May 24, 1911
l\lr. BORAH. I move that the Senate proceed to the con- sideration of House joint -resolution 39.
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- l\lr. Only one scan has this word: “l\lr.” (main scan)
The motion was agreed to ; and the Sen.11 te, as in Committee · of the Whole, resumed the consideration of the joint Jresolution (H. J . Res. 39) proposing an :amendment to 'the Constitution. providing that Senators shall b,e elected by the peop.le of the several States.
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- Sen.11 te, The scans read: “Senate,” (microfilm scan), “Sen.11 te,” (main scan)
- Jresolution Only one scan has this word: “Jresolution” (main scan)
Mr. HEYBURN . Yr. President, while, speaking in · a par1ia" mentaTy sense, fill amendment is before the Senate, -yet it is impossible rt:-0 segregate the original joint resolution from tile amendment which is intended to • Chfillge -0r limit its applica tl on. The Senate uf the United States ts on trial this morning as tD its capacity .and fidelity as a representative of the people -Of the country.
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- mentaTy The scans read: “mentary” (microfilm scan), “mentaTy” (main scan)
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- tile The scans read: “the” (microfilm scan), “tile” (main scan)
- Chfillge The scans read: “change” (microfilm scan), “Chfillge” (main scan)
- -0r The scans read: “or” (microfilm scan), “-0r” (main scan)
- applica tl The scans read: “application.” (microfilm scan), “applica tl” (main scan)
- uf The scans read: “of” (microfilm scan), “uf” (main scan)
- ts The scans read: “is” (microfilm scan), “ts” (main scan)
- tD The scans read: “to” (microfilm scan), “tD” (main scan)
The first question to lbe considered ls, .Shall we amend the Constitution at all, and primarily is there a necessity for its . amendment'? ls this merely a hue :and cry for change or is it a proposition to amend the , Constitution because tt ha"S been found wanting us n fundamental rule o:f law to insure a Te p resentativ'e government of the people? It iean not or certainly will not be claimed. in this body that the .members .of it and every member (Jf it is not here by virtue of regular proceedings had in conformity with the provisions of tile Constitution . · That being : answered in the affirmative, the :next question is, H.a:s there been .a failure to realize the purpose which tile founders had in organizing 1 this branch of the Governmenta failure to procure an efficient, competent representation -of the political subdivisions .of the Government in.tended to be represented in this body? Jt was in.tended that the .States .should be represented as parts .of the Government, each ,equal to ithe other m right, .and .ea.ch requiring the same character of 1 representation . as the other in relation to the affairs of the .States as parts of the Government. The States - existed before the Constitution was :adopted. They existed just as firmly and stood upon just as .high . a plane before the Constitution was adopted a.s afterwards; but the States bad more power before the adoption of the Constitution than they possessed after its ado-ption .
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- us The scans read: “as” (microfilm scan), “us” (main scan)
- n The scans read: “a” (microfilm scan), “n” (main scan)
- resentativ'e Only one scan has this word: “resentativ'e” (main scan)
- iean The scans read: “can” (microfilm scan), “iean” (main scan)
- (Jf The scans read: “of” (microfilm scan), “(Jf” (main scan)
- tile The scans read: “the” (microfilm scan), “tile” (main scan)
- tile The scans read: “the” (microfilm scan), “tile” (main scan)
- 1 Only one scan has this word: “1” (main scan)
- Jt The scans read: “It” (microfilm scan), “Jt” (main scan)
- ithe Only one scan has this word: “ithe” (main scan)
- 1 Only one scan has this word: “1” (main scan)
- bad The scans read: “had” (microfilm scan), “bad” (main scan)
The Constitution is a limit a tiQ.n upon the power of the States. One part · of the subject - under considerati-on iis dil'ectcli to the enlargement of the power -0f the States, or rather ro a release £ a-se to the States of a part of the power wbieh ~Y surrendered by ihe Oon:stitution. The other part is directed. in exactly the opposite direction. The joint resolution proposed by the jnnh§.r Senator from Idaho [.Mr~ BoEAH] proposes to .chang.e the manner of .selecting Senators, and it .also proposes to -change the power -0f the Senators after they are elected.
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- limit a The scans read: “limitation” (microfilm scan), “limit a” (main scan)
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- dil'ectcli The scans read: “directed” (microfilm scan), “dil'ectcli” (main scan)
- -0f The scans read: “of” (microfilm scan), “-0f” (main scan)
- ro The scans read: “to” (microfilm scan), “ro” (main scan)
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- wbieh The scans read: “which” (microfilm scan), “wbieh” (main scan)
- ~Y Only one scan has this word: “~Y” (main scan)
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- Oon:stitution. Only one scan has this word: “Oon:stitution.” (main scan)
- jnnh§.r The scans read: “junior” (microfilm scan), “jnnh§.r” (main scan)
- [.Mr~ The scans read: “{Mr.” (microfilm scan), “[.Mr~” (main scan)
- BoEAH] The scans read: “Boran]” (microfilm scan), “BoEAH]” (main scan)
- -0f The scans read: “of” (microfilm scan), “-0f” (main scan)
'The proposition to 'UlDend section 4 of Article I can not , e applied in a practical way. You leave a skeleton of paragraph 1 of section 4; you leave ;a .skeleton of that section unaffected .by these amendments. You :substitute on~ amP.Ildm~t for the -provisions now contained lin three separate and distinct parts of the Constitution. Nothing iE proposed to be done in regard to th t portion of 'Section 4, in line .2, which is repre:sented by t he words "and Representatives." W.hat will lbe the 'Sta t us of those words with that section .amended, rrs is proposed .by :the joint resolution offered by the junior Senator from Idaho:? Y.ou will have eliminated from it everything e:x-cept the pro T is io n relative to the right of Congress to provide for the times. places, :a:n d manner of holding ~onB for Senators; that you eliminate; .ruad the following words, ":and Representatives," you de ad with not t all. Will Congress still have the 'Power te make - regula tions affecting the election of Members -of the House of 'Representatives'? No .attempt ts made to dispose -0f th a t .l.."lD,boWige in section 4, and no proposition i:s made to repeal section 4 in this joint resolution. You -provide in an inde p endent s e ction 1 pro- ·posed to . be incorporated into the Constitution languag.e .as to the regulation of the -€.le e .ti-On -0f Senators and make no provision as to the power of Congress to regulate the election of Members of the House -0f Re p resen.tati'rns. I .am speaking - g now to the provisions that must be rearranged and must be considered before w-e can vote u,pon this m ea s u re. and I a _ m .riow , speaking as tx> the legal effect of this propo.sed amendment. -
