August 1, 1917

The "senate, as in Committee of the Whole, resumed the consideration of the joint resolution (S. J. Res . 17) proposing an amendment to the Constitution of the United States.

1\ft• . KENYON . 1\fr President, I suggest the absence of a quorum.

The PRESIDENT pro tempore. The absence of ..1 quorum being suggE."sted, the Secretary will call the roll.

The Secretary called the roll, aml the following Senators answered to their names : Ashurst Johnson, Cal. New Simmons ~eckbam Jones, N.Mex. Norris Smith, Ga . Brady Jones, Wash. Overman Smith, S.C. Calder Kellogg Page Smoot Culberson Kendrick Phelan Sterling Cummins Kenyon Pittman Stont.: Curtis King Poindexter Thompson Fernald Kirby Pomerene Trammell Fletcher La Follette Ransdell Underwood Frelinghuy rn Lodge Reed Vardaman Gerry McCumber Robinson Walsh . Gore McNary Saulsbury Watson Gronna Martin Shafroth Williams Hale · Myers Sheppard James Nelson Sherman l\fr. PAGE. I will state that my colleague [l\Ir. DILLINGHAl\I] is necessarily absent from the Senate. He is paired with the senior Senator from Maryland [l\1r. SMITH].

l\Ir. FRELINGHUYSEN. I wish to announce the absence of country. my colleague [l\fr . HUGHES], owing to illness .

.Mr. KING. I desire to announce that the senior Senator from Oregon [l\Ir. CHAMBERLAIN] is detained on official business. and light wines.

Mr. GERRY. I desire to announce that the Senator from Illinois [l\lr . Lewis] is detained on official business.

The PRESIDEN'l' pro tempore. Fifty-eight Senators having answered to their names, there is a quorum present.

Mr. CALDER. Mr. President, the amendment of the Consti­ everyday life. tution of the United States is a matter that should be given the most careful consideration . The makers of this instru ment , in providing how it should be changed, sought to place around it every possible safeguard.

When thE" Constitution was framed we had but 13 States, and the approval of 9 was required to change it. To-day we have 48 States, and the consent of 36 of them is needed .

The men who framed the Constitution had no conception that a number of States representing n minority of the people of the country might at some time determine whether the fundamental law of the land should be changed. Yet that condition e:xi ts to-day. ·

As the Senator from Alabama [l\lr. UNDERWOOD] indicated in his remarks last Monday, there are 12 States in this country whose total population exceeds by 9,000,000 that of the other 36; it is also true that there are 18 States in the Union— . namely, Nevada, Wyoming, Idaho, Arizona, Montana, New Mex ­ ico. Utah, New Hampshire, Vermont, Rhode Island, North Dakota, South Dakota, Oregon, Delaware, Maine, Florida, Colorado, and Connecticut-with · n total population less than that of New York, yet with eighteen times its influence in the final determination of this question.

Congress recently enacted a law, known as the Webb-Kenyon Act, which prevents the shipment of - liquor of :my description into so-called "dry" territory. I voted for this measure, and also Yotell to override the President’s veto of it. because I believed that every State should be protected in the enforcement of its law· affecting its own people. During the last session Congress also enacted the so-called Reed amendment forbidding the distribution in "dry" States of publications containing lution. liquor advertisements. ·

T · These t'\\·o measures make certain that where the people of any community de ire to have prohibition it can be obtained and successfully enforced. .

In my own State, nt the recent session of the legislature, a bill was passed providing for local option on this question. The people of any section of New York State therefore can at any time provide that no liquor shall be sold in their respective communities; and it is possible at any time for the legislature of the State of New York to submit to the people of that State an amendment to its constitution. State wide in its effect, prohibiting the manufacture and sale of liquor. This can · be done :. without reference to national legislation, and, Mr. President, it is a simple thing for the people of New York and, for that matter, of every State in the Union, to have just such legislation whenever they wish it.

The food-control bill riow in conference, which will in all probability be <> enacted into law within a few days, carries a provision prohibiting the manufacture and sale of whisky during .the period of the war. This, in my · judgment, marks the end of the whisky business in the United States. I voted for this provision in the food measure and shall be glad to vote for a substitute for the pending amendment prohibiting the manufacture and sale of whisky but permitting beer and light wines. Whisky is the curse that we must be rid of. Whisky is the wrecker of homes, the demoralizer of men's minds, and I shall vote whenever the opportunity offers to prevent its manufacture and sale.

l\Il'. President, I am convinced that no representative of the State of New York in either House of Congress should lightly vote for an amendment to the Constitution, for, once the measure has passed here and been referred to the several States for ratification, the influence of New York in the final determina· tion of the subject is no · greater than that of the smallest State in the Union .

During my service in this body · I shall hesitate before voting for any amendment to the Constitution unless I feel <'ertniH that there is an overwhelming demand for it on the part of the people of my State.

This amendment is of far-reaching importance. ~ tance. It affects the habits and the customs of the people. Forty per cent, or over 2,400.000, of those residing in the city of New York are · of foreign birth; 78 per cent are of foreign birth or of foreign or mixed parentage. Only 22 per cent of the total of six million odLl people of that city were born here of native parents. That samE' proportion will hold good in nearly every large city in the These people have fixed customs. It is the habit of the great bulk of them, occasionally and moderately, to partake of beer Now, while we are engaged in a great war, to take that from them would, I very much fear, bring serious dissatisfaction anrl distrust of the good intentions of the Government. A great proportion of our people regard it as a necessity, a part of their l\Ir. President, we are working out many problems in these days to which all of us must give our very best thought. I am thinking of the contentment of our people . Its importance can not b~ overe:;;timateu. We are organizing and working the great industries and resources of this country so as to produce the greatest and best results. To do that it is all imperative that we have the whole-hearted rind enthusiastic help and cooperation of every individual. Will it help, or will it harm, to say to the average man that be shall not have something to which he has long been accustomed, and causes no appreciable if any detriment to his physical well-being? Shall we deny to him something which be honestly believes to be n necessity? Is this going to produce more of all the things we need to prosecute vigorously the pending war? Ot· will it lessen the interest of our workingman in the product cf his toil and his contentment, confidence, and trust in his Government? ·

