December 18, 1917
The VI •E PRE. IDBNT laid before the · Senate the amendments of the House . . e of Representatives to the-joint resolution ( S. J. Ties. 17) proposing an amendment to the Constitution of the United States, which were, on page 1, line . 9, to strike out "the" and in . insert "after one year from the ratification of this article the"; on page 1, to strike out lines 14 and 15 and lines 1 , 2, and 3 on page 2, and insert :
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- PRE. IDBNT The scans read: “President.” (microfilm scan), “PRE. IDBNT” (main scan)
- the-joint The scans read: “theejoint” (microfilm scan), “the-joint” (main scan)
1 connection
- quotes Amendment XVIII, Section 1 (suggested)
SEC. 2. The Congress and the several States shall have concarrent power to enforce this article by appropriate legislation.
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- concarrent The scans read: “concerrent” (microfilm scan), “concarrent” (main scan)
1 connection
- quotes Amendment XVIII, Section 2 (suggested)
And, on page 2, to strike out lines 4 and 5 and insert:
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SEc. 3. This · article shall ue inoperative unless it shall have been ratifiecl as an amendment to the Constitution by the legislatures of the several State , as provided in the Constitution, within seven years from the date of the submission hcreef to the State s by the Congress .
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- ue The scans read: “be” (microfilm scan), “ue” (main scan)
- ratifiecl The scans read: “rattml” (microfilm scan), “ratifiecl” (main scan)
- State The scans read: “States,” (microfilm scan), “State” (main scan)
- hcreef The scans read: “hereef” (microfilm scan), “hcreef” (main scan)
- . The scans read: “Mr.” (microfilm scan), “.” (main scan)
1 connection
- quotes Amendment XVIII, Section 3 (suggested)
1\Ir. SHEPPARD rose. . e.
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- 1\Ir. Only one scan has this word: “1\Ir.” (main scan)
- . The scans read: “Mr.” (microfilm scan), “.” (main scan)
1\ir. GALLINGER. I suggest the absence of a quorum.
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The VICE PRESIDENT. The Secretary will call · the roll. The Secretary called the roll, and the following Senators answered to their names : Ashurst Chamberlain ~~~~~f3am Gallinger Beckham Colt Gerry Borah Culberson FI~t c hcr Gronna Brandegee Cummins France Hale Calder Curtis Fr {' Frelinghuysen Harding
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- ~~~~~f3am Only one scan has this word: “~~~~~f3am” (main scan)
- FI~t c The scans read: “Fletcher” (microfilm scan), “FI~t c” (main scan)
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LYI- ~ 31
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- 31 Only one scan has this word: “31” (main scan)
Harclwick Culberson . Pomerene Sterling
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- Harclwick The scans read: “Chamberlain” (microfilm scan), “Harclwick” (main scan)
McKellar Robinson Stone
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McLean ~a ulsbury Sutherland
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- ~a ulsbury The scans read: “Saulsbury” (microfilm scan), “~a ulsbury” (main scan)
James McNary Shafroth · Swanson Johnson, Cal. Martin sheppard · 'Thompson Johnson. K Dak. Myers · · Sherman Townsend • Jones, Wash. Nelson Shields Vardaman Kellogg New Simmons Wadsworth
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·e Newlands Smith, Ariz. Weeks
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- ·e The scans read: “Kendrick” (microfilm scan), “·e” (main scan)
King Norris ·· Smith, Ga. Williams
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Overman Smith, Md.
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Penrose Smith, Mich.
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Lewis Pittman Smoot
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. 1\Ir. FRELI.i'\'GHUYSEN. I wish b to announce the absence of my colleague [1\Ir. · HuGHES] on account of illness:
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- FRELI.i'\'GHUYSEN. The scans read: “FRELINGHUYSEN.” (microfilm scan), “FRELI.i'\'GHUYSEN.” (main scan)
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l\Ir. SUTHERLAl~D. 1\Iy colleague, the senior Senator from 'Vest Virginia [1\Ir. GoFF] is ab ent owing to illness.