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- 'UlDend The scans read: “amend” (microfilm scan), “'UlDend” (main scan)
- e The scans read: “be” (microfilm scan), “e” (main scan)
- on~ The scans read: “one” (microfilm scan), “on~” (main scan)
- amP.Ildm~t The scans read: “amendment” (microfilm scan), “amP.Ildm~t” (main scan)
- lin Only one scan has this word: “lin” (main scan)
- iE The scans read: “is” (microfilm scan), “iE” (main scan)
- th t The scans read: “that” (microfilm scan), “th t” (main scan)
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- 'Sta t The scans read: “status” (microfilm scan), “'Sta t” (main scan)
- rrs The scans read: “as” (microfilm scan), “rrs” (main scan)
- is io The scans read: “provision” (microfilm scan), “is io” (main scan)
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- .ruad The scans read: “and” (microfilm scan), “.ruad” (main scan)
- t The scans read: “at” (microfilm scan), “t” (main scan)
- te The scans read: “to” (microfilm scan), “te” (main scan)
- ts The scans read: “is” (microfilm scan), “ts” (main scan)
- -0f The scans read: “of” (microfilm scan), “-0f” (main scan)
- th a The scans read: “that” (microfilm scan), “th a” (main scan)
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- inde Only one scan has this word: “inde” (main scan)
- p endent The scans read: “independent” (microfilm scan), “p endent” (main scan)
- e ction The scans read: “section” (microfilm scan), “e ction” (main scan)
- 1 Only one scan has this word: “1” (main scan)
- e .ti-On The scans read: “election” (microfilm scan), “e .ti-On” (main scan)
- -0f The scans read: “of” (microfilm scan), “-0f” (main scan)
- -0f The scans read: “of” (microfilm scan), “-0f” (main scan)
- p resen.tati'rns. The scans read: “Representatives.” (microfilm scan), “p resen.tati'rns.” (main scan)
- m ea The scans read: “measure,” (microfilm scan), “m ea” (main scan)
- a The scans read: “am” (microfilm scan), “a” (main scan)
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- .riow The scans read: “now” (microfilm scan), “.riow” (main scan)
- as The scans read: “us” (microfilm scan), “as” (main scan)
- tx> The scans read: “to” (microfilm scan), “tx>” (main scan)
1 connection
- cites Article I, Section 4, Clause 1 (suggested)
The proposition contained in the joint resolution is this: ·
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And in lieu of all of paragraph 1 of section 4 of said Article I, in so far as the same relates to any authority in Congress to make or · alter regulations as to the times or manner of holding elections for SenatorsThen it jumps over the words in the Constitution " and Representatives "- the following be proposed as an amendment to the Constitution .' ' ' ' l\o amendment separate and distinct is proposed in the joint resolution.
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- l\o The scans read: “No” (microfilm scan), “l\o” (main scan)
1 connection
- cites Article I, Section 4, Clause 1 (suggested)
Now we come to the provision itself as suggested, and we find it reading thus:
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The times, places, and manner of holding elections for Senators shall be as prescribed in each State by the legislature thereof.
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There is no provision that section 4, Article I of the Constitution, as it now exists shall be repealed; only that a part of it be changed, without a suggestion as to what shall be done with the remainder of it. I appeal to the lawyers of this body and to all Members of it as to whether or not that is a complete disposition of section 4, Article I. Will not that part of section 4 which relates to the control of elections affecting Members of the House of Representatives remain? I should be glad to hear from some Senator who is supporting this measure in regard to that question. Will it leave standing as a part of the Constitution of the United States the provision authorizing Congress to make regulations governing the election of Members of the House of Representatives? If it does, then section 4, Article I, of the Constitution must be redrawn; him. otherwise we will have inconsistent provisions.
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1 connection
- cites Article I, Section 4 (suggested)
That is all there is in this proposed amendment with relation to section 4 of Article I.
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1 connection
- cites Article I, Section 4 (suggested)
The times, places, and manner of holding elections for Senators shall be as prescribed in each State by the legislature thereof. -
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And that is confined to Senators. Shall it be in each State as prescribed by the legislature in regard to :Members of the House of Representatives? Suppose you send this proposed amendment out to the legislatures of the country for ratification · there will be no legislature in the United States lacking the intelligence and the legal ability to recognize the imperfection of the amendment submitted. It is not provided that section 4, Article r, shall be amended, mind you; it is not provided that any part of section 4 shall remain in the Constitution. It provides for the creation of a new section in the Constitution _ that will stand separate and apart from any other section in the Constitution. That being true, you will have inconsistent provisions in the Constitution; you will have this new section with these words confined entirely to the election 1 of Senators standing as a section of the Constitution-a new section, because the joint resolution provides that it shall be a new section. It does not provide that it shall be incorporated into any section existing. It provides for the creation of a new section and leaves a mutilated section stand without any provision being made therefor.
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- · The scans read: “tion;” (microfilm scan), “·” (main scan)
- r, The scans read: “I,” (microfilm scan), “r,” (main scan)
- _ The scans read: “stitution” (microfilm scan), “_” (main scan)
- 1 Only one scan has this word: “1” (main scan)
If I am incorrect in that, r shall be glad to have some member of the committee show wherein I am incorrect. Would you send a proposed amendment to the legislatures in that form? They can do nothing with it; they can not change a word or a phrase or a punctuation mark in it; they will either adopt it or reject it, and they can reject it upon the ground that it is not sufficiently explicit, that it does not properly safeguard the provisions of the Constitution outside of the proposed new section. They may reject it on that ground and on no other and you would not get the benefit of the judgment of the legislatures of the several States upon the merits of this question . . It ' "is Iiot a small matter for consideration; it is one that may affect this entire proposed legislation and its results.