I shall vote against th~ pending amendment. The reasons I have just stated and the ease with which the respective States can pass upon it for their own people, as an evidence of which fact I believe 24 States have already done so, brings me to the concJu ion that in justice to the ll,OOO,OOO people I have the honor to represent here I can take no other course than to vote against the amendment as presented by tlJe Senator from Te:xas. l\lr. PENROSE. l\lr. President, I lla\e been tied up for the last two months with my duties as a member of the Finance Committee in the consideration of the revenue . bill, and I have had little opportunity to participate in the deliberations on the floor of the Senate. I desire, however, during a brief adjournment of the committee to say a few words on the pending resolution. shall vote against the resolution, l\fr. President, regardless of the merits or demerits of the proposition contained therein. In my opinion the resolution constitutes n radical, revolutionary departure from the fundamental principles of the American Government.

Serious doubt may be expressed whether any amendment to the Constitution may properly be placed in that in s trument which. without the consent of all the States, would deprive any one of them . of one or more of the · several reserved powE>r!'. It was agreed on all sides when the Constitution was adopted that it required unanimous consent of the States, since the States were surrendering powers to the Federal Government, and it will be recalled that until North Carolina fin _ ally agreed to the Constitution that State was considered not a part of the Union, and Congress passed a tariff act in 1789 under which goods coming into the Union from North Carolina were subject to duty; and Congress passed an act exempting North Carolina from the tariff law so soon as North Carolina consented to · the Constitution. • . , .

If it required the unanimous consent of the States in 1789 to secure the agreement of each to the surrender of its powers delegated to the Federal Government, how can rights of States, such as Pennsylvania, New York, and North Carolina, not unanimously delegated in 1789, and still reserved in the States, be taken from them by mere amendment of the Constitution?

The police power is the most vital of all the reserved powers in the States, but under this proposed amendment certain States in the Union which did not, in 1789, and in all likelihood . now, could never be made to surrender the police power to the Federal Government, will find a large part of that power wrenched from them, not only without their consent but in defiance of their wishes. Concede that the only presently important limitation on amendment in Article V of the Constitution provides that no State shall be deprived of its equal representation in the Senate without its consent, this specified limitation on the power of amendment in no way concludes J the proposition that States can be deprived of their reserved powers without their consent. On the contrary, it suggests that the framers of the Constitution conceived no amendments as being possible or pertinent except those within the field covered by the original instrument itself, such as those relating to the structure of the Federal Government itself, the treatment of citizens of the United States by the State governments, the relation of the Federal Government to tl1e sovereign States of the Union, and the coordination of the legislative, executive, and judicial departments of the Federal Government. An amendment relating to the representation of the States in the Senate would have fallen within this field, ami the States safeguarded this possibility by putting it beyond the reach of amendment .

.1\o historian or student of this Government will agree that, bad the thirteen original States conceived that immediately upon the adoption of the Constitution their reserved powers could have been amended out of their possession, the thirteen States would have unanimously assented to the Constitution and made it their contract and charter of Union. If that be the fact, it is as sound law to-day as it was in 1789 that the power to amend is not the power to deprive a State of its reserved powers, including the police power or any part thereof. Such privation of a State can in reason and theory be accomplished only by its assent.

Some of the advocates of this amendment contend that it should have no time limit for ratification by three-fourths of the States. This contention is based on the assumption that a State may reverse its action after having refused to ratify, but once having ratified an amendment it can not change its action. This is supported by the action of Congress in 1868 in declaring that the fourteenth amendment had been ratified by three-fourths of the States, though New Jersey, Ohio, and Oregon declared by resolutions of their legislatures · that they withdrew their assent. .

If that one example sustains the theory that a State may not withdraw its assent to a constitutional amendment, we still han~ a constitutional amendment pending before the State legislatures. In 1810 Congress submitted to the States an amendment declaring:

. If any citizen of the United States shall accept, claim, receive, or retain any title of nobility or honor, or shall, . l, . without the consent of Congress, accept and retain any present, pension, office, or emolument of any kind whatever from any emperor, king, prince, or foreign pow e r, such person shall cease to be a citizen of the United States and shall be incapable of holding any office of trust or profit under them or either or them.

~his amendment was ratified by 12 States and by the Senate of the South Carolina Legislature. It was assumed . that the House of Representatives of . South Carolina would vote for ratification, and the amendment was printed as ~ the thirteenth amendment ta the Federal Constitution. The South Carolina House of Representatives failed, however, . er, to give an affirmative vote, and the amendment was supported or ratified by only 12 States, one less than the required three-foui·ths. ·

If it is the contention that a State once having voted · to ratify an amendment can not withdraw its assent, this old amendment submitted by Congress in 1810 must be still pending. l\1r. President, in my opinion, when the people of the different States of the Union come to consider the radi.cal blow which the sovereign rights of the States sustain i.n the proposition em- • bodied in this joint resolution, it will not be ratified by the necessary three-fourths of the State legislatures. .

In the limited time permitted me, Mr. President, I can only refer to the gross inequality which exists in the method by which a~ amendment to the Constitution is ratified. By referring this joint resolution to the State legislatures it is possible that it should be ratified by 36 States, with 46,000,000 population, against the wishes of 12 States, with 56,000,000 population, thus subjecting the country to the rule of the minority. -

Mr. President, we live in an . era preeminently of popular government and popular rule; and how long will a great Nation of over 100,000,000 people tolerate a radical legislative act like this, forced upon them by 36 States, representing 46,000,000 pop· ulation, as against 12 States representing 10,000,000 more, or ~ 56,000,000 population?

