July 5, 1909 (2)

The Senate, as in Committee · of the Whole, resumed the consideration of the joint resolution .- ( s. J . R. 40) . proposing an amendment to the Constitution of the United States.

Mr. BAILEY. I want to offer an amendment; and I will occupy only two or three minutes.

I move to strike out the word "legislatures," in line 5, and to substitute the word " , conventions;" and in line 9, after the word" incomes," I move to add the words "and may grade the same."

Afr. President, of course the Senate will at once understand that the purpose of the first amendment is to submit the ratification of this proposed amendment to conventions called in each State for that purpose, rather than to the legislatures. I perfectly understand that . this would involve some additional cost; but I do not think the question of cost should weigh seriously in a matter of this kind. Legislatures are elected with reference to many questions. Legislatures may be chosen upon local issues. - The members may change their opinions, as Members of the Senate have r e done upon this very question, between the time they are chosen to the legislature and the time when they are required to vote.

A very grave situation now presents itself to the Senate and to the country. If this amendment is submitted and defeated, all hope and all possibility of an income tax disappears forever from the consumers of this Republic. With the Pollock case standing unrev-ersed, with the President of the United States sending a message to Congress, in which he asserts that the court can not be reasonably expected to recede from that decision; with both Houses of Congress responding to the President's suggestion, an(! submitting a constitutional amendment to the various States, if that amendment is rejected, we shall never live long enough to see a Supreme Court reverse the Pollock case. They will say, and they will have reason to say, that with the Pollock case the unchallenged law-and so far as the court is concerned it stands unchallenged-with the executive department recognizing it as the law, and recommending that the effect of it shall be obviated by a constitutional amendment; with the two Houses of Congress acting upon that theory, if the amendment to the Constitution, submitted under those circumstances, fails to recei've the approval of 12 States ln this Union, that is the end of an income tax.

Believing that to be true, I vote for this amendment, under any circumstances, with reluctance, ,~ e. because I do not think it necessary, and I know the submission of it is fraught with extreme danger; but I think the danger of its rejection will be greatly diminished if its ratification is submitted to conventions chosen for the sole and only purpose of passing on it. For that reason I offer this amendment, committing its consideration to conventions, instead of to the legislatures.

The second amendment, Mr. President, gi v es distinct and specific authority to graduate an income tax, and I think that necessary only as a matter of abundant caution . I would not, perhaps, have thought it necessary at all, except for the statement of Judge Brewer, in the case of Knowlton v . Moore, where he dissents from the opinion of th e court sustaining the validity of the inheritance-tax law upon the ground that Congress had no power to grade it. Plainly, 'if Congress is without power under the Constitution as it now stands to grade an inheritance tax, it would be without power under this amend· ment to grade an income tax; and if we are to put. the people of the United States to the trouble and expense of adopting a constitutional amendment authorizing Congress to do what, in my judgment, it now possesses ample power to do, let us make a complete work of it, and let us not find it necessary hereafter either to exercise the power circumscribed within limits which the people would not adopt or find our law held invalid.

I shall ask for a roll call on both of these amendments, unless some better reason can be advanced against their adoption than has occurred to me up to this time.

-Mr. McLAURIN. l\Ir. President, I concur in the wisdom of what was said by the Senator from Texas [Mr. BAILEY] with reference to the necessity for the amendment of this joint resolution; but I think there is a better amendment than the one he proposes to offer, or, at least, a better amendment than the one which amends line 9. .

The mischief in reference to an income tax in every discussion of it before the court has grown out of six words, three of them in cJause 3 of section 2 of Article I of the Constitution, and three of them in clause 2 of section 9 of Article I of the Constitution. In the first place it says:

Representatives and direct taxes shall be apportioned among th~ several S t ates-

The words "and direct taxes'' in that instance, and in the next-

No capitation or other direct tax shall be laid.

The words " or other direct " are the words that make the mischief in this elause 4 of section 9. With these six words stricken out of the Constitution in the places where they occur, ns I have indicated, there could be no trouble about the levying and collecting of an income tax.

