or not the government of a State has veto power, secondly whether the President of the United States has any power with regard to it. I would like to call the committee's attention to the case of Hawke v. Smith (253 U. S. 221), decided in 1920, in which the court stated that the constitutional amendment was not legislative. Therefore the President had nothing whatever to do with it. It was simply a means provided by the Constitution for its amendment, from which it follows that the Government has no veto power, nor does the President. That I understand to be the law of the land today. Mr. PACKARD. That has been thoroughly covered in the legal articles which I have filed, and published in many respected law magazines. Senator LANGER. I am happy we completed this hearing so promptly. Mr. MARTIN. May I make a reference to be attached to my statement that I have written some articles on constitutional amendments and their submission, the decisions of the courts on the ratification of amendments by the States. They are found in January and February 1953 issues of the American Bar Association Journal and in theSenator LANGER. Were these included in the previous hearing? Mr. MARTIN. No, sir, they were not. They are also found in—may I give Mr. Smithey that reference? Senator LANGER. Yes. Mr. MARTIN. I will send Mr. Smithey some copies. (The articles referred to are as follows:) AMERICAN BAR ASSOCIATION, SPECIAL COMMITTEE ON INCOME TAX AMENDMENT TO THE CONSTITUTION, Mr. WAYNE H. SMITHEY Subcommittee Counsel, Birmingham, Ala., April 27, 1956. Senate Office Building, Washington, D. C. DEAR MR. SMITHEY: I have reviewed the articles to which I referred in my statement on Senate Joint Resolution 23 before the subcommittee on April 24 and think only one of them is pertinent to the subject: "The Amending Power: The Background of the Income Tax Amendment," which appeared in the January and February 1953 issues of the American Bar Association Journal. Of this I am enclosing two copies. The other article was written with respect to House Joint Resolution 568, 83d Congress, 2d session, to bring to the States the power to amend the Constitution, and concerns only the undertaking in past history to amend article V of the Constitution. I appreciate your assistance with respect to the hearing on Senate Joint Resolution 23, and with kind regards beg to remain. Yours sincerely, WM. LOGAN MARTIN. THE AMENDING POWER: THE BACKGROUND OF THE INCOME TAX AMENDMENT By William Logan Martin, of the Alabama Bar (Birmingham) This is the first half of a thorough study, by the Chairman of the Association's Special Committee on Income Tax Amendment, of Article V of the Constitution, which provides for a new constitutional convention upon application of two-thirds of the states. Twenty-eight state legislatures have passed resolutions requesting such a convention in a determined effort to place some limit on the taxing powers of Congress. Mr. Martin declares that the powers of such a new convention would be practically limitless, and that its members might rewrite the entire Constitution, just as the members of the Convention of 1787 did when it convened to amend the Articles of Confederation. "Fantastic," said a thoughtful member of the Bar, when the hope was expressed that the next Congress would submit the amendment to the Constitution introduced by Mr. Reed (R., Ill.) in the last Congress, limiting the power of Congress to tax. Why fantastic? There are many reasons why the amendment should be submitted. The first is that it is necessary to preserve our liberty. Woodrow Wilson said that "the history of liberty is a history of the limitation of governmental power, not the increase of it". There is now no limitation on the power of Congress to tax, the most dangerous power of government. Other reasons are that twenty-eight states, beginning with Wyoming in 1939, have adopted a resolution calling on Congress to call a convention to submit the amendment; that the legislatures of all the states meet in 1953 except those of Kentucky, Louisiana and Virginia, which have heretofore adopted the resolution; and that it is not unlikely that a sufficient number of other states will take action in 1953 to reach the two-thirds required by the Constitution. Article V of the Constitution provides: "The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of threefourths of the several States, or by conventions in three-fourths thereof * * * no State without its consent, shall be deprived of its equal suffrage in the Senate." Article V has been discussed many times in our history. In the constitutional convention of 1787 it was debated by the convention on seven separate days and went through seven changes before it was finally adopted. The Virginia resolutions, submitted by Mr. Randolph to the Convention on May 29, 1787, provided by No. 13, that the Articles of the Union should be amended when necessary, but that the assent of the national legislature ought not to be required thereto.1 On the debate on June 5, Mr. Pinckney doubted the propriety or necessity of adopting such a provision. Mr. Gerry said that the novelty and difficulty of the constitutional experiment required periodical revision, and that the prospect of such a revision would give immediate stability to the new government.3 When the matter came up again, several members indicated that they did not see the necessity of the resolution at all, or the propriety of making the consent of the national legislature unnecessary.