February 15, 1933 (2)

Mr. WALSH of Montana. I simply challenge the statement that the Federal power must be dominant when there is a concurrent power.

Mr. WAGNER. Except that in the case of the eighteenth amendment the United States Supreme Court says it is dominant. That is the difficulty in the situation. That is what I have stated, and it has been so held by the United States Supreme Court.

Mr. WALSH of Montana. The Supreme Court of the United States has never outlawed a State statute because it was contrary to a Federal statute on prohibition.

Mr. WAGNER. It never has had, in the case of the eighteenth amendment, the question of a State statute where States were given concurrent power.

Mr. WALSH of Montana. The Federal Government could make a certain act or series of acts criminal, and the States could make them likewise criminal, or could make lesser or greater acts criminal.

Mr. WAGNER. That is not acting differently; but if the State acted in conflict with the Federal Government in the matter of legislation in the regulation of intoxicants, as the Supreme Court has stated in the liquor cases, the Federal Government would be dominant. ·

Mr. WALSH of Montana. I rise merely to say that there are a great many instances in which the Federal Government and the State government exercise concurrent power.

Mr. WAGNER. They remain concurrent so long as they are not in conflict.

Third. The real cause of the failure of the eighteenth amendment was that it attempted to impose a single standard of conduct upon all the people of the United States without regard to local sentiment and local habits. Section 3 of the pending joint resolution proposes to condemn the new amendment to a similar fate of failure and futility. No law can live unless it finds lodgment in the public conscience and is nourished by public support.

True enough, section 3 does not in itself impose a national standard, but it invites Congress to impose it; and to that extent it is an invitation to further nullification, a perpetuation of the conflict between governmental authority and public opinion.

Fourth. In order to exercise the power "to regulate or prohibit" which is conferred by section 3, Congress will have to provide an enforcement agency. But that is not all Any realistic calculation will reveal that the agency will be larger, more expensive, and more subject to abuse and corruption than the Bureau of Prohibition. The kind of regulation which may be fairly anticipated under section 3 can not possibly be administered except by a genuine police force of thousands upon thousands of officers. The Federal Government has never been equipped with such a force, and rt can not be so equipped unless we alter the nature of our Government beyond recognition.

Mr. BORAH. Mr. President--

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

Mr. WAGNER. I do.

Mr. BORAH. I take it from the Senator's argument that he is of the opinion · that it is impossible, as a practical proposition, for the National Government to control the manner of consumption or the place of drinking of this beverage, once it has been legalized or permitted to be sold.

Mr. WAGNER. I do not quite understand the Senator's question. ·

Mr. BORAH. I say, I take it that the Senator's position is that as a practical proposition the National Government can not enforce any constitutional amendment which undertakes to control the place of consumption or the place where the beverage shall be drunk, once you have repealed the eighteenth amendment.

Mr. WAGNER. That is exactly what my point is.

Mr. BORAH. Yes; that is what I took it to be.

Mr. WAGNER. And it has not done it so far. It has attempted it under the eighteenth amendment.

Mr. BORAH. In other words, it being contended that it is impossible now to prevent the sale and the consumption of liquor at a particular place, certainly we can not do it after we have legalized its sale.

I am not disposed to differ from the Senator about that proposition; but what I should like to ask the Senator is whether there is any practical way, in his opinion, by which the National Government can prevent the return of the saloon once we have legalized the sale of intoxicating liquors and turned it back to the states.

Mr. WAGNER. Have confidence in your State governments. We have confidence in our State governments to deal with other and much more important subjects. We have confidence in our State governments to administer justice, to provide for the national defense, to provide for the education of their children, to protect their people against crime and criminals. All of these matters are now dealt with effectively and successfully by the State governments; and I say this matter of controlling the habits of people and regulating them is a local affair and in the province of State government, and the only way to deal with it successfully is to leave it to the conscience of the people of each State instead of attempting to set up a uniform standard for all of the people of the United States. Then, in my judgment, we will get laws which are in harmony with the conscience of the people, and which will on that account be supported and enforced.

Mr. BORAH. Perhaps I did not put my question as I should have. In other words, the Senator thinks the question of determining whether or not the saloon shall return must be left entirely to the States?

Mr. WAGNER. It must be left to the states; and I believe the overwhelming sentiment in this country is so definite in- every state that we will have no return of the saloon. I can say that for the State of New York; but let the people of each State deal with that subject, and they will do it more effectively and more successfully than the Federal Government has done, because it is not the business of the Federal Government.

Mr. BORAH. I understood the Senator to say that he could speak definitely for the State of New York on that subject. The Senator feels assured that the State of New York will not permit the return of the saloon?