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- SUTHERLAl~D. The scans read: “SUTHERLAND.” (microfilm scan), “SUTHERLAl~D.” (main scan)
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- 'Vest The scans read: “West” (microfilm scan), “'Vest” (main scan)
- [1\Ir. Only one scan has this word: “[1\Ir.” (main scan)
- ab ent The scans read: “absent” (microfilm scan), “ab ent” (main scan)
1\lr. SHAFROTH. I de ire to announce tl1e unavoidable ab sence of my colleague 'rMr. THOMAS] on account of illness.
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- de ire The scans read: “desire” (microfilm scan), “de ire” (main scan)
- tl1e The scans read: “the” (microfilm scan), “tl1e” (main scan)
- 'rMr. The scans read: “|Mr.” (microfilm scan), “'rMr.” (main scan)
Mr. VARDAMAN. I wish to announce the absence of the junior Senator from Mis ouri [1\Ir . REED], the Senator from New Mexico [1\Ir. JoNEs], the Senator from Iowa [1\Ir. Kenyon], and the Senator from Massachusetts [Mr. LoDGE] on official bu i ness upon the Committee on Manufactures. .
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- Mis ouri The scans read: “Missouri” (microfilm scan), “Mis ouri” (main scan)
- [1\Ir Only one scan has this word: “[1\Ir” (main scan)
- [1\Ir. Only one scan has this word: “[1\Ir.” (main scan)
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- bu i The scans read: “busi-” (microfilm scan), “bu i” (main scan)
- . The scans read: “Mr.” (microfilm scan), “.” (main scan)
1\Ir." MYERS. 1\fy colleague [Ur. WALSH] is detained from tl1e Senate on account of illness. ..
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- tl1e The scans read: “the” (microfilm scan), “tl1e” (main scan)
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1\Ir. SAULSBURY. I wish to announce that my colleague [£It·. · wor.-eoTT] i absent on account of illness.
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The VICE PRESIDENT. Sixty-nine Senators have answered to ti1e roll call. There i a quorum present.
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- ti1e The scans read: “the” (microfilm scan), “ti1e” (main scan)
- i The scans read: “is” (microfilm scan), “i” (main scan)
1\Ir. SHEPPARD. I move that the Senate concur in the amendments of the House of Representatives to Senate joint resolution No. 17.
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The VICE PRESIDENT. The question is on the motion of the Senator from Texas.
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l\1r. BORAH. l\Ir . Pre:sident, a 11arliamentary inquiry. Do these amendment require a two-thirds vote?
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- l\Ir Only one scan has this word: “l\Ir” (main scan)
- . The scans read: “Mr.” (microfilm scan), “.” (main scan)
- 11arliamentary The scans read: “parliamentiory” (microfilm scan), “11arliamentary” (main scan)
- amendment The scans read: “amendments” (microfilm scan), “amendment” (main scan)
The viCE PRESIDENT. That is the opinion of the Chair . It is the view of the Chair that an amendment to a resolution proposing a.n amendment to the Constitution of the United States needs only a majority in order to be adopted; but th - e re ·olution having once been · adopted by the Senate and gone to the House and returned here for ti1e final action of the Senate, it is necessary ' to have a two-thirds vote on the amendments of the House , f'or this con titutes the final passage of the resolution. .
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- th The scans read: “the” (microfilm scan), “th” (main scan)
- re ·olution The scans read: “resolution” (microfilm scan), “re ·olution” (main scan)
- ti1e The scans read: “the” (microfilm scan), “ti1e” (main scan)
- con titutes The scans read: “constitutes” (microfilm scan), “con titutes” (main scan)
- Mr. BORAH. Mr. Pre ident , I want to say a word before t11e matter is disposed of.
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- Pre ident The scans read: “President,” (microfilm scan), “Pre ident” (main scan)
- t11e The scans read: “the” (microfilm scan), “t11e” (main scan)
I regret exceedingly, l\Ir. Pre . President, that this amendment has taken the form which it has. There are two clauses in the amendment which, to my mind, are irreconcilable with any idea of constitutional. action or action in harmony with the · Constitution. In the first place, ti1e amendment as it is propqsed to the Constitution as an amendment has in it the words "after one year from the ratification of U1is article," . _ o that That the following amendment to the Constitution be, and hereby is, proposed to the States, to become valid as a part of the Constitution after one year from the ratification of this article- - And so forth.
