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Its Sources and Its Application A
Article V
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 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 the Congress; 129
129 In this Article there is prevented for the future one of the failures in practice of the Articles of Confederation. They provided (Article XIII) that no alteration at any time should be made unless agreed to in the Congress of the United States "and be afterward confirmed by the legislature of every State." Three important attempts to amend the Articles failed on account of that provision for unanimity. Rhode Island alone prevented an amendment by which the Government could raise money on import duties. New York alone defeated another amendment for a general revenue plan. A third important amendment thus defeated related to commerce. The framers of our Constitution removed that obstacle.
Here, for the first time in history, a government provided for its own change without turbulence or bloodshed.
All the Amendments to the Constitution thus far adopted were proposed by Congress and not by the legislatures of the States; and only one ratification (that of Amendment XXI) has been effected by conventions rather than by State legislatures. The Constitution itself was ratified137, not by the legislatures, but by conventions of the people in the States. New Jersey ratified the Fourteenth Amendment on September 11, 1866, and attempted on March 27, 1868, to rescind its action; and in January, 1868, Ohio attempted to rescind its ratification of that Amendment, which was given on January 11, 1867. Secretary of State Seward announced the ratification of the Fourteenth Amendment by three fourths of the States, and mentioned those attempts at rescission. Congress thereupon passed a concurrent resolution that the ratifications made the Amendment a part of the Constitution. Oregon tried to withdraw its ratification of the Fourteenth Amendment after its adoption had been proclaimed by the Secretary of State. New York undertook to withdraw its ratification of the Fifteenth Amendment. The governing principle seems to be that when the legislature took the step of ratifying under the Constitution it exercised its constitutional authority, exhausted its power in the premises, and could do nothing further.
In 1919 the Supreme Judicial Court of Maine, in answer to a question propounded by the Governor, declared that the legislature could not rescind its ratification of the Eighteenth Amendment, establishing prohibition.
In 1920, in six cases, arising in New Jersey, Rhode Island, Massachusetts, Kentucky, Wisconsin, and Missouri under the Eighteenth Amendment, the Supreme Court of the United States held that the referendum provisions in the constitutions of some States cannot be applied under this article to the ratification or rejection of amendments - the requirement being that the legislature, or a convention, and not the voters, must ratify or reject an Amendment.c4, c76, c93
On December 20, 1860, South Carolina, in the State convention, repealed or withdrew the ratification of the Constitution which it gave in 1788 and undertook to return to its former status.
Praising our Constitution as superior to that of England because time and consideration are required to make an amendment, Lecky ("Democracy and Liberty") says that "an appetite for organic change is one of the worst diseases that can affect a nation."
Fenet, the French statesman, in making a report for the revision of the law of France and the adoption of a civil code, and having in mind the failure of the French Revolution in its effort to take leave of past thought and achievement and to set up a new social and governmental system based upon supposedly new ideas, gave expression to this maxim, which should not be forgotten: "It is better to preserve what it is not necessary to destroy."
In his Farewell Address (1796), caution is given by Washington to resist "the spirit of innovation" upon the principles of the Constitution, "however specious the pretexts." He said that "facility in changes upon the credit of mere hypothesis and opinion exposes to perpetual change from the endless variety of hypothesis and opinion"; and that in any event, should a "modification of the Constitutional powers" be necessary, it should be made "by an amendment in the way which the Constitution designates." "But let there be no change by usurpation," he warned.
Every one of the twelve constitutions of France adopted since 1789 has been made difficult to amend. To illustrate, one provided that no amendment could be made until three successive legislative assemblies should have expressed the wish for a change in some article.
The Parliament of Australia can alter certain articles but not others. The Parliament of the Dominion of Canada cannot change the constitution, which is alterable by the Parliament of England. But in New Zealand almost all the articles are amendable by the local Parliament.
In the Argentine Republic, which followed our Constitution closely, amendments are first declared by a two-thirds vote of Congress to be necessary, and then the subject is dealt with in a convention for the purpose.
In Brazil, as with us, amendments may be initiated by either Congress or the legislatures of the States.
From time to time Presidents have suggested to Congress the propriety of proposing amendments to the Constitution. Jefferson, who had questioned the constitutional power to make the purchase of Louisiana in 1803, suggested to Congress (1806) that an amendment be proposed authorizing the spending of surplus National funds for education throughout the States, for the construction of roads, the opening of rivers and the digging of canals. President Monroe suggested (1817) the propriety of an amendment authorizing the establishment of seminaries throughout the land. In 1829 President Jackson recommended an amendment permitting the distribution of surplus National revenue among the States so as to avoid what he considered the illegal appropriation of public money for non-National purposes. On December 3, 1860, the month after Lincoln was elected, President Buchanan asked Congress to propose an "explanatory amendment"167-3
(1) recognizing property in slaves where they then were held or might afterward be owned;
(2) protecting the right of slave owners to hold slaves in Territories, the right thereafter to be determined by a vote of the people; and
(3) recognizing the right of an owner to his fugitive slave and declaring all State laws void which were designed to impair or defeat his rights.In 1868 President Johnson asked Congress to propose an amendment for the election of the President by the direct vote of the people, limiting his term to six years, and forbidding reelection. President Grant desired (1873) an amendment authorizing the President to veto any item of a bill to which he might object without negativing the whole bill; and in 1882 President Arthur made a like request, calling the attention of Congress to the fact that fourteen States had at that time made such provision for the veto of legislative bills by their governors. President Grant also (1873) requested the proposal of an amendment that a special session of Congress be forbidden to deal with any subject except that for which it had been specially convoked.
To illustrate how closely the applicability of the Constitution has always been studied it may be mentioned that from April to November, 1921, there were offered in the first session of the Sixty-seventh Congress twenty-five resolutions to amend it, some of them being substantially repetitions of others. One was for making the term of the President six years and prohibiting his reelection; another would authorize him to veto any provision of a bill and approve the remaining ones; another would empower Congress to regulate the employment of children under sixteen years of age45; another would extend the word "elections" in the Constitution to include primaries26; another would submit to a vote of the people the question of declaring war55; another would extend the constitutional definition of treason113 to include acts of injury in time of war to the military, physical, or financial resources of the United States; another would require the ratification of an Amendment by the voters of the country to the exclusion of the legislatures of the States; and more of various kinds. It has been said that over 2000 amendments have been proposed in the course of our National life.
Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses61, 65 in the Ninth Section of the first Article;130
130 This relates to slavery.
and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.131
131 Once more the small State is guaranteed against being prejudiced by the large ones. In the Brazilian Constitution it is provided that bills to abolish the republican federative form of government, or to destroy equality of representation in the Senate, are not subjects of deliberation.18