The proposition is intrinsically and radically vicious and intolerable. Legislation · of this character, in my opinion, ought to be preeminently and primarily of strictly State concern. There are many States now having prohibition laws where the people acquiesce in them more or less willingly ; but if those laws had been handed t o them by a mandate from a central authority in Washington, the result in many cases would have been resentment and revolution.

The only practical way to establish prohibition or any other police proposition · over an area of country is through the agencies of the States. Otherwise it would take an American army to enforce it. .

Criticism has been made that H is impossible to enforce prohibition in a State on account of the fact that liquor is brought • into the State from outside. That condition, Mr. President, is being gradually corrected.

The last legislation, which seemed to be quite effective, was the so-called Reed bone-dry amendment. I will vote cheerfully, l\1r. President, in the Senate to help in every way to secure tl1e passage of laws calculated to protect prohibition States, and to maintain the prohibition status intact in those States; . but I do urge that in other States the question should be left to th~ people to determine for themselves.

Our country, Mr. President, is vast in area and great in population. In the years to come its growth will almost transcend the imagination.

It, in my opinion, will be inevitable that our system of gov· ernment will break down i.f we continue the course ·which has been followed during the last few years of centralizing · e>erything in the Congress of the United States here in Washington. I believe that the doctrine of State rights, which was once so vigorously maintained by great men in this Senate, and . concerning which a great civil wa-r· was fought, is more important to-day than at any other time i~ the history of the country, in view of our tremendous growth of population and resources and wealth and diversified interests.

The PRESIDING OFFICER (1\Ir. RoBINSON in the chair). The time of the Senator from Pennsylvania has expired.

l\fr. PENROSE. I will ask, Mr. President, in view of the fact that my time is limited, for permission to insert some extracts from Thomas Jefferson, from Mr. Hughes, and others as a part of my remarks.

The PRESIDING OFFICER. Without objection, leave will be granted. The Chair hears none, and it is so ordered.'

The matter referred to is as follows :

It is not enough that honest men are appointed judges. .All . lmow the influence of interest on the mind of man and how unconsciously his judgment is warped by that influence. To this bias add that of the esprit de corps, of their peculiar maxim and creed that "it is t: il e office of a good judge to enlarge his jurisdiction," and the absence of responsibility, and how can we expect impartial decision between the General Government of which they are themselves so eminent a part, and an individual State, from which: they have nothing to bopt• 01· fear? We have seen, · too, that, contrary to all correct example, th e y are in the habit of going out of the question before them to throw an anchor ahead and grapple further bold for future advances of power. They are then, in fact, the corps of sappers and miners, steadily working to .undermine the independent rights of the States, and to con .. olidate all power in the hands of that Government in which they have so important a freehold estate. But i~ is. no~ b~ the consolidation or concentration of powers, but by then· distribution that good govern- ment is effecter;. Were not this great country already divided !llto States, that division must be made that each might do for itself -what concerns itself directly, and what it can do so much better than a distant · authority. Every State again is divided into counties , each to take care of what lies within it-> local bounds, each county again into townships or wards to manage minute details, and every ward into farms to be governed by its individual proprietor. Were we directed from Washington when to sow and when to reap, we . should soon want It is by this partition of cares . descending in gradation from general to . particular that the mass of human affairs may be best managed tol" the good and' prosperity of all. (From Jefferson'!'! Autobiography.) •

But in the face of the difficulties already upon us, and destined lo increase rn number and gravity, we remain convinced of the necessity of autonomous local governments. An over-centralized government would break down of its own weight. It is almost impossible even now for Congress . in well-nigh continuous session to keep up with its duties 1 and we CJln readily imagine what the future may have in store in legislative concerns. If there were centered in Washington a singll' source of authority from which proceeded all the governmental force!' of the country-created and subject to change at will-upon whose p~rmission all legislative and ad.ministrative , action dependent throughout the length and breadth ot the land, I think we -should swiftly . demand and set up a d-..ffer{'nt system. If we did not have States we should speedily have to create them. We now have them, with the advantages .of historic baC'kground, and in meeting the serious questions of local administration we at least have the -advantage of ineradicable sentiment and .cherished traditions. And we may -vell c<lngrat ulate ourselves that the cir~umstanees <Jf the formation of a more perfect Union .h.ajl given . us neither a confederation of States nor a sin,gle centralized Government but a Nation, and yet a Union <Jf States each autonomous in its local concerns. To preserve the essential elements of this system w1thuuf per- mitting necessary local autonomy to be destr-oyed by the unwarranted "assertion of Federal power, and without allowing State action to throw out of gear the requisite machinery for unity of control in nationa-l concerns demanns th~ most intelligent .apprecation of all the :facts of our interrelated affairs and far more careful efforts in cooperation than we have hitherto put forth (From address of Charles E. Hughes before . the New York State Bar Association, J"anuary 14, 1916.)

If the tlay · should ever arrive (which God forbid) when il:be people of the different parts of our country shall allow their local affairs to be administered by prefects from Washington, .and when - the selfgovernment of the States shall have been so 'far lost as that of departments of France, or even so far as that of the counties of England, on that day the progressive political career 'Of th.e Ameri-can people will have come to an end, ADd the hopes that have been built upon it for future happiness and prosperity of mankind will be wrecked forever. , (From Prof. John Fiske's Crucial Period of American History.)

[From the New York Sun, Tuesday, Feb. 17, 1914.]

[s THERE A Lnil!r TO 'CONSTITUTIONAL AME~ilJMEl\""T?~AN .ONE STATE'S RESERVED .RIGHTS BE "TAKE::'> AWAY BY THE VOTE OF OTHER STATES?

To the EDITOR Ob' THE SuN :

Srn : T.he frequency with which the suggestion is made that the Constitution of the United States shall be amended t-o authorize the Federal Government to exercise powers that may be exercised by the States, but which at least some of them do not choose to -exercise, suggests the question whether there lies in the States collectively a right to limit the re erved rights of any of the parties to the compa-ct whose concrete expression is the American Union ; whether there are no such exercises or authority as a dispassionate juoge would pronounce ultra vires.