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- l\Ir. Only one scan has this word: “l\Ir.” (main scan)
- Pre Only one scan has this word: “Pre” (main scan)
- . The scans read: “Mr.” (microfilm scan), “.” (main scan)
- ti1e The scans read: “the” (microfilm scan), “ti1e” (main scan)
- propqsed The scans read: “posed” (microfilm scan), “propqsed” (main scan)
- U1is The scans read: “this” (microfilm scan), “U1is” (main scan)
- _ Only one scan has this word: “_” (main scan)
It is just as plain as the path to tl1e country schoolhou e that that is either wholly and ub olutely surplusage and has no bu ines · here · or el e it will prevent any real submission of the question to the States. It can do no good and may do much harm.
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- tl1e The scans read: “the” (microfilm scan), “tl1e” (main scan)
- schoolhou e The scans read: “schoolhouse” (microfilm scan), “schoolhou e” (main scan)
- ub olutely The scans read: “absolutely” (microfilm scan), “ub olutely” (main scan)
- bu ines The scans read: “business” (microfilm scan), “bu ines” (main scan)
- el e The scans read: “else” (microfilm scan), “el e” (main scan)
The Constitution of the United States provides in unmistakable language when a provision of the Constitution shall go into effect, and it is not within the power of the Congress, by incorporating a different provision in _a proposed amendment to change the law of the land. I can not understand, Mr. President, why such a clause should be inserted in an amendment S6 vital and important as this. It is manifestly out of harmony with - the Constitution. I do not assume to say what its effect will be, but it might endanger the whole proceedings.
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- _a Only one scan has this word: “_a” (main scan)
- S6 The scans read: “se” (microfilm scan), “S6” (main scan)
1 connection
- cites Article V, Clause 1 (suggested)
Secondly, it provides that "this article shall be inoperative "-and I want to call the attention of the Senate to the word "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, within six years." That has been changed to seven years.
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1 connection
- quotes Amendment XVIII, Section 3 (suggested)
We have no power by this method to limit the time within which this amendment shall be ratified. That matter was discussed- before. I shall not diScuss if again. After a fuller investigation and a more thorough study of the matter I am more thoroughly _ convinced that ~e . lla"Ye no such powrr. The act '\i 1 which we · shall here perform will either result in a ~ubmission to the States or it will be held to be ~ s..ubmi ion at aU. If it ~·er -goes to the States and they actually acquire jurisdi't!tion of it, they em ratify it at any time they see fit, and when a sufficient number shall have ratified it, it becomes a part of the ConstitutiOH. If it is a submission at all, then a ratification will b& con titutiollal, though the requ1site number of States shoUld not vote for it for 10 years, or later.
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- if The scans read: “it” (microfilm scan), “if” (main scan)
- am The scans read: “aim” (microfilm scan), “am” (main scan)
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- ~e The scans read: “we” (microfilm scan), “~e” (main scan)
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- powrr. Only one scan has this word: “powrr.” (main scan)
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- 1 Only one scan has this word: “1” (main scan)
- ~ubmission The scans read: “subimission” (microfilm scan), “~ubmission” (main scan)
- ~ The scans read: “|” (microfilm scan), “~” (main scan)
- s..ubmi Only one scan has this word: “s..ubmi” (main scan)
- aU. Only one scan has this word: “aU.” (main scan)
- ~·er The scans read: “eyer” (microfilm scan), “~·er” (main scan)
- jurisdi't!tion The scans read: “jurisdittien” (microfilm scan), “jurisdi't!tion” (main scan)
- em The scans read: “can” (microfilm scan), “em” (main scan)
- ConstitutiOH. The scans read: “Coustitution,” (microfilm scan), “ConstitutiOH.” (main scan)
- b& The scans read: “be” (microfilm scan), “b&” (main scan)
- con titutiollal, The scans read: “constitutional,” (microfilm scan), “con titutiollal,” (main scan)
- requ1site The scans read: “requtsite” (microfilm scan), “requ1site” (main scan)
1Ve ca11 not limit the time. For instance, to give an illustration we will as ume that this is submitted, that the States acquire jurisdiction of the subject and proceed to ratify, and at the end of seven year 36 States have ratified it. At the beginning of the eighth year the thirty-sixth State ratifies it. Will anyone contend for· a moment that it is not a part of the Cons1t tution of the United States if it is a submission at all? The Constitution it elf, which is unchanged, says that an amendment may be ratified by the States and places no limit upon the time within which to ratify it.
