February 17, 1932

The VICE PRESIDENT laid before the Senate the amendment of the House of Representatives to the joint resolution (S. J. Res. 14) proposing an amendment i.•J the Constitution of the United States fixing the commencement of the terms of President and Vice President and Members of Congress and fixing the time of the assembling of congress, which was to strike out all after the resolving clause and insert:

That the following amendment to the Constitution be, and hereby is, proposed to the States, to become valid as a part of said Constitution when ratified by the legislatures of the several States as provided in the Constitution:

"ARTICLE-

"SECTION 1. The terms of the President and Vice President shall end at noon on the 24th day of January, and the terms of Senators and Representatives at noon on the 4th day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

"SEc. 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 4th day of January, unless they shall by law appoint a different day.

" SEc. 3. II the President elect dies, then the Vice President elect shall become President. If a President is not chosen before the time fixed for the beginning of his term, or if the President elect falls to qualify, then the Vice President elect shall , act as President until a President has qualified; and the Congress may by law provide for the case where neither a President elect nor a Vice President elect has qualified, declaring who shall then act as President, or the manner in which a qualified person shall be selected, and such person shall act accordingly until a President or Vice President . has qualified.

"SEc. 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice devolves upon them, . and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice devolves upon them.

"SEc. 5. Sections 1 and 2 shall take effect on the 30th day of November of the year following the year in which this article is ratified.

" SEc. 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legis latures of three-fourths of the States within seven years from the date of the submission hereof to the States by the Congress, and the act of ratification shall be by legislatures, the entire membership of at least one branch of which shall have been elected subsequent to such date of submission."

Mr. NORRIS. Mr. President, I move that the Senate disagree to the amendment of the House of Representatives, ask for a conference with the House on the disagreeing votes of the two Houses, and that the Chair appoint the conferees on the part of the Senate.

The VICE PRESIDENT. The question is on the motion of the Senator from Nebraska.

Mr. ROBINSON of Arkansas. :Mr. President, I inquire what is the effect of the amendment adopted by the House?

Mr. NORRIS. As a matter of fact, it is put in the form of one amendment and it follows the Senate joint resolution with one or two exceptions, where slight changes have been made which are of no particular fundamental importance.

Mr. ROBINSON of Arkansas. The Senator prefers, however, to have the joint resolution go to conference?

Mr. NORRIS. I think there is no doubt that the differences can reasonably be threshed out in conference without the consumption of much time.

Mr. ASHURST. Mr. President-

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

Mr. NORRIS. I yield.

Mr. ASHURST. I do not wish unduly to intrude upon the time of the Senator from Nebraska, but in view of the motion which he, as chairman of the Senate CLmmittee on the Judiciary, has made-and I think he did well to make the motion-! desire to submit an observation.

One of the vital changes which the House of Representatives made in the so-called " lame duck " amendment to the Constitution is that the amendment, in order to become effective and operative, must be ratified within seven years from the date of its submission. There is a considerable difference of opinion amongst lawyers, historians, and antiquarians as to whether or not there can be imposed any limitation as to time of ratification in the case of an amendment that is submitted. I believe that a limitation of the time within which an amendment may be ratified is sound and necessary, and for the following reasons:

Five different amendments proposed by the Congress are, by some persons, assumed now to be pending before the States for their action. These amendments are as follows: One proposed September 29, 1789, 143 years ago, relating to enumeration and representation:

ARTicLE I. After the first enumeration required by the first article of the Constitution there shall be 1 Representative for every 30,000 until the number shall amount to 100, after which the proportion shall be so regulated by Congress that there s h all be not less than 100 Representatives, nor less than 1 Representative for every 40,000 persons, until the number of Representatives shall amount to 200, after which the proportion shall be so regulated by Congress that there shall not be less than 200 Representatives nor more than 1 Representative for every 50,000 persons. Another, proposed September 29, 1789, 143 years ago, re .. lating to compensation of Members of Congress:

ART. II. No law varying the compensation for the services of the Senators and Representatives shall take effect until an elec· tion of Representatives shall have intervened.

Another, proposed January 12, 1810, 122 years ago, to prohibit citizens of the United States from accepting presents, pensions, or titles from princes or from foreign powers: If any citizen of the United States shall accept, claim, receive, or retain any title of nobility or honor, or shall, without the consent of Congress, accept and retain any present, pension, office, or emolument of any kind whatever from any emperor, king, prince, or foreign power, such person shall cease to be a citizen of the United States and shall be incapable of holding any office of trust or profit under them, or either of them.

