June 7, 1911

HEYBURN. Certainly. Mr. CHAMBERLAIN. I should like to ask the Senator from a question. As a matter of fact, is not the spirit of the Constitution violated now in those States where primary elecare held for the nomination of Senators and where the legislature usually follows the direction of the voters of the with reference to the election of Senators?

Mr. HEYBURN. If there is one thing in my political career I am more proud of than another, it is that I have always consistently opposed the system suggested by the Senator Oregon.

CHAMBERLAIN. I ask the Senator the question if it is not a fact that in most of the States of the Union the spirit the Constitution is now violated in that respect, in that people nominate their Senators and the legislature folthe suggestion of the people with reference to the elec­

HEYBURN. I am restrained by such patriotism a.r/ I from confessing that the Constitution of the United States indirectly violated. Mr. CHAMBERLAIN. Is it not so?

HEYBURN. It would be a crying shame against the of the country to admit that the Constitution of the

States was being indirectly violated; and no man is a legislator or representative of the people who favors th~ indirect violation of the Constitution of the United States.

CHAMBERLAIN. Mr. President-- The PRESIDING OFFICER. Does the Senator from Idaho yield to the Senator from Oregon?

Mr. HEYBURN. Certainly. 1\Ir. CHAMBERLAIN. Whatever the Senator from Idaho say with reference to that, I ask him if there is any provision the Constitution which requires the elector, after he has been elected, to vote for any particular candidate for Mr. HEYBURN. That is a stock argument. I have heard often. It is a comparison that is not a comparison. It begging · the question. The Constitution provides one manner the election of .Members of the House of Representatives. provides another method for the election of presielectors. Is that any reason why we should change the Constitution in regard to the manner of electing United States was a reason for the adoption of the different methods beginning, and that reason is just as potent to-day as it

BORAH. Mr. President--

PRESIDING OFFICER. Does the Senator from Idaho to his colleague? HEYBURN. Yes.

Mr. BORAH. At one time in · the Constitutional Convention Ml!'. Hamilton suggests that Senaters be elected by dividing the States into districts and electing electors~ which electors should choose a Senator. If that had been done, would not the Senator hu gave represented the State the same- as he d-0es now? . l\lr. HEYBURR l\Ir. President, it is equivalent to asking whether or not if th-e Constitution of the United States had contained the Decalogue it would not be a religious institution. The fact is that they did 11ot do it. The fact is that 1\fr. Hamilton's proposition was not accepted. The fact is that his methods of government were not adopted in that regaTd, ::tnd wh..<tt is the use ef wasting time in discussing the question as to what would have happened if 1\.11'. Hamilton or lli~ Madison or any other member of that body had succeeded in forcing upon it views that were · never accepted'l

:Mr. BORAH. I think there is a good deal in the suggestion of the Senator that we are wasting time in the dlscussion, but I am not willing to admit that Mr. Hamilton did not know where the sovereignty of the States rested..

Mr. HBYBURK Mr. President, he di . d not know any better th:m my colJeague knows or than I know or than other Senators know. If we are to be go-rerneg by the rejected wisdom of the patriots of that age, there would be no limit to what we miO'ht do in interpreting the fundamental fu.w of the land. ~Olere is no u~e in wasting time over it. If something else had been done we might not ha-ve been a government; we might not have endured to this day. I can imagine several things that were proposed in. the Constitutional Convention that made the Constitutfon af the United States. which would have resulted in the disrupti-On of this Government long ago.

~Ir. CHAMBERLAIN. lllr. President--

Mr. HEYBURN. I yieid to the- Sen.a.tor from Oregon.

Mr. CHAl\IBERLAIN. I should like to ask the Senator if he entertains the same feaJ." that is entertained by many who have the same opinion he has-that if the amendment his colleague is pressing prevails the States will be deprived of their equal representation in the Senate?

Mr. HEYBURN. Not equal representation now. I discussed that question the other- fury and I promised that I would not go over it again. It is an important question. It goes not to the question that we have under consideration to-day, but it would pertain to the question of the calling of a constitutional eom · convention. M.a.ny of the states have requested: that a constitutional convention be called- We do not need to discuss tha-t in this hour, because we are not pro:posin:g that a constitutional convention shall be- called.

