August 1, 1917

The PRESIDENT pro tempore. He has not.

Mr. BECKHAM. I have a general pair with that Senator. In his absence I withhold my vote. If permitted to vote, I should vote " nay.”

l\Ir. OVERMAN (after having voted in tile negative). I ob· serve that the senior Senator from Wyoming [Mr. WARREN] has not voted. I transfer my pair with that Senator to the Senator from Nevada [Mr. NEWLA.NDS] and let my vote stand.

Mr. STERLING (after having voted in the negative). I have a general pair with the Senator from South Carolina [Mr. SMITH]. In his absence I withdraw my vote.

Mr. CURTIS. I have been requested to announce the following pairs:

The Senator from Wisconsin [Mr. RusTING] with the Senator from New Mexico [Mr. F.ALL]; and

The Senator from South Carolina [Mr. TILLMAN] with the Senator from 'Vest Virginia [1\Ir. GoFF].

The result was annotmced-yeas 4, nays 62, as follows : Broussard Harding Hardwick Reed.

NAYS-62.

Ashurst Hitchcock New Smith, Ariz. Bankhead Hollis Norris Smith, Ga. Rorah James Overman Smith, Mich. Brady Johnson, Cal. Page Smoot Brandegee Jones, N.Mex. Penrose Stone Calder Jones, Wash. Phelan Thompson Chamberlain Kellogg Pittman Trammell Cummins Kendrick Poindexter Underwood Curtis Kenyon Pomerene Vardaman Fletcher King Ransdell Wadsworth France Kirby Robinson Walsh Frelinghuysen • La Follette Saulsbury Watson Gerry Lodge Shafroth Williams Gore McKellar Sheppard Wolcott Gronna McNary Shields Hale Martin Simmons

NOT VOTING-30.

Beckham Hughes Nelson Swanson Colt Husting Newlands Thomas Culberson Johnson, Dak. Owen Tillman Dillingham Knox Sherman Townsend Fall Lewis Smith, Md. Warren Fernald McCumber Smith, S. C. Weeks Gallinger McLean Sterling Goff Myers Sutherland

So Mr. HARDWICK's amendment was rejected.

The PRESIDENT pro tempore. 'The joint resolution is before the Senate as in Committee of the Whole and open to amendment. .• • 1\:lr. HARDING. I desire to call up the amendment I proposed.. • The PRESIDENT pro tempore. The Secretary will read the amendment of the Senator from Ohio.

The SECRETARY. Insert a new section to be known as section 2, as follows : ,

SEc. 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, on or before the Ist day of July, A. D. 1923.

Mr. HARDING. 1\Jr. President, I have offered the amendment as representing the judgment of a number of Senators on the floor, with a view to placing a limitation on the pendency of the proposed amendment to the Constitution. I do it because that policy is involved in my consent to support tile pending resolution.

I am so very much in earnest about it, 1\Ir. President, that if I could - have my way, if it were possible ' to get this body to consent to such an amendment, I would insist on limiting it . to one vote or expression on the part of each State legislature. That would be a rather drastic procedure.

1\lr. STONE. 1\lr. President, I can not hear at this distance a word that the Senator from Ohio is saying.

The PRESIDENT pro tempore. The Senator from Ohio ~ill suspend. Order must be maintained in the Chamber. The Senator from Ohio will proceed.

Mr. HARDING. The thought I have in mind, Mr. President, is the elimination of this unending prohibition contest in the Halls of Congress. At the same time, I am in sympathy . with the opposition to the resolution about the unfairness of adopting a Federal amendment under the provisions of the Constitution on a question relating to personal liberty, and if there were any other method of submitting an amendment I should be very glad to employ it

I am not a prohibitionist, Mr. President, and never have pretended to be. I do claim to be a temperance man. I do not approach this question from a moral viewpoint, because I am unable to see it as a great moral question. I can remember very distinctly, when I was a boy, during the early days of a hardy rural citizenship in Ohio some of the most moral people the State boasted had a jug of whisky in the fence corner during the harvest time. I am not saying that I favor that. I only cite it as an instance that it is not always and invariably a moral question.

But I do see the ethical and economical side of it, and when it comes to a decision on this point, at a ti;me when we are boasting of our warfare for popular government, I can not be inconsistent enough to deny the settlement of this much-mooted question by popular will in the only manner in which the Constitution provides. •

I do think it is unwise, imprudent, and inconsiderate to force the issue at this time. I do not question the sincerity or the high purpose of the prohibition forces, but I do believe, and very sincerely, that it is a great imposition on Congress and a great misfortune to the country to divide American citizenship into two hostile crunps over this question of personal liberty at a time when we ought to be promoting the concord of citizenship that is essential to win this war. But having expressed myself as regretting the pressure brought to settle this issue fl.ow, I must go further and say that since it ts insistent and intruding, so that we must reach a decision now, I find myself impelled to take the side which I think must in the end contribute to the most good of our common people .

I do not think a prohibition amendment will be effective, Mr. President. You can not make any law stronger than the public sentiment which sees to its enforcement. I have watched · the progress of this question from the conflict in the hamlet to the municipality, to the county, the State, and the Nation, and while I. stand here and freely express my doubts about its practicability, the same bme I recognize that it is growing and insistent and persistent and it must be settled.

Ever since I have been i.o. public life in ;;t small way I have seen men continually measured by the wet and dry yardstick and the submission of this amendment is going to measure every candidate for public office by the wet and dry yardstick until the final settlement. When I say that, I have expressed my strongest reason for putting a limitation upon the pendency of the amendment. I want to see this question settled. I want to take it out of the Halls of Congress and refer it to the people who must make the ultimate decision. I want to meet the demand for submission, and witness a decision.