It is · a fundamental principle of association that charters confer equitable authority to bind with respect only to such matters as are contemplated in their formation and this restriction is not based on an expressed self-limitation in the documents themselves, but on obvious principles of justice. Yet, while this statement will be generally accepted without question, that charter by which the .American Colonies bound themselves originally is. in practice at least, assumed to be an exception to the operation of the principle. Whether it is or not it might be presumptuous to say, but, at any rate, the question is .a debatable one whether the thirteen original States entered into the~ompact with the understanding that their subscription to the Constitution implied that their sovereignty in their · reserved rights was thereafter not to ibe absolute, but contingent · on the will o! a stated majority to the compact. Due consideration of the circumstances under which the compact was made. as wen as of the agreement ' itself, can, I think, admit of but one condu ion-that they did not; and if this conclusion be valid it follows that, though there is in the Constitution of the United States itself no express limitation -of the power to amend, there is in the case of that agreement a natural and necessary limitation in that respect, as well as of the right of legislation by the Federal -Government, if any distinction between State and Nation is to be recogniz-ed.

Recognizing thi.s distinction, however, one need not be a Marshall to perceive that amendments such as those depriving the States of control over their electorates or compelling them to adopt a pr(\hibition measure are an• abuse of the amending power and a violation of the spirit if · not of the letter of the Constitution. If the State of Maine, for instance, deems it expedient to prohibit tb~ manufacture and sale of intoxicants within its territory, or the State of C<lrolado deems it expedient io confer the franchise upon women, they have not been debarred from the exercise of those rights by those States which, like New York, have preferred to adopt a di.ffe.rent policy. If three-fourths of the States of the Union wish to adopt the policy of prohibition or universal suff:rage they have the unquestioned right to do so within their respective jurisdic- ; tions. But tf, not satisfied with that, they have the additional right of compelling the minority of" sovereign” States, however much they may be opposed to such a course, however great a hardship it might impose on them, to adopt it also. it is obviously absurd to regard 1lris as a Union of independent Commonwealths that for the purposes of that Union agreed to surrender certain sovereign rights, retaining the test ; there is in principle but one sovereign authority. the Federal authority, of which the States are but administrative subdivisions, because by the process of unlimited amendment all reserved rights may be absorbed in time by the Central Government.

The subject is r:o profund that one can do no more than advert to it in the compass of a newspaper communication; but if it does not receive greater consideration from layman and legislator alike than it has hitherto commanded, resulting in a more intelligent comprehension by the average man of the character and purpose of the Union, this Government will tend to become what Samuel J. Tilden feared, "Not only the most oppressive but also the most corrupt with which any people has been cursed." F. J. DmWON,.

NEw York, February 16.

DANGER FOR GOVERNMENT LURKS BEHIND NATIONAL PROHIBITION, WILLIAM HOWARD SAYS. .

• BOSTON, MASS., 1914. •

National prohibition is a dangerous proposition, said former President William H. Taft, speaking before the Bar Association of Boston at its seventeenth triennial banquet. · ·

It would revolutionize the National Government It would put on the shoulde:rs o<J"f the Government . the duty of sweeping the doorsteps of every home in the land. If national prohibition legislation is passed, 1~1 government would be destroyed. And if you destroy local government, you destroy one -of the things which go to make for a. "healthy condition of til~ National Government.

National prohibition is nonenf-orceable; 1t is a confession on the part of State governments of inability to control antl 1·egul.ate their own especial business and duty ; if the matter were placed ~nd.er Federal control, it would result in creation of a machinery gf Govern-­ ment offi-cials large enough to nominate any President, and would offer too great au opportunity to person-s seeking to perpetuate their power in . Washington. ·

[From the New York World, Saturday, May 9, 1.014.]

D:U:MOtllA.TS AND PROHIBITION.

· It 'Ought not to be very difficult for a Democratic Congressman who believes in. the fundamental principles -of the Democratic Party to make ~P. !Us mind how to vote an the Hobson resoluticn submitting a prohibition amendment to the Federal Constitution. · A Democrat -<?!J;l believe ln local option or county option, -or even in State-wide prohibition, as a measure of moral expediency; but he can not believe rna national prohibition law based on a national prohibHion amendment.

That same principle applies to the suffrage question, too.

Ev:er since . there wa.s a Democratic Party Democrats have relegated such issues to the States, and maintained the sovereignty o~ the .States iJ? ordering their own domestic affairs .and in esta"blishin'g t~ qualifications for -v.oting.

Ev-ery State has · power to enact a prohibition law for the control of its own people .Every State has power to admit women to the suff.rage. That Is enough.

~Y Democratic States ha:ve prohibition laws. Some of the States in which women vote are Democratic; but if prohibition and suffrage are to be recognized as pertinent national issues, the States might as well be dismantled first as la t and all powers of government centralized in Washington. [From annual report -of the American HistodcaL'\.ssociation for 1806.] The provisions of the Constitution forbidding any person holding office under the United States Government without the consent of Congress, from accepting ::my present or title from any king prince or foreign State did not seem sufficiently .stringent to some of the " State conventions. TI:fe ratifying conventions of Massachusetts. New Hampshire, New York, and, later, Rhode Island proposed amendments either forbidding Congre. s from ever granting its consent. or for the accomplishment the same end, proposed eliminating the clause •• without the consent of C-ongress." A similar change was proposed in the Senate and twice in the House of the First Congress during the discussion of the subject of amending the Constitution, but failed to meet the approval of either bra-nch. No further amendments on this subject were presented until 1810. Early in that year Senator Reed of Maryland, introduced an amendment relative to the acceptance' of titles of nobility by American citizens.