Mr. CHAMBERLAIN. I call the Senator's attention to. · Mr. RAYNER. Article V of the Constitution, which provides--

Mr. HEYBURN. I am very familiar with that article.

:Mr. CHAMBERLAIN . It provides— that no State, without its consent, shall be deprived of its equal suffrage in the Sena:te.

It can not be done without the express consent of that particular State. So if all the · other States were to consent to a change of their representation in the Senate, still Idaho might insist that it should be represented by two Senators.

Mr. HEYBURN. As I have stated, it is not worth while to enter upon a discussion of that questi'on. The people of the United States are greater than the Constitution; they made it. They did not create anything that was greater than all the people. If the people of the United States meet in a constitutional convention to-day, they meet there with an unlimited right to make a constitution. You can not limit it. Congress ean not limit the rights of the people, nor say what they shall do when they meet in a constitutional convention. They could disregard the article to which the Senator from Oregon refers . .; and make a constitution in which that did not appear.

When the States are calling for a constitutional convention the-y know not what they are doing. They know not the danger that would confront them under such circumstances. It ought to be the wish and the hope of every patriotic American citizen that we would never again meet to make a constitution. , With all the conflicting interests of this day and this age, with the great co1 1 corporations, with the great labor question, with the hundred issues, you never could get 90,000,000 people to agree upon a constitution. No country the size of this country could make a constitution in this age. It is only in the incipient periods of government that they can do that kind of thing.

Mr. RAYNER . .Mr. President--

Mr. HEYBURN. When there is no government and when there is a necessity for the creation of a government, then the smaller number that are always represented under such conditions can agree. - There is the element of necessity; there is the spur to do something that will enable the people to have laws and enforce them; but with 90,000,000 of people we could never agree upon a Constitution. There won.Id be the sec· tional questions, the race questions, the great moral questions which are before the cornibly; they w0-nld all have a: strong representation in such: an organization and insist that a particular tenet should be incorporated into the Constitutton. I yield to the Senator from Maryland.

1Ur. RAYNER. Mrr President, if the Senator will just give me his attention for a moment; I was called out of the Hall during a part o-f his argument, but I wish to ask him a question. I do not suppose anyone 0-n this floor is more familiar than the Sena.to:r from Idaho : with the constitutional history of the country. I want to ask his view on this point: I adverted the other day to what was done when the States ratified the Constitution of the United States, and the senior Senator from Georgia [Mr. Bacon] made an exhaustive argument on the same subject at the last session. It was don-e by 9 of the 13 States. The records of the other 4 States are lost, but I never had any doubt in my mind, and I do not think the Senator will have any doubt in his, that they would have adopted similar provisions. N"me of the 13 States put in the articles of ratification a construction of this fourth article, which diet not give Congress the power to make, change, or alter the regulations of the States. .

Now, I want to ask the Sena,tor whether in his opinion, in arriving nt the intention of the lawmakers, the best evidence oi that intention is not wha:t is contained in the articles of ratification 1

I will follow that with another question. I ask the Senator whether in his opinion the Constitution of the United States would ever have been rntifted if any one of those nine States . had put the construction upon that constitutional article · which the Sena.tor from Idaho- now places upon it?

1\fr_ HEYBURN. lli. President, in the first piace, the resolutions of ratification are no part of the · Ccmstitution of the United States. It has been held that they are no pal't of it, and they can not be appealed to in the construction of tll:e Constitution. in the Snp-reme Court of th:e United States.

!fr~ RAYNER. :t should like the- Senator :fr()m Idaho to give me a single authority upon that subject~

Mr . . HEYBURN. I might very &'lsily be led off into a legal discnssi-0n and. review fil every d€Cision of the Supreme Court in regard to this matter, but Senators must search for themselves. I take the responsibility of standing here in my place µi this body and saying that the resolntions of ratification have never been held to be a part of the Constitution of the United States. That is certainly true. No one · would contend ! that the articles of ratification n.re · a part of the Constitution of llie United States because, if they \Vere~ they wonld be in the Constitution. But are not the articles of ratification the best evidence of what the States intended . when they ratified the Constitution?

