amendment to the Constitution or a very definite reduction in the rates and scope of operation; also that Congress and the administrations reduce expenditures to come within the revenues of sensible taxes. Kindly put us on record as favoring the Reed-Dirksen resolution to so amend the Constitution and we urge that your committee make a favorable report on this resolution. Respectfully submitted. Mrs. GEORGIANA CASE, President. WILLIAM LANGER, Subcommittee, Senate Judiciary, NEW ORLEANS, La., April 25, 1956. Senate Office Building, Washington, D. C.: Request favorable action on amendment proposing 25 percent Federal ceiling tax. A. P. FANT, Jr. CHICAGO, ILL., April 23, 1956. Hon. JAMES O. EASTLAND, Subcommittee of the Judiciary Committee of the United States Senate, Washington, D. C.: We the Mothers Mobilized for America protest against a constitutional amendment to limit Federal income tax to 25 percent. We stand unequivocally on the Constitution. We demand the repeal of the 16th amendment en toto. hear T. Coleman Andrews program. Let us WE THE MOTHERS MOBILIZED FOR AMERICA, By EMMA GRAB. ASSOCIATION FOR THE BALANCE OF POLITICAL POWER, INC., UNITED STATES SENATE JUDICIARY COMMITTEE, Senate Office Building, Washington, D. C. GENTLEMEN: This organization is on record favoring the repeal of the Federal income tax or a definite reasonable limitation of the rates and operation. We urge that you make a favorable report on the Reed-Dirksen amendment to provide for same. Respectfully, ARTHUR E. CASE, President. DAMES OF THE LOYAL LEGION OF THE UNITED STATES OF AMERICA, WAYNE H. SMITHEY, Clerk, Senate Judiciary Committee, Senate Office Building, Washington, D. C. MY DEAR MR. SMITHEY: The National Society, Dames of the Loyal Legion of the United States of America, request that the enclosed resolution, passed at their recent annual assembly here in Washington be placed in the hearing record on the Reed-Dirksen amendment. Thanking you, I am DOROTHY B. WAIDE, REED-DIRKSEN AMENDMENT Whereas since World War I our Constitutional Republic of limited powers, the priceless heritage of the Founding Fathers, has been gradually replaced by a powerful centralized Government responsive only to selfish pressure groups seeking socialistic handouts at the expense of the taxpayers; and Whereas the trend toward big government, the welfare state and internationalism now costs American taxpayers more than $65 billion a year in addition to a national debt of $280 billion, an amount equal to the assessed valuation of all the property in the United States; and Whereas extravagant Government expenditures, deficit financing, inflation of the dollar, ruinous taxation and a mounting public debt all combine to lower our living standards, threaten our national solvency and endanger our survival as a free people; and Whereas it is imperative, if we are to preserve our American way of life, that we set a constitutional limit to the taxing powers of the Federal Government and restore that power to the States where, under the vigilant eye of the local taxpayer, public services will be efficiently, honestly and economically administered: Therefore be it Resolved, That the National Society, Dames of the Loyal Legion of the United States of America, approves in principle the Reed-Dirksen proposal for a constitutional amendment limiting the power of Congress to tax incomes and inheritances; and be it further Resolved, That the National Society, Dames of the Loyal Legion of the United States of America, urges the Congress of the United States to vote for the adoption of the proposed Reed-Dirksen constitutional amendment. RESOLUTION ADOPTED BY 30TH WOMEN'S PATRIOTIC CONFERENCE ON NATIONAL DEFENSE, INC., FEBRUARY 16, 17 AND 18, 1956 RESOLUTION NO. 15-REED-DIRKSEN AMENDMENT Whereas since World War I our Constitutional Republic of limited powers, the priceless heritage of the Founding Fathers, has been gradually replaced by a powerful centralized Government responsive only to selfish pressure groups seeking socialistic handouts at the expense of the taxpayers; and Whereas the trend toward big government, the welfare state and internationalism now costs the American taxpayer more than $65 billion a year in addition to a national debt of $280 billion, an amount equal to the assessed valuation of all the property in the United States; and Whereas extravagant Government expenditures, deficit financing, inflation of the dollar, ruinous taxation and a mounting public debt all combine to lower our living standards, threaten our national solvency and endanger our survival as a free people; and Whereas it is imperative, if we are to preserve our American way of life, that we set a constitutional limit to the taxing powers of the Federal Government and restore that power to the States where, under the vigilant eye of the local taxpayer, public services will be efficiently, honestly and economically .administered: Therefore be it |