~he resolutions were referred to a select committee of three, and twice afterwards recommended to a larger ' · committee who finally reported them · in a modified form. Se eral amendments were pre· during the debate, on.e of which was .accepted. It was in these "' If any citizen <>f the United Stat.e.s shall accept, claim receive or retain any title of nobility or honor, or shall, without 'the consent of Congress, accept and retain any present, pension office or emolument of any kind whatever from any emperor, king, 'prince: or foreign power, such person shall cease to be a citizen of the United States ~~i1~~ gi ll;~~!}ble of holding any -office of trust or profit under them 1 Thus amended, - the article passed the Senate by a -vote of 19 yeas to 5 nays. The amendment was immediately -considered in the House and passed by that body on the ist day <>f May, only three votes being cast against it. ·

Unfortunately, the Annals -of Congress and contemporary newspapers do not give any <>f the debate upon this interesting proposition. The only light thrown upon the subject by the Annals is the remark of Mr. Macon, who said "he considered the vote on tbls question as deciding whether ot• not we were to have members of the Legion of Honor in t.his country." What event connected with our diplomatic or political hiStory suggested the need of such an amendment is not now apparent.

Possibly there was no particular event which suggested it, but it probably was only another means of expressing that animosity against foreigners and everything fo-r e ign which manifested itself in various ways in the try1Dg period just previous to the war of 1812. That the amendment was in the line of popular sentiment may be inferred, otherwise we can not account for the nearly unanimous vote it received in Congress .and the favorable reception it met with from th& States.

The amendment lacked only the vote of one State of being adopted. It received the ratification of 12 States, and was passed by the Senate of South Carolina. It was generally supposed that the amendment had been concurred in by the requisite majority of the States. In the official edition of the Constitution of the United States, prepared for the use of the Members of the House of Representatives of the Fifteenth Congress, the article appears as the thirteenth amendment to the Constitution. This led to a resolution of inquiry, as a result o! which it was discovered that the House of Representatives of South Carolina bad not confirmed the action of the senate, and so the amend- ment had not been adopted. However, the general public continued to think that this amendment had been adopted, and this misconception was perpetuated for over a third of a century in editions of the Constitution and school histories.

~T CONSTITUTES THREE-FOURTHS OF" THE STATES 1

This · question first seriously arose at the time the froposltion which afterwards wa-s adopted as the thirteenth amendment was before Congress. At that time, several of the States being in rebellion against the Government, they were without representation in Congress. It was held by some that su c h States should not be counted as included in the Union. Thus we find amendments presented with the following enacting clause: .. , Be it resolved • • • That upon the ratification of th1s amendment lly three-f-ourths of the States represented in Congress it sha.ll become valid to all intents and purposes as part of the Constitution."

The question was undecided when the thirteenth amendment was sent to the States- When the legislatures of 27 States had ratified this amendment, whic-h was exactly three - fourths of all the States in the Union, the Secretary of State issued a proclamation declaring it a part of the Constitution. Of these States, however, several bad been in rebellion and had not been readmitted io representation in Congress; in fact, it was not until three years later that the majority of them 'I were restored to the full -enjoyment of this right. "The question as to -whether they could give Talid assent to an -amendment to the stitution was one which might possibly be raised." "If they could · not pa1·ticipute in. the enactment of statute law, , how could they participate 1n the far weightier duty of framing the organic law of the Republic?" In the case of the fourteenth and fifteenth amendments the requisite majority was secured through the policy pursued by Congress of re quiring from the States late in rebel ion , a s one of the conditions precedent to their recognition and the admi ss ion of their Representatives In the Federal Legi s lature, the ratification of one, and in most cases both, of the s e amendments. By this expedient the authoritative settle­ pressed? m e nt of this question was rendered unnecessary.

CAN A STATE llE C OXSIDER ITS ACTION l:PON A CONSTITUTIONAL

. • A MEXDMENT ? •

Three States after giving their consent to the fourteenth amend: ment, and one after similar action upon the fifteenth amendment, de· beer? rlar e d through resolutions passed by thl:ir legislatures that they withdrew their consent. In all but one of these instances this action was tak e n before the amendment bad been ratified by three-fourths of the legislatures of the sev e t:al States, and it was contended that such action could be taken previous to the incorporation of the amendment into the Constitution. The Secretary of State, in canvassing the votes upon the fourteenth amendment, being in doubt how such cases should be regarded, is s ued a certificate reciting the facts and declaring the adoption of the amendment m case the ratification of the two States which had . attempt e d to recall their consent was still to be considered valid. Congress immediately passed a concurrent resolution declaring the ratification of the amendment valid and sufficient, and on the 28th of July, 1868, the Secretary of State issued a second proclamation de c laring the amendme-nt to be a part o( the Constitution.

On the other band , in the case of the thirteenth amendment one State which bad previously 1ejected the amendment reconsidered its action. Four similar cases occurred in connection with the fourteenth amendment and two with the fifteenth amendment, some even subsequent t o the proclamation declaring the adoption of the respective amenument s . .All these States where the action bad been taken previous s to the i s swng of such proclamatic-n were included by the Secretary of State in the list of States ratifying.

I From the above it would seem that practice has decided that a State having once given its consent , the question is closed, and it can not re c all its action; but, on the other band, that a State that has rejected an amendment can reconsider its action at any time previous to the incorporation of the amendment into the Constitution.

The _ PRESIDING OFFICER. The Secretary will state the first amendment reported by the Committee on the Judiciary to the joint resolution.

The SECRETARY. The first · amendment is, on page 2, line 1, after the word "into," to strike out "and" and insert "or."

The PRESIDING Ol<~FICER. The question is on the amendment.