So then, in spite of its untimeliness, in spite of the Jack of · prudence in submitting it now, since we have come to this • question ot prohibition as a war measure, and there has been a yielding on the one band against drastic prohibition in the food bill, I think this submission is a sort of a compromise between the contending forces, and I am willing to be counted a compromising agent. All our great movements are the result of just such endeavors. I do · not hesitate to say that I approach the question from a strong sense of justice, and if this amendment is submitted to the people of the United States and receives the . sanction of three-fourths of the general assemblies, then, if my tenure of office still obtains, I am willing to go further and join in a movement to make it ~ effective through a process of compensation to the business destroyed.

So then, Mr. President, in these rather rambling remarks whiCh I have made, rather than turning to some written ones I wished to offer, I will say that I should like to see this amendment adopted, because it accomplishes one great thing: It forces this great public question to a final settlement within the period of six years. We shall have the question acutely presented until it has been finally disposed of within that time. I am sure that after we have disposed of it, we shall find national legislative and State legislative duties adjusted to much more normal lines.

I hope that the judgment of the Senate will be such that it will agree to this limitation amendment. I know there are arguments against the constitutionality of such a course, but there can. be no argument offered that will question the validity • of the amendment if it is adopted within the time prescribed.

Mr. SHEPPARD. 'Mr. President, I suggest an amendment to the amendment by changing the number of the section from 2 to 3, as we already have two sections of the joint resolution; and also by striking out the words " on or before the Ist day of - July, anno Domini 1923," and inserting "within six years from the date of the submission hereof to the States by the Congress." That will insure the period of six years for consideration. If the other · House should not vote on this propo· sition, and it should not be submitted for eight or ten month.~:~ to come, there would not then be six years. remaining for the ratification of the proposed amendment .

Mr. LODGE. I did not . quite hear . the limitation of time: wm the Senator from Texas kindly repeat it?

l\fr. SHEPPARD. The language I propose to substitute is 1 ' within six years from the date of the submission hereof to the States by the Oongre s."

Mr. HARDING. l\ft;. President, as to the latter part of the amendment of the Senator from Texas to my amendment I am quite agreed, because that is th-e spirit of my amendment. I rule. think it would be more prudent, however, to let the amendment stand as section 2 and let it be followed by what is now section 2 of the joint resolution to be numbered 3. - l\Ir. SHEPPARD. That is acceptable.

l\1r. HARDING. Then, l\Ir. President, I am very glad to accept the suggestion of the Senator from Texas to modify , the time limit so that the language shall read "within six years from the date of its submission by the Congress," if that be the language which the Senator proposes.

l\fr. SHEPPARD. The exact language is · " within six years from the date of the submission hereof to the States by the Congress." . .

l\Ir. HARDING. That is quite agreeable.

l\1r. SHEPPARD. I withdraw the part of th-e amendment to the · amendment which I have offered relating to the number of the section. After we vote on the proposition I will submit nn amendment to · change the number - of section 2 so that it will time? be section 3, or the Secretary may make th-e necessary change by unanimous consent.

l\fr. HARDING. That is entirely agreeable.

The PRESIDil"G OFFICER. The Senator from Ohio accepts the suggestion of the Senator from Texas. . The . amendment of the Senator from Ohio, as modified, is the question before the Senate.

l\fr. BORAH. l\Ir. President, I have very grave doubts about whether or not this can be done. If this proposed con titutional amendment goes . to the States at the present time, as the Con titution of the United _ ed States now stands the States have a right to ratify it within any time they may see fit. The number of years within which they ma.y take action is not limited: If it is . submitted to .the States, the Constitution of the United States will stand , with reference t~ amendments at the time the ratification lS going on JUSt as It now IS; . there will . be no change i? the machinery which the Con titutio.n provides for ratification; and when the States vote upon this question they will be voting on it under the Constitution of the United States as it now exists. We having submitted it to the States, it is in the possession of. the States, a,?rl we can not. control It. ,The~ , have ~ perfect n~ht to say, We shall ratify this now or “ ~ - will ratify I~ m 10 years from now, and r.h~n they shall ratify 1t they WI11 have acted m accordance with the pron 1ons of the Constitution of the United States. I have not any doubt about that at all. . .

I would. vote for ru: amendment to change the Constitution of the :Umt~ States m regard to the _ machinery provided for the ratification of proposed amendments, becau e I think there is. much m~~·1t m th~ proposition that there ought to be a. time Wlthm which constitutional amendments should b.e ratified; but we can not. change the. Constitution of the United States as to th~ machinery by which ratification takes place by the manner m which we submit a particular constitutional amendment. In other words, we can not provide m the ubml swn .a rule for ray~c~twn o~ that particular proposal when there IS another existing rule 10 the Constitution. .

.Mr. HARDING. Mr. President, will the Senator from Idaho yield to me· .,. .