I have heretofore indicated my views in reference to the meaning of the three words " or other direct," and I am not going to elaborate them now. I think the word " di-rect" there must be construed with reference to the word "capitation." A capitation tax is a tax that is levied directly upon the individual without reference to property. It is what is called in the States generally a "poll tax." When you speak of a "capitation tax" as a - direct tax and then speak of "other direct taxes," the word " direct" in this connection must be construed ejusdem generis with reference to the word "capita­ braska'! tion "-a capitation tax; that is, a direct tax which operates upon the · individual himself, wi t hout reference to any property at all-and the words "or other direct tax," of course, always, by all rules of construction, must be construed to mean a tax of the same kind. other direct taxes, that o p era t e upon the individual without reference to any property at all. Out of that confusion has grown all the trouble that has arisen in reference to the question of an income tax.

I think there has been too much learning, probably, on this resolution. matter. There has possibly been too much research into what has been said by this man or that man in the Constitutional Convention. You must construe the provision with reference to the language used, for no provision in the Constitution and no provision of a legislative enactment or congressional enactment is to be determined by what one man or another man may say in reference to !t. ·

That is illustrated especially here by the action of Senators on the amendment which is going to be voted upon at 1 o'clock to-day. There are many Senators who believe that it is not necessary to have any amendment to the Constitution. The Senator from Texas made a very able, a very learned, and a very eloquent argument to show that an income tax is within the limits of the Constitution as it is now in existence. Other Senators have done the same thing. I only refer to the argumen t of the Senator from Texas because it was, if my memory is not at fault, the first one that was made and not to make any invidious distinctions, for I think all the arguments that have been made on this view of the Constitution have been very able and very clear. . ar. Nevertheless, the Senators who have made these elaborate arguments and who believe that it is not necessary to amend the Constitution in order to justify Congress in enacting an income-tax law are going to vote for the resolution of the Senator from Nebraska, or a substitute therefor, for an amendment to the Constitution.

I h a ve digr e s s ed from what I was going to say. I want to say that if the amendment which I offer should be adoptedand I do not much expect that a majority of the Senate are going to adopt it, but I think every Democrat ought to vote for it-if it shall be adopted, will eliminate from the Constitution every cause of contention over the question of the authority of Congress to levy an income tax, except as to the power of Congress to grade an income tax.

This is the amendment:

Amend the joint resolution by striking out all after line 7 and in s erting the following, to wit: " The words ' and direct taxes,' in clause 3, section 2, Article I, and the words ' or other direct,' in clause 4, section 9, Article I, of the Constitution of the United States are hereby stricken out."

That will prevent any mischief hereafter. But let me call your attention to some mischief that may arise over this proposal by the Senator from Nebraska; and I should like to have the attention of the Senator from Nebraska. to this. The joint resolution provides that the proposed amendment to the Constitution shall read as follows :

The Congress shall have power to lay and collect direct taxes on incomes without apportionment among the several States according to population.

That is what the Senator from Nebraska proposes to insert in the Constitution as the sixteenth amendment. There is going to be some contention that will go before the Supreme Court as to the provision, because the men who are wealthy, the men who have large incomes do not intend to pay any proportionate part of the expenses of this Government if ' they can get out of it. They expect that the Government of the United States will protect all their property and protect all of their income, but they expect the expenses of the administration of the Government for the protection of their incomes and of their property shall be paid by the poorer classes of the country, shall be paid by the men in humble circumstances and with modest means. That has been the rule heretofore, and they expect it to continue.

Here is the question they are going to raise at once: They are going to say that when you read the proposed constitutional amendment according to its correct interpretation it means "without apportionment among the several States according to population but they are going to say that it does not say without apportionment among the several States according to anything else." You have specified population, but it may be required; they might contend that the tax should be apportioned upon some other basis than that of population.

Mr. BROWN. Mr. President--

The PRESIDING OFFICER (.Mr. KEAN in the chair). Does the Senator from Mississippi yield to the Senator from Ne­ !\fr. McLAURIN. With great pleasure.

Mr. BilOWN. There is no other apportionment known to the Constitution except that according to the census or enumeration; and of course the proposed amendment would be construed together with the other provisions of the Constitution. The language used in tlle joint resolution is taken from the language of other sections of the Constitution, so that there can be no confusion or misunderstanding at all about the joint Mr. McLAURIN. I know there is no other apportionment except in the instance to which I have referred; but it may be contended by those who desire to be exempted from the payment of their proportionate share of the taxes necessary to defray the expenses of the Government that there is an apportionment here provided for. It will be contended by those people that there is an apportionment here, and that the naming of one kind is the exclusion of all other kinds. There is a rule of construction that is not only familiar to all lawyers, but it is a rule that commends itself to the judgment of any man, whether he be a lawyer or not, as soon as it is presented to his mind, and that is that the naming of one is the exclusion of all others. When you name one kind of apportionment and provide that it shall not be required to be made. you exclude, then, all other apportionments; and it may be contended of any other apportionment except that which is named here. That is my idea about the mischief that is going to arise.

Then there is another thing that they may contend for, and that is that Congress has recognized the income · tax as a direct tax. That is the conclusion that they will draw from the amendment that is proposed by the Senator from Nebraska. I do not think it is a direct tax. I shall vote for the amendment; and it is my intention to vote for the amendment, even though my amendment shall not be adopted; but it does not, in my judgment, meet the requirements of the case so as to put beyond all controversy the question before the Supreme Court of the United States on the constitutionality of the income tax and as to the meaning of the amendment. I think that it ought to be made perfectly clear. I am going to vote for it because I am in favor of anything that looks to the collection of an income tax. I think it is fair and just that there should be an income tax to compel those of wealth, who have great incomes, to pay some part of the expenses of the Government. I favor it not only because it is just, but because the immensely wealthy then will be interested in an economical administration of the Government instead of extravagance, in which they are not interested now, because they are not compelled to pay for any of the extravagance that is indulged in by the Government. There are a great many other things, Mr. President, that I should like to say on this matter, but I am not going to take up the time of the Senate now to say them. I will ask that the amendment to which I have referred may be read at the Secretary's desk. to give notice of the amendment that I intend to offer before there shall . be a conclusion of the voting on the resolution offered by the Senator from Nebraska.

The VICE-PRESIDENT. The Secretary will state the amendment.

The SECRETARY. Amend the joint resolution by striking out all after line 7 and inserting the following :

The words " and direct ta.xes," in clause 3, section 2, Article I, and the · words " or other direct." in clause 4, section 9, Article I of the Constitution of the United States are hereby stricken out.

Mr. BACON. I should like to know, if the Senator has it l\fr. BORAH. before him, exactly how the Constitution will read with those words stricken out?

Mr. McLAURIN. Clause 3, section 2, Article I of the Constitution would read in this way:

Representatives shall be apportioned among the several States which may be included- '

And so forth; thus leaving out the words "and direct taxes." Clause 4, section 9, Article I would read as follows:

No capitation tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be · taken-

Thus leaving out the words "or other direct." There can be no doubt about what a capitation tax is.

Mr. BORAH. Mr. President, I desire to indorse the amendment suggested by the Senator from Texas [Mr. BAILEY] providing for the submission of this amendment to the Constitution to state conventions rather than to state legislatures. I believe it a wise policy for the reason that then it will be an issue before the people, freed entirely of what might be controlling local questions and what might be conditions which would prevent a fair and unprejudiced presentation of the matter upon its merits.

I do not think the mere fact that it may lead to some extra expense ought to be considered in a matter of this importance, for, as I said the other day, if it should transpire that the amendment should not be adopted, the matter would be settled practically for all time. I do not very well see how we could go back to the Supreme Court, after having taken the step that we are about to take here, and ask for a reconsideration of the matter before that body. If 12 States of the Union, by reason of conditions which might prevail in the legislatures which would not give an opportunity to present the matter upon its merits alone, should decide against the ratification of the amendment the matter would be practically put at rest. It would not be likely to be submitted again within the next twenty-five years, and there would be no greater chance for its adoption when submitted.

I wish to say, therefore, that I shall vote for the amendment suggested by the Senator from Texas [Mr. BAILEY], and. I should like very much to see it accepted by those who are m favor of the amendment. It is subject to no possible objection it seems to me, except possibly that of expense, and it certainly very greatly enhances the chance of success.

.Mr. CLAPP. Will the Senator pardon me?

The VICE-PRESIDENT. Does the Senator from Idaho yield to the Senator from Minnesota?

1\Ir. BORAH. I do. , .

Mr. CL..i\.PP. I will say to the Senator from Idaho that it has occurred to me that if there should be any disinclination to act on the matter by the state legislatures, the fact that we had provided a means. which did enta.il additional expense might be something behind which men might shield themselves. For that reason, while I am heartily in favor. of the amendment, I am not so clear it would be well to put it where a matter of expense could be urged as a reason for not acting.

l\Ir. BORAH. l\fr. President, there .is something in the suggestion of the Senator from Minnesota. But, on the other hand, it · occurs to me that a sufficient number of people will always be found in any State among the great _ mass of the people to compel the calling of a convention. · lUr " CLAPP . That gives rise to another question. While I think the Senator from Texas will hold a different view, it seems . very clear to me that the convention which would be provided for in each State would .have to be called by th.e State itself, and, naturally, by the legislature, although I think the suggestion may be argued that, if a State refused to act at all, Congress could provide for the convention.

1\1~. BAILEY. Mr. President--

The VICE-PRESIDENT. Does the Senator from Idaho further yield?

l\Ir. BORAH. I do.

Mr. BAILEY. I think that while that is true, a State refusing to act would . simply be recorded in the negative. The Constitution only requires that three-fourths of the States shall ratify the amendment; · and if the remaining States did not hold conventions, the amendment would become a valid part of the Constitution whether they ever acted at all or not. I think that in any State where the legislature acted on the matter at all, it would obey the resolution and call a convention.

I wish to say t-o the Senator from Idaho that if there would be any question of the expense deterring any State from calling a convention, I myself should favor a federal appropriation to pay the expense of the conventions in every State. That would undoubtedly obviate that difficulty. Mr. President, the question of expense does not disturb my mind. I was simply suggesting that as a possible argument against it. I have no fear that the amendment will fail of adoption if we can keep it where it will receive the benefit of public opinion in such a way and in such manner as to have an open expression of the people upon the subject. Therefore it seems to me, in view of the great importance of the matter, that, regardless of the question of expense and regardless of any inconvenience, we can well afford to place it where it will be the single issue which will be up for consideration.

Mr. NELSON. Will the Senator from Idaho allow me to make · a suggestion?

Mr. BORAH. Certainly.

The VICE-PRESIDENT. ..1. TT . The Senator yields.

Mr. NELSON. I should like to suggest to the Senator from Idaho this fact: I think I am right in stating that every constitutional amendment that has been adopted up to this time has been ratified by the state legislatures and not by conventions. This, however, is the point I am coming to: In case we should adopt the amendment of the Senator from Texas providing for submitting the question to conventions in the several States, ought we not to follow it up with legi lation by · Congress directing how the conventions shall be called and held?

I submit that question to both the Senator from Texas and the Senator from Idaho.

Mr. BORAH. That might be a very advisable thing to do; but I do not think all of our constitutional amendments have been ratified by state legislatures. l\ly recollection is that the last amendment was adopted by conventions which W"ere improvised for the · very purpose of seeing that it was ratified through a large number of the States wh e re it was understood that if the course were pursued which had ordinarily been p;ursued, it w-ould not be ratified.

l'llr. OVERM.A:N. l\Iay I ask the Senator a question?

Mr. BORAH. Yes. .

1\fr. OVERMAN. Suppose 12 States should refuse to call conventions, w-lrn t would be the result?

1\lr. HEYBURN. 1\lr. President, I should like to call atten­ tion, with the permission of the Senator--

The VICE-PRESIDiili~T. Does the Senator from Idaho yield to his colleague?

l\Ir. BORAH. I do.

Mr. HEYBURN. I should like to call attention to th e fact that the States do not have to call conventions. Congress provides for the conventions, if we have conventions instead of legislatures to do the ratifying. That is provided in Article V of the Constituticn.

Mr. OVEI~i\1A.i.~. Will the Senator kindly read that article, so that I may have the benefit of it?

Mr. HEYBURN. I will read the article, so that it may be in the RECOlID :

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the le g islaturei of two-thirds of the several State s , shall call a convention for proposing amendments.

l\1r. OVERl\IAN. But suppose the States do not call it?

1\fr. HEYBURN. This is not a state convention; it is a national convention. Just listen:

Which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of threefourths of the several States, or by conventions-

Now, this is a second class of conventions-

Or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed· by the Congress.

There are two classes of conventions provided for.

Mr. OVERMAN. Does this resolution propose the calling of a convention?

Mr. HEYBURN. There is a provision here under which a national constitutional convention may be called.

Mr. OVERMAN. · Is there any provision of that sort in this resolution?

Mr. HEYBURN. That is not the one that we are now dealing with. No · one, I think, has proposed that.

Mr. BAILEY. 'l'be first is a convention to propose amend· ments, and the second a convention to ratify amendments.

Mr. HEYBURN. H my colleague will permit me, I will say that no one is proposing to call a national convention to propose amendments. The conventions . that are · under consideration are those that Congress, not the legislatures of the States ) shall provide; and if Congress shall provide them, of course it shall provide the details - .

Afr. BAILEY. I hardly think the Senator is correct about that. It is a very close question. The Constitution says that amendments to the Constitution shall be ratified by legislatures or conventions. I do not think Congress has power to call a convention any more than to- convene the legislature of a State to- pass on an amendment.

Mr. HEYBURN. No; I do. not think it has, either.

1\!1~. BAILEY. And yet its: powers seem to be the sa:me with respect to the convention as with respect to the legislature ~ I will say t<> the Senator from Minnesota, who raised: the ques· tion, that the failure of a State to act would simply be equivalent to a negative action.

:Mr. HEYBURN. . Will the Sena.tor allow me to make a suggestion? I think the second provision in regard to conventions w a s intended to apply in ease the legislature refused: to act.

Mr. OVERMAN. Suppose Congress passed an act providing for the calling of a convention, and the State did not call it, and the people did not meet together , how would Congress act? Would the President go. and arrest the people and bring theminto a convention?- l\.lr. BAILE.Y. Oh, no; but I think tf Congress had the power to call a convention they could appoint officers _ and open the pollS', and if only one man voted in the State that one ma.n would be the majority. But that is an extreme case and: one not apt to arise. • l\.fr. HEYBURN. Right in that connection let me call attention t<> the language. First, it provides that Congress may submit the matter to the legislatures. It could not, of course. compel the legislatures to act. Then it pro.-vides an alternative "' ar by conventions in three-fourths thereof ••-three-fourths of the States-" as the one or the other mode- ot ratification may be proposed by the Congress 0 ·

I am quite convinced, though I may be- wrong, that that WMi intended as an alternative provision. I think it was intended that where the States should refuse- or neglect ta. act, Congress might call these conventions in the States and provide. the machinecy for them rather · th-llll have- defeated its: purpose of submitting an article for the amendment. · et the Constitution. . I think it was intended to provide · against the possibility of the States. refusing tO' act.

Mr. BAILEY'. Mr. :President, with the: permission of the Senator · from Idaho-, I will say that I think it was intended. to provide against the very contingency that now confronts us. I think . it was intended to allow the. direct question to be made; stripped of every other question, rather than to commit it to- a legislature elected to deal with many questions.

Mr. HEYBURN . I think that would be the effect rather- than the- intention. That undoubtedly would be , the effect.

Mr. SUTHERLAND and 1\.11". BACON addressed the- Chair.

The VICE-PRESIDENT. To whom _ does the junior Senator . tor from Idaho now yield? Several Senators a.re asking fo.r recognition. ·

Mr. BORAH. I will yield, so long a:s I can gain any inform.a- tion in reference to constitutional law .

The VICE-PRES.IDE.NT . But to whom does. the Senator yield?

Ur. BORAH. I yield to the Senator from Georgia.

Mr. BACON. Mr. President, I merely wish t0: suggest that there is nothing in the Constitution that contemplates that there shall be action by all af the States. Whenever the:re isaction by a sufficient number (}f States the: action is. conclusive, even if the other States never act,

An illustration of that is found in the fact that in each ra.tification heretofore the ratification has been made by the IegisJ.a- tures, and the Government has never waited until all the legislatures have acted. Whenever- a sufficient IlllIIlb& of the: legislatu.res of States have- a.cted, communication has been made. to Congress of the fact that the amendment has been adopted.

The- first action by legislatures: was a.s to . the first ro amendments; and it so happened that there were three States not m- eluded in those enumerated when the communication was made to Congress. _ The first 10 amendments were ratified by New Jersey, Maryland, :N.orth Carolina, South Carolina, New Hampshire, Delaware, Pennsylvania, New Yo-rk, Rhode Island, Vermont, and Virginia, which constituted a sufficient number, and communication was then made to Congress to that effect. T h e three States of :Massachusetts, Connecticut, and Georgia we.re llOt inci.uded at all.

Mr. BAILEY If the Senator will permit me, I will reenforce him in. his suggestion. The original Constitution provided that whenever nine States ratified it, it should become effective among those ratifying; and the _ Government wa.s organized before all of the States had ratified the. Constitution.

1\Ir. BACON. The two States of Rhode Island and North Carolina were not in the original organization at all. For two years. I think, the Federal Government had the great disadvantage of proceeding without the aid and cooperation of the State of Rhode Island.

Mr. BAILEY. Some people wish they never had ratified it. [Laughter . }

Mr. SUTHERLAND. Mr. President--

The VICE-PRESIDENT. Does the Senator from Idaho yield to the Senator from Utah?

Mr. BORAH. r yield.

Mr. SUTHERLAND. Mr. President, I think the Senator from Texas . is clearly right in. reference to · one proposition he states; that is, that the amendment can be ratified whenever three-fourths of the States act, although one-fourth of them · may fail to act at all on the question. But with reference to another suggestion the Senator made, viz, that if a legislatureshould prove recalcitrant, and decline to call a constitutional convention, Congress might do SO) it seems to me the language of the Constitution itself indicates that Congress has no such power.

Mr. BAILEY. M.r. President, when the Senator comes . to examine his remarks, I hope he will not represent me . as saying that, because I distinctly stated that I did not say it.

1\fr. SUTHERLAND. Then I will alter what I said by saying that the Senator from Texas suggested that such a method might be adopted. The language of the constitutional provision is not that Congress may call a convention, any more than it may call a legislature; but only that Congress may propose the method to be: adopted. In other words, Congress may propos:e that either- the legislature shall act upon the matter, or that a convention shall act upon it. But the power of Congress is simply, to propose it, and not to call it.

Mr. BACON. With the permission of the Senator from Idaho, I desire to add a word to · what I have said.

Afrr BORAH. Very we.II; I yield to the Senator from Georgia. Mr BACON. In order that there may not be any question as t? my attitude.on this subject, I. ":ill state that there is no qnes­ = tion whatever m ~ mmd that :it is- clearly beyond the power of Congress, m any instance, to call one. of these conventions.

!\Ir~ DIXON and Mr. _ CL.APP addressed the Chair.

The VICE-PRESIDENT. To whom does the Senator yield?

Mr. BORAH. r yield first to · the Senator from Montana. I will yield later to the Senator from Minnesota.

Mr. DIXON. Mr. President, while I. shall vote for the second amendment of the Senator from Texas, I desire fo call his attention and that of the Senator from Idaho to the fact that his first amendment may possibly complicate the constitutional amendment- more than it will help it. When you convene the people- of a State in a constitutional convention for the purpose of considering one matter, are not all matters affecting the cons.titution &f that State open to discussio-n?

l\fr . BAILEY. Not at all, Mr . President, because the call would be to pa-ss. up.on this. federal question. They would have absolutely no. power o.ver the organic law of ' the State unless indeed, the legislature submitted those questions · to them. If such questions . were ~ed in the orderly and lawful way it would be no objection that they were permitted to pass n!)-O~ them . But being called for. this purpose, there could not possibly be communicated to them any power to deal with their local constitutions by such a ca.11.

Mr. BORAH. · Mr. President, if the state convention. were go ­ ing to deal with · the state constitution, it would have to be called! in the:- manner · the constitution of the State provided for calling a convention for that purpose. If we should pr:ovide here- for the · calling of- a convention a:nd it should be called pur ­ s-aant- t01 that provision, it would have no jurisdiction and. no power. to deal with the subject. of the state constitution, unless , it were called pursuant to the- manner in which the state constitution provides. it shall be called for the purpose , of dealing 0 with amendments to the state constitution.

Mr. DIXON . But, with all due deference to what the Senator from Idaho- is new saying, when th-e: people of a: State through. their representatives , assemble- in a constitutional etm~ convention, . do the-y not have: primary powers . t<> do , almost anything ,, subject to ratificati-On by the State(

1\Ir. BORAH. They have,

1\fr~ DIXON. Then, in: v.iew of tire well-known opposition to, constitutional conventions on the part e.f a large- proportiou of the people of a State, I can not help believing that the calling of constitutional conventions will complicate more than it will help the general purpose we have in view. ·

Mr . BORAH. If a convention should be called in pursuance of this suggestion from Congress, it would not have any power to deal with amendments to the state constitution unless it were called in pursuance of the manner provided by the state constitution for dealing with the subject. If a convention called under this suggestion should undertake to pass on amendments to.the state constitution, it would be acting wholly beyond its jurisdiction. The various state constitutions provide by what means and method conventions shall be called for that purpose, and they must be called in pursuance of the provisions of the state constitutions .

Mr. HEYBURN . I suggest, l\Ir. President, that Congress has no power to call a conYention for the purpose of amending or dealing with state constitutions.

Mr. BORAH. The convention would have no power to deal remember correctly. with it when it assembled.

1\fr. BURTON. Mr. President--

The VICE-PRESIDENT. Does the Senator from Idaho yield to the Senator from Ohio?

Mr. BORAH. I yield.

Mr . BURTON. I desire to point out another obstacle besides that named by the Senator from Montana; that is, in case the ratification is to be by convention: At least one of the States has a provision that constitutional conventions can only be called once in twenty years.

Mr. BAILEY. If the Senator will permit me, that evidently has reference to a constitutional convention called to deal with the state constitution. This is not a constitutional convention within that meaning.

Mr. BURTON. I have thought of the very point the Senator from Texas makes; but I do .not think it sufficiently answers the contention I have stated. The constitution of each State specifies clearly the manner in which legislative authority may be exercised. Popular government has its expression in the ways set forth in the state constitution. Those are two: . First, by the legislature; second, by constitutional conventions. There is no recognition in any state constitution, so far as I am aware, of any other method of calling a convention to express the popular will. If a convention not authorized by the constitution of a State should be called to act upon a proposed amendment to the Constitution of the United States, it would be doing something not recognized by the legislative authority. There is no means provided for determining in that way what is the will of the people · of the State. We can not devise a new means of expressing what the people of the State of Texas or any other State desire, simply to fit an emergency . The expression of their wishes is confined to the methods set forth in the state constitution.

In case such a limitation of time exists, it might entirely prevent some of · the States from expressing the wish of the people of that State on this constitutional amendment. It would seem, · from some things that have been said here, that the opinion is entertained that this " three-fourths " means three-fourths of the States in which there is an expression on the subject.

Mr. BAILEY. Oh, no. No one contends that.

Mr. BURTON. That clearly can not be the case. I so understood, however, from some of the statements regarding it. Certainly it would require three-fourths of 46 States. - I think · that may be conceded.

l\Ir. OVERMAN. Thirty-five States.

Mr. BURTON. Thirty-five States, in any event.

Mr. RAYNER. l\Ir. President--

The VICE-PRESIDENT. Does the Senator from Idaho yield to the Senator from Maryland?

Mr. BORAH. If I may be permitted to do so, I will yield the floor.

l\fr. RAYNER. Mr. President, I should like to suggest to the Senator from Ohio that there does not seem to be any question about any of the propositions stated by the Senator from Texas and the Senator from Georgia. If three-fourths of the States, by convention, ratify the amendment, that is . the end of it. But there is one point which I should like to submit to the Senator, and that is this: If the States fail to call the legislatures together, and if the legislatures fail to act, there is no provision in the Constitution of the United States and no power in Congress to make them act I do not think there is the slightest possibility of that occurring, but I deny absolutely the power of Congress to compel the States to act.

Mr. BURTON. I intended to say a word upon that subject, act- - Mr. President. While I may have stronger views on the subject of federal authority than some Senators have, I do not believe it is possible to compel a State to act upon a proposed amendment to the Constitution . The initiative must rest with the State itself. It must be the voluntary act of each State. It is no more possible to compel a State to convene its legislature or call a convention than it is possible under existing law to compel an elector to vote at an election . That is a right incident to the freedom that belongs to an elector; and it is also the privilege of the State to a c t or not to act, a.s it may choose.

Mr. CLAPP. 1\Ir. President, I u es ire to call the attention of those who are particularly back of this amendment to the fact that the amendments to the Constitution which have been adopted were in every instance, I think, referred to the legislatures. The only amendment which was referred to a convention was the amendment which was referred by Congress at the very close of President Buchanan's administration. It was, I think, the last bill he ever signed; and the only conventions which were called were in the States of Ohio and Illinois, if I As far as the method of accomplishing this result is concerned, I for one am disposed to follow the wishes of those who ar.e moving in the matter. But it does seem to me that it is a departure and may present complications, while the other is a well-understood, well - traveled road. And as a matter of my own personal advice and view, I should prefer to leave it to the States, as has been done heretofore .

1\Ir. DIXON . 1\Ir. President, I desire to do whatever will aid in bringing this matter t6 a constitutional amendment. I want again to call the attention _ of the Senators who at first thought may be favorable to the scheme of calling state conventions to the fact that ' in many of the States the expense of holding elections for delegates to a constitutional convention will be so large that the question of expense will be used as an argument ' against it. I think in my State it will cost the State $100,000 to hold its constitutional convention and the election for the choosing of delegates .

I am convinced this will complicate matters . On the other hand, if the joint resolution passes both the Senate and House, as it will undoubtedly, the governor of each State in the Union will certify to the ne~'i: general assembly of . the States the fact that the joint resolution has passed both Houses of Congress, and it will be brought directly and forcibly to the attention of the people in every . State.

I for one believe that this amendment will carry in • nearly every State of the Union . Suppose, as it has been intimated, that influences should be used in a State with the members of the legislature against it and that legislature returns and goes home without adopting the amendment, it makes it the burning live issue in that State. The joint resolution of Congress does not become functus officio because one legislature of a State at that time has not adopted it. It will rest on the legislatures that . will assemble in the future, and whenever three-fourths have finally ratified it, whether it be one, two, three, five, or ten years, it then becomes a part of the fundamental law of the United States. I am thoroughly convinced that the conv en tiou method will complicate more than it will help. That is ruy individual view of the matter.

Mr. HEYBURN . I should _ like to ask the Senator a ql! :> question before he takes his seat. There is no limit placed by th e Constitution upon the time within which a · State may act in ratification .

1\Ir . DIXON. That is what I am saying.

1\lr. HEYBURN. Does the Senator contend that it might be submitted to an indefinite number of subsequent legislatures, or would the action, either positive or negative, of the legislature to which it was first submitted exhaust the right?

Mr . DIXON. I presume if the legislative action were positive or negative it would be exhausted in that State.

Mr. HEYBURN . Then, if the legislature to which it was submitted fails to act that would be the equivalent of a rejection of the amendment .

Mr . DIXON . No; if the legislature failed to act, I do not think for a moment it would be .

Mr. HEYBURN. Upon the question of submission, if no action should be taken--

Mr. DIXON. Until the legislature finally acted either positively or negatively, I think unquestionably .

Mr. HEYBURN. Is not refusal to act action in itself?

1\Ir . DIXON . No; I do not think so for a moment.

Mr . HEYBURN . Does a uw.11 ,,·ho stays-away from the ballot box participate in an ele c tion? Is not his act as binding if the result is obtained by reason of his absence as though he voted?

Mr. DIXON. Yes; but the fact that a legislature fails to Mr . . BACON . If the Senator will permit me a moment, with ­ out presuming to pass upon the legality of the subsequent act, the fact is that the States of New Jersey, Oregon, and Ohio had ratified the fourteenth amendment, and they subsequently formally withdrew that ratification.

1\Ir. HEYBURN. 1 ‘They only thought they withdrew it.

1\-lr. BACON. I have simply called attention to the fact, without saying whether it was a valid withdrawal or not.

1\Ir. HEYBURN. The Senator would not contend that a State might go on voting pro and con on a constitutional amendment indefinitely.

l\fr. BACON. I have not made any suggestion to that effect, but I was just calling attention to the fact that three States did incurred. think they had that right.

l\Ir. HEYBURN. The Senator, I think, would not contend-- 1\Ir. BACON. I myself would be greatly disposed to question the right.

l\!r. RAYNER. If that is so, then the fourteenth amendment is invalid, because they did exactly what the Senator from Idaho says they had no right to do.

l\Ir. HEYBURN. l\Ir. President, I do not care to ha·rn it left that way. I think the facts--

.Mr. RAYl'.TER. No; they voted first against it and then for it. The contention we have always made is that the fourteenth amendment is unconstitutional.

1\Ir. BROWN. Mr. President, I trust that the Senate will re- election days. fleet a moment before it concludes to adopt any of these amendments. The proposition to refer it to the state conventions for ratification, in my judgment, does not appeal and ought not to appeal to our favorable consideration, provided we desire to be on the safe side and are in favor of early action on the joint resolution by the States.

The fact that first confronts us with respect to referring it to conventions is this: We do not know who will call the convention, whether the governor or the legislature. There might be a difference of opinion about that. If it shall be called by the legislature, then we have to wait for the legislature to con-vene before there is even a call for a convention. That means delay; · y; it means postponement; and I can not understand why we should longer postpone the opportunity of the people to pass upon this question.

I have not yet heard in this debate one single reason why the convention method is better than the legislative method of ratification. The fact remains that of the 15 constitutional amendments which ha Ye been adopted, every one has taken the course that this joint resolution proposes this amendment shall take.

l\Ir. BORAH . . Does the Senator contend that the :fifteenth amendment was ratified entirely by state legislature ?