Mr. KENYON. 1\.fr. President, I want to take 10 minutes to express a view or two on the pending subject; and in view of the fact that a bill at present in conference seeks to stop the manu· facture ot whisky :ts a foou-conservation proposition, but not to stop the manufacture of beer, I desire to submit just an observation or two on that and other propositions in general relating to the subject. That part of my remarks · Will consist of questions which some proponents of the liquor traffic may perhaps answer in the further progress of this debate. ·

Why do we prohibit the boys in the Army and Navy from having booze and insist that those who remain at home · shall have it?

If liquor is a bad thing for the boys in the trenches, why is it a good thing for those at home?

When tlle y are willing to die for us, should we not be willing to go dry for them?

Will a sober nation not win tll e war quicker than a drunken nation?

When the food controller ask s everyone in the · country to cons serve the food supply , why must the food supply going into beer be excepted? .

Is it not as much waste of foodstuff to put it into beer as to put i t into whisky? •\

If more foodstuff goes int o beer th an into whisky, why do we prevent foodstuff going int o whisky and permit it going into beer?

· wm rebellions come jn t he cities, as we have been told, if the workers do not have their beer?

Sixty per cent of the N a t i.o n, territorially, is dry. Are the feelings of people living in th at territory entitled to any consideration?

If the beer drinkers are going to rebel unless they get their beer, will . the temperance people rebel unless they get temperance? · -"

Does the rule only work one way? .

Why do not the temperance people claim that they will rebel also? No one has heard any such thing from them, nor will anybody hear such thing.

The temperance people will be for the Nation no matter if beer . and whisky be forced on them. Their patriotism does not depend on having their own way. ·

Is patriotism purchased by beer worth while anyway?

If ~orne on e were taking as much foodstuff as goes into booze a~u dumping it into the sea, what would the people of the Na- tion say? ·

If some one should advance the argument that this was neces· sary in order to appease certain people who believed in dumping foodstuffs into the sea. and that if they ili<.l not do it it would arouse riots, would we accede to their request? ·

If some learned Senator, speaking as if the Almighty had delegated to him supreme wisdom and in a tone indicating that such wisdom would perish from {he floor when he retired to the cloakroom, should so claim, would we be sufficiently Should not hereafter all bulletins issued requesting the people to conserve the food supply urge them also, for the interest of public peace, to have all the foodstuff they could made into Is it reasonable to ask the temperance people of the country to conserve and . save every particle of food and at the same time permit some of it to go into booze?

Is beer more essential to the American people than bread? What kind of people are they in this country who are not willing to give up their liquor to help their country?

Is the food conservation to be for the benefit of the many, or is it to be limited in order that the few may have their drinks? Have we reached a point in this country where the war can not be won unless people who drink are permitted to tickle their stomachs with wines and Deer?

Will beer patriots win the war anyhow? ·

Are the interests of brewers in this country more important than the winning of the war?

Are we willing to sacrifice everything in the country to win the war, except beer? .

If the temperance - nce forces in the Senate were responsible ' for delaying the food bill, as charged by certain liquor-interest papers, why is it that the food bill has been delayed for three weeks after the temperance sections of the bill were settled? With the great demand for labor in this country and the high wages, could there ever be a better time, as far as the laboring men are concerned, for the transition from · a wet to u dry Nation? · When there is a shortage of labor in the important and necessary work to carry on the war, why waste labor in mak· ing booze? ·

If booze is essential to win . the y : ·ar, why stop selling it to ::) ldiers?

:Mr. President, I have listened to the- argument as to State '- rights; but I have discovered that the doctrine of State rights absolutely vanishes in Congress whenever an appropriation is attached to a bill.

The advance in this country of the temperance cause has been due to the fight against the American saloon. That is what has been at the bottom of it. That has brought us to the issue of national prohibition.

This amendment is to give to the States the right to speak their desire on this question. Why should they not have such right? The American people are tired of the saloon.

No one rises on this floor or elsewhere to defend the American saloon directly.

The American saloon ltas no conscience. It never did a good act or failed to do a bad one.

It is a trap for the youth ; a destroyer for the old; a foul spawning place ' for crime; a corrupter of politics; knows no party; supports those men for office whom it thinks can be easiest influenced; ; has no respect for law or the courts ; debauches city . councils, juries, and everyone it can reach; is powerful in the unity of its vote, and creates cowards in office. It flatters, tricks, cajoles, and deceives in order to accomplish its purpose; is responsible for more ruin and death than all the wars the Nation has ever engaged in ; has corrupted more politics, ruined more lives, widowed more women, orphaned more children, destroyed more homes, caused more tears to flow, broken more hearts, undermined more manhood, and sent more people to an early grave than any other influence in our land.

Its day has come. No subterfuge can long save it. It will be dragged into the open, the influences behind it stripped of their masks. A mighty public conscience is aroused, moving on rapidly, confidently, undismayed, and undeceh·ed. Behind it are the churches of the Nation-Protestant and Catholic- ­ schools, . colleges, and homes. This public conscience is not discouraged by defeat or deceived by any cunning devices, by any shams or pretenses. Its cause is the cause of humanity, of righteousness, and God Almighty fights with it.

It has no desire to injure the saloon keeper. It would help · • him, but it asks no quarter of the saloon and it proposes to give none. The · forces fighting the saloon are not composed of · mollycoddles. The most far-seeing business minds of the countr;\' ; are in the ranks. .. l\Ien · will have to take their places in this fight. They can not sit on the fence. This fight is no place for the political coward to stand between the lines. He will be ~bot from both directions.

No denunciation, no slurs, no jests on the floor of tl1e Senate, no hurling of epithet, no cheap ribaldry in tlle cloakrooms quested. will stop this fight. It is going on in Congress, and it is going on in the Nation until the tear-producing, orphan-making, bornewrecking, mnnhoo(l-debauching, character-destroying, hell-filling saloon business is banished from this country. The American saloon is just us certainly doomed as slavery was doomed.