The ~RESIDEi\T pro tempore .. ? Does the Senator from Idaho y1eld to the S~nator from Ohio· l\fr. BORAH. I yield.

l\1r. HARDING. Does the Senator from Idaho know of any inhibition in the Constitution that prevents putting in this condition? 1 o _ l\Ir. BORAH. Yes; I have just called attention to it. s the Constitution now exists, there is no limitation upon the time Withdrawn. within which the States may ratify an amendment. The time therein pro-vided is "when ratified," and by that rule this amendment is controlled. Now, if this amendment goes to the State , suppose that at the end of six years within two of the requisite number of States have ratified the amendment; sup- years." pose ~ e after six years and within eight year~ two more ratify it, will they not inevitably say "We have ratified it in accordance with the provisions of the . Constitution as it now stan dB "? How are you going to prevent the amendment from taking effect? They can point to the fact that here is the Constitution under which we are acting; it has not been changed ; the Congress of the United States · can not hold a tether on an amendment and pull it back after it is once submitted even though it is not seen 'fit by the States to ratify it within a . cer- ~~- tain · time. When we submit it, it goes to the States and they act under the provision of the Constitution which fixes no limit of time. They do not act under a rule which the Congress · fixes in the proposal submitted, but under the rule found in the Con- stitution. Under our Constitution the proposal can no~ carry its own rule of ratification because the Constitution fixes the l\Ir. STONE. l\Ir. President--

The PRESIDENT pro · tempore. Does the Senator from Idaho yield to the Senator from Missouri? .

l\Ir. BORAH. I yield.

1\1r. STONE. I wish to ask a question of the Senator. The Senator says that he would vote for an amendment to the Con stitution fixing a time limit for the adoption of amendments to the Constitution; in other words, he would be willing to incor- ' porate that idea into the body of the Constitution.

l\fr. BORAH. Yes. . , l\Ir. STONE. Very well. Now, if we could submit, which we could do, an amendment to the Constitution providing that all amendments to that instrument thereafter submitted should be adopted within a fixed time limit, can not the Congr.ess, following the same idea, exercising the same privilege, provide, in submitting a given amendment, that it shall be adopted within a given l\fr. BORAH. I can convince the Senator in a minute I think that the two propositions are as wide apart as <lay and night as questions of constitutional law. If we submit a general amendment to the Constitution of the United States changing , the machinery and fixing a limit of time, that goes to the States and when ratified becomes a part of the Con titution of the United States; but when we submit this time-limit amendment to the States it is not a part of the Constitution.

1\Ir. HARDING. Will the Senator yield?

The PRESIDENT pro tempore. Does the Senator from Idaho yield to the Senator from Ohio?

l\lr. BORAH. I shall do so in just a moment . The States are proceeding aU the time to ratify the amendment under a - Constitution which exists and is unchanged. The one instance is a case where the Constitution is changed; the other instance is where we submit an amendment to the Constitution as to which we propose to have a rule with reference to its ratification other than that which exists in the Constitution.

l\1r HARDING. l\fr Pre ident the Senator from Ohio has read· Article V of the· Constituti'on and that article of the Constitution itself gives an example of explicit limitation by providing that there shall be no amendment prior to 1808.

Mr. BORAH. But that was a part of the Constitution.

Mr. HARDING. Exactly so; and it does not put any inhibi 1 tion on Congress expre sing a condition as part of an amend~ · ment. ' .

l\Ir. BORAH. But let me ask the Senator this question: If this proposed amendment should go to the States now and they should proceed to ratify it , they would be ratifying it under the Constitution as it now exists, and it would be ratified under the Constitution as it now exists clear on through until they ­ shall have finished their work.

l\Ir. HARDING. · Supplemented by-- blr. BORAH. Wait a moment. Suppose · that at the end of six years only 31 States have ratified the amendment. Cer .. Certainly the time-limit provision has not become a part of the constitutional change proposed, because the amendment has never been ratified; ancl yet Congress holds a tether upon in and draws it back, :notwithstanding the States have a right to say, 'f This has been submitted to us under the Constitution u.s it exists and we are entitled to go ahead."

l\"" HARDING. I think 1 th s t · b Co

:Lr. . . · ..1..n •• y e. cna Ol~ l~ wrong, because n .. gress, m its exercise ?f power m submitting the amend.ment tQ the Constl tut;Ion,. specifically says, " If you do not exercise your n~ht to _ ratify 1t mthm six years, then this amendment 1s lli. BORAH. Yes; but the States m answer to that say, "Congress can not do that, becau.se !Jl~ fundamental law of the land says w~ do not have to ratify 1t m six years from now. You have submitted It to us and we may ratify It m mght l\fr. LODGE. The fundamental law of the land does net say anything about it.

1\fr. BORAH. I beg the Senator's pardon. The fundamental In.w of the land does say very plainly, that it places no limita .. tion upon the time ' when or within which it must be ratified. It says, " when ratified,” and fixes no limit.

1\Ir. LODGE. It says nothing about · ut it.

Mr. POMERENE. l\lr. President--

. The PRESIDING OFFICER. Does the Senator from . Idaho yield to tlte Senator from Ohio?

1\Ir . . BORAH. I yield.

Mr. POMERENE. I am always glad to find myself in ac­ Ohio [Mr. HARDING]. cord with the Senator from Idaho on legal propositions, but I confess I must differ from him on this. The Constitution itself authorizes the submission of amendments to the Constitution by a joint resolution passed by a two-thirds vote of Congress. There is no limitation attached to that. This Congress can submit any amendment that it sees fit, and, in my judgment, with any limitations or conditions attached to it.

1\Ir. BORAH. That is where I differ from the Senator.

1\lr. POMERENE. I know we differ in that respect. If there were no limitation placed upon this proposed amendment as to the time within which it must be ratified, then, perhaps, by a different ,... amendment at another time we might not be able to accomplish that end ; but we . submit here, as a part of this proposition which goes to the organic law, the further statement that this is inoperative unless it is ratified within a given time. . That is a part of the proposition, in my judgment.

Mr. BORAH. But here, 1\!r. President, let me ask the Senator a question. Suppose that this amendment were submitted to the States just as tl1e joint resolution is written, with section 2 in it, and at the end of six years 31 States had ratified it, certainly it would not be a part of the Constitution, would it? 1\lr. POMERENE. How many States did the Senator suggest?

~1r. BORAH. 'l'hirty-one States.

~lr. POMERENE. No; it would not be a part of the Constitution.

Mr. BORAH. It would not be a part of the Constitution. It never could be a part of the Constitution under any circumstances until 36 States had ratified it.

Mr. POMERENE. That is true.

Mr. BORAH. And if 36 States had ratified it in 10 years, they could reply to this proposition, "'Ve proceeded under the Constitution as it existed."

Mr. POMERENE. Yes; but it seems to me that the Senator overlooks the fact, if the so-called Sheppard amendment is adopted, that is one thing--

The PRESIDENT pro tempore. The time of the Senator · from Idaho has expired.

Mr. POMERENE. But it is proposed to amend--

The PRESIDENT pro tempore. Does the Senator from Ohio desire recognition?

Mr. POMERENE. I will ask the attention of the Senate for just a moment.

The PRESIDENT pro tempore. The Senator from Ohio.

1\:fr. POMERENE. But if the amendment proposed by my colleague [Mr. HARDING] is agreed upon by the Senate, we are not proposing to submit the simple proposition of the Senator from Texas, but the amendment of my colleague becomes an integral part of the constitutional amendment proposed by the Senator from Texas.

Mr. BORAH. Mr. President, will the Senator permit me to interrupt him?

The PRESIDENT pro tempore. Does the Senator from Ohio yield to the Senator from Idaho?

Mr. POMERENE. . I do.

l\fr. BORAH. After it has been ratified by the States, then, of course, this particular amendment becomes a part of the Constitution; but the . States can proceed to vote after the end of six years, for the reason that as yet the Constitution has not been changed.

1\lr. POMERENE. But, 1\Ir. President, the amendment of thE'! junior Senator from Ohio, if adopted, becomes an integral part of the resolution. It becomes as much a part of the resolution itself as the original resolution presented by the Senator from Texas, in my judgment; and I know of nothing in the Constitution which says that the Congress can not attach any condition or qualification to a proposition which it submits in the form of a proposed amendment to the Constitution. ' Mr. BORAH. 1\fr. President, I do not want to interrupt the Senator again only to say that the friends of this movement will find in after years that they have been led into a cul-de-sac. I uo not challenge men's motives, but that is the effect and that will be the result. ~

1\fr. POMERENE. I am not prognosticating as to what may happen later. I was addressing myself solely to the legal proposition, and I feel quite as convinced I am right as my learned friend from Idaho does that he is right.

Mr. BRA.NDEGEE. Mr. President, I would favor the submission of a separate constitutional amendment providing that all proposed constitutional amendments which have not secured the favorable action of three-quarters of the legislatures of the States in a definite period of years shall fail; but I agree entirely with the Senator from Idaho [Mr. BoRAH] in the view which he takes of the amendment proposed by- the Senator from I intend to vote against the proposed constitutional amendment, but it is not with any relation to that that I say what I am about to say. In my opinion the a " attachment of this time-limit amendment to the proposed prohibition constitutional amendment is extremely liable to result in the loss of the amendment, and if I wanted by more or less of a trick to secure the defeat of the amendment I would want no better opportunity to . embarrass this proposed constitutional amendment than to vote for the amendment of the Senator from Ohio. ·

Article V of the Constitution, providing how amendments shall be submitted to the States for the approval of their legislatures or State conventions, says that amendments- ::. shall be valid to aU intents and purposes, as part of this Constitution when ratified by the legislatures of three-fourths of the several States. ' The Constitution itself, therefore, provides that an amendment shall be ratified when approved by the legislatures of threefourths of the States; and I think there is no question that that word "when" always has been interpreted, and is correctly interpreted, as though it' were “ whenever." That has been the practice of the States in connection with all constitutional amendments which have been adopted.

Suppose the amendment of the Senator from Ohio is added to the joint resolution. I can readily see that when the matter is taken to the Supreme Court the Supreme Court may hold • that Congress, by attempting to prescribe an unconstitutional condition to the machinery by which the amendment must be approved by the legislatures of the States, has exceeded its authority, and the whole amendment may fail, although ratified by the States in eight years. For instance, suppose six years go by and three-fourths of the States have not acted favorably upon this proposed constitutional amendment, but that at the end of eight years three-quarters of the States have acted favorably upon it ; the friends of this amendment, of course, , I suppose, would then, in order to secure the amendment, have to turn around and claim that Congress had no authority to attach a time limit to it, and that it had become a part of the Constitution.

Mr. THOMPSON. 1\lr. President, will the Senator yield to me for a question?

The PRESIDENT pro tempore. Does the Senator from Con· necticut yield to the Senator · from Kansas?

M1;. BRA.NDEGEE. I yield.

Mr. THOMPSON. Would not the Senator think, if his view: of the constitutional power is correct, that it would only in· validate this particular section and not the entire resolution?

Mr. BRANDEGEE. If the amendment of the Senator from Ohio only invalidated itself, no harm would be done, of course; but if the court should hold that it was, in the language of the senior Senator from Ohio [Mr. PoMERENE], such an integral part of the amendment as that it could not be dissected from, the body of the amendment, then the risk would be run o~ having the whole amendment defeated.