Mr. WAGNER. I believe that to be the fact, because I believe that is the overwhelming sentiment of the people of the State; and that is what controls the enactment and enforcement of law-the enlightened sentiment of the community.

Mr. BORAH. We are advised by the newspapers that there are some 5,000 saloons now in New York City. [Laughter in the galleries.]

Mr. WAGNER. Yes; as a result of the effort of the Federal Government to regulate local habits. Leave it to the people of the State of · New York, and that matter will be dealt with. The condition described by the Senator from Idaho obtains not only in New York; it is true of the entire country; showing what an utter failure the Federal Govern .. ment has made in its effort to regulate by a single standard throughout the country the habits of the people.

Mr. BORAH. But the State of New York repealed all its laws which aided the National Government in preventing the return of the saloon.

Mr. WAGNER. Yes; it did.

Mr. _ GLASS. Mr. President, may I ask if the laws of the State of New York were enforced before the repeal of the Gage-Mullan Act? Did you not have saloons in New York in spite of the laws of New York?

Mr. WAGNER. Because the standard of regulation for the liquor traffic was fixed by the Federal Government, and it was not in conformity with the opinion of the people of the State of New York, national prohibition did not enjoy the support of the opinion of the people of the State of New York, and I think since the last election we can say that it is regarded by the people of the United States as an utter failure.

Mr. GLASS. I am not talking · about that. What I am asking the Senator is, Whether the State of New York did not have a statute undertaking to regulate the liquor traffic, and whether it did regulate the liquor traffic?

Mr. WAGNER. Is the Senator speaking of the time before prohibition?

Mr. GLASS. You had the Gage-Mullan Act.

Mr. WAGNER. We had no power to regulate the liquor traffic. All that we could do was to pass laws supplementing the efforts of the Federal prohibition agents to enforce the

Mr. GLASS. What I am asking the Senator is, Were those laws effective?

Mr. WAGNER. I do not think they were.

Mr. GLASS. Then why does the Senator think that a law of the State of New York would be effective hereafter in preventing the return of the saloon?

Mr. WAGNER. Because we in New York were not allowed to deal with and regulate that traffic, we were compelled to take the regulations of the Federal Government with reference to the enforcement of the law. That is the reason.

Mr. GLASS. The proposition here is not to regulate; it is to prohibit the return of the saloon.

Mr. WAGNER. I think I have convinced the Senatorthat it means more than that.

Mr. GLASS. I do not think it even means that. [Laughter in the galleries.]

The PRESIDING OFFICER. Let there be order in the galleries.

Mr. WAGNER. I want to discuss the legal effects of section 3.

Fifth. Let no one harbor the hope that the power granted in section 3 will remain unexercised; or the misapprehension that its purpose is but to serve as a threat against the State which departs from the course desired by a majority of Congress. We know perfectly well that the grant of the power "to regulate or prohibit" as defined in section 3 will lead inevitably to State reliance upon the Federal Government to enforce the local laws of the dry communities. As under the eighteenth amendment, so under the new proposal, responsibility will be shifted from the States, where it belongs, to the Federal Government; and once again the people of one section will be taxed for the enforcement of a law they do not want in order to relieve the people of another section of the burden of enforcing a local law which they do want.

Sixth. It is no simple matter to "regulate or prohibit the sale of intoxicating liquors to be drunk on the premises where sold." The history of the liquor problem before prohibition is replete with instances of the ingenuity used to circumvent such regulation. I recall, as an instance, the so-called Raines law hotels. The problem is one which calls for constant vigilance by those familiar with local habits and sentiment. It can be effectively dealt with only by local legislation and local enforcement. To pretend that the National Legislature and a Federal enforcement body can cope with it is to deny the lesson of experience under the eighteenth amendment.

Seventh. And now let us examine the implications of section 3. Let us weigh just how much power we are conferring upon the Federal Government. Let us see whether we are in fact materially changing the now universally rejected system of nation-wide prohibition.

On its face, the power of Congress seems to be rather limited. It is by the language of section 3 restricted to the prohibition or regulation of" the sale of intoxicating liquors to be drunk on the premises where sold." But I submit, Mr. President, that anyone familiar with the history of constitutional interpretation can entertain no doubt that this apparently limited power can be extended to boundaries now undreamed of and unsuspected by those who tender this joint resolution to the Senate. It is possible to cite illustrations of that fact from numerous branches of law. I shall limit myself to the history of the eighteenth amendment itself.