Another, proposed March 2, 1861, 71 years ago, known as the Corwin amendment, prohibiting Congress from interfering with slavery within the States:

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws o! said State. (12 Stat. 251.)

And still another, proposed June 2, 1924, the child labor amendment:

SEcTioN · 1. The Congress shall have power to limit, regulate, and prohibit the labor of persons under 18 years of age.

SEc. 2. The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress.

On September 29, 1789, 12 constitutional amendments were proposed by the First Congress. The requisite number of States ratified proposed articles Nos. 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 within two years and three months, while Nos. 1 and 2, although proposed 143 years ago, have not, according to the latest available returns, received favorable action by the requisite number of States and are yet before the American people or the States; rather, are now subject to ratification - or rejection by the States. After those two proposed amendments, to wit: Nos. 1 and 2, had been in nubibus-in the clouds-for 84 years, the Ohio State Senate in 1873, in response to a tide of indignation that swept over the land in opposition to the so - called back-salary grab, resurrected proposed amendment No.2 and passed a resolution of ratification through the State senate. No criticism can be vis i ted upon the Ohio Legislature that attempted to ratify the amendment proposed in 1789; and if the amendment had been freshly proposed by Congress at the time of the backsalary grab, instead of having been drawn forth from musty: tomes, where it had so long lain idle, stale, and dormant, other States doubtless would have ratified it during the period from 1873 to 1881.

Thus it would seem that a period of 143 years within which a State may act is altogether too long. We should not hand down to posterity a conglomerate mass of.amendments floating around in a nebulous haze, which a State here may resurrect and ratify and a State there may galvanize and ratify.

We ought to have homogeneous, steady, united exertion, and certainly we should have contemporaneous action with reference to proposed amendments. Judgment on the case should be rendered within the lifetime of those interested in bringing about the change in our fundamental law. Final action should be had while the discussions and arguments are within the remembrance of those who are call e d upon to act.

The amendment proposed on January 12, 1810, was submitted to the States under peculiar auspices.

It is probable that the Congress which submitted that amendment believed that when officials accept presents of value they dissolve the pearl of independence in the vinegar of obligation.

Unfortunately, the annals of Congress and contemporary negation. newspapers · do not give any of the debate upon this interesting proposition. The only light thrown upon the subject by the annals js . the remarks of Mr. Macon, who said " he considered the vote on this question as deciding whether or not we were to have members of the Legion of Honor in this country."

What event connected with our diplomatic or political history suggested the need of such an amendment is not now apparent, but it is possible that the presence of Jerome Bonaparte in this country a few years previous and his marriage to a Maryland lady, may , have suggested t:P..is amendment.

An article in Niles' Register, volume 72, page 166, written many years after this event, refers to an amendment · having been adopted to prevent any but native-born citizens from being President of the United States. This is, of course, a mistake, as the Constitution in its original form contained such a provision; but it may be possible that the circumstances referred to by the writer in Niles' relate to the passage through Congress of this amendment. The article referred to maintains that at the time Jerome Bonaparte was in this country the Federalist Party, as a political trick, affecting to apprehend that Jerome might find his way to the Presidency through" French influence," proposed the amendment. The Federalists thought the Democrats would oppose the amendment as unnecessary, which would thus appear to the public as a further proof of their subserviency to French influence. The Democrats , to a void this imputation, concluded to carry the amendment.

"It can do no harm " was what reconciled all to the amendment.

That amendment was submitted by Congress . 122 years ago, and it was ratified within two years by Maryland, KentuckY, Ohio, Delaware, Pennsylvania, New Jersey, Vermont, Tennessee, Georgia, North Carolina, Ma-ssachusetts, and New Hampshire. It was rejected by two or three of the States. At one period of our national life the histories and the public men announced that it was a part of our organic la w, and this error arose because in the early days of our Government the Secretary of State did not send messages to Congress announcing ratification and did not promulgate any notice as to when an amendment became a part of the Con stitution. I have caused the journals, records, and files in the Department of State to be searched, and there may not be found any notice of any proclamation of the ratifica tion of the first 10 amendments to the Constitution. The States assumed-it was not an unwarranted or violent assumption-that when the requisite number of States had ratified an amendment it was then and there a part of our organic law.