Mr. HARDING. Mr. President--

The PRESIDENT pro tempore. Does the Senator from Connecticut yield to the Senator from Ohio? ·

1\Ir . . BRANDEGEE. I do.

1\Ir. HARDING. Suppose there is no limit placed upon the pendency of the amendment, and suppose the State of Ohio votes to adopt the amendment, we will say, in 1919, and then in 1921 reverses that decision and seeks to withdraw its approval, what happens?

1\lr. BRANDEGEE. I am informed, Mr. President, although I have not . looked the cases up, that the courts have held that a legislature may reject an amendment and then at another session may adopt it, and such action will enable that State to be counted as one of the three-quarters necessary to approve the amendment. On the other hand, if a legislature adopts an amendment, it can not then at another session or at the same session reject it and have its action count against the amendment. In other words, a time watch is set, and whenever it strikes a certain way that concludes the matter, while if it strikes the other way it is still open to further action, because, under the language of Article V of the Constitution, it becomes valid when approved, irrespective of how many times it has been disapproved before that.

Mr. HARDING. Then, I want to ask the Senator, suppose a State-we will say Massachusetts, for example, with its annual elections-has rejected this amendment six successive times, does the Senator think it ought to be still left open for the seventh to adopt it?

~Ir. BRANDEGEE. I do not think it ought to be; and ir' the Senater from Ohio, with whose intent I thoroughly agree, and his friends would now prepare another propo. ed constitutional amendment providing that all constitutional amendments to be submitted to the States shall be approved within six ~ear or eight years-whatever time limit may be desired-and that those not approved within that time shall be deemed to have failed, I would vote for it. If such an amendment were pas. ed now by a two-thirds vote in both branches, and the States voted on and ratified it first, then the Constitution would be amended, and the amendment would be applicable to the pending prohibition amendment; but it is utterly beyond my mental apparatus to comprehend the claim that, with the Constitution as at present written, with its existing machinery for its mvn amendment, a proposed amendment which it is sought to make a part of the Constitution can include a provision which will ;-o change lbe Constitution as to make it applicable to the \et·y amendment which itself can not take effect until it has been ratified by three-quarters of the States. It 1s an attempt to hoi~t your elf by yo~r own boot straps, if I may use a homely phrase.

'l'be Constitution stands as it is until amended, and yet it is proposed to attach an amendment to a proposed constitutional amendment changing the existing constitutional machinery so thn t it will operate under a proposed amendment, which is - no amendment until it also has been adopted, at the . same time the attempt is mn<le to adopt the condition. • l\Ir. HARDING. M!·. President--

The PRESIDENT pro tempore. Does the Senator from Connecticut yield further to the Senator from Ohio?

1\[r. BRANDEGEE. I yield.

1\IL·. HARDING. Does the Senator believe if this amendment were ratified by the States within six year , that there would be any question of its validity?

1\Ir. BRANDEGEE. I think there would be a serious question of its validity, because it would not have been submitted in a constitutional manner. Whether it would be contested ~';r not is a different proposition, but the effect of this amendment will be to cle~tro:V large amounts of property which the courts have declared to be entitled to the protection of the Constilu· tion, and it can not be taken or · destroyed, by the General Go'\-­ ernment nt least, no matter what may be done by a separate State under its police power, in an arbitrary manner. All sorts of legal questions. . I apprehend, will be raised by the owners of this property and by those engaged in the 1iquor business to prevent the de truction of their rights, and it would seem to me that it would be well for Congress to consider before Jt leap s.

.1\lr. BORAH. .1\IJ'. President--

Mr. BRA. "DEGEE. I yield to the Senator from Idaho.

1\lr. BORAH. If we can submit in this proposal a propo i­ tion to limit the time within which the State. may ratify it, could we not with equal force submit a proposition that when a majority of the States ratify this amendment it shall be an amendment to the Constitution?

1\Ir. BRANDEGEE. Yes, lr. President. we could with equal power and authority, in my opinion, attempt to say that the amendment shall take effect and become a part of the Constitution to all intent and purpo es when ratified. by a majority of the electors of the several States, which is what ought to be done.

The PRESIDENT pro tempore. The time of the Senator from Connecticut has expired.

1\lr. JOH:\S(h ~ of California. 1\lr. President, if the experience of other Senators upon this floor has been at all similar to mine they will have realized that there i a complete misunderstanding and misconception of what to-day the · United States Senate is doing upon this particular proposition. From the b.Y . hysterical telegrams that have come to me upon both sides of the issue the people of the State which I in part represent apparently are laboring under the delusion that we are affirmati~Piy enacting no"' a prohibition measure which at once will go into effect and which at once will render this Nation dry. - This is such a total misconception and misunderstanding that 1 think, from our standpoint in the far West at least, it ought to be rna<.le plain that to-day in presenting and proposing a constitutional amendment we are but following our conception of the fundamental principle of popular rule--popular rule, wh1<'1• has heen with us not a mere empty phrase, but which has been a basic governmental idea written in our State into our <'On ~ constitution. We ai'P, 1\lr. President. but .:Ollowing this idea and this principle of popular rule in enabling the people of the Nation. when .J con.<;itlen.tb ' le number ask that privilege to pass upon an important matter of national legislation. '

We . do not to-day, of course, enact -a prohibitory law; inrlE>erl we do not even to-day express an opinion upon a national pro- hibitory law; but under the resolution that is presented and under that which we here understand, all we do in the language of the resolution is to propo e "to the States an amendment to the Constitution to be acted upon antl to ue ratified by the various States of the Union if they shall - see fit."