* Mr. Mason, the great states' righter from Virginia, urged the necessity of such a provision, saying that the plan to be formed would certainly be defective, as the Confederation had been found on trial to be; that amendments would be necessary and it would be better to provide for them in an easy, regular and constitutional way than to trust to chance and violence; that it would be improper to require the consent of the national legislature, because it might abuse its power and refuse its consent on that very account. 5 With Mr. Mason's sentiments Mr. Randolph agreed. The provision that the consent of Congress should not be required was postponed to a later date; the principle of amendment of the articles whenever deemed necessary, was adopted June 11.° Discussing the general question of amendment on June 29, Mr. Madison observed that the difficulty of getting defects amended was great and sometimes insurmountable. From the lessons of history, he pointed out that the Virginia state government was the first set up in this country, and though its defects were evident to every person, it could not be amended. The Dutch had made several attempts to amend their system without success. The few alterations made in it were by tumult and faction and for the worse.' The Committee of Detail reported on August 6, Article XIX being as follows: 11 Farrand, The Records of the Federal Constitution 22 (1911). 2 Id. at 121. 3 Id. at 122. Id. at 202. 5 To amend the Articles of Confederation the unanimous consent of all the colonies was required by Article XIII. 1 Farrand, op. cit., 203. 7 Id. at 475-6. The committee elected by the other members on July 24 and to which the proceedings were referred for the purpose of reporting a Constitution, consisted of Messrs. Rutledge (S. C.), Randolph (Va.), Gorham (Mass.), Ellsworth (Conn.), and Wilson (Pa.); 2 Farrand, op. cit. 85, 97. 78203-56- -8 "On the application of the Legislatures of two-thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a Convention for that purpose." On the debate on August 30, Mr. Gouverneur Morris suggested that the legislature be left at liberty to call a convention whenever it pleased, and Article XIX was agreed to, no one dissenting.' 10 On September 10, Mr. Gerry moved to reconsider Article XIX." It follows, said he, that two-thirds of the states may obtain a convention, a majority of which could bind the Union to innovations that might subvert the state constitutions altogether. Mr. Hamilton pointed out the difficulty of amending the Articles of Confederation. It was now desirable that an easy mode be established for supplying defects, which would probably appear in the new system. The mode proposed by Article XIX was not adequate. The state legislatures would not apply for alterations but with a view of increasing their own powers. The national legislature would be the first to perceive and would be most sensible to the necessity of amendments, and ought also to be empowered whenever two-thirds of each branch should concur to call a convention. There would be no danger in giving this power, as the people would finally decide the case.12 Mr. Madison remarked on the vagueness of the terms, "call a Convention for the purpose", as sufficient reason for reconsidering Article XIX. He asked: How was a convention to be formed? By what rule decide? What was the force of its acts? Mr. Sherman moved an amendment authorizing Congress to propose amendments to the several states for their approbation, but no amendments should be binding until consented to by the states.13 Mr. Wilson moved to insert "two-thirds of" before the words "several States", which was voted down, but three-fourths was agreed to.1 Mr. Madison moved to postpone the consideration of the amended proposition to take up a substitute which he offered, which provided for the submission of amendments when two-thirds of the Congress thought necessary, or on application of two-thirds of the states; to be valid when ratified by three-fourths of the states. The amendment was adopted 9 to 1.15 The Committee of Style 16 reported Article XIX in the terms of the amendment proposed by