On March 2, 1861, the Corwin amendment, quoted above, was proposed by Congress.

There are not a thol.isand persons in the United States who know that such an amendment is now pending before the various States of the Union for their ratification. The amendment was ratified by the State of Ohio and by the State of Maryland through their legislatures, and was attempted to be ratified by the State of illinois in 1862 by a convention.

Thus we perceive that a system which permits of no limitation as to the time when an amendment may be voted upon by the State legislatures is not fair to posterity or to the present generation. It keeps historians, publishers, and annalists, as well as the general public, constantly in doubt. Having searched closely as to whether there is in the Constitution itself any expressed or implied limitation of time as to when an amendment may be adopted, I am driven irresistibly to the conclusion, with all due deference to the opinion in Dillon v. Gloss (256 U. S. Repts. 3 . 68) that an amendment to the Constitution once having been duly proposed, although proposed as remotely as September 29, 1789, may not be recalled even by the unanimous vote of both Houses, if the Congress wished the same recalled, because the power to submit an amendment is specifically pointed out; but no power is given to recall the same, and silence is I am of opinion that a . State which rejects a proposed amendment may, of course, at any time thereafter ratify the same, and a State which adopts or ratifies a proposed amendment may withdraw its ratification, provided it withdraws such ratification before the required number of States shall have ratified. I incline to the view of the chairman of the Judiciary Committee of the Senate [Mr. NoRRis] that a general amendment · should be adopted dealing specifically with . the particular subject so that there may be some uniformity and certainty as to the length of time within which a proposed amendment to the Con stitution may be ratified. That is all I care to say now, as the joint resolution will go to conference and the differences may be composed.

Mr. NORRIS. Mr. President, I think there is wisdom in what the Senator from Arizona has just stated. There ought to be a limitation upon all amendments proposed to the Constitution; the States ought to be required to act one way or the other within a limited time. However, my own judgment is that that ought to be brought about by separate amendment to the Constitution amending the provision of the Constitution relating to the submission of amendments, and that we ought to state in that just what time should elapse before a proposed amendment, if not ratified within that time, would become void.

I do not believe it is good practice continually to tack on to amendments to the Constitution a limitation as to a particular amendment that does not apply to all other amendments. I should favor a constitutional amendment that would settle that difficulty. I agree entirely with the Senator from Arizona that these amendments ought to be disposed of by the people some time within reasonable limits, and not let posterity take up a proposal and pass on it after everybody has forgotten about it; but personally I am not in favor of tacking that limitation on this amendment.

Mr. ASHURST. Mr. President--

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

Mr. NORRIS. Yes; I yield.

Mr. ASHURST. Let me illustrate one of the vices or possibilities that not only might but did grow out of an amendment pending so long.

I think about 1873 Cong ress passed what was called in common parlance the" back-salary grab," and there was at that time pending, and had been since 1789, an amendment prohibiting that very act. The Legislature of Ohio, in indignation at the so-called back-salary grab, picked up this amendment, which had been floating in the clouds since 1789, and one of the two houses of the Legislature of Ohio ratified that hoary old proposed amendment.

Mr. NORRIS. I think that is true. It illustrates what might happen on any amendment that is submitted; but, in my judgment, - it is manifestly unfair to tack on to any proposed amen . amendment to the Constitution a limitation that does not apply and that will not apply to every amendment to the Constitution. Personally, I think seven years is long enough; so that fundamentally I have no objection to that, except that it ought to be a general amendment to the Constitution. I have long had it in my mind to propose such an amendment; but, as everybody knows, it is a very difficult thing to . ge.t amendments submitted in the first place.

Mr. ROBINSON of Arkansas. Under the circumstances, Mr. President, I am satisfied that the joint resolution should go to conference.

l\1:r. BINGHAM. Mr. President, · thanks to the courtesy of the chairman of the Judiciary Committee, a subcommittee is now sitting and started hearings yesterday on various proposals for amending the :fifth article of the Constitution, which, Senators will remember, deals with the question of amendments and how they may be submitted and how they may be adopted.