A saloonle.ss Nation means an efficient Nation, better able to cope with any problem threatening it from without or within. Mr. CUl\ll1Il~S. l\lr. President, . I rise simply to make a parliamentary · :nquiry. Under the unanimous-consent agreement can a Senator speak 10 minutes upon the joint -resolution and also 10 minutes upon any amendment that may be offered, or is lle limited to a. single speech · of 10 minutes?

The PRESIDING OFFICER. The present occupant of the chair thinks that a strict construction of the language of the unanimous-consent agreement might be held to confine every Senator to one speech of ~0 minutes upon the joint resolution and amendments. The language of the agreement is:

And that after Tuesday, July 31 J-917, no. Senator shall speak more than once or longer . than 10 minutes upon the resolution and amendments offered thereto.

Mr. CURTIS. Mr. President, I shoullllike to ask if an amendment is offered after a Senator has addressed the Senate would he not be permitted to speak 10 minutes on the amendment?

The PRESIDING Ol!,FICE.R. The Chair will state to the Senat01·•trom Iowa and to t11e Senator from Kansas that the present occupant of the chair, if called upon to construe that language, will hOld that the limitation is ~0 minutes. upon the joint resolution itself and 10 minutes upon any amendment a Senator may get the floor to speak upon ; otherwise the agreement would be ineffective to enable Senators to discuss any amendment, should they discuss the joint resolution proper, and would limit Senators to one speech of 10 minutes, _ which would probably violate the purpose of the Senate in making the agreement.

Mr. Sl\!OOT. I think that tile decision of the Chair is in accordance. with the understanding in the Senate at the time the unanimous-consent agreement was · entered into.

lli. CUMMINS. Mr. President, that means, then, -that a Senator can speak 10 minutes upon the joint resolution and th ' en he can thereafter speak 10 minutes upon eaeb amendment that may - be offered to it? - ·

The PRESIDING OFFICER. No; th _ e Chair · thinks that a Senator when he addresses the Senate, if the rule is invoked, mu'st address himself to the question before the Senate. There is pending now before the Senate an amendment, and a Senator in theory of law when he speaks · now speaks to that amendment. When he has done that, he can not speak again until that amendment is disposed of, and then when be takes the floor again h~ addre ses himself in theory of law to the amendment that is then pending. .

Mr. CUMMINS. I am quite satisfied with the rulil:ig of the . Chair.

Mr. NORRIS. Mr. President, I think tile Chair was right in l1is first interpretation. Although I do not believe the unanimous-consent agreement will bear the construction that he has put on it now, I think it is perfectly proper that we should have · an understanding in the beginning. I have no objection, of course, to the ruling indicate(} by the Chair; but it seems to me the language of the agreement is very plain and that it can not mean two things. If we have an understanding that Senators will be allowed to speak on each amendment as it comes up, I certainly will not object, even though I do not think the construction is correct.

The PRESIDING OFFICER. The present occupant of the chair will state that the discussion of the matter · now is more or less academic, as no point of order has been made and no matter is pending that will enable the Chair to determine the matter in a parliamentary way. The Chair is simply indicating the view of the present occupant of the chair out of deference to the Senator from Iowa [1\fr. CUMMINs], who submitted an inquiry. -1

Mr. SMITH of Michigan. Mr. President. I should like to say . that I think . the Chair is strictly within the rule and has put the proper interpretation upon the agreement. I desire to commend that interpretation.

l\Ir. UNDERWOOD. l\ir. President, I rise to a.Sk that the pending amendment be stated. • ·

The PRESIDING OFFICER. The Secretary will state the- 'pending amendment. •

The SECRETARY. On page 2, line 4, it is proposed to strike out the word " and," the first word in the line, and insert the 'vcrd "or."

Mr. GRONNA. I ask that the context be reatl for information. ·

The PRESIDING OFFICER. The Secretary will read as reThe Secretary read as follows:

Section 1. The manufacture, sale, or transportation of intoxicating liquors w1thm, the importation thereof into, or the exportation thereof from the United ::Hates.

The PRESIDING OFFICER. The question is on agreeing to the amendment. ·

The amendment was agreed to.

The next amendment was, on page 2, line 1, after the word "from," to strike out the comma.

The amendment was agreed to.

The next amendment was, on page 2, line 3, after tile word "purposes," to strike out" are" and insert is.”

The amendment was agreed to.

The next amendment was, in section 2, page 2, line 5; after · the word" legislation," to strike out" and nothing in this . article shall deprive the several States of their power to enact and en· force laws prohibiting the traffic- in intoxicating liquors.”

Mr. SHEPPARD. Mr. President, as I introduced .the joint resolution originally, I will say that the language stricken out by the committee was added by me in order to emphasize and make plain what was really an existing condition. The Judiciary Committee, with practical unanimity, said that the States would not be deprived of the power to enact anll enforce laws prohibiting the traffic in intoxicating liquors, and therefore did not deem it advisable to place it in the joint resolution. I trust, therefore, that the amendment will be adopted.

The PRESIDING OFFICER. The question is on agreeing to the amendment.

The amendment was agreed fo:'

The PRESIDING OFFICER. The Chair informs the Senate · that the joint resolution is still in Committee of the Whole nnu open to amendment

Mr. POMERENE. 1\fr. President, before the final vote is taken I desire to express briefly my reasons for the vote that I am going to cast upon this joint resolution.

I yield to no man in the desire . to promote genuine temperance in _ my State and in the Union. I have tried to, and I think I alwayS" have lived a . temperate life. I believe in living aml letting live. I have an intense admiration or t11e genius of our institutions. I do not believe that the fundamental principles of our people- have changed. I believe in democracy. I believe that the principles of democracy are best conserve when we deal with all subjects in a spirit of moderation rather than by 'following the extremist on either side of any question. 1 always try to have before me as my guide not the view of the extremist on any subject, but I am inten ely interested in knowing what the average man in my State thinks, and I always try to keep before me a picture Qf the composite Ohioan as I see him. Now, the question is, What is my duty to ms constituency as I am permitted to see it? That leads me to review for a moment the conditions as they prevail in Ohio . and I am going to beg the indulgence of the Senate for just n few minutes while I advert to them.