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- 1Ve The scans read: “” (microfilm scan), “1Ve” (main scan)
- ca11 The scans read: “can” (microfilm scan), “ca11” (main scan)
- as ume The scans read: “assume” (microfilm scan), “as ume” (main scan)
- year The scans read: “years” (microfilm scan), “year” (main scan)
- 36 The scans read: “34” (microfilm scan), “36” (main scan)
- Cons1t The scans read: “Consti-” (microfilm scan), “Cons1t” (main scan)
- it elf, The scans read: “itself,” (microfilm scan), “it elf,” (main scan)
The thing which I most fear, l\Ir President, · however, is that it would be held not to have been a submission to the States at all. What I most fear is that it being a submission in a manner not provided for in the Constitution it is no submission at all. The Committee on the Judiciary has reported upon this matter since we acted upon the pending joint resolution. The able Senator from Connecticut [Ml!. BRANDEGEE] has proposed an amendment to the Constitution providing a limit o~ time within which con. titutional amendments shall be ratified. If the Congress can by each amendment fix the limit of time, there is no occasion for the Senator from Connecticut to offer such an amendment to the Don t~ution of the United States. In other words, when the w0ma.n-suffrag.e amendment c9mes along we can put in a limit Q:f 4 years or we can put in a limit of 10 years ; when some other amendment comes along we can put in a limit of 1 year or 3 years, and it will be a matter wholly within the control of Congress by the act of submission, whereas the Constitution itself places no limit upon it at all, and that is a vital, .substantial, el~ntal provision of the Constitution.
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- l\Ir Only one scan has this word: “l\Ir” (main scan)
- [Ml!. The scans read: “[Mr.” (microfilm scan), “[Ml!.” (main scan)
- o~ The scans read: “of” (microfilm scan), “o~” (main scan)
- con. titutional The scans read: “constitutional” (microfilm scan), “con. titutional” (main scan)
- Don t~ution The scans read: “Constitution” (microfilm scan), “Don t~ution” (main scan)
- w0ma.n-suffrag.e The scans read: “weoman-suffrage” (microfilm scan), “w0ma.n-suffrag.e” (main scan)
- c9mes The scans read: “cemes” (microfilm scan), “c9mes” (main scan)
- Q:f The scans read: “of” (microfilm scan), “Q:f” (main scan)
- 3 The scans read: “8” (microfilm scan), “3” (main scan)
- el~ntal The scans read: “elemental” (microfilm scan), “el~ntal” (main scan)
Mr. President, if I have an opportunity, I shall vote against these amendments, because I think they are dangerous in their import. While I am in favor of the amendment, I am opposed to these changes. I think they should by no means be here. I do not think the friends of the measure should thus endanger the whole proceedings.
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Mr. LEWIS. Before the Senator sits down may I ask the Senator, to test his position, suppose Congress should reverse the matter and put in a .Provision that this adoption shall not take effect for 20 years instead of saying within the time it should do so, that it actually said it shall not take effect for 20 years, does the Senator assume that that would be legal?
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Mr. BORAH. I do not.
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Mr. LEWIS. Then if it could provide in what time it should go into effect, could it not also provide what time it should not go into effect?
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Mr. BORAH. If I caught the question, I say yes.
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Mr. LEWIS. I was very much interested in the · senator's po ition. If Congress has the right to -put a time limit as to when this amendment shall go into effect it would equally have the right to put a limit when it should not go into effect.
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- po ition. The scans read: “position.” (microfilm scan), “po ition.” (main scan)
Mr. BORAH. I think so.
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Mr. LEWIS. Then if the Senator's argument is well taken, would not the final effect be that if Congress could put a limit as to when it should go into effect it could equally put one in when it should not go into effect?
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Mr. BORAH. I think so.
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l\fr_ LEWIS. Therefore, if we could say it should not go into effect for 20 years, could we not also say when it could not go into effect? Not for 20 years, and would not that practically work an absolute obviation of the effect of the amendment by putting a limit of time at such a distance as to make it im· po. sible to reach the object we might have in view? · fr. BORAH. If I understand the Senator, I am in harmony with the view he expresses.