1\lr. HEYB-URN. They are not evidence at all.

Mr. RAYNER. One moment. When Virginia, North Carolina, Rhode Island, Massachusetts, and all the States placed in their articles of ratification a: provision that they . would not · ratify the Constitution if it meant what the Senator says it means-that Congress should make and alter th€ regulations-­ does the Senato.r say that is no- evidence at all of the intention of the States?

l\Iir_ HEYBURN. The intention of men in a State is one thing. I repeat th.at the resolution-of ratification h.as ne-:verbeen held, and I assert it never will be held, to be a. part of the Constitution or p-roper for consideration in the interpretation of any provision in. the Constitution of the United States. The Senator will search in vain illl:ough the decisions oi the Supreme Court of the United States for ._ reference to them in aid of the interpretation of any provision in the Constitution of the United States. When that great charter was written, it excluded everythlng that had preceded it in the way of argument a-s to why it was written. Through all the consideration given to the Constitution by the great jurists who had to deal with it in the first 30 years of the life of our country there is no · decision based upon the ratification or the terms of the ratification of the Constitution. -The Constitution was complete in itself, sufficient to enable the courts to establish a: rule that could not be tempered by the- resolutions · of ratification, and we must consider it in this day.

Are we to shake the foundation of the Constitution by an appeal to that which transpired in the constitutional convention or in the proceedings of the States when they were considering its ratification? In the hour when we enter upon that method the Constitution will lose its great character that has been the safeguard of this Government Certainty in the law, certainty in its meaning and m its execution, is of first importance. Can you come in 100 years after the making of such an inst f instrument and show by irresponsible action of men-and it was irresponsilJle--that they did not mean what they said when they ratified, not the resolutions-they did not ratify the resolutions-but ratified the Constitution which did not contain the resolutions?

.Mr. President, the question is, Shall it be changed? What has arisen in this country that justifies, much less demands, its change? Of course, it could be changed in many ways, perhaps, without destroying its efficiency as a basis for government, but the question · now is not could it be done, but should it be done. What will be the demand to-morrow do you think? What will be proposed as the next amendment to the Constitution of the United States?

I know men who will be clamoring for a change in the manner of electing the President of the United States. I know men who will be clamoring for the recall of the Representatives of the States from Congress. I will not believe that there is a Senator in this body who would support such a proposition, yet I have seen it in print recently that the Constitution should be changed so as to permit a recall of the Representatives of the States in both Houses of Congress. What next? To destroy the life tenure of the judges will be the next one. Those who do not know the Constitution, who have no intelligent conception of its purpose, would support such an amendment. To limit the tenure of office and inject ambition and politics into the United States Supreme Court and break down the stability of our Government is one of them. Just start this raid upon the Constitution once and see where it will end.

You will see men standing up and claiming that the people are clamoring for it. The only people who are clamoring for those things are those who have no proper conception of the · purpose of the system of our Government. Just open this door once and you will see. It will not be opened, thank God. The States will reject your proposition, and there will be hours and years for discussion among the people. The people love the Constitution of the United States and the Government that it stands · for, and their vengeance will fall upon those whom they discover in the act of trying to subvert it and change it to the passing whims and fancies of a period of time where men's ambition is clamoring for a change of conditions in order that they may gain something. The people will awaken to this fact. 1\Ir. CUM.MINS. Mr. President--

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

Mr. HEYBURN. Yes; I yield.

Mr. CUMMINS. I understood the Senator to say a few moments ago that under certain influences, which he described, the voters of the United States had become incompetent and unfit to elect Senators by direct vote.

1\Ir. HEYBURN. Either the Senator's ears or my tongue must be out of order-one or the other.

Mr. CUMMINS. I am sure it was the Senator's tongue, for I could not have misunderstood his very studied reference to the influences of immigration and the consequent deterioration of the citizen of the United States. Immigration has brought us men, as claimed by the Senator, with o ut tradition, with o ut sentiment for free institutions, Without the understanding of free institutions. Did not the Senator a few moments ago make the argument I · have just cited? ·

Mr. HEYBURN. I am unable to see the connection between that statement and the first. I presume the Senator can connect them.