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- r The scans read: “I” (microfilm scan), “r” (main scan)
- Iiot The scans read: “not” (microfilm scan), “Iiot” (main scan)
That is aside from the merits of the proposition of amending the Constitution; that goes to the question as to the sufficiency of the joint - resolution that is to present to the legislatures this question. Does any Senator desire that the States shall pass upon it upon those grounds without · considering the principle sought to be reviewed. I call the attention-I see that the author of the joint resolution is not present but evidently h expects to be present-- ' e
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- h The scans read: “he” (microfilm scan), “h” (main scan)
Mr. NELSON. A call of the Senate might bring him.
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- A The scans read: “And” (microfilm scan), “A” (main scan)
- call The scans read: “will” (microfilm scan), “call” (main scan)
- Senate The scans read: “Senator” (microfilm scan), “Senate” (main scan)
Mi:. HEYBURN. No; I will not call the Senate; the Senate is here.
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- Mi:. Only one scan has this word: “Mi:.” (main scan)
I challenge any Member who is responsible for the joint resolu: me-- tion, or who participated in its consideration in the committee or who is going to vote for it, to defend that proposition as to the' insufficiency, from a legal standpoint, of this proposed amendment to the Constitution. Of course, this is squarely involved in the consideration of the amendment to the joint resolution offered by the Senator from Kansas [l\Ir. BRISTOW]. I should like to know whether or not any lawyer of the Senate wants to send · his reputation out with that tag on it. If he does 1 he is welcome, so far as . I am concerned, to do so. · You wi call find that the country and those who are competent to analyze and pass upon such questions will hold you to account for it in the legislatures to which it is submitted.
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- [l\Ir. The scans read: “[Mr.” (microfilm scan), “[l\Ir.” (main scan)
- does The scans read: “Yes.” (microfilm scan), “does” (main scan)
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- am The scans read: “me” (microfilm scan), “am” (main scan)
- wi Only one scan has this word: “wi” (main scan)
Mr. CUl\ll.IINS. l\fr. President--
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- CUl\ll.IINS. The scans read: “CUMMINS.” (microfilm scan), “CUl\ll.IINS.” (main scan)
- l\fr. Only one scan has this word: “l\fr.” (main scan)
The VICE PRESIDENT. Does the Senator from Idaho yield to the Senator from Iowa?
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Mr. HEYBURN. Certainly.
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Mr. CUMMINS. I am a member of the committee . that reported the joint resolution.
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- member The scans read: “merits” (microfilm scan), “member” (main scan)
l\lr. HEYBURN. I am aware of that.
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l\fr. CUMMINS. I am not the author of the joint resolution, and it is quite probable that I will vote for the substitute proposed by the Senator from Kansas [Mr. BRISTOW]; but, nevertheless, I can not allow the broad and unqualified statements of the senior Senator from Idaho to pass unchallenged, simply as a lawyer. If the Senator from Idaho were content to criticize the composition of the joint resolution as compared with some other form-- l\lr. HEYBURN. I am not.
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- l\fr. The scans read: “Mr.” (microfilm scan), “l\fr.” (main scan)
- l\lr. The scans read: “Mr.” (microfilm scan), “l\lr.” (main scan)
Mr. CUMMINS. To accomplish the same object I would not have a word to say; but when tlle Senator from Idaho insists that the joint resolution is not effective, that the Constitution of the United States would not be amended to accomplish the object we have in view if the proposed amendment receive the assent of the proper number of States, I can not concur with I rose because the junior Senator from Idaho was not present, but I call the attention of the senior Senator from Idaho to what I he has already read in the hearing of the .senate for further reflection. It declares that section 4-1 will have to give it I from the beginning in order to make the connection clearTh~t 1~ lieu of the first paragraph ?f section 3 of Article I of the Constitution of the . United States, and m lieu. of so much of paragraph ~ of the same section a . s relates to the ' filling of vacancies, and in heu of paragraph 1 of section 4 of said article, in so far as the same relates t.o any authority in Congress to. make or alter regulations as to the times or manner of holding elections for Senators, the following be propo ed as an amendment to the Constitution.
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- tlle The scans read: “the” (microfilm scan), “tlle” (main scan)
- 4-1 The scans read: “4—I” (microfilm scan), “4-1” (main scan)
- clearTh~t The scans read: “clear— That” (microfilm scan), “clearTh~t” (main scan)
- 1~ Only one scan has this word: “1~” (main scan)
- ?f The scans read: “of” (microfilm scan), “?f” (main scan)
- ~ The scans read: “2” (microfilm scan), “~” (main scan)
- a The scans read: “as” (microfilm scan), “a” (main scan)
- heu The scans read: “lieu” (microfilm scan), “heu” (main scan)
- propo ed The scans read: “proposed” (microfilm scan), “propo ed” (main scan)
3 connections
- cites Article I, Section 3, Clause 1 (suggested)
- cites Article I, Section 3, Clause 2 (suggested)
- cites Article I, Section 4, Clause 1 (suggested)
If the joint resolution which the Senator .1s now considering becomes a .part of .the Constitution, while it does"not re~;1~e _ section .4. it does repeal, ~ I .may use the word “repeal” m connection with the Consti.tution, all that part of. section 4 which relates to the authority .of Congress. to prescribe regulations or. alter regulations relating to the time and the manner of. electing Senators of the. United States. .rt leaves in full force and. effect all of section 4. so far as it. relates to pr~· scr1b~ng either rules or regulations or altering . regulations relating to the election of Members of the House of Representa· tives. It has precisely the same effect as though we were to pass a law inconsistent with some · former law and declare that - th.e former statute, m. so far as it was repugnant or inconsistent with the one then being passed, should be repealed.
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- .1s The scans read: “is” (microfilm scan), “.1s” (main scan)
- re~;1~e The scans read: “rewrite” (microfilm scan), “re~;1~e” (main scan)
- _ Only one scan has this word: “_” (main scan)
- ~ Only one scan has this word: “~” (main scan)
- .rt The scans read: “It” (microfilm scan), “.rt” (main scan)
- pr~· The scans read: “pre.” (microfilm scan), “pr~·” (main scan)
- scr1b~ng The scans read: “scribing” (microfilm scan), “scr1b~ng” (main scan)
- m. The scans read: “in” (microfilm scan), “m.” (main scan)
Mr. HEYBURN. The trouble m this case is that you have not done that. :r •
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- m The scans read: “in” (microfilm scan), “m” (main scan)
Mr . CUl\:IMT~S. After listening very carefully to the. argument of the senior Senator from Idaho I can not see the Justice ?f his conclusion. I can readily see .that he might prefer, even if h.e were trying to. accomplish this same object! to rewrite section 4, preserving it Just as it will be preserved m law after the passage of this amec:iment.
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- CUl\:IMT~S. The scans read: “CUMMINS.” (microfilm scan), “CUl\:IMT~S.” (main scan)
- ?f The scans read: “of” (microfilm scan), “?f” (main scan)
- m The scans read: “in” (microfilm scan), “m” (main scan)
- amec:iment. Only one scan has this word: “amec:iment.” (main scan)
But the senior Senator from Idaho certainly can not insist that if this joint resolution i~ its present form .becomes a part of the Constitution of the United States there will be any . doubt whatsoever that all .the power that Congress now has relating to rules and regulations respecting the election of the Members ~f the House of Representatives remains just as it is, and that Congress will hav:e no power whatsoever with regard to regµ lations respecting the elections of Senators of the United States, but that that subject is entirely provided for in the part which the Senator from Idaho has already read, namely: , The times! places, and manner of holding election for Senators shall be as prescribed in each State by the legislature thereof. .
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- i~ The scans read: “in” (microfilm scan), “i~” (main scan)
- ~f The scans read: “of” (microfilm scan), “~f” (main scan)
- regµ The scans read: “regu-” (microfilm scan), “regµ” (main scan)
- election The scans read: “elections” (microfilm scan), “election” (main scan)
Mr. NELSON . Will the Senator from Iowa yield to me?
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The VICE PRESIDENT. Does the Senator from Idaho yield to the Senator from Minnesota?
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l\1r. NELSON. And will the Senator from Idaho allow
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- l\1r. The scans read: “Mr.” (microfilm scan), “l\1r.” (main scan)
Mr. HEYBURN. Yes.
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Mr. NELSON. Allow me to call attention to the difference in the phraseology of section 4 as found in the Constitution and this substitute in the joint resolution. The language of section 4 is:
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- 4 Only one scan has this word: “4” (main scan)
- 4 Only one scan has this word: “4” (main scan)
1 connection
- cites Article I, Section 4, Clause 1 (suggested)
The times, places, and manner of lloldiua el ctlons for Senators and Representatives shall be prescribed in each State by the legislature I It ts mandatory; while in this paragraph here the language is as follows : ·
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- lloldiua The scans read: “holding” (microfilm scan), “lloldiua” (main scan)
- el ctlons The scans read: “elections” (microfilm scan), “el ctlons” (main scan)
- ts The scans read: “is” (microfilm scan), “ts” (main scan)
1 connection
- quotes Article I, Section 4, Clause 1 (suggested)
The times, places, and manner of holding elections for Senators shall Mr. BORAH. be as prescribed by the legislatures thereof. ·
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They may prescribe them or not, just as they see fit.
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l\fr. HEYBURN. I was coming to that. That is another subject.
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- l\fr. The scans read: “Mr.” (microfilm scan), “l\fr.” (main scan)
Mr. CUMMINS. The Senator from Minnesota is now passing from the construction or interpretation of what is proposed to the merits of the proposal.
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Mr. HEYBURN. If the Senator will permit me, I should like to ask him a question here.
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Mr. CUMMINS. I am not saying anything about the merits of the proposal. I am simply differing with the senior Senator from Idaho in regard to the effect of the amendment if it does become a part of the organic law.
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Mr. HEYBURN. Will the Senator permit me to request him to state how section 4 of Article I of the Constitution would read after the adoption ot this proposed amendment?
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- ot The scans read: “of” (microfilm scan), “ot” (main scan)
1 connection
- cites Article I, Section 4 (suggested)
Mr. CUMMINS. There is no attempt to rewrite section 4.
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Mr. HEYBURN. Well, how would it read?
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l\fr. CUMMINS. And nominally section 4 of Article I would remain in the Constitution, I assume, precisely as it is now.
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- l\fr. The scans read: “Mr.” (microfilm scan), “l\fr.” (main scan)
1 connection
- cites Article I, Section 4 (suggested)
l\Ir. HEYBURN. Nominally? . .l\fr. CUMMINS. But a subsequent amendment or a subsequent part of the Constitution takes from section 4 all operativeness with regard to the election of Senators, leaving it precisely as it is with respect to the election of Members of the House of Representatives.
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Mr. HEYBURN. Well, then, would the proposed section be a new one or be incorporated into section 4?
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Mr. CUMMINS. It would make no difference, Mr. Presi· dent-
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Mr. HEYBURN. Well, what would it do?
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Mr. CUMMINS. How it was numbered.
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Mr. HEYBURN. But it does make a difference-
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. l\fr. CUMMINS. Not at all.
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Mr. HEYBURN. How sections are numbered in the Constitution.
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Mr. CUMMINS. I take it it does not make any difference how sections are numbered in the Constitution. It would be a part of the Constitution. It would be adopted after section 4 had been adopted, and would therefore qualify section 4.
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l\fr. HEYBURN. Let me ask the Senator. In a reprint of the Constitution after the adoption of this amendment, would section 4 read as it does now and then an additional explanatory or curtailing section be incorporated into it as a new section?
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l\Ir. CUMMINS. In my opinion section 4, on a reprint of the Constitution, would read exactly as it now reads, and the proposed amendment would take its place physically in some other part of the Constitution; but the amendment would nevertheless qualify in the manner I have described section 4.
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.Mr. HEYBURN. It would relate back to it?
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l\ir. CUMMINS. Certainly.
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l\Ir. HEYBURN. It would be printed as the amendments are now printed-far from section 4 as it appears in the Constitution.
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Mr. CUMMINS. I do not know how it would be printed.
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Mr. HEYBURN. It is not material to know how the Constitution would be written?
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Mr. CUMMINS. I do not think tt is in the least material as to where it finds a place physically in the print of the Consti· tution. • l\1r. BORAH. Mr. President-
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Mr. HEYBURN. I now understand the Senator's position, and I will yield to my colleague.
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Mr. BORAH. I was only going to suggest that the amendment would undoubtedly be printed as the other amendments to the Constitution are printed, following the amendments which now exist, and this amendment would modify any original provision of the Constitution to the effect of the language found in the amendment.
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Mr. HEYBURN. I take it the author of the joint resolution right there-
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Mr. BORAH. I want to say, however, that in view of the to the Senator from Wyoming? anxiety o! my colleague to have this just exactly right, I shall be glad to have his assistance in rewriting any of it in order to get it exactly right.
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Mr. HEYBURN. I will call my colleague's attention to the fact that it says in lieu of section 4.
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Mr. BORAH. And so much thereof-
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Mr. HEYBURN. Yes; it is expressed in the amendment. It says in lieu of it The~ why not take out section 4? Of course the word "repeal It is not a proper term to use. Why not eliminale section 4, as it applies to this question?
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It says:
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In lieu of all of paragraph 1 of section 4 of said Article I, in so far as the same relates to any authority in Congress to make or alter regulations as to the times or manner of holding elections for Senators--
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1 connection
- cites Article I, Section 4, Clause 1 (suggested)
Mr. HEYBURN. I have read that.
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Mr. BORAH. But not as to Representatives. It does not say in lieu of section 4, but it says in lieu of a certain part of section 4.
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l\Ir. HEYBURN. Yes.
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Mr. BORAH. And my colleague ought at least to state the matter fairly when he is criticizing his colleague.
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l\Ir. HEYBURN. I think I am stating it fairly. I am endeavoring to. I am objecting to an amendment of the Constitution by reference to a part of a section without in any manner disposing of the remaining part of the section. The language would be entirely inappropriate; that is, the remaining language, unaffected by this amendment, would be inappropriate as section 4. Why not say "in lieu of section 4," and then repeat the section as it is to be amended entirely? · That is the orderly way in which to do it.
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l\fr. BORAH. Of course it is very difficult to draw a resolution which is satisfactory to those who are opposed to the resolution in any form. It is not so difficult to draw it for those who are in favor of some amendment, but it is very difficult to draw it for those who are opposed to any amendment.
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Mr. HEYBURN. That js a very correct statement of a certain code of morals, and I have no objection to it. I prefer that every law or every provision of the Constitution of the United · States, if it is to become a part of our law, shall be correctly and properly and · unambiguously stated. Why was it not proper to say that in lieu of section 4 there is hereby adopted a section 4 in the following language, or as follows? It js not in lieu of it. Why leave a part of the section-a ragged section? Why not recite the whole section as it is intended to read when it is adopted, so that when you look at it you will know what the provision is without referring or without the analysis that would be in some · cases necessary to determine just exactly what effect it had on the original provision?
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Mr. BORAH. The view of the minority of the committee, signed by the Senator !Tom Wyoming [Mr. CL.A.BK], the Senator from Minnesota [Mr. NELSON], the Senator from Vermont [Mr. DILLINGHAM]' the Senator from Utah [l\1r. SUTHERLAND]' the Senator from Connecticut [l\ir. BRANDEGEE], and the Senator from New York [l\Ir. RooT], asserts that this amendment does precisely what it purports to do, and makes this particular and specific change in the Constitution. I feel quite sure that if those Senators could be convinced that it does not make the change, they would feel that they would.like to withdraw their minority views.
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.Mr. HEYBURN. I did not appear before the minority of that committee or the majority of the committee, and the minority views do not express my views, and it is not a majority of this court, and I say that in all respect. We have passed beyond the tribunal of majority and minority on the committee into the court of last resort, and we are here to review and discuss the report of both the majority and the minority, being a body empowered to overrule both of them if necessary.
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If I were in favor of this, I would not support it in this form. I would insist that section 4 should be drawn as a whole, to represent both that which was to be stricken out and that which was to remain in, in the interest of proper legislation; and I think that the members of the committee, on refl . reflection, will be induced to change the form · both of the preamble and of the amendment to be· submitted.
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Now, l\lr. President, I warn them that if they go before the legislatures of the several States and submit this to the judgment of lawyers in those bodies they will meet with that objection, and I hope with that objection and other valid objections they will meet with defeat. So much for that.
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Mr. CLARK of Wyoming. Mr, President--
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The VICE PRESIDENT. Does the Senator from Idaho yield
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Mr. CLARK of Wyoming. Just for a question.
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Mr. HEYBURN. Certainly.
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Mr. CLARK of Wyoming. I understand that the objection of the Senator from Idaho to both the majority and minority report, as stated by the Senator from Idaho, is that i:t either be adopted by the legislatures of the various States we will have in the Constitution an inconsistent expression upon one and the same subject matter.
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Mr. HEYBURN. Yes.
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Mr. CLARK of Wyoming. That is the fundamental objection which the Senator from Idaho makes. l\Ir. HEYBURN. That is the basis of it; and I think, upon reflection, the members of the committee may see some justification for my objection. _
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Now I come to the proposed amendment of section 3, which is practically adopted by the minority report and which is the amendment under consideration at this time, as presented by the Senator from Kansas [Mr. BRISTOW].
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1\Ir. BORAH. Mr. President--
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The PRESIDING - OFFICER (Mr. LIPPITT in the chair). Does the Senator from Idaho yield to his colleague?
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Mr. HEYBURN. Certainly.
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Mr. BORAH. I call the attention of my colleague to amendment 12 of the Constitution. It was an amendment of Article II. All of Article II yet remains physically in the Constitution, but it is modified by amendment 12, which is published further along in the Constitution. So far as I have ever been able to learn, there has never been any difficulty in construing Article II in connection with the twelfth amendment of the Constitution. That is precisely what has taken place here.
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1 connection
- cites Amendment XII (suggested)
1\fr. HEYBURN. The twelfth amendment of the Constitu- And so forthtion was additional matter, and the subject matter was not included in existing provisions of the Constitution.
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Mr. BORAH. But the fact is that Article II was not rewritten. A portion of Article II was permitted to remain and there were additions and distinctions ma.de with reference thereto in the twelfth amendment to the Constitution. So you have precisely the · same rule of amendment that we have adopted here. They might have rewritten Article II entirely or they might have pursued the course which they did pursue, either one being effectual to accomplish the purpose of those seeking the amendment.