Mr. Madison as amended." It came up for consideration again on September 15.18 Mr. Sherman feared that three-fourths of the states might be brought to do things fatal to particular states, as abolishing them altogether or depriving them of their equality in the Senate. Mr. Mason thought the plan of amending the Constitution both exceptionable and dangerous. Since only Congress is ultimately to propose amendments, no amendments of the proper kind would ever be obtained by the people, if the government should become oppressive, as he verily believed would be the case. Mr. Gouverneur Morris and Mr. Gerry moved to amend the article so as to require a convention on application of two-thirds of the states." Mr. Madison said he did not see why Congress would not be as much bound to propose amendments applied for by two-thirds of the states as to call a convention on the like application. He saw no objection to providing for a convention for the purpose of amendments, except only that difficulties might arise about the form, the quorum, etc., which in constitutional regulations ought to be as much as possible avoided.20 Mr. Gouverneur Morris again moved the amendment that no state without its consent shall be deprived of its equal suffrage in the Senate and Article XIX as thus amended was adopted in its present form. Mr. Randolph felt that amendments should be offered only by state conventions, which should be submitted 9 Id. at 188. 10 Id. at 468. 11 Id. at 557. 12 Id. at 558. 13 Ibid. 14 Id. at 559. 15 Ibid. 10 The members elected to this committee on September 8 were Messrs. Johnson (Conn.), Hamilton (N. Y.), Gouverneur Morris (Pa.), Madison (Va.), and King (N. Y.). Id. at 547. 17 Id. at 578. 18 Id. at 629. 19 Ibid. 20 Id. at 630. to and finally decided on by another general convention and so moved; otherwise he could not sign the instrument." His motion was lost.22 It may be asked, what is the purpose of reviewing the history of the debates on Article V? The purpose is first, to review again the grave problems the Founders faced in their undertaking to set up for the first time in history a government with limited powers extended to it by the people, and second, never to forget their determination that the government they set up would never be so powerful as to destroy its creators. One way to protect state government was to reserve to the states the power to begin a movement to amend the Constitution if Congress refused to submit amendments to impair its powers. It has been quoted a thousand times, but Washington's advice in his Farewell Address is as sobering today as ever before, when one observes the diminishing power of the states during the past twenty years, due to the exercise of the taxing power under the Sixteenth Amendment. Washington said: "Toward the preservation of your Government and the permanency of your present happy state, it is requisite not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect in the forms of the Constitution alterations which will impair the energy of the system, and thus to undermine what can not be directly overthrown. * * *23 ARTICLE V EFFECTIVE IN THE STATE CONVENTIONS The fear of power exercised by a strong federal government and the determination to maintain the superior powers of the states ran through the debates of the convention. The delegates from Virginia were especially alert to avoid these results. It was a favorite subject also in the state conventions, and Article V played its part in bringing about ratification by the states. If Congress grew too powerful the states could call for another convention. That is the grave problem facing our country today. MASSACHUSETTS Mr. Barrell said that Congress would be vested "with more extensive powers than ever Great Britain exercised over us; too great in my opinion to entrust with any class of men, lest their talents or virtues be ever so conspicuous, even though composed of such exalted, amiable characters as the great Washington: for while we consider them as men of like passions, the same spontaneous, inherent thirst for power with ourselves; great and good as they may be, when they enter upon this all-important charge, what security can we have that they will continue so?—And, were we sure they would continue the faithful guardians of our liberties, and prevent any infringement upon the privileges of the people— what assurance can we have that such men will always hold the reins of government-that their successors will be such?" 24 CONNECTICUT 25 Governor Huntington pointed out what the history of man clearly shows, that it is dangerous to entrust the supreme power in the hands of one man. Never before did the people in time of peace and tranquility, meet together by their representatives, and with calm deliberation frame for themselves a system of government. 