In the territory from which I <'Orne the que. tion of the right of the people to pass upon any given matter has become fundamental an<] vital. In 1911, when our political revolution oecurred in the State of California, all of us with feverish anxiety turned in every direction to ascertain how we could place io the hands of the people just liberated from a quarter of a century of corporate rule the weapon by which they might maintain that freedom so hardly and with such difficulty won. Theu. when we turned to find the weapon we found it only by enabling our people, whenever they sought to pass upon any legislation, to have the right to pass upon it whenever they desired; to halt recalcitrant representative and themselves pu. ~ upon their acts What I do to-day in regard to this particular amendment i~ only following that rule, that particular fundamental principle, the right of our people to govern them eh~es by submitting to them a proposed con titutional amendment in the only manner that is accordeq to us under our organic law. and by letting them, nncl them alone, determine whether or not that which a very large number of - our people desire . shall become a part of tile Constitution of the United States.

I would, indeed, submit any question by constitutional amendment where there was a really con. illerable number of our people who desired its submission. I expect within the next 24 or 48 hours to a k the chairman of the Committee on Woman Suffrage why it is that a particular re olution that has been concurred in by every member of that committee is not pre. ented to the Senate of the United States, and by the Senate of the United States presented to tile Nation for the Nation's action and for the Nation's determination of equal suffrage in this land . It there be any other question, economic, ethical, or moral, that any really great number of our people wish submitted to the electorate or to the State , I would vote to submit that particular question, no matter what my individual view might be.

Turning now from the particular subject thus discussed to the amendment presented by the Senator from Ohio [1\lr H \RD· ING], I want to say that I am in thorough accord with the viE>w~ ­ expressed by that Senator anrl those expressed by his coilengue in reference to its legality. This particular amendment, with its limitation of six years, is not an abr()gation of the Constitution of the United States. It is not an effort to amend that <X>nsti· tution or in any way to alter any substantive part of it.

The amendment offered .. ed by the Senator from Ohio is a limita· tion and a condition imposed upon the particular constitutional amendment, and it is jus~ as legal and just as valid that that sort of limitation and that kind of condition should be imposed upon the propo ed constitutional amendment a. it would he if we wrote after the words "manufacture. sale, or transportation,” . a particula~ time limit within which the manufacture. sale, or transportation might be permitted within our particular terrb . tory.

I feel that the Senator from Idaho [1\!r. BoRAH]-for whom I have the most profound respect, and who, as a constitutional expounder, stands second to none in all this land-Lo;; in Prrol' when be insists that we are amending the Cons'.:itution of the United States by this particular limitation anrt this specific condition. We are not amending the Constitution. 'Ve <t<'o6 simply imposing that lim;tation and that condition upon the specific arnemJment, and the specific amendment alone.

So I trust that the particular amendment may be passed. and I shall cast my vote for the joint res . resolution that is presented by the Senator from Texas fl\Ir. SHEPPARDl upon the ground and upon the theory-fundamental with us of the West, upon thtJ very basic idea upon which we have builded new Commonwealth there--that the people finally have the right to pass upon any question where any considerable number of the people ask that right.

DuriD~ the di cussion upon the Resolution (S. J. Res. 17) pro. po ing an amendment to the Con titution of the United States, Senator FRANCIS E. WARREN, of Wyoming, said:

!\lr. President . I have been detained on public duty at another place during most of the time this matter has been up for di cussion; but, judging from what has occurred during the brief periods I have been on the floor, I believe it has been very thoroughly discussed.

Time does not permit nor does inclination impel me to make any extended remarks upon the resolution now about to he voted upon by _ the Senate. Argument for or against the ' measure at this ' stage of its _ · procedure; on my part, would be · futile, and therefore I · shall · not ' attempt to make even the briefest form of one. It has been proclaimed that there are votes · enough and to spare to · carry it. 1\Iy only purpos.e in rising is to state my own position, and that, to · some extent, of my State.

I can not give my support to the joint resolution, because I believe, and I think my State believes the same way, that the - police powers should be provided by State legislation and rest with the people rather than that the United States should usurp those powers.

It has been ami is my belief that each State should have unrestricted control of its police powers, and I think the Supreme Court of the United States has held in various decisions that the police powers of a State within its own borders are paramount and can not be lawfully interfered with even by the Federal Government. In fact, in a somewhat celebrated caseUnited State s against John Racehorse-in which the police powers of the State of Wyoming came in conflict with certain rights granted by a United States treaty to certain Indians, the Supreme Court decided that the police powers of the State were paramount and superseded even treaty-made rights coming in conflict with them. The Supreme Court decided that · the S t ate should have unrestricted control of all these matters · within her lines.

I gn ve my support in the war bill to a measure of temperance aJHJ which provided that the men of the United States Army should not be surrounded with immorality. I gave my support in t lle food bill to the so-called food conservation along lines of temperance, but what was really very much of a · prohibition biU. But beyond that I do not feel that I can go at this time.