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l\fr. HEYBURN. Mr. President, an inspection and a comparison of the language of section 2 of Article I with the twelfth amendment will not bear out the conclusion ot the junior Senator · . It is more in line with the principle which I am invoking. If there is any instrument on earth that ought to be so definite, unambiguous, and certain that there would be no necessity for an :malyticu1 construction as to its meaning, it is the Constitution of the. United States. There should be no amendment by reference whatever; the amendment should be by a specific statement of the provision to be incorporated in it. .Mr. O'GORMAN. l\fr. President--
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The PRESIDING OFFICER. Do.es the Senator from Idaho yield to the Senator from New York?
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Mr. HEYBURN': Certainly:
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l\Ir. O'GORMAN. l\Iay I cail the attention of the Senator to what is regarded as a well-settled rule of const;ruction both of statutory law and of the organic law?—
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Amendments to constitutions or statutes are not regarded as if they had been parts of the original instruments, but are considered but-- rath e r in the- nature o! codicils 01' second instruments, altering or rescinding the originals to the extent to which they are in conflict, and. of course, are to be treated as having a force superior to the originals to the extent of such conflict. If . a constitutional amendment does not in t e rms expressly repeal a constitutional provision, yet if it covers the same subject provided for in such provision, the amendment wm be regarded as a substitute for it and as suspending it.
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That would be the principle ro be applied to this proposed amendment, even if the phraseology were not as exact a.s it is in distinctly stating that in lieu of these various features of the first and second paragraphs and the fourth paragraph. of Article I the following is to be taken as a substitute.
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hlr. HEYB U RN. Mr. President, I entirely ag.ree with the Senator as t o the rule of construction. Where ambiguities are disco v ered in the application of amendments to either a law or t he Corus t i t ution the court must find a way out of it so as to presen e the principle if possible. But we are here initiating provisions; we are here for original action; and it is our first duty to avoid the necessity of doing just those things to which the Senator from New York has called our attention. I am not arguing that if we were to adopt this amendment as it is a court would not search, under the rule invoked by the Senator fr o m New York, for the means of sustaining the provision; but I am discussing the question as to whether or not this is a prope:r way in an original action, to proceed.
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Mr. O'GORMAN. · If the Senator will pardon. me--
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1\ir. · HEYB U RN·. Certainly.
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Mr. O'GORMAN. I do not seek to vindicate the plli:aseology employed, but I do express the opinion that it will carry out the purpcse of those who designed the proposed amendment. I do not dispute tilllt the language employed might be more specific and that perhaps a more appropriate amendment might be the means of effectuating the common purpose.
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Mr. HEYBURN. I am discussing now ~e proper way to do \ it. I am not maintaining that no other method might accomplish the purpose, but I am discussing the propriety of the method proposed, as to whether or not it is the best and the proper method; and it was to that proposition that I directed my criticism. It may be that any thought can be expressed in more than one phrase or character of phrases and yet by interpretation it may reach its ultimate purpose; but the question is, Can we not and should we not adopt a more direct method of amending section 4, if it is to be amended? That is to say, we can eliminate the future necessity of reference to a condition that existed before our action by acting directly our:- selves, and it is a question of the propriety of doing it. ··
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Mr. BRANDEGEE. Mr. President--
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The PRESIDING OFFICER. Does the Senator from Idaho yield to the Senator from Connecticut?
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Mr. HEYBURN. Certainly.
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Mr. BRANDEGEE. Does the Senator from Idaho mean that where the joint resolution says on the first page, for instance: In lieu of all or paragraph 1 ot section 4 of said Article I, 1n so far as the same relates , to, any authority :fn Congress to make or alter regulations— following be proposed as an amendment to the Constitutianand whereas the following on page 2 appears to be four separate . ... '"' paragraphs, relating to several different features of the Constitution, by the language used practically those four paragraphs on page 2 are substituted in lieu of all of paragraph 1 of section 4? Does the Senator intend to convey that idea?
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1 connection
- cites Article I, Section 4, Clause 1 (suggested)
Mr. HEYBURN. No; that is a question yet to be entered upon. I had not reached the point as to the propriety of incor- porating isolated parts of the Constitution into sections without number and calling it one amendment. - I will reach that in a minute. The suggestion of the Senator from New York as to how this should be done is one that I will first give attention to. If I were drawing this proposed amendment, I would say'£ of section 4 of Article I the following is proposed as ~n amendment," and then I would recite, as amended, the whole section. I would not leave out the provision in that section relative to the election of Members of the House. Why should you? Why should you not, in order to avoid the necessity of reference and construction, state the section as it is to be remolded, including the provision in regard to the election of Members ot the House? Why the necessity of limiting the amendment to a part of the section when . you could as well say that the section shall read as follows, and leave it stand as section 4 of Article I of the Con .. stitution? That is the rule when :rightly applied tn legislation, and why not apply it in amending the Constitution?
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1 connection
- cites Article I, Section 4 (suggested)
Mr. BRANDEGEE. Mr. President--
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Mr. HEYBURN. I was going to come to that question, but I yield.
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Mr. BRANDEGEE. I do not want to interrupt th~ Senator,
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Mr. HEYBURN. I like to. be interrupted. It does not interrupt me a bit. · Mr. BRANDEGEEr I wanted to see if I could make myself a little clearer and perhaps say something in addition to what I said before in relation to the same subject.
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It seems t<> me that the language of the proposed joint resolution (H. J. Res. 39) on the first page, on a careful reading, is somewhat unfortunately worded. I admit that, because it pro- ceeds to say that Hin lieu of the first paragraph of section 3 of Article I of the Constitution af the United States, anti i n lieu of so much of paragraph 2 of the same'section as relates to the filling of vacancies, and in lieu of all of paragraph 1 of section 4 of said Article I," in so far as it relates to another subject. Apparently the language of all those separate paragraphs and sections would be amended, if this language is to be literally construed, by inserting an that appears on page 2 pertaining to all these several ma tt ers. Of course that would be an absurdity, and that iS not the intention, I assume, of the proposers. Yet that , aS' I read it, is what the joint resolution literally proposes to do; and the Senator from New York :proposes a rule of construction, as I und'erstand it, by which he thinks that absurd interpretation could not be sustained.