26 Richard Law referred to Article V, which provides that whenever two-thirds of Congress, or a convention called at the instance of two-thirds of the states, shall propose amendments, and they shall be agreed to by three-fourths of the states, such amendments shall be valid as part of the Constitution; that this is an easy and peaceable way of amending the Constitution. NEW YORK 27 Discussing the question of proposing amendments, Mr. Lansing, a member of the Philadelphia Convention, said that every amendment which he was 21 Id. at 631. Id. at 633. 231 Messages and Papers of the Presidents 210 (1897). 242 Elliot. Debates on the Federal Constitution, 1787-88, 165-6 (1836). 25 Id. at 200. 20 Id. at 201. 27 Id. at 202. 28 convinced would have a tendency to lessen the danger of invasion of civil liberty by the general government, would receive his sincere approbation. A circular letter dated July 28, 1788, signed by George Clinton, president of the New York convention, set out that the convention desired nothing more than that the amendments proposed by New York or other states, be submitted to the consideration and decision of a general convention so that even the states which may be content with every article in the Constitution, may ratify the same and thus gratify the reasonable desires of that numerous class of American citizens, who are anxious to obtain amendments of some of them. PENNSYLVANIA 29 The Pennsylvania delegates were concerned that the federal government would absorb the powers of the state governments. Mr. Wilson, one of the great scholars of his day, said that a legislature should be restrained, that there should be not only what we call a passive, but an active, power over it; for of all kinds of despotism, this is the most dreadful, and the most difficult to correct. It was his opinion that the federal government would not absorb the government of the individual states, because it was founded upon their existence. After organization of the government anything essentially wrong could be easily amended by the mode pointed out in the system itself. VIRGINIA 30 In Virginia the most powerful characters arrayed themselves. On the side of the opposition to ratification stood Patrick Henry, John Tyler, Henry Lee of Bourbon, Theodorick Bland, William Grayson, James Monroe and George Mason. Favoring the new government were Edmund Pendleton, president of the convention, Edmund Randolph, Francis Corbin, James Madison, Henry Lee of Westmoreland, John Blair, George Wythe, James Ennis, and George and Wilson Nicholas. Patrick Henry,31 quoting Article V, said that however uncharitable it might appear, he must express his opinion that the most unworthy characters might get into power and prevent the introduction of amendments. If these powers fall into unworthy hands, will they relinquish powers already in their possession, or agree to amendments? Should one-third of Congress be unworthy men, they may prevent the application for amendments.32 Mr. Henry asks: "Can the annals of mankind exhibit one single example, where rulers overcharged with power, willingly let go the oppressed, though solicited and requested most earnestly? The application for amendments will therefore be fruitless. Sometimes the oppressed have got loose by one of those bloody struggles that desolate a country. But a willing relinquishment of power is one of those things which human nature never was, nor ever will be, capable of." " He quotes Montesquieu, "that sage man," who said: "When you give titles of nobility, you know what you give: but when you give power, you know not what you give.' 99.34 Mr. Wilson Nicholas, answering Mr. Henry, pointed out that had the question of amendments rested solely with Congress there might have been danger; but there was another mode provided besides that which originates with Congress; that "On the application of the legislatures of two-thirds of the several states, a convention is to be called to propose amendments, which shall be a part of the constitution," when ratified as provided therein; that it was natural to conclude that these states which would apply for calling the convention, would concur in the ratification of the proposed amendments.35 Mr. Corbin observed that liberty is secured by the limitation of the powers of government, which are clearly and unequivocally defined, and which are to be exercised by our own representatives freely chosen; that he considers all the powers of the system necessary, and only given to avoid great evils, and if this 28 Id. at 222. 29 Id. at 387. 30 2 Elliot, op. cit. 417, 466, 485. 31 Mr. Henry's discussions covered 98 pages of the debates and he spoke twenty-one times. Mr. Madison took up 125 pages and spoke thirty-one times. See 3 Elliot, op. cit. 32 Id. at 76. 33 Id. at 79. 34 Id. at 175, 404. 35 Id. at 121. |