In the hearings yesterday there was suggested, as a proper clause to be added to whatever amendment the committee reports out, the very provision referred to by the Senator from Nebraska a few minutes ago-that all amendments must be passed upon within :five or seven years, or else become of no validity. I hope the Senator from Nebraska will aid and assist us in seeing to it that this amendment to Article Vis perfected in accordance with those lines. .May I say, Mr. President, that the principal reason given by the advocates of a change in Article V is that the Supreme Court has decided by various decisions that it is impossible for the citizens of a State to pass a law or an amendment to their own constitution providing that their legislature, before passing on an amendment to the Constitution, must have been elected at an election subsequent to the submission by the Congress of the amendment to the Constitution. Furthermore, the Supreme Court has decided that plebiscites or referenda held in the States, in accordance with State practice, having to do with amendments to the Constitution of the United States are of no effect and are not binding on the State legislature.

The proposals before the subcommittee are various. One proposal is that all amendments to the Constitution be sub- Chair. mitted to the people of the several States for vote; another, that all amendments h:aving to do with the powers of the Federal Government over the people be submitted to conventions to be chosen for that purpose; and another, that all necticut. amendments having to do with the powers of the Federal Government over the people be submitted to the people themselves.

I hope very much that the Senator from Nebraska, the chairman of the committee, will give the Senate an opportunity to debate and to pass upon whatever amendment to Article V his committee :finds will best meet the needs of the situation as we find it to-day.

Mr. NORRIS. Mr. President, I want to assure the Senator that I am in favor of amending Article V of the Constitution; and a great many suggestions are made as to how it should be amended. I hope they can be threshed out and that some agreement can be reached and the matter submitted to the legislatures. However, I am not in favor of coupling with the amendment some other proposition that would amend the Constitution in some other respect. The amendment of Article V ought to stand alone and by itself, and apply, in my opinion, to all amendments alike. One of the Senator's propositions attempts to differentiate between different kinds of amendments.

Mr. ROBINSON of Arkansas. 1\.fr. President, will the Senator yield?

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

Mr. NORRIS. Yes.

Mr. ROBINSON of Arkansas. And that principle ought to be preserved throughout.

Mr. NORRIS. Yes, sir.

Mr. ROBINSON of Arkansas. All amendments to the Constitution of the United States ought to be separately considered and acted upon, and should never be combined with other amendments except in the cases where it is necessary to give effect to the primary amendment.

Mr. NORRIS. Exactly.

Mr. BINGHAM. Mr. President, will the Senator yield?

I\.fr. NORRIS. In just a moment.

This particular amendment made by the House to the proposed amendment now under consideration not only pro­ . vides that it shall be agreed to in seven years, but it provides that at least one branch of the legislature of each State must be elected after the submission of this amendment. I think we all understand the principle involved in that-so that there may be more or less an issue of this particular amendment involved in the various campaigns for the election of a legislature.

As a member of my State I would not favor an amendment of that kind, because I would not want to couple with the question of an amendment to the . Constitution of the United States the various State questions that might be involved in the election of a legislature. For instance, we can imagine all kinds of issues of a State nature, a local nature, that might be involved in the election of a legislature in that State; and if we coupled with it and threw into those local matters a national issue as to whether or not certain amendments should be approved, it might result in that issue overshadowing the real local issue upon which the legislature of the State had jurisdiction. So I think we ought not particularly to add to the proposal the provision that is added to this one, because it might result in the defeat of an amendment to the Constitution that everybody in the State voting against it wanted, because when the voter was going to vote for a member of the legislature he would be confronted with the ideas of that candidate on local matters that were directly at issue in that campaign, and also confronted with the ideas of the candidate on the national amendment. So he might be up against the proposition that the man he wanted to vote for, who agreed with him on the State issues, would be absolutely on - the other side of the fence on the national issue, and there would be no way for a voter really to express his views when he cast his ballot.

Mr. BINGHAM and Mr. BROOKHART addressed the

The VICE PRESIDENT. Does the Senator from Nebraska yield; and if so, to whom?

Mr. NOR . RIS. I yield" first to the Senator from Con-

Mr. BINGHAM. Will the Senator permit me to say that he has just given the most cogent and logical reason for a change in Article V, for the reason that at present practically the only way we can get an amendment to the Constitution adopted is through the legislatures whose members are elected for quite other objects.

Mr. NORRIS. That is true.

Now I yield to the Senator from Iowa.

Mr. BROOKHART. Mr. President, since the Constitution provides only two methods of ratification-one by the legislatures and the other by conventions-and gives Congress the right to say which method shall be adopted, when Congress provides that the legislatures shall ratify has it any further power to say what legislature • . or how selected, or anything about it? Is not that for the States to decide?