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3 connections
- cites Article I, Section 3, Clause 1 (suggested)
- cites Article I, Section 3, Clause 2 (suggested)
- cites Article I, Section 4, Clause 1 (suggested)
Mr. HEYBURN. The Senator from Connecticut expresses the objection I was going to urge to the attempt to incorporate as ' a single amendment to the · Constitution corrections of three separate and distinct paragraphs of the Constitution. A constitution should be amended in the most specific and direct manner. It is entirely competent anc1 entirely within the rule of legislation of this or any other kind to take each ot those paragraphs , and propose a substitute for it as a separate amend, ment~ As was said yesterday, and as I said in opening this: morning, you have incorporated three amendments, or tJ:ie J amendment of three different parts of the Constitution, in one amendment, and they are not directed to the same purpose or the same political principle. Of course an amendment to the Constitution is the purest kind of politics. It is politics a politics should be; it is the science of government.
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The science of our Government is written in the Constitution, and it is politics and should be regarded as such. I have always contended against the application of the term: “politics” to political jugglery. It means nothing of the kind when I use it. It was not intended to be so used at any time by those who speak responsibly.
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We are now dealing with a political principle of government. First, shall the manner of electing Senators be changed? That is a distinct, separate principle and can · stand out alone. Second, shall the power of the Government over the States be changed? That has nothing whatever to do with the election of Senators. One must precede the other. Until Senators are elected there is no part of the Government possessing the functions to perform the other thing sought to be changed.
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Before I take up the question of the merits of the proposed change in section 4, I want to discuss the question as to the change of the manner of electing Senators. I said upon first addressing the Chair that the Senate of the United States from the foundation up to the present day is on trial, because the purpose of this legislation and the constitutional provisions is to secure the performance of the will and the carrying out of the principles of the Go v ernment.
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- v ernment. The scans read: “Government.” (microfilm scan), “v ernment.” (main scan)
No Senator will claim that the standard of the m · men who have constituted the Senate of the United States has been below the high character that it was intended they should possess. No Senator will maintain that either on his own account or on the account of his associates. Since the Senate was founded there have been elected to it up to last year eleven hundred and eightyodd persons, and that does not include reelections. That many individuals have been selected by legislatures of the States and they have served in this body and they have been responsible for the laws that have been enacted and the manner of their administration. Are we in considering this proposed amendment to challenge the capacity, the honor, or the integrity of those I am looking now for a reason for a change proposed to be made in the Constitution. If there is no reason for it !'do not believe that any Senator would for a moment consider it or support it. Where is the reason? We will pass the question as settled definitely that it is not to be found in the personnel of those who have been elected. Is it to be found in their acts in this body? Have they shown a lower scale of judgment or integrity than it is to be presumed will be found in those selected in some other way? I think we would not admit that. We would not challenge the ability or the high character of the Senators of the past. Then why change it? Whence comes this demand, if it is a demand . ? Is it from selfish interests? 'i Is it from any place that we should respect?
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Mr. President, I would suggest the absence of a quorum."
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The PRESIDING OFFICER. The Secretary will call the roll.
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The Secretary called the roll, and the following Senators answered to their names : Bacon Curtis Lodge Reed Bailey Davis Mccumber Root Borah . Dillingham Martin, Va. Shively Bourne D i x o n M a r ti ne, N. J. Simmons Brandeg e e G a llinger - Myers Smith, S. C. Bri sto w Gamb l e N e l so n Smoot nurn ha m Gore Newlands Stone Burton Gronna O ' Gorman Sutherland Chamberlain G11gge.nheim Oliv e r Swanson Chilton H e yburn Ov e ::man Terr e ll Cl a rk, Wyo. John s on, Me. Owen Thornton Cl a r ke , Ark. John s ton, AJa . Page · Townsend Crane Jones P e rcy Watson Crawford Kem Perkins W e tmore Cullom Lea Pom e rene Williams Cummins Lippitt Rayner Works
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- Borah The scans read: “Bo” (microfilm scan), “Borah” (main scan)
- ti ne, The scans read: “Martine,” (microfilm scan), “ti ne,” (main scan)
- Brandeg e The scans read: “Brandegee” (microfilm scan), “Brandeg e” (main scan)
- a llinger The scans read: “Gallinger” (microfilm scan), “a llinger” (main scan)
- Bri sto The scans read: “Bristow” (microfilm scan), “Bri sto” (main scan)
- Gamb l The scans read: “Gamble” (microfilm scan), “Gamb l” (main scan)
- l so The scans read: “Nelson” (microfilm scan), “l so” (main scan)
- nurn ha The scans read: “Burnham” (microfilm scan), “nurn ha” (main scan)
- Gorman The scans read: “O’Gorman” (microfilm scan), “Gorman” (main scan)
- G11gge.nheim Only one scan has this word: “G11gge.nheim” (main scan)
- Oliv e The scans read: “Oliver” (microfilm scan), “Oliv e” (main scan)
- yburn Only one scan has this word: “yburn” (main scan)
- Ov e The scans read: “Over” (microfilm scan), “Ov e” (main scan)
- ::man Only one scan has this word: “::man” (main scan)
- Terr e The scans read: “Terrell” (microfilm scan), “Terr e” (main scan)
- ll Only one scan has this word: “ll” (main scan)
- Cl The scans read: “Clark,” (microfilm scan), “Cl” (main scan)
- rk, Only one scan has this word: “rk,” (main scan)
- Cl Only one scan has this word: “Cl” (main scan)
- ke Only one scan has this word: “ke” (main scan)
- AJa Only one scan has this word: “AJa” (main scan)
- rcy Only one scan has this word: “rcy” (main scan)
- Kem The scans read: “Kern” (microfilm scan), “Kem” (main scan)
- e tmore The scans read: “Wetmore” (microfilm scan), “e tmore” (main scan)
- Pom Only one scan has this word: “Pom” (main scan)
- e rene The scans read: “Pomerene” (microfilm scan), “e rene” (main scan)
The PRESIDING OFFICER. Sixty-four Senators have answered to their names, and there is a quorum present. The Senator from Idaho will proceed.