The 'state of Wyoming has provided, through its legislature, that its people shall vote next year upon an amendment to the State constitution covering this subject. The State of Wyoming, which I in -part represent, was, like other new and frontier States, called "wild and woolly," and it was "wide open" in its early career, ' with "Wide-open" towns. One of them, and · the one of which I am now pleased and proud to call myself a · citizen, was said by some disrespectful critics to be the wickedest city in the world. We commenced from that standard to de . ­ ' _velap along lines of industry, temperance, and good morals. We ' first gave the right of suffrage to women and men alike, but we ' required all who might enjoy suffrage to have sufficient education to read and write. We limited, from time to time, the sale and use of intoxicating beverages until we have to-day simply those few places, in the cities where there is a sufficient police · force, that the city governments may permit, limited in number, and a very large license charged against them, and under very Iowa. · close supervision. The State stands second to none in this country in morality and progress along the lines of character and intellectual growth. · ·

In dealing with the liquor question, Wyoming _ has been practical but not radical. As I have · said, the earlier Territorial days of unrestricted use and sale of liquors gave way to the restrictions of high license and · later to prohibition outside of incor· · porated cities and towns. Regulation brought beneficial results ; and cities and towns once wide open-" wild and woolly became · as peaceful and sedate as New England villages of the days of the Puritans. ·

The State of Wyoming stands only second . or third from the top of the list in the per capita amount of _ money she. gave to the Red Cross in its late canvass. She went far beyond her proportion in subscribing to the liberty loan. She furnished more ' than her quota of troops in the State, one-third of her counties, ' or 7 _ of the 21, not being called upon to furnish any troops · through draft and having a surplus to their credit. It seems to me that in a State t hat has provided for her own government and has made the good progress that Wyoming has, it is enough to ask of her that she abide by the decision of her legislatureand the vote was unanimous, or nearly so; there was no party division-and let the State settle what she shall do along the - lines of intoxicating beverages.

If the States, as is said to be the case, are falling in line one after another, we have only to wait a short time until the matter will take care of itself without the United States Government entering with its strong band. If that is the case, we do not need to have the proposed constitutional amendment. If, • · on the other hand · , there are enough States who do -not believe tlle time has arrived, then of course it is useless. · Control of the liquor traffic is essentially a police power vested in the individual States. We of Wyoming think we know how to exercise that power so as to conform to the wishes- of our own peo-ple: We do not assume to have the knowledge of con­ · tlition . · and views in, say, the State ' of Texas · s ' to the · · extent that we should frame the laws of that State in regard to the liquor or any other business which is carried on within its jurisdiction. At the same time we do not - concede that the people of Texas know us well enough to make our Wyoming laws.

And yet in this resolution that is what is proposed-a cet·­ tain number of States can inject the views and beliefs of their· citizens into the laws and regulations of other States.

r prefer to have Wyoming make its own laws for the regulation of the liquor traffic within its boundaries. I believe the people of my State are qualified to do this; I believe they will do it, and do it in the sensible, practical way they have carried on other reforms-with a due sense of proportion and the observance of the rights and equities of all.

Therefore upon this resolution I shall vote to permit Wyo ­ ming and each of the other States of the Union to continue to make its own laws for the regulation of the liquor business within its own jurisdiction.

I have believed, and I believe now, that progress can be truly made faster where we go just fast enough in these lines of reform so that our laws are obeyed and administered actively and completely. There are States in the Union that are ostensibly _ " bone dry” that put to shame, through the · u , e o f liquors and through - intoxication, some of the States t hat are under license.

l\1r. President, I shalluot take further time; but I simply say that I shall · be found among perhaps the few that will vote -­ " no " on the proposed constitutional amendment.

1\fr. CUl\11\HNS. 1\lr. President, I offer the matter which I send to the desk as a substitute for t he amendment propo s ed by the Senator from Ohio. ·

The PRESIDING OFFICER (Mr. ROBIN S ON in the chair) . The Secretary will state the amendment, in the nature of a substitute, offered by the Senator from Iowa.

The Secretary read as follows :

Resolved, : ed, etc. , That the following amendment to the Constitution of the United States be proposed, 1 which when duly ratified by threefourths of the several States shall be valid to all intents and put· ­ poses as a part of said Constitution, to wit:

Amend Article V of the said Constitution by adding thereto · th e fol - lowing, to wit : I • "Pro vi ded, That all amendments to the Constitution so propose: · etl and submitted to the States for ratification after January 1, 1!>17. in order to become valid to all intents and purposes as a vart of the Constitution, shall be so ratified within a period of eight years afte1· such submission: And fJrov i ded f t t r th et ·, That the . action of any Stat e ratifying an amendment must · be without modification or condition and shall . l r.ot be subject to recision or recall in any form whatsoever."

The PRESIDING OFFICER. The question is on the arnentlment, in the nature of a substitute, offered by the Senator from , 1\lr. CUl\BliNS. 1\fr. President, I am very much oppo ed to the amendment suggested by the Senator from Ohio [Mr. HARDING]. It is not only · an exercise of authority which has not been granted to us by the Constitution, but it is exceedingly unfair and unjust. The amendment which I have proposed is a further proposal of an amendment to the Constitution, and would, if adopted, be voted upon by the States as a separate amendment to that instrument.

I am in favor of supplying what is manifestly a defect in our Constitution and providing some limit of time within which amendments to the · instrument must be ratified, but I am earnestly opposed to the attempt to attach to the joint resolution offered by the Senator from Texas a condition which is not only un,fair in itself, but is unauthorized by the organic law.

The Senator from Idaho [Mr. BoRAH] is entirely right, from my standpoint. We are empowered in the Constitution to do what? To propose amendments to that instrument. We lmve no other authority. From what part of the Constitution do we get the power to attach a condition to an amendment which we submit to the States for ratification? Our authority is exhausted when we declare that an amendment shall be JH'O~ posed to the States.