Mr. CUl\fl\HNS. The Senator was proceeding to decry the amendment to the Constitution because, he asserted, legislatures would elect better men to the Senate of the United States th a n the .. voters he described would elect to the Senate of the United States. That was the conclusion of the Senator's argument. .Am I not right? .

1\Ir. HEYBURN. I will tell the Senator what I said, a n d I will apply it. The Senator seems to ha v e been unab l e to ap p ly my re m arks to the question under consideration.

Mr. CUMMINS. I often find m y self unable to apply not only the remarks of the Senator from Idaho, but a great many other remarks I hear on the floor.

Mr. HEYBURN. To take up distinct subjects and emb o dy them into a continuous question presen t s a difficult problem sometimes.

Mr. CUMl\fINS. I think this is a difficult problem for the Senator.

Mr. HEYBURN. Now, let us see what I will do with the problem. I referred to the standard of the new citizenship . in connection with the question of the conservative, reliable element of the American people that must be depended upon to maintain the traditions and the principles of our Government. I never will retreat from · that statement. Our immigration is made up from men who are not familiar with American institutions. The great majority of them know nothing of the history out of which present conditions grew. The great majority of them know nothing of the traditions of the Government as crystallized and embodied in the laws that govern us, and too often their first effort is to change a law which 'is a surprise to them, or inconvenient, as it may be.

Mr. CUMMINS. Mr. President--

Mr. HEYBURN. Just a moment. I do · not apply that to all the citizenship that comes to us. I was simply issuing a warn· ing against taking the judgment of that predominant element as against the judgment of those trained and born through their ancestry as a part of this Government.

The PRESIDING OFFICER. Does the Senator from Idaho yield further to the Senator from Iowa?

l\Ir. HEYBURN. Certainly.

Mr. CUI\fMINS. It is perfectly clear that I was right, and the conclusion which the Senator from Idaho drew from his premises was that it was unwise to extend to these voters the further power and privilege to elect directly Senators of the United States.

Mr. HEYBURN. Yes ; tlia t is right.

Mr. CUM;l\IINS. I am quite right. Now, may I ask the Senator another question? _

Mr. HEYBURN. Certainly; and I will answer the question, but I do not want to go off into that field of argument.

l\Ir. CUMMINS. Before the Senator answers me I want to add to it another question, which I am sure he will be willing to answer at the same time. He believes that the legislatures of the several States are better fitted to elect Senators than the voters in their primary capacity. I have no doubt he believes that honestly. I suppose he has fair respect for the present membership of the Senate of the United States, has he not?

Mr. HEYBURN. I think the Senator had better withdraw that question. It implies that I do not.

Mr. CUMMINS. No.

Mr. HEYBURN. And a Senator--

Mr. CUMMINS. No; on the contrary--

Mr. HEYBURN (continuing). Who will stand here and attack the ability or integrity of a fellow Member is not a man to be heard on this floor.

Mr. CUMMINS. On the contrary, it implies that he has the respect of which the Senator spoke. It was simply a prelude to the further question, which is, How many Senators now sitting in the Senate of the United States were, in fact, selected by the legislatures of their several States and how many are the choice of these same voters expressed in some form of primary?

Mr. HEYBURN. Very well; I will find out. Does the Sena· tor from Iowa represent the will of the people of Iowa? I will commence and I will catechise a few Members and find out whether any of them will acknowledge that they are not here by virtue of the exercise of an honest judgment.

Mr. CUMMINS. I will answer the Senator from Idaho, althought I am sure if he would simply recur to the laws of the several States he would know what proportion of the member· ship of this body has been in fact selected by the legislatures. Now , answering for myself, I will say that I was selected by a primary vote in my State, and, in my opinion, if I had not made many, many struggles before the primary voters of my State and if I had depended simply upon the will or wish of a legislature, brought together as legislatures are ordinarily brought together, I never would have b e en in the Senate of the United States.

Ur. HEYBURN. :Mr. President, I will not join with the Senator from Iowa in discrediting the State of Iowa or the legislature of it. I wm not accept the statement of the Senator from Iowa that the Legislature of Iowa is corrupt or was corrupt, or that the State of Iowa is not capable of selecting an honest legislature.