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- l\fr_ The scans read: “Mr.” (microfilm scan), “l\fr_” (main scan)
- po. sible The scans read: “possible” (microfilm scan), “po. sible” (main scan)
- fr. The scans read: “Mr.” (microfilm scan), “fr.” (main scan)
Mr. LEWIS. Would that be the operation according to the Senator's contention?
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1\.Ir. BORAH. That is my opinion.
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1\lr. BRANDEGEE. Will the Senator, before he takes his seat, let me ask him a que tion? ·
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- 1\lr. The scans read: “Mr.” (microfilm scan), “1\lr.” (main scan)
- que tion? The scans read: “question?” (microfilm scan), “que tion?” (main scan)
Referring to the amendment' which the Senator from Idaho [1\lr. BoRAH] has been discussing, I did not hear the first part of his remarks, and therefore he may have answered the question I am about to ask, but I will ask it again. The amendment reads as follows :
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- [1\lr. Only one scan has this word: “[1\lr.” (main scan)
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution ey the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
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- ey The scans read: “hy” (microfilm scan), “ey” (main scan)
1 connection
- quotes Amendment XVIII, Section 3 (suggested)
Does the 3enatoc think that that ameuament attached te the prope ed censtitution.al amendment Jillakes the entire submi mission void, or does be think that it would only be regarded as surplusage if Congress had po authority to put it on?
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- 3enatoc The scans read: “Senatar” (microfilm scan), “3enatoc” (main scan)
- ameuament The scans read: “amendment” (microfilm scan), “ameuament” (main scan)
- te The scans read: “to” (microfilm scan), “te” (main scan)
- prope ed The scans read: “propesed” (microfilm scan), “prope ed” (main scan)
- Jillakes The scans read: “makes” (microfilm scan), “Jillakes” (main scan)
- submi The scans read: “sul” (microfilm scan), “submi” (main scan)
- be The scans read: “he” (microfilm scan), “be” (main scan)
- po The scans read: “no” (microfilm scan), “po” (main scan)
Mr. BORAH. Mr. President, I am not prepared to say I have not reached a conclusion as to what would be the effect of that amendment. Of course, one of two things must necessarily follow; either it will be held surplusage, and, therefore, :rrot effective at all, or the court would hold that Congress, not having submitted it in accordance with tll.e pi'Oviston~ of the Constitution, it would be no submission at all. If I felt perfectly clear that it would be held surplusage, I should not be unea y ab'out the situation; but when the Constitution of the United S'tates provides the manner in which an amendment shall be submitted, prescribes how it shall go to the States, and under what terms and conditions, I do not see how it can be submitted at all except in accordance with those terms and conditions. That is what I have great fear of-that it will be held not to have been a submission at all.
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- :rrot The scans read: “not” (microfilm scan), “:rrot” (main scan)
- tll.e The scans read: “the” (microfilm scan), “tll.e” (main scan)
- pi'Oviston~ The scans read: “prowisions” (microfilm scan), “pi'Oviston~” (main scan)
- unea y The scans read: “uheasy” (microfilm scan), “unea y” (main scan)
Mr. BRANDEGEEl. Let me ask the Senator a further q.uestion. The amendatory section provides that the proposed amendment in its entirety shall, unless it is all accepted within seven years, become inoperative. If Congress has no authority to put that on, the further question might arise as to whether or not the whole submission process is still in operation. Then, even if three-fourths of the States did ratify it, we would still have a lawsuit carried to the Supreme Court to find whether it has been adopted or not. In other words, the minute it be· comes inoperative, tf this is a valid amendment at all, so as to work, then it is withdrawn from further submission to the States or from further action by the States.
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- BRANDEGEEl. The scans read: “BRANDEGEER.” (microfilm scan), “BRANDEGEEl.” (main scan)
- tf The scans read: “if” (microfilm scan), “tf” (main scan)
Mr. BORAH. Of course, Mr. President, these changes were not inserted without a purpose and I fear the purpose was not one friendly to the cause.