The amendment offered by the Senator from Ohio does not amend the Constitution. It does not pretend to amend the Constitution. It is simply · an effort, if passed, upon the part of the Senate to qualify the power which ·we are attempting ­ to exercise, namely, to propose an amendment to the Constitution. ·

I have no doubt whatever that if ratifications were to occur after the period of six years named in the amendment of the Senator from Ohio the courts would either recognize those ratifications or set aside the entire amendment, and the possible outcome of adopting the amendment of the Senator from Ohio will be to plunge the whole subject into litigation that may continue for years to come. I for one am not willing to embarrass the cause of · prohibition by any such unwarranted exercise of power.

Mr. SHIELDS. l\{1·. President-- _ .· _ _

The PRESIDING OFFICER. · Does the Senator from Iowa yield - to the Senator from Tennessee?

Mr. CIDil\IINS. I yield to the Senator.

Mr. SHIELDS. I desire to make a suggestion to the Senator along the line of his argument, in which I am very much interested. I will say to him that I have not thought a great deal upon the subject so far, and I wish his opinion upon this view of it. I understand the Senator from Iowa to take the position that the Congress has not the power to limit in any way the action - of the S t ates in adopting an amendment.

Mr. CUMMINS. I assume that position. I say that the only way in which we can limit the til.ije within which a . proposed amendment shall be acted upon is by a definite and substantive amendment to the Constitution.

1\lr. SHIELDS. I correctly under s tood the Senator, then. I call the attention of the Senator to this principle, and ask his views of it:

Wherever there is a grant of power, it carries with it the grant of a lesser degree of the full extent of the power granted. I ' will illustrate my proposition, if the Senator will bear with me, and then · I will ask the Senator to express his views.

Mr. CUMMINS. I hope the Senator will remember that I have only 10 minutes.

Mr. SHIELDS. The pardoning power is given the Executive by the Constitution of the United States . . It is an absolute g rant of that power; but under that grant the courts have always held that the lesser being embraced in · the greater, the Executive may commute a sentence; he may grant a conditional pardon. Now, is not this an absolute power for the Congress to submit to the States the proposed amendment to be ratified? Can it not be coupled with a condition or a limitation, and come within the principle that the ' greater involves the lesser? , Mr. CUMMINS. May I ask the Chair how much time I have left?

The PRESIDING OFFICER. The Senator . has one minute. remaining. .

Mr. CUMMINS. The Senator from Tennessee has taken up so much of my time that I could not pretend to - answer his question within that minute. ·

Mr. ,SHIELDS. - Mr. President-- . The PRESIDING OFFICER. The Senator from Tennessee. ~~~

Mr. SHIELDS. I did not fully understand the Senator's reply, and I shall be glad to · yield to him in my time to answer the question.

Mr. CUMMINS. If the Senator from Tennessee will be kind enough to do that, I reply that the rule to which he refers can have no application in a constitution , al grant of power to Congress upon a subject like this. There is no lesser degree of power. Our power is to propose an amendment to the Constitution. It is complete in itself and there are' no gradations of that · power, and, as it appeals to me, there could no~ be. The two Houses of Congress are the instrumentalities chosen by the Constitution to submit to the States proposed changes in our organic law. That is the power given to us. If we do not want to exercise that power, we of course can decline it; but if we exercise it, it is not susceptible; from my point of view, of a division. The very moment we attempt to divide it we ourselves are attempting to amend the Constitution, an authority which of course is not claimed by anyone for Congress. I must therefore adhere to my view that so much of the resolution, if it were amended as proposed by the Senator from Ohio, as limits the time, would be entirely ineffectual and could give rise to · nothing but embarrassment, delay, litigation, and confusion. · Mr. SHIELDS. I should like to ask the Senator further to express his views upon- this phase of the matter: What objection is there to further amending the Constitution by providing that the amendment shall be ratified within a limited time, as her e proposed?

Mr. CUl\1MINS. I have offered as a substitute a definite amendment to the Constitution, limiting the time in which all amendments may be ratified. lr the States under the Constitution as it is shall adopt that amendment, then . it is manifest that any other amendment which is . not ratified within the period of eight years, as I have made the period, could ' not become a part of the Constitution.

Mr. SHIELDS. Mr. President, I should like to have the Sen a­ tor ' s views as to why both propositions can not be - embraced in, t he same amendment?

1\lr. CID1l\1INS. 1\ly objection to th~mendment of the Senator from Ohio is that we are attempting to exercise an authority th . at we do · not possess, and that if it is adopted it can lead to nothing b ~t trouble for those who belie"Ve in national prohibition. · I can easily understand why those who are opposed to prohibition should . desire the adoption of the amendment of the Senator from . Ohio. No matter . what the motive may . be in offering it, the effect must be, if it has any, the delay, the · possible - defeat, of national prohibition. . . . .. •

Mr. SHIELDS. Now, Mr. President, following what the Senator from Iowa has stated in expressing his views, I desire to • ask him whether there is any limitation whatever in the Constitution of the nature or _ character of the amendment . that may be submitted to be ratified, except that in regard to the representation of the several States in this body? . .

Mr. CUMMINS. There are but two limitations~ne, as the Senator will remember, forbidding amendments on a certain subject up to a certain time; the other forbidding all .amendment unless agreed to by all of the States. There are no other limitations. . .

Mr. SHIELDS. Neither of those limitations applies to the present proposition.

Mr. CUl\11\fiNS. Neither of them, as I understand, would apply to this subject.