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- to The scans read: “T” (microfilm scan), “to” (main scan)
l\fr. HEYBURN. Mr. President, I was inquiring as to whether or not there was a demand for this change in the Constitution; and if so, where did it come from and how has it been expressed. It is easy enough to say that the people are demanding this, and to make that a ground for action; but the people are not demanding , nor have they at any time demanded, this action on the part o f the Congress of the United States. The people of some of the States have asked that they shall be permitted to meet in · con-v e ntion and take action upon this matter; but the States have not asked that Congress shall submit it to the legislatures.
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- l\fr. Only one scan has this word: “l\fr.” (main scan)
- con-v e The scans read: “conven” (microfilm scan), “con-v e” (main scan)
- ntion Only one scan has this word: “ntion” (main scan)
The grounds upon which it is claimed that this change in the Constitution should be made are that the legislatures can not be intrusted to perform this duty. If the people are clamoring against the present method because the legislatures can not be intrusted with this duty, is it to be supposed that the people are clamoring that Congress shall submit it to the tribunals which they discredit? The fact is that there is no demand for this action among the intelligent and thinking people of the United States. When the Constitution itself was adopted it was not submitted to the people except through their representative bodies in the se · rnral States then existing. The founders seemed to think that the -legislatures of that day could be trusted to act upon this question or any questions of this character. The States-a few of them; one came in this morning-that ask that the question be submitted do not ask that it be submitted to the people, but they ask that it be submitted to the legislature, this discredited agency of the people; and this joint resolution under consideration does not propose to submit this amendment to the people, but it proposes to submit it to all of these discredited legislatures; and yet the very provision itself--
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- rnral The scans read: “several” (microfilm scan), “rnral” (main scan)
Mr. JOHNSTON of Alabama. I should like to ask the Senator a question.
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The PRESIDING OFFICER. Does the Senator from Idaho yield to the Senator from Alabama?
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Mr. HEYBURN. Certainly.
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Mr. JOHNSTON of Alabama. I desire to ask the Senator from Idaho if the amendment proposed by the Senator from Kansas [l\Ir. BRISTOW] is not just as objectionable on that question as is the original joint resolution?
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- [l\Ir. The scans read: “[Mr.” (microfilm scan), “[l\Ir.” (main scan)
Mr. HEYBURN. It proposes to submit the question to the legislatures.
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Mr. JOHNSTON of Alabama. Yes; and is just as vicious on that ground as is the original joint resolution?
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l\Ir. HEYBURN. I oppose the original joint resolution and the substitute.
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- l\Ir. The scans read: “Mr.” (microfilm scan), “l\Ir.” (main scan)
1\Ir. JOHNSTON of Alabama. I am glad to hear that.
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- 1\Ir. The scans read: “Mr.” (microfilm scan), “1\Ir.” (main scan)
l\Ir. HEYBURN. I oppose them because there is no demand for such a change, except from the selfish interests of the country, from the coterie of men who stand on the street corner and acclaim themselves "the people."
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- l\Ir. The scans read: “Mr.” (microfilm scan), “l\Ir.” (main scan)
What position would the people of the States place themselves in were they to confess that they did not possess sufficient intelligence or patriotism to elect a legislature? If · they can not elect a legislature, is it to be supposed that they are more competent to elect a Senator? No; the demand for this action comes from selfish interests, men who hope, by getting around the law, to obtain place and position for themselves. I am not afraid to trust the people, to intrust them with any duty of citizenship which the law imposes upon them. If I were to say · that the people of my Sate needed some supervision, I would criticize their action through which they sent me to the Senate.
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Mr. WILLIAMS. Mr. President--
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The PRESIDING OFFICER. Does the Senator from Idaho yield to the Sen a tor from Mississippi?
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- Sen a The scans read: “Senator” (microfilm scan), “Sen a” (main scan)
Mr. HEYBURN. I yield.
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Mr. WILLIAMS. I wish to ask the Senator from Idaho for information-I do not myself remember. How many States have p a ssed resolutions demanding that Senators be elected by the people?
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- a ssed The scans read: “passed” (microfilm scan), “a ssed” (main scan)
Mr. HEYBURN. None of them have made any such demand. About 19 of thE;! States have asked that a convention be called.
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Mr. WILLIAMS. For this purpose?
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Mr. HEYBURN. That a constitutional convention be called--
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Mr. WILLIAMS. For the purpose of securing the election of Senators by the direct vote of the people?
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Mr. HEYBURN. Some of them have. I think the Senator's own State placed no limitation on it, but asked th a t a constitu· tional convention be called. Some of them who have in their minds amendments in regard to organized labor include that; some of them include one thing and some ano t her. They ask that in that Constitutional convention this question o! the election of Senators shall be considered; but, of course, if a constitutional convention · is called, you can not limit it.
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- th a The scans read: “that” (microfilm scan), “th a” (main scan)
- ano t The scans read: “another.” (microfilm scan), “ano t” (main scan)
- o! The scans read: “of” (microfilm scan), “o!” (main scan)
Mr. WILLIAMS. I understand tb a t.
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- tb Only one scan has this word: “tb” (main scan)
Mr. HEYBURN. A constitutional convention is all of the people; it is a town meeting of the Nation.
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Mr. WILLIAMS. Does not the Senator from Idaho admit that some 18 or 19 States-I do · not remember how manyhave asked for a constitutional convention for the purpose of securing the election of Senators by the people? If that be tru.e, does not the Senator from Idaho think that it would be much safer and more conservative to submit this specific amendment through the Congress than to have called a constitutional convention whose action, as he suggests, can not be limited:
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Mr. HEYBURN. I agree with the Senator, and that view of the case I had heretofore intended to present; but when the Constitution says that upon request of two-thirds of the States we shall take certain action we are not authorized to take it at the request of less than the number specified in the Constitution. If we do it, we can not claim that we do it m response to the constitutional demand of the States, and no one will claim that a sufficient number · Of States have :asked in any manner "for a change in the plan of electing Senators.
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- m The scans read: “in” (microfilm scan), “m” (main scan)
1 connection
- cites Article V, Clause 1 (suggested)