1\Ir. CUMMINS. Mr. President, I have said nothing of that sort. I only say it would have selected, probably, had not the influence of the primary been brought upon it, some other man to represent it in the Senate of the United States, and that I\Ir. HEYBURN. Some bad man?

Mr. CUMMINS. That man might have represented the State far better than I can possibly represent it; but I am not going to admit it.

Mr. HEYBURN. Would they have selected some bad man for the Senate?

Mr. CUMMINS. I hope not, Mr. President, but the chances are that he would have been a man holding different views from those which I hold.

Mr. HEYBURN. Would the Senator object to placing in a receptacle of some kind the names of the Senators who, in his judgm.ent, are not entitled to seats on this floor?

Ur. CUMMINS. Mr. President, the Senator from Idaho is illogical, as he generally is, and facetious, as he always is. I have not suggested that the legislatures of the several States who have elected men without the interference or influence of a primary have not elected good men, but the Senator from Idaho is insisting throughout a long course of argument that if the voters of the United States be permitted to say who shall be their Senators then this body will be overrun by a crowd of incompetent and unfit and rash and socialistic and radical men who ha-v-e no proper views of government. I am simply recalling to his attention the fact that the people of this country, in de pair of amending the Constitution, have accomplished this reform for themselves.

Mr. HEYBURN. Like a burglar.

l\Ir. CUillIINS. In an irregular way, I agree-, but they have accomplished it.

Mr. HEYBURN. Like a burglar.

l\fr. CUMMINS. And they have accomplished it so effectively that, whether the Constitution is amended or not, the people in many or most of the States will choose-their own Senators. l\Ir. HEYBURN. Mr. President, the Senator- has made an assertion as to what I have said that has no foundation and will not be found in any record on earth, not even in an irresponsible newspaper-that is, that the people of the United States are incompetent--

Mr. CUl\11\fINS. Mr. President--

.Mr. HEYBURN. Just a moment.

Mr. CUl\Il\IINS. I am going to retract if I have made 3J1Y such statement.

Mr. HEYBURN. The Senator makes that statement. He says I have stated that if the people elected Senators they would be incompetents. I use the word "incompetents" to include all the various designations that he used. I have said nothing of the kind, here or elsewhere, and I believe nothing- of the kind. The Senator made that statement and then rushed along to another subject not germane to it, so that I might, perchance-I do not mean that he- did it with that idea-but so that I might, perchance, overlook the fact that he charged me with entertaining and expressing views that I have never entertained and expressed. I have confidence in the people of the United States that they have too much sense to change the Constitution of the United States, and that will be impressed upon the memory of the Senator from Iowa and upon the memory of all Senators. This body of 92 men may demand a change in the Constitution, but the. people of the United States, the composite wisdom of the people of the- United States, will not justify them nor support them.

Mr. CUMMINS. l\Ir. President--

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

l\fr. HEYBURN. I do.

l\fr. CUillHNS. That, .l\fr. President, is a matter for- the future. But if I have misunderstood the Senator from Idaho, I am quick to express my regret for the- misunderstanding and my great pleasure to discover that I did misunderstand him. If the Sena.tor from Idaho believes as h0' now says that the people of this country can wisely and safely and patriotically elect their Senators, then, of course, the whole argument is at an end.

l\fr. HEYBURN. Mr. President, the American people are capable-of-mainta.ining a good government and o.f sele£ting-wise, intelligent men to exercise the right of government for them r They elect to the other House of Congress men who in _ character tllld ability are the: equals of the men who occupy seats in this. Chamber, and L have ne-ver intimate~ and no man can charge ! J purpose. me with ever ha:ving: roid', that the people a:re not capable o.i: sel.ecting WISely when they choose their representatives. I have talked about the States :md I have talked about the manner- in. which the people in the St tes could best exercise their duty to choose Members Qf this: body. I do not necessarily condemn. every other man; I do not necessarily have to abandon. an. exi ting provision , of the Constitution merely because some other provision might be made or might work equally well. Is. this attempt to amend the Constitution simply an experiment to see whether or not something else might not do as well? Is that a sufficient- motive;- is- that a sufficient reason for the amendment of. the Constitution? They have brought in thispropositfon and then go out tu seek for reasons- and justification for it

This measure is not in response to the constitutional number of States who may require us to act or who may act upon this question. Suppose, for instance; as the law provides, a i1ll'Y of 12 men shall be summoned to try a cause. If 11 of them are of one opinion, does that justify the rendering ot a verdict? Would the court receive the verdict because it represented the sentiment of the majority?