Mr. NORRIS. It presents-and that is involved in this amendment-a constitutional question of great importance, as to whether we can impose a limitation that is not already imposed by the Constitution itself when we seek to amend it. I think it is a very serious question whether or not such a limitation has any legal effect; but if I had my own way about it I would not submit to a legislature elected upon a different issue the question as to whether they should have the authority to pass upon amendments to the Constitution, because we ought not to interfere with the State in the election of members of its legislature who have nothing of a national character connected with their duties, and who are elected often upon sharp, well-defined issues of a State nature entirely. By putting into that contest a national issue that has no connection with the State issue we have often confronted the electorate with a problem that is impossible of solution in a way that is satisfactory to the man who casts his ballot. I do not know that it is necessary to state what I would do in that case if I had my way about it, because that is not involved in this matter.

Mr. FESS. Mr. President--

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

Mr. NORRIS. I yield to the Senator from Ohio.

Mr. FESS. I should like to ask the Senator a question on another phase of the amendment to the Constitution, and ask him whether he has ever given any attention to it.

The people vote for the electors for President under the law in November. Then the electors meet in their various States and vote for President at a different date. Then, at a subsequent date, the vote is sent here and counted in the House of Representatives in February.

Now, this is my query: If, between the time the vote is counted in the Senate and the inauguration, which would be on the 4th of. March, both the President elect and the Vice President elect should die, it is stated that there would be an interregnum that is not provided for either in the Constitution or in the laws, and there would be a possibility that we would have a period with no provision for President. The President ends his term on the 4th of March. The Vice President holds until his successor is elected; but in this case, with the President elect and the Vice President elect both removed, the question is whether the electors would be recalled and vote, or whether, when they do vote, they have offi.cially ceased to exist.

The matter has been discussed by constitutional lawYerS, and it is believed that there is an interregnum. No effort, so far as I know, has ever been made to amend the Consti- have had. tution to cover that period. Has the Senator ever given any attention to it?

Mr. NORRIS. Oh, yes. It is involved in this amendment. One of the amendments of the House covers that.

Mr. FESS. I was no t aware of that ·

Mr. NORRIS. Yes; and ii did before in the other amendment.

Mr. President. that reminds me that one of the amendments-the only one made by the House--covers that proposition, a very important thing that ought to be covere d. I think everybody concedes it; but there is only one possible objection, which I do not think exists in this case, to that particular amendment. That is, whenever we submit amendments to the Constitution if we couple a whole lot of them together we run the risk of having them all defeated .. because one legislature will oppose the proposal on one ground and another will oppose it on some other provision in it. ·

An amendment was offered in the House of Representatives when this matter was pending there providing for a 4-year term for Members of the House of Representatives and argued to some extent. In the debate in the House of Representatives one of the Members read into the REcoRD a speech I made when I was a Member of the House m favor of that kind of a propos-ition, I suppose using it as an argument, because it was known that I was opposed to having the House put that kind of an amendment on this particular proposal. I was called upon by a good many Members of the House with regard to that amendment before it was offered and after it had been offered. I strenuously objected to their putting any such amendment on this proposed amendment to the Constitution but not because I was opposed to making the terms of Members of the House longer. I still believe that the Constitution ded d that M b 0 f the H 0 cought to be- amended an em ers House Representatives should be elected for four years instead of two.

It seems to me that two years is too short a term, although forces. the proposed amendment, • if carried t hroug • will 11 matter to a great extent, because the Members elect will actually get into harness long before they do now. They will go into offi.ce in January after they are elected in r. The only obJ"ection 1 would have to putting Novembe that amendment. or any other amendment like it, on the proposed constitutional amendment would be the danger of killing the whole thing before a legislature through putting too much in it. No doubt some proposition about which there is no dispute, which I think is the case with the so-called " lame duck J ' amendment, will be approved by the legislatures; but if . a legislature could not approve it without approving something else the legislature did not want, they might not approve anything.

The VICE PRESIDENT. The question is on agreeing to the motion made by the Senator from Nebraska EMr. NoRRIS].

The motion was agreed to; and the Vice President appointed Mr. NoRRIS, Mr. BoRAH, and Mr. WALSH of Montana conferees on the part of the Senate. ·