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To recapitulate the Constitution of the United States as it ' now stands provides that a proposed amendment to the Constitution shall become a part of the Constitution "when ratified by the legislature of three-fourths of the several States." "When;" that is, as soon after submission as tHree-fourths of the States ratify, it shall become a part o:f the Constitution. Now, this provision of ours which we are submitting says that it shall not become a part of the Constitution when ratified b~ three-fourths of the States, but not until one year thereafter. That is in direct conflict with the express language of article V of the Constitution. Then, again, the Constitution of the United States as it now stands provides "when ratified by the legislature of three-fourths of the several States," placing no limit upon the time. Is there any doubt but what if this pro• posed amendment were submitted L the States they would have a right to ratify it within 10 years or at any other time? Can it be contended for a moment that we can amend the Constitutioa by putting into a proposed amendment a different rule of ratification as to time than that which is now in the Constitution, and which will be in the Constitution and a part of the Constitution after this amendment is voted upon by three- fourths of the States? This is not a proposition to amend the Constitution providing a different time within which to ratify; This is simply a proposition to provide a different time in this particular submission than that which obtains in the general provision of the Constitution. We ignore the clear, unmistakable terms of the Constitution in this submission, both a to the time when the constitutional provision will begin to have effect and as ta the time within which the States mu t ratify. • w, other friends of this amendment seem willing to take the chance. I am not. I shall therefore vote against these propo ed changes. I want this amendment to go to the States in a way thu t when a sufficient number shall have ratified it there will be no doubt of its being a part of the Constitution.
Read from OCR scans of the printed page (p. 478). View the page image
- b~ The scans read: “by” (microfilm scan), “b~” (main scan)
- L The scans read: “t’” (microfilm scan), “L” (main scan)
- Constitutioa The scans read: “Coustitutioa” (microfilm scan), “Constitutioa” (main scan)
- a The scans read: “as” (microfilm scan), “a” (main scan)
- the The scans read: “t]” (microfilm scan), “the” (main scan)
- ta The scans read: “to” (microfilm scan), “ta” (main scan)
- mu t The scans read: “must” (microfilm scan), “mu t” (main scan)
- w, The scans read: “Now,” (microfilm scan), “w,” (main scan)
- propo ed The scans read: “proposed” (microfilm scan), “propo ed” (main scan)
- thu t The scans read: “that” (microfilm scan), “thu t” (main scan)
1 connection
- quotes Article V, Clause 1 (suggested)
Mr. SHEPPARD. Mr. President, as the Senator from Idaho [Mr. BoRAH] stated, this phase of the amendment was discu sed and passed on when the amendment was before the Senate on a former occasion. It was the judgment of the Senate that there was . s no question as to the power of Congress to submit the amendment in this form, and I ask for a vote.
Read from OCR scans of the printed page (p. 478). View the page image
- discu sed The scans read: “discussed” (microfilm scan), “discu sed” (main scan)
The VICE PRESIDENT. Those in favor of concurring 1n the amendments will rise. That is the only. way the Chair can determine the question. [A pause.] Those opposed will ri e. [A pause.] The vote is 47 ~yes and 8 noes. The amendments are concurred in and the joint resolution is adopted.
Read from OCR scans of the printed page (p. 478). View the page image
- 1n The scans read: “in” (microfilm scan), “1n” (main scan)
- ri e. The scans read: “rise.” (microfilm scan), “ri e.” (main scan)
- ~yes The scans read: “ayes” (microfilm scan), “~yes” (main scan)
Mr. ROBINSON. I desire to announce that the junior Senn .. tor from Arkansas [1\:Ir. KnmY] is absent on account of illness in his family. If he had been pre ent on the vote in relation to the adoption of the amendment proposed by the House of Rep- . resentatives to the joint resolution relating t-o national prohibi· tion, he would have voted " yea."
Read from OCR scans of the printed page (p. 478). View the page image
- Senn The scans read: “Sena-” (microfilm scan), “Senn” (main scan)
- .. Only one scan has this word: “..” (main scan)
- [1\:Ir. The scans read: “[Mr.” (microfilm scan), “[1\:Ir.” (main scan)
- KnmY] The scans read: “Krrsy]” (microfilm scan), “KnmY]” (main scan)
- pre ent The scans read: “present” (microfilm scan), “pre ent” (main scan)
- amendment The scans read: “amendments” (microfilm scan), “amendment” (main scan)