The Constitution says that we- may propose amendments to the people. That is. the subject un.d.er discussion; but Senators have continually forced upon our attention the fact that a certain number of States, less than the constitutional number, have demanded a change in th.e method of electing Senators. If one less than th~ constitutional number demands it, it does not justify our action on. the ground that the people have demanded it. It requires the constitutional number of States to express an opinon. upon whi:Ch we may act A jury can not render- a verdict upon the judgment of 11 men, nor can we act under the claim of justification by public demand unless that proportion of the public- named in th~ Constitution demands the change. There has never been a time when the constitutional demand for the proposed amendment has been made upon Congress. There are to-day not to exceed 19 States which. have asked congress to take this action. Congress does not req;u:ire any demand, but Senators here place their claim for support upon this alleged demand of the States. When . a suffi.cien.t number of States come to Congress demanding a constitutional change, I would be the last man in the world to stand here and oppose it, for it is a constitutional right; but until they do, I do not propose to be dragooned into the support of a measure under the pretense that it is in answer to a popular. demand, when there is no demand that should: appear to us. When Senators vote for a proposed constitutional amendment such as is before us, they must do so on their judgment, and the Senator who does not do so on his judgment i-s not justified in doing so at all.

The people, however, will have a chance to deal with this question; and as this is the last time that r expect to speak upon it at this session of Congress, and I hope. forever, I have felt impelled to present the views that I have expressed this afternoon. Let it go out to the people of this country that you are proposing to experiment with the Constitution and to make a change for which there is no sufficient reason-a. change that is a charge in itself against the integrity and ability of the people who select the State legislatures-and they will resent it. You are going to send the proposed amendment to the di.s­ credited tribunals, the legislatures of the States who, you say, are not fit to select Senators, and yet those legislatures are to pass upon this question. · Are they better fitted by intelligence or integrity to---pass upon the wisdom of this amendment to the Constitution than they are to pass upon. tlie' selection of a United States Senator?

l\fr. BORAH. l\fr. President--

The PRESIDING OFFICER. Does the senior Senator from: Idaho yield to his colleague?

Mr. HEYBURN. I do.

.Mr. BORAH. I desire to ask, Is there any othe.r body to which we can submit this question for ratification'! If we could submit it direct to the people, I should be very glad to do so.

Mr. HEYBURN. Well, Mr. President, inasmuch as. it ought not to be submitted at all, I do not think I need goi out and hunt some person to whom to submit it. But does. the. Senator remember that in history he is told that the makers of the Constitution submitted it to the legislatures of the States? Were those legislatures ~t ~o P.ass upon the creation oft~~ Constitution and all that is m it? Of course it was ratified by ~e legislatures of the States. How does the Senator suppose it was ratified? . .

Mr. BORAH. It was ratified by conventions elected for · that 1 l\Ir. HEYBURN. It was left to the States, and the legislatures created the conventions. Were those legislatures, those incompetent, corrupt, inefficient bodies selected from the best citizenship of the States fit to create conventions? Are those legislatures to be discredited because they are not fit, are not competent, can not be trusted to elect Senators, when every Member of this body was elected by a legislature 't rs there any Senator here who will dare send back home- the message that the legislature which elected him was corrupt and inefficient? It might probably affect his return.

I should like to see some Senator rise- in his. seat and say that the legislature of his State which elected him was not competent, was not fit, was not honest enough tC1 be trusted. [Laughter.] Then I should be interested to see him go back and say "I am a candidate for reelection." [Laughter.] l'ifr. President, the next time I speak upon this'. question it will be to the people in the States.