This is no new question in Ohio. We have had it before us - - for many years, and we will continue perhaps to have it fN' many years, whichever way it is decided. In the year 1912 most of us thought that the question was settled at least for a few years. That year we voted ' upon 42 amendments to the constitution. All but two or three were adopted. One of the amendments involved the question of licensing the saloon. At that time in our State we had residential local option, township local option, municipal local option. and county local option. When this vote came before the public most of those, ·and I think all of those who were leaders in the councils of the Prohibition Party. were opposed to the license amendment. There was only about 50 per cent of the total vote cast on the license amendment. There were for the license system 273,361 votes; against it, 188,823 votes. The majority for license was 84,538. .

Again, in 1914, our people were called upon to vote upon the prohibition question. The election was held November 3, 1914 . The vote against the prohibition amendment was 588,329 ; the vote for it, 504,177. The majority against prohibition was 85,1.52, . .

In 1915 we voted upon it again. The vote that year against prohibition was 540,377; in favor of it, 484,969; the majority against prohibition was 55,408-.

Mr. President, at the present time in Ohio we have residential district local option, township local option, municipal local · option, and there is now pending before the people of our State a prohibition amendment which will be voted upon this fall. Under the Ohi"o con tituti~n our people have the right by petition . to initiate an amendment to the constitution or new laws on this subject. They- have full power, therefore, at any time to adopt prohibition or new legislation when they see fit so to do . .

In my judgment, I must either ignore what seems .to be the voice of Ohio, as evidenced by the result of the elections I have just referred to by voting for this amendment, or I _ must vote in favor of what I believe is the judgment of the people of Ohio by -voting against it. . .

Rave we arrived at that state of mind on this or any other question when the majority of the people in any State shall not have any voice in determining what changes in the fundamental law shall be proposed?

I know that the cry is made that it ought to be referred to the people, and many of the · people in th~ country to-day are of the opinion that when we adopt this joint resolution and refer the matter to the States the people will have a right to vote upon it. Of course all men who are informed know that the people of the several sovereign S t ates will have n<? opportunity to vote upon this amendment; but it is a question, under the plan proposed here, which will address itself solely to the legislatures of the sev.eral States, who may or may not be elected upon the prohibition . issue, or who may be elected upon other issues quite as well as upon this one. . The State of Kansas claimed the right to vote as she saw fit, without let or hindrance by any State of the Union, when she decided this question for herself. The State of Texas claims that right. The State of Washington claims that right. The State of Michigan claims that right; and, sirs, if they had the right, it seems to me that the people of Ohio should have the right to determine the liquor question for themselves.

.And now, if I may, in the few minutes allowed me, I want to call attention to another proposition.

In 1910 the 13 States of Nevada, Wyoming, Delaware, Arizona, Idaho, New Mexico, Vermont, Utah, Montana, New Hampshire. North Dakota, South Dakota, and Oregon had, all told, 4,657 , 052 people. The St a te of Ohio had 4,767,121. In other words, in the year 1910 Ohio had 110,069 more people than the 13 States I have named. Yet if this amendment is to be submitted to the States for their votes, these .13 States, With less - population than the State of Ohio, will have · e thirteen times as much voice as the State of Ohio in determining whether or not this amendment shall be added to the . Constitution.

Again, 18 States-Nevada, Wyoming, Delaware, .Arizona; Idaho, New Mexico, Vermont, Utah, Montana, New Hampshire, Rhode Island, North Dakota, South Dakota, Oregon, Maine, Florida, Colorado, and Connecticut-bad, in 1910, 8,608 , 432 people; but the State of New York in that year had 9,113,614 people, or 505,182 more people than the 18 States I have named. Let me ask those who believe in democratic in s titution~ since when has it come to pass that · upon a question of this kind the principles of Ameri c an government would permit these 18 States to have eighteen times the voice · that New York shall have in amending the Constitution, if ~is amendment is to be submitted? •

Inasmuch as Ohio in 1914 voted against prohibition by a majority of 85,152, and a g ain in 1915, when a less vote was ca s t, by a majority of 55,408, thereby declaring her sentiments on the subject, how can I, as one of her Senators, vote for this re s olution and put up to the people of the country the prohibition question in such form that we in Ohio ~ill have only one-thirteenth as much influence in the adoption or rejection of prohibition as a fewer number of people in the 13 States of the Union to which I referred a moment a ;; o, or thereby give to New York only one-eighteenth as much influence in determining this question as a fewer number of people in the 18 States which ! ha v e named? Surely the majority of voters in Ohio have some ri g llts to be considered. Surely as their representative in the S e nate I ought to bear this fact in mind in casting my vote.

L e t me put the question in another form. If it were proposed to offer an amendment to the Constitution, the object of which was to permit the manufacture and sale of liquor in each of the States of the Union, would Senators representing dry States efforts. feel themselves justified in voting for that resolution because a substantial minority of the electors in their State wanted them to so do? Would not they feel bound by the majority sentiment in their States? · If that be their position, am I less bound by the majority sentiment in my State? My belief is that in matters which are so intimately related to . the habits of the peo ple, each elector should have the same right to . determine the question as any other elector, no matter what his views might be on the subject.

In my judgment the result will be much . more satisfactory if this question is left to the people of each individual State to determine the kind of legislation they want upon the subject, For these reasons, in brief, I feel compelled to vote against the joint · resolution. _

The PRESIDING OFFICER. The time of the ~ Senator from . Ohio has expired.

Mr. POMERENE. l\1r. President, I ask leave to attach to my remarks the tables that I llnYe here, showing the popula 4 tion in the several States named.

The PRESIDING OFFICER. Without objection, leave will be granted. The Chair bear~ no objection, and it is so ordered, The matter referred to is as follows: