July 5, 1909 (2)

l\Ir. BROWN. I have the record of it here.

l\Ir. BORAH. Has the Senator Secretary Seward' certificate certifying its adoption?

Mr. BROWN. It says:

The fifteenth article was submitted to the legislatures of the several States, there being then 37 States, by a resolution of Congress passed on the 27th of February, 1869, at the first session of the Forty-first Congress. and was ratified, according to a proclamation of the Secretary of State, dated March 30, 1870, by the legislatures of the following States-

Then they follow.

. l\Ir. BORAH. The Senator has not Secretary Seward's certi:ficate of ratification? · l\Ir. BROWN. This states that Secretary Seward certified that it had been ratified by the legislatures of 29 out of 37 States. So the joint resolution proposing the fifteenth amendment was ratified by 29 state legislatures and not by 29 state conventions.

Mr. BACON. Will the Senator from Nebraska permit me to recur for a moment to the question propounded by the Senator from Idaho?

l\Ir. BROWN. Certainly.

l\fr. BACON. I did not at that time have it before me. It seems that the fifteenth amendment was ratified by the requisite number of States and was proclaimed, and that among those ratifying it were the States of North Carolina, South Carolina, Georgia, and Virginia. They were necessary to the number required to secure the ratification. Prior to that time the legislatures of the States had rejected the amendment; and it was after they had rejected it that subsequent legislatures ratified it. It was only by means of counting those four States to avoid. that the :fifteenth amendment was · declared as having been ratified; and they had previously rejected the amendment, each one of them.

l\Ir. RAYNER. North and South Carolina were two of the States.

l\Ir. BACON. North Carolina, South Carolina, Georgia, and Virginia. ·

XLI"V--258 l\Ir. BROWN. Unless some good controlling reason js presented why we should change our method of amending the Constitution, I do not think we can justify our ·rnte against following the usual method. The legislature is an existing institution in every State. A convention would have to be arranged for. The legislatures, by virtue of the several state constitutions, meet every two years iJ;l most of the States. We do not have to wait for somebody to call a convention. The legislature is already called. · We do not have to worry about the expense of the legislature, because the expense is already In addition to all these objections, Mr. President, there is one other which ought to cause Senators in this body to vote against the proposed amendment for ratification by conventions. I know the fight that has been made in a large majority of the States of this country for a primary law. There has been a fight of the people in a majority of the States of the Union to get away from legislators who are nominated in conventions, and in many states they are now nominated at a primary. Members of Congress who used to be nominated in conventions are now nominated at a primary. The members of the several legislatures of the States that have primary laws do not have conventions. They prefer the other method. They are nominated on primaryelection BAILEY. Mr. President--

The VICE-PRESIDENT. Does the Senator from Nebraska yield to the Senator from Texas?

l\!r. BROWN. Certainly.

Mr. BAILEY. The Senator is making an argument now with out knowing where it is going to lead. I think he will not consider it a very valid one when he analyzes it. The same men who would be elected to this constitutional convention would be nominated in exactly the same way as the men who are elected to the legislature, and so the talk about the different methods is absolutely without foundation.

l\Ir. BROWN. The trouble with the argument of my friend is that it may apply to his State where delegates to a convention are selected at a primary, but it does not apply in some of the States of the Union that I know of, because they have no law for electing delegates to any convention at a primary.

Mr. BAILEY. Then the members of the legislature are not selected in that way.

l\lr. BROWN. Yes; the members of the legislature in my State are selected at the primary, but our delegates to a convention, should the party have one for any purpose, are not selected at a primary. There is no provision for the selection at a primary of delegates to this convention. · 1\lr. B . BAILEY. That is true. :My own State makes precisely the same difference. Yet the Senator does not mean to say that he thinks it is safer to take the expression of a legislature elected · with reference to all other questions, including this, than it would be to take the expression of a convention elected with reference to this alone. No matter how a man is nominated, the only question——— l\Ir. BROWN. That is just what does matter-how he is nominated.

Mr. BAILEY. Let me finish and then I will show you that you are mistaken. The only issue here will be, Are you in favor of this constitutional amendment-not of some constitutional amendment, but of this one? And the candidate who is in favor of it will say so, the candidate who is not in favor of it will say so, and if a candidate elected declaring himself in favor of it would go to that convention and vote against it, he would never go back home.

l\lr. CURTIS. Mr. President--

The VICE-PRESIDENT. Will the Senator from Nebraska yield to the Senator from Kansas?

l\Ir. BROWN. Certainly.

Mr. CURTIS. I should like to ask the Senator from Texas if he does not believe that the question of amending the Constitution would be the paramount issue, even though it was submitted to the legislatures?

Mr. BAILEY. That is probably true, and therefore I would dislike very much to see every legislature in the United States selected with reference to this federal question and without reference to the local questions. That is exactly what I want

Mr. BROWN. l\Ir. President, there can be no doubt, I think in the mind of any candid man that, should the joint resolu- tion pass Congress, in every State in the Union every political party would be in a race to see which could get behind the joint resolution first. There could be found no one opposing the joint resolution, which only proposes that Congress shall hay · e the power to levy incomes. You can not find a man on this floor, I believe, whether he favors an income-tax law - or not, who is against giving to Congress the power to levy the tax if it wants to do so.

Mr. BORAH. Mr. President--

The VICE-PRESIDENT. Does the Senator from Nebraska. for that ratification. yield to the Senator from Idaho?

l\Ir. BROWN. Certainly.

l\fr. BORAH. If it is carried to the legislature, a multitude of local affairs or other affairs are engrossing the attention of the people. We have had year after year in our State constitutional amendments submitted which were important, and yet during the campaign they were · lost sight of; no one mentioned them; and when the returns came in they were sometimes adopted by a very small vote by practically no vote being cast on the subject at all.

1\Iy idea in this matter was that if this was the only issue, the minds of the people would be settled upon the issue, and that above all things when it got into the legislature you could OVERMAN], not Jogroll important issues against it in order to defeat it, because it would be the only issue there when you got into the legislature. If you go by the way of the legislature, there are a multitude of issues there which detract from the consideration of this measure. But if we hav-e a convention it will be the only issue there. ·

So far as the expense is concerned, it may be expensive, but I want to call the attention of the Senator from Nebraska to the fact that if it should transpire that 12 States in the Union should refuse to adopt it, it would be the most unfortunate thing, in my judgment, which has happened in the. political history of the United States since the civil war, if not in its entire history, because the contest would be over. We would not · go back to the courts and we would not go again to the people, and this fight would be permanently closed.

Ur. BROWN. 1\Ir. President, I do not agree at all with the views of my good friend from Idaho that the fight would be closed if 12 States should fail to ratify this amendment.

1\lr. STONE. If my friend will permit me, on the subject of expense, while it would be an exceedingly unusual thing to do, it seems to me it could be obviated, and perhaps in the circumstances of this particular case it ought to be obviated , by inserting as a part of the amendment, if the convention plan is adopted, a provision that the Congress shall, by appropriation, provide for the reimbursement of the States for any expense they may be put to in holding the conventions.

Mr. BROWN. 1\Ir. President, that illustrates the danger we are in right here. Every proposition and every suggestion in­ \Olves some other legislation; some other step must be taken. Tell me why it is that we are so loath to follow the trodden path in amending the Constitution? What has happened that it is necessary to discover and adopt an untried plan?

:Mr. BAILEY. Will the Senator permit me?

Mr. BROWN. Certainly.

1\Ir. BAILEY. I answer him without a moment's hesitation. Because the last two occasions on which we tried it we found our s elves amidst an infinite difficulty. Both the fourteenth and fifteenth amendments to-day are of doubtful validity, in consequence of the action, and varying action, of the several States. Remembering the trouble at the close · of the great war that was found in adopting those amendments, I am not surprised that Senators would prefer a different course.

1\lr. BROWN. Do I understand that the Senator from Texas favors the convention method of ratification because he doubts the validity of the course that was pursued relating to the fourteenth and :fifteenth amendments? -

Mr. BAILEY. Oh, no; the Senator is too bright to suppose that I meant that. He did not understand that I stated that, except in reply to his demand to know why we should leave these beaten paths. I answered that those paths had not been paths of safety with referen.ce to the last two amendments to the Constitution.

Mr. BROWN. So far as the record shows, they have been paths of safety. Those amendments are a part of the Constitution now. •

Mr. BACON. Will the Senator permit me? It appears that in the case of the fourteenth amendment-I a few moments ago misstated it to be the fifteenth-four States which had rejected the amendment subsequently ratified the amendment.

The question was raised by the senior Senator from Idaho (Mr. HEYBURN] as to whether, when a State had once acted, it had not exhausted its power. · I said to him ·very frankly I was inclined to think that was true. I hope the Senator from Nebraska will give me his attention, because I am calling his ~ attention to it.

Mr. BROWN. I beg the Senator's pardon.

Mr. BACON. Four States which had rejected the fourteenth amendment afterwards ratified it. The ratification of those four States was neces ary to make up the number required The particular point to which I wish to call the attention of the Senator from Nebraska is this: Of course the only ground upon which the validity of the fourteenth amendment could be rested would be the ground that the State did have the right to change; but unfortunately if that is true, there were other States that changed the other way. They were States which had ratified it, which, prior to the time when they were counted as having thus ratified it, withdrew their ratification. They were the States of New Jersey, Oregon, and Ohio. So, if the right to change is recognized, they were still three short ; if the right to change was not recognized, they were four short. As suggested to me by the Senator from North Carolina [Mr.

it was not adopted.

Take the case of the fifteenth amendment. The fifteenth amendment required 30 States to ratify it, · and there were among those 30, which were counted as having ratified it, the States of Ohio and New Jersey, and each of those States prior to the time when they were counted as having ratified it had withdrawn their ratification.

.Again the fact is presented that if they had a right to count them upon the ground that they had a right to change their minds and change their action, then it unfortunately happens that the State which was necessary to make up 30 llad withdrawn its ratification, to wit, the State of New York. So in one case, if the State had the ri g ht to withdraw or to change it action, New York having withdrawn, th e re were only 29, and that was 1 less than necessary for ratification. On the other hand, if they did not have the right to change, 2 of the States which had previously refused to ratify were counted among those having ratified it, and that would leave only 28. In the one case there would be 29 and in the other case 28. You can take either horn of the dilemma you wish.

Mr. BROWN. I am familiar with that argument and with the point that we might not have a valid ratification of the proposed amendment. We need not waste any time, I think, in discussing that branch of this subject. If my judgment is correct, there will be no ratifications that will be withdrawn by any State on this joint resolution. I do think that it is the easy, the natural, the customary, the logical , and the safe thing for us to pass a joint resolution which refers it to the legislatures elected by the people of this country and not to . conventions.

Now, then, l\Ir. President, as to the other amendment offered by the Senator from Texas, where he asks that the words" and the right to grade" be put in, I think already the language of the joint resolution gives Congress the power to grade the income. It gives the power to lay and collect, and when the Supreme Court decided, as they did, that persons, associations, or corporations doing a certain line of business must pay a. tax measured on their income, so much earned, they declared the power to be in Congress to grade the taxes, provided they had the right to lay them. - The power to lay a tax includes the power to grade. Of that no doubt can reasonably exist, in my judgment.

The amendment proposed by the Senator from Kansas expresses a principle in which I have always believed, and I believe the principle is fair and right and ought to be in the Constitution; but the Senator from Kansas will understand that if he had the power under the parliamentary situation to offer the amendment, it means the death of both propositions when it comes to a final vote in this body. I do not base that upon any guess, because there was a roll call in the Senate last year on the proposition to amend the Constitution so that the people would have a right to elect their Senators, and on that roll call out of 30 Democrats I think 9 voted in favor of such an amendment, and there were only 12 out of 60 Republicans who voted for it, the rest all voting, if they voted at all, to refer it to the committee.

Mr. LA FOLLETTE. Mr. President, the Senator has just made a statement that I was going to draw from him if possible, that the roll call was not upon the passage of the joint resolution, but to refer it to a committee. The direct issue was evaded in that case, as it is always sought to be evaded when that question comes up.

l\fr. BROWN. The Senator from Wisconsin did not hear me finish the remark. The vote was to refer it. That meant to assassinate it, and every Senator knew that is what it meant. If I had voted to refer, I would have voted to kill it.

l\Ir. DIXON. 1\Ir. President--

The VICE-PRESIDENT. Does the Senator from Nebraska yield to the Senator from · Montana?

Mr. BROWN. I do.

Mr. DIXON. To keep the record straight, when reference is made to the Republi c an vote, I think the Senator should also add the fact that there was a larger percentage of Republican than Democratic Senators in this body who -voted against sending the joint resolution to committee.

1\Ir. BROWN. I did not care anything about the political significance of it. I simply wanted to show that there is no possibility, with the Senate constituted as it is to-day and on record as it is, of ha v ing such an amendment get two-thirds of the majority of this body. Then tell me why load it on this joint resolution? I would be glad to support the Senator's r e solution, if it can come up so that it does not kill itself and at the sa.me time kill this one.

Mr. MONEY and 1\lr. NEWLAl'llL>S addres ed the Chair.

Mr. BROWN. There are several Senators who want to talk, and I think I will yield the floor. I hope that all these amendments may be voted down. I believe that the joint resolution is drawn simply; it is drawn in language that is not su sc eptible of mo or three constructions; it vests the power in Congress to lay and collect income taxes; and that is the proposition we want to adopt.

Mr. MONEY. 1\fr. President, I am one of those who believe that there never will be another amendment to the Constitution of the United States. Already, I under tand, about 13 States have called for a convention of all the States. If that convention should be called, as it will ultimately be, I have . no doubt the first resolution that will be offered will be to abolish the Constitution of the United States for the very reason that we point. have been for some time acting under a suspension of it, and tho s e who are in authority are heartily tired of it.

The difficulty that presents itself to my mind is to secure the 12 States which everybody admits are quite likely to defeat any amendment of this sort to the Constitution. The method presented by the Senator from Texas is probably the best, but the same influences that will control the votes of the legi s lature will prevent the legislature f.rom calling a convention. The item of expense will be consid e red by some of the frugal-minded legislatures in some of the States, also.

The great difficulty that we had il1 passing the last two amendment to the Constitution, which seemed to be so very necessary in our system of political economy as to fix the status of several million fr ee dmen, would seem to argue the necessity of a ratification of the income-tax amendment, yet we know the difficulty. I am one of those who do not believe that either the fourteenth or fifteenth amendment was ever validly made a part of the Constitution.

It has been said that when a State has voted to ratify or reject it has exhausted its power. I do not believe there is any authority in good common sense and sound reasoning for any such suggestion. There is no doubt that it has been acted upon; that is true, but the action was forced by the exigency of the political situation. As a matter of fact, 4 Southern States that had rejected the fourteenth amendment afterwards assented to it. But in the meanwhile 2 States that had assented to it had withdrawn their assent and rejected it.

One was the State of Ohio and the other the State of New Jersey. · sey. The paper that was then issued by the legislature of New Jersey is one of such high statesmanship that it deserves to rank next only to the Declaration of Independence. It is a paper that can be studied with great profit by any student of our Constitution and of our theory and · system of government. My friend from Georgia [1\Ir. BACON] stated that there was a third; but he is mistaken about that. The State of Oregon, it is • true, rejected the amendment, but that was in October, and the promulgation of the ratification was made by the Secretary of State, under the law of 1818, on the 28th of July, 186 . So the action of Oregon simply meant to express a change of sentiment in that State, and in no effect validated or invalidated the ratification. It had - nothing to do with it. But it was held that four States had first rejected the amendment and afterwards ratified it; and they were counted, because they came in before the promulgation. .

I am not one of those who believe that a promulgation by the Secretary of State of the ratification of three-fourths of the states of au amendment to the Constitution is at all necessary to its validity. It is just exactly as he is required to print the laws of Congress. Nobody will assume that he has got anything to do with passing the laws of Congress or giving them effect. He simply gives notice to the public that they have been passed, and superintends the printing. So, in the same way', · the act of ratification consists of the action of the two Houses, then of three-fourths of the States; and tlie Secretary of State has nothing to do with it, except to announce that to the public; and the event is closed.

However, the State of New Jersey and the State of Ohio had changed; but they were not permitted to make that change. John Sherman, then a Member of the Senate from the State of Ohio , introduced a resolution declaring that three-fourths of the States of the Union had ratified the fourteenth amendment. As a matter of fact, that was ultra vires. The Senate had no business to concern itself any further. That clause of the Constitution which provides for its own amendment particularly points out the way in which it shall be done.

It says that such joint resolutions shall receive the consent of two-thirds of the Members of both Houses. There has been some contention about whether that meant two-thirds of those present or two-thirds of the Members constituting each House. According to my view of it , proper reason and common sense would say it required two-thirds of the membership of both Houses; b . but it has been uniformly held by both Houses that it only required two-thirds of those present and voting; that all the intermediate steps leading up to a final -vote upon the amendment required only a majority of those present and voting, a quorum being always presumed to be present, as a matter of course. I do not accede to that; but there is no way to change it, of which I am aware. That has been the uniform practice of both Houses, and they have declared it over and over again. The last ruling on that subject was by Mr. Reed, of the State of Maine, as able a man as has ever been Speaker of the House of Representatives. I recollect that he said in his ruling that it seemed unnecessary for him to rule, primarily, because the decisions of preceding Speakers had been so uniform upon that But we have had also other decisions, even coming down - to the decision of the Supreme Court, that the President of the United States bad to sign such amendments. The first 12 amendments proposed by Madison were signed. Ten were adopted afterwards. The eleventh amendment was signed by John Adams, which was adopted. Then the twelfth amendment of 1\.Ir. Madison was signed, and that was adopted. The thirteenth amendment was signed by Abraham Lincoln, not because it was believed that it was at all necessary, because the President is not included in the amending of the Constitution as one of those who ha-ve anything on earth to do with it, but it was said that it was extremely fitting that the man who had emancipated the slaves by proclamation should have the privilege of signing a legislative amendment to the Constitution, ratified by the States, which did the same high office. Consequently he was permitted to do so. Then it was that Trumbull, of Illinois, offered a resolution that the approval of the President was totally unnecessa.ry, and it passed the Senate without a single dissenting vote. So that, though we have precedents which seem to have no foundation in good reason and that are cut short whenever · rnr the opportune moment comes, it seems the President has nothing whatever to do with the amendment of the Constitution.

Mr. President, I do not believe that this amendment to the Constitution will ever be a part of it. I am willing to vote for it, and I should like to see it adopted, if possible; but I am quite sure that those influences which have prevented a vote on the income-tax amendment in this Senate will also prevent a vote in at least twelve of the legislatures of this Union. We can feel quite sure that an act of such far-reaching importance, that touches the pockets of very many rich people, is not very likely to become a part of the organic law of our Republic or of our confederation.

I should be very glad, Mr. President, to proceed upon the lines laid down by the Senator from Texas [Mr. BAILEY], the Senator from Iowa [Mr. Cummins], and the Senator from Idaho [Mr. BoRAII], which, I believe, is the shortest and the simplest way. I am not one of those who regard the judgment of the Supreme Court as ~n. African regards his particular deity. I respect such a decision Just exactly to the extent that it is founded in common sense and argued out on reasonable logic, but when it violates the law of common sense, then I cease to so regard it except that as a citizen I am bound by it. As a legislator. i have no more regard for it than I should have for a decision' of a magistrate in one of the counties of the State of Mississippi, especially when I know it runs counter to the decision of a hundred years and was decided by a vote of five to four and that one judge who voted in the affirmative changed his mind somehow in the shadows between two different hearings.

I do not say that by way of disparagement of anybody, because it is only the fool who never changes his own mind; but there were no new facts brought out; there were no new arguments adduced; and the member of the court, whoever he was, changed his mind. He seem.S likely to go down to the grave 01· to posterity in obscurity so far as that . act is concerned. We eeiving have, then, a doubly doubtful decision of the Supreme Court. In I do not think there is a good lawyer in this country who be­ giving lieves to-day that the decision of that court is a correct decision. It is so open to question that the best lawyers in this Senate have not hesitated to bring forward here, as an amendment to this tariff bill, a provision for an income tax to be .a part of the . proposed law; and we are met with th~ proposition to change when the Constitution.

I am sorry that our great and good President has changed his ceived mind upon this question. He once thought, and very lately, the during the height of the canvass, a proposition made by the where convention of Democrats at Denver, and containing a proposi- . tion such · as is being discussed this morning, absolutely useless, because the court, with a little change of ver onnel, and probably without it, would not reaffirm its decision, but would reverse in it. We find, however, that things change.

Now, .Mr. Pre ident, I want to say that I for one hOM that some­ ca.st thing can be done to fix in the Constitution or the law-either the one being sati factory to me-this amendment. There is not a result civilized country in the world which does not have an income tax; the : re is not a civilized country in the world that would surrender it at any cost. We have the example, at least of one was country, from which we have taken our laws P.ud our general until administrative system, where the tax is imposed by the people then who pay the tax. It is to the eternal honor of both the British Houses of Parliament that the tax which they in great part ment have to pay is assessed by them elves. It is not only a tremendous source of revenue, but it is the governing source of rev­ and enue. There is no · continual tinkering with the tariff, for it is unnecessary. If there is a great deficiency, then immediately there is a slight raise in the income tax, and the want is provided The for. If there is a surplus, there is a small reduction in the in­ ment. come tax, and that is remedied. also. So it acts, as I have said, not only as a producer, but as a governor of revenue.

While I have the view that this is .an . unnecessary amend­ what ment, and that the proposition made by the Senator from Iowa were fMr. CuMMINS], the Senator from . Texas [:Mr. BAILEY), and that the Senator from Idaho J:Mr. BORAH] to levy this tax would be perience. quite sufficient, and I believe the court would now support it, yet I am not willing to lose any opportunity to give my assent to a proposition so eminently just. If the people of this country to can not pay, out of their surplus, out of t.he superabundance of their revenue, then why should any tax whatever be levied on anybody else? Is there any justice in levying a tax U1JOil arti­ a cles of general consumption, that must be paid by the great b.ody of citizens everywhere, who toil for a living, and at the same tor time the superabundance or unspendable income of the billion- , sary aire should be spa.red when we know that our legislation is mostly in relation to property, concerning things, and not concerning persons?

Why, Ur. President, the laws that govern persons are o evi­ almost dently obvious, they lie so completely on the surface, that, in tiollill order to preserve the organization of human society, we have left them practically unchanged. It has been the same under every do c-Ode of religion and every code of laws in every art of the a world, among all races of man from the beginning of time until to-day. They are unchangeable, you might say, because other­ in wise it would make society impossible and civilization impossible.

Mr. BAILEY. Mr. President, the Senate is entitled to know of a precisely the reasons which influenced me to propose these amendments; and, although I have once stated them, they will war; bear repetition. · Those who imagine it is easy to amend the Constitution of ment the United States, even to meet an almost universal public would opinion, have studied the history of this country to little advan­ · tage. Outside of the firM ten amendments, which may be re­ the garded as in the nature of a bill of rights, and were. a part al­ recede, most of the adoption of the Constitution itself, there have been member but five amendments ; and not one of them adopted to meet an ence economic or a financial condition.

The eleventh amendment was adopted when the State of upon Georgia was on the point of resisting the decree of the Supreme favors Court of the United States; and to prevent the collision, if not then, at some future time, between state and federal author­ he ities, the eleventh amendment, which forbids the federal courts no to entertain jurisdiction over a State, was adopted.

The twelfth amendment grew out of the famous presidential do election when Aaron Burr and Thomas Jefferson received the same number of votes in the electoral college, thus throwing the people. election into Congress and prolonging it through a period of dangerous anxiety . The Constitution, as it stood at th-at time, direct provided that the candidate receiving the highest number 00: relieve electoral votes should be the President and the candidate rethe next highest n"umber should be the Vice-President. the election of 1800 the Federalists took the precaution of a different vote to their candidates for President and Vice-President, · because in the public · mind the candidates were distinct, though not in the law-there were no candidates for President and Vice-President then as now-but the Democratic electors, then called Republicans, omitted that precaution, and the electoral votes were counted Jeffe1 on and Burr had precisely th~ same number. Thus two candidates having re­ -a majority, but having exactly the same number of votes, election was thrown into the House of Representatives, it was pending for several weeks. Immediately the 'Country perceived the necessity of an amendment to the Constitution, and the twelfth amendment was adopted, providing against such contingencies as had arisen in that case. Nobody the United States ever thought of Aaron Burr being elected President over Thomas Jefferson in 1800. Every elector who his vote for both of them intended that Jefferson -should be · President and Burr should be the Vice-President, but the of the . election disdo ed such a vulnerable point in the Constitution that they promptly amended it.

:hl.'om 1804-that was the date when the twelfth amendment proclaimed as adopted by three-fourths of the Statesthe civil war there was no other amendment adopted, and three amendments grew out of that unhappy conflict. The thirteenth amendment abolished slavery; the fourteenth amendundertook to secure to the lately enfranchised race the protection of the Federal Government. and yet that amendment its . adoption has become a scandal in the constitutional history of the United States, some States adopting it and then rejecting it, and others rejecting it and afterwards adopting it. same thing happened in the case of the fifteenth amendment. Mr. President, if, under the stress and pas ions of that warlike time, constitutional amendments designed to secure the majority considered the fruits of a great victory subjected to such perilous passage, it can not be doubted this proposed amendment may encounter a similar

Mr . CRAWFORD. Mr. President-- The VICE-PRESIDENT. Does the Senator from Texas yield the Senator from South Dakota? Mr. BAILEY. I do. Mr. ORA WFORD . Does the Senator recall an instance where resolution proposing an amendment passed both houses of the Congress of the United States and was submitted to the States approval that failed to receive a ratification from the necesnumber? Mr. BAILEY. Oh, yes; there were 2 out of the first 12 submitted that were rejected. But, Mr. President, whether they were rejected or not, I have been reciting to the Senate the insuperable difficulty of adopting the last two c-0nstituamendments growing out of the war.

Whether those amendments are valid or not-and I myself not believe that .either of them ever co.nstitutionally became pa.rt of the Constitution of the United States, but after the acceptance of them for all these years, after general acquiescence them, that is a closed que tion, and I do not want to see it opened-I would put this to the judgment and to the experience of Senators: Suppose that an amendment authorizing the levy tax on inco.mes had been adopted in the same way as the amendments securing and making permanent the results of the does anybody doubt what would have happened? I do not. I do not doubt that we would long ago have had a judgment the legality of their adoption; nor do I doubt that it have been adverse to the legality of their adoption.

Mr. Pre ident, if, instead of submitting this amendment to legislatures, that may act and 1·eact, and go forward and we submit it to a convention in every State, then every of that convention will be selected solely with referto this single question; he will be compelled to stand in the presence of the people whose suffrage he seeks and declare his honor as a man and as a citizen, whether or not h~ this amendment. No man will be permitted to offer himself as a candidate for the convention in any State without is compelled to declare his position; and, having declared it, man will dare to go to that convention and cast a vote as a delegate to it differing from what he professed his intention to when he was a candidate for it. It will be as nearly as possible a submission of the question to a direct -rote of the Not only, Mr. President, do we thus insure au approach to a vote of the people on the amend .. mcnt, but we likewi e the States themselves from the mistake · of choosing legislators in the coming election with reference to federal rather than with reference to local questions. I can not myself con- ~ivei a much more- unfortunate circumstance than. to find it nece sa.ry. to elect every legislator in this Republic with reference to what he will or will not do in this single case, ignoring the: multitude of things which he. must do fn. his capacity as a representative of the people.

Mr. JONES. l?!Ir. President--

The VICE-PRESIDENT. Does the Senator from Texas yield ta th-e Senator from Washington?

M:r. BAILEY. I do.

1\Ir. JONES. I should like to ask the Senator to indicate wh t authority would call llle convention-the legislature et the' State or the governorr

1\lr. BAILEY. The legislature ,of. the State would be compelled to call the convention. They would b-e compelled to provide for tile el-ection o:ll delegates , . and each legislature may provide for the election of d eiega.tes in precisely the same wrr:y and under precisely the same form as they now choose me-mbers of the legislature. A State that has a primary system of nominating men fo:r the legislature could .. and doubtless would, ado-pt a primary system of nominating delegates . to , the conventions, and thus the ' legislative authority of th-e: State. would determine in the State's 0wll! way-and they have a; right to so determine it-the manner oi. choosing their delegates. If the State of Nebraska sees fit to nominate its delegates under a direct primary, they have the right to do . that· but if the · State o.f Rhode Island does not choose to pursue that policy, she has: the right to- pursue he:r own way without reference to Nebraska's- policy.

Mr. JONESr I did not ask the question in a conbmve:rsial l\fr. BAILEY. I understand that.

.Mr. JONES. I wanted information o:f the Senator. - , ~Ir. BAILEY. I fee l sure that the conventions. can only be · called by the legislatures of the States.

Mr. JONES'. Mr. Presid-ent--

The VICE-PRESIDElli1T. Does the- S'enator from Texa.s :furth.er yield to the Senator from Washington?

1\Ir~ BAILEY Certainly

Mr. JO::t\TES. Would not the opposition to an income tax, to. do SO'. which the Senator- has referred, also act in the legislatures and cause them to- end'e.avor to prevent the calling of conventions by the legislatures?

Mr. BAILEY. Undoubtedly, Ur. President, you ca.n not escape the influence of · the opposition to an income tax ; and I d<> not seek to escape it. 1 only seek to challenge it to a fair ~om- - bat in. an . op.en field. If' a man is opposed to an income tax, I would not deprive him of the right to vote against it, and I would despise him if in his heart he was opposed to it and for any consideration, personal or political, voted for it. This is a country where every freeman's ballot ought to express , a freeman " s will. I am not trying to escape the :influences · that are hostile to this kind of · legislation. I only want those influences to have the mruiliness and courage to stand out in the open and :fight it out ~ I wrurt to see that it is impossible for men seeking an election ta: a legislative body under · one pretense · or unde.r many pretenses- to reach a legislati-ve chamber and then say they have changed their minds. I do not want some governorto send some special message to change the minds of members of the legislature as the President has changed the minds of some Senators. I do not say that in any offensive way. r can understand how a Republican wants- to cooperate with a. :Republican administration. That is not strange to me. r have nocriticism to offer on it; _ but on this question, which affects the: fun.damental law of th~ land, _ I want the adoption or rejection. o-f it free from e-very influence except the consideration of its own.merit, and the only way to absolutely insure that result, in my Judgment, is to have it passed upon by a body selected only 1 lature. with reference ta it

Ur ~ NEWLA.NDS. l\fr. President-- _

The VICE-PRESIDENT. Does- the Senator from Texas yield'. to the Sena.tor from Nevada?

Mr. BAILEY. I do.

1\Ir. NEWLANDS. I wis-h to rrsk the Senator whether ther.e · is not an additional objection to ratification by tl'u~ legislatures in the fact that in many States o~ the Union the higher body, usually called the "senate,' I believe, serves for two sessions and the lo-wer body serves only fo-r- one - ? The Se:nator will recall that the Senator from Nebraska stated that the question of the income tax would be an issue before · the people at the coming election, and that the legislators : ·s would receive their instructions; but suc-h instructions would net apply, o-r might not, at an e-vents, be accepted by the hold-o-ve.r members of the higher body ot" the legislature. l Mr. BAILEY. Mr. · President, , that is ai very pertinent and very · important suggestion, and I would attempt t01 elaborate it, but the clock admonishes me tlmt lire hour has almost arrived for- th~ vote to - be taken, and o-f course I recognize the :rlglrt of the Senato--r from Nebraska [Mr. BROWN] to conclude what is to be said on the subject.

. Mr. BROWN. Ur. President, I do :not care to occupy any of the time of the Senate in further discussion , except to eal1 a.t- tention to this. one situa:tion. The C(}11.veIIt.ioo method o.f :ratification is supported. now by Senators becam;e it would be. easier, they think, I take it, to- get the- ratification through a state convention than. through the legislature. I suppose · that is Ure :rea.­ S:ODT be.cause they are an, , as :E understand, in . favor of amending the Constitution along this proposed line.

M.r. BA~. While: l think it would be: easier, that does not exactly 0:r precisely state my view. If the people of · the United States are oppo ed. to t.his amendment, it ought not to be. ad-Opted; but I think the convention method will insure a. more absolutely a:cc.ura:te expression of 1mb.Ifc wtHJ because of the fact that it will be selected with reference to- that question, and that question alone.

N'iJ , lUr. President, with the permis ion. o:f the Senator, I want to add that a number of Senators have sugg:ested to me that the. question. of expense might be an. important one-, and therefore I desire to say that if the amendment I propose should be adopted and we should refer this joint resolution to conventions, instead of to the legislatures, I shall follow i t with a. resolution providing, out of the · General Treasury, for the expense of holding the conventions in: eve:ry State.

Mr. McCUMBER. lli. President, with the permission of the Senator in charge of th-e matter, 1 should like to ask tile. Senator from Texas a question-.

Mr. BAILEY. Certainly ..

1\Ir. BROWN. I yield.

~fi. Me{}filIBER. U I correctly understand the . Sena:torfrom Te:x.a:s, he admits that. the legislature . of' the State: would have · to • eail the- convention.

1\Ir. BAILEY. I think Ura.t is true, Mr. Presiden.t l\Ir. l\IcOUl\IBER. And there is IlQ power to compel the legislature to call the convention u · the legislature refuses. to 1\Ir. BAILEY. Nor would there be any power to compel the legislature to vote- on th~ question ii it did not choose to do , so. Mr. McCUMBER. Right tlreli'eo is where we · can pr · probably m'eet. O'ne · member ot: a legislature can. compel th . e. legislature to vote for or against an amendment . .

:Mr. BAILEY. Oh, no; tt would have to be: done b-y a: quorum. Mr. McCUMBER. V\i Well, he can get tt before the. legislature; i but one member of a legislature, or less than a majority · of each hous.e-, could not compel ~ the calling o.f a conventi-0:n..

Mr. BAILEY. He wcrnidl have precisely the same power in one as- in the ' other. He could do just as. m.uch toward forcing the call of . a convention as - he could toward forcing a vo-te: in the - legislature.

Mr. McCUMBER. Admitting th.3:4 again, ff the legislature were composed e-f men who wo-fild naturally be against the amend'ment, would it not be more convenient and mo-re easy for them to avoid the calling of a convention than it would to meet the matter directly?

Mr-. BAILEY. It would not. be any more easy to do · so than it would 'be to n~ · reject th-e- resolution ff n. maJo.rity were oppo-sed to it. I know there are a lot of cowards. in politics, but I am not assuming that they are a - majority anywhere. '1 am · proceeding upon the theory that if a m a jority of the memb e- rs of any legislature in the Union are opposed to this amendment, they will vote against it.

M1~. McCUMBER. The point I want to- make to the Senator is. that, in either event, we will have to depend upon the legislature. BAILEY. Undoubtedly.

l\fr. McCUMBER. We will have to depend upon the same legislature to call the convention that we will .have · fo depend upon too vote · directly upon the- amendm en t.

Mr. BAILEY. But th:e difference is--

Mr . . 1'.lcOUMBEil. Just a m o ment. If' there- is power enough on the part o:f the friends of . the amendment to - call the convention undoubtedly there would be power enough to get it to pass the amendment.

Mr. BAILEY. Let me put the matter in this way . Suppose the Senator we-re a m e mber of ::r Et a t Te 0 i s lature, a:n:d thl con­ stitutional amendment is duly eub ruHte.d to b e- passed upon by a constitutional convention, w eu ld the- s · Senator refuse to v-ote for a law eaJUng that constitutional convention? · I think not. ~fr~ l\Ic~IBEI.-t. Neither would! I refuse to vote- for a law ratifying tire- amendment.

Mr. BAILEY. But suppose the Senator were opposed to it? Mr . BORAH. I will not state the Senator's case, but will state my own. If I were a member of the Texas legislature, and this amendment were submitted for ratification by the legislature, and I were opposed to it, I should vote against it; and they might bring Gatling guns and train them on the capitol, but I would still vote against it if I were honestly opposed -! d to it. But, sir, if to whom? the amendment were submitted to the ratification or disposition of a convention, I should feel in honor bound, both as a member of the legislature and as a citizen, to afford to the people of Texas an opportunity to pass in a lawful and an orderly way upon the question. I should therefore vote without the slightest hesitation in favor of calling a convention to pass upon the question, notwithstanding the fact that I intended to offer myself as a candidate for that convention for the purpose of voting against the ratification of the amendment.

So I do not hesitate to say that there is a vast difference between a legislator who might vote against the ratification of the amendment if submitted to the legislature and one who would vote against submitting it to a convention in pursuance of the resolution of Congress. ·

Mr. HEYBURN. May I make a suggestion to the Senator from Texas?

The VICE-PRESIDENT. Does the Senator from Nebraska yield?

Mr. BROWN. I do.

Mr. HEYBURN. .As I read Article V of the Constitution, which is the article providing for amendments, a state legislature has nothing to do with the question whether or not an amendment shall be submitted to a convention. Congress is to say whether it shall be passed upon by the legislature or by a convention, and the legislature can not refer it to a convention. Congress is clothed with the authority to adopt that course if it sees fit.

Mr. BAILEY . I do not understand the Senator from North Dakota to suggest that the legislature might refer it to a convention. I understood his question to be whether the legislature might not refuse to call a convention. ·

Mr . McCU.MBER. That is correct.

Mr . HEYBURN. Mr. President, I think that hardly covers it.

Mr. BEVERIDGE. How could the convention be called if the legislature did not call it?

.Mr. HEYBURN. Congress provides the m a nner of calling it. Mr. McCUMBER. Congress does not call the convention.

Mr. BAILEY. Unless the Senator from Nebraska is entirely willing, I feel that I must--

Mr. HEYBURN . I am not going to occupy a quarter of a minute; but this is an important point. .Article V does not vest power in the legislature of a State to call a convention . It says that Congress may determine whether a convention shall decide this question or whether the legislature shall decide it. But it is just as probable that the governor would call the convention if the act of Congress authorized him to do it.

Mr. BAILEY. The trouble with that is that it would be necessary to provide for the manner in which members should be elected, and the governor could hardly do that.

Mr. BROWN . That would require a session of the legislature.

Mr. HEYBURN. I did not desire to consume this time, as other Senators may desire to make suggestions. I merely gave out the suggestion because it seemed naturally to grow out of the language of Article V .

~ : fr. BROWN . Now, Mr. President, just a word.

.Mr. BAILEY. Will the Senator permit me?

Mr . BROWN. Just a word, and I will yield the floor. This discussion has resulted in an agreement by all p a rties that the legislature must act, whether we follow the plan suggested by the resolution or whether we provide for ratification by a convention. With the proposed plan, which is the usual and customary plan, the legislature is the only . obstacle in the Under the proposal of the Senator from Texas to refer the matter to a con v ention, we not only have the legislature still in the way, but we have the convention in the way. In other words, you have to have a legislature that is friendly enough to the proposition to pass a law that will be fair enough to allow the people to select delegates to a convention; and then mount-- you have to wait until the adjournment of the legislature, and until a convention is called, before you get any action either for or against the amendment. Will some Senator tell me the need of that postponement? In the West we can trust to the legislatures of the States. This is the usual and customary way. Let us follow it if we are in favor of the amendment. If we are not, let us present all the difficulties and offer all the complications that an untried experiment may suggest .