When that amendment was presented to the States for ratification, the prohibition it contained was expressly limited to liquors which were intoxicating and for beverage purposes. It did not contain any additional grant to Congress of power to regulate all liquors, whether intoxicating or not, whether for beverage purposes or otherwise. Like the joint resolution before us, it carried simply a grant of "concurrent power " to enforce the article of amendment.

What has been the development of that language? By virtue of it, Congress has prohibited the manufacture, sale, and transportation of nonintoxicating beverages, and the Supreme Court has sustained its action. (The National Prohibition cases, 253 U. S. 350.)

By virtue of the apparently limited language of the eighteenth amendment, Congress has regulated the local manufacture of liquids not intended for and unfit for beverage purposes. (Selzman v. United States, 268 U. S. 466, involving denatured alcohol.)

By virtue of it, Congress has prohibited physicians from prescribing malt liquors for their patients. (Everards’ Breweries v. Day, 265 U. S. 545.)

By virtue of it, Congress has severely restricted physicians in the prescription of spirits to their patients, and the supreme Court validated its action. (Lambert v. Yellowley, 272 u. s. 581.)

To all intents and purposes, the eighteenth amendment might have contained the additional clause that " Congress shall have power to prohibit or regulate the traffic in an liquors, intoxicating or not, for beverage, industrial, medicinal, or sacramental purposes."

This great expansion of the meaning of the eighteenth amendment was accomplished by use of the theory expressed in the Selzman case that-

It helps the main purpose of the amendment, • • • to hedge about the making and disposition of the denatured article every reasonable precaution and penalty to prevent the proper industrial use of it from being perverted to drinking it.

In the Lambert case the Supreme Court called attention · to what it called the " settled rule," that-

Where the means adopted by Congress in exerting an express power are calculated to effect its purpose, it is not admissible for the judiciary to inquire into the degree of their necessity.

The test it laid down was whether the proposed extension was "adapted to promote the purposes of the amendment." I confess, Mr. President, that my imagination is not sufficiently fertile to foresee all of the extensions which will be grafted onto section 3 should it ever be incorporated into the Constitution.

If Congress may regulate the sale of intoxicating liquors where they are to be drunk on premises where sold, then we shall probably see Congress attempt to declare during what hours such premises may be open, where they shall be located, how they shall be operated, the sex and age of the purchasers, the price at which the be-verages are to be sold. Should this proposed amendment have the same development as the unfortunate eighteenth, then in aid of its power to regulate the sale of intoxicating beverages, Congress will probably arrogate to itself the power to regulate beverages which are in fact nonintoxicating.

Should Congress choose to prohibit the sales defined in section 3, then presumably it will be proper for Congress to hedge about that prohibition a whole host of prohibitions which would " promote the purposes of the amendment."

It is entirely conceivable that in order to protect such a prohibition the courts might sustain the prohibition or regulation of all sales of beverages whether intended to be drunk on the premises or not. And if sales may be regulated, so may transportation and manufacture. Obviously the whole chain of . events from manufacture to consumption is a con- tinuous process. Regulation of the earlier steps can always be justified as adapted to promote the purpose of the ultimate regulation or prohibition. If that is to be the history of the proposed amendment-and there is every reason to expect it-then obviously we have expelled the system of national control through the front door of section 1 andreadmitted it forthwith through the back door of section 3.

Such action does not respond to the public demand. It offers no solution to the troublesome problem of national prohibition. That problem can be solved only through outright repeal.

As for the saloon-let us face the fact that it is beyond the realm of proper Federal action. The duty of preventing its restoration rests upon the State. In my judgment, the overwhelming sentiment of the people of the United States will insist upon the discharge of that duty. Consequently, I am fully satisfied that if we permit our Government to function as it was intended to function, through the States we shall find that the people of each of the 48 States will adopt those methods which will, in accordance with local needs and conditions, most effectively bring the liquor traffic under control and actually promote temperance.

That was the policy pledged by the Democratic platform when it declared:

We urge the enactment of such measures by the several States as will actually promote temperance, effectively prevent the return of the saloon, and bring the liquor traffic into the open under complete supervision by the States.

No other course is open to us. No one single national standard can prevail. That is the principal lesson of our experience with the eighteenth amendment. Federal guaranties are futile. At the bedrock of this entire question lies this immovable truth: That there is nothing the Constitution can say, nothing the Federal Government can do, which will successfully impose a rule of conduct upon a community except by the will of the people of that community.

The problem confronting us, Mr. President, is to choose between two alternative courses. Either the control of the local liquor traffic is to remain in the Federal Government or is to be restored to the States.

Under the regime of national prohibition our people have seen the growth of intemperance, the spread of hypocrisy, and loss of respect for law and authority-social changes which could not be observed with indifference by those who had a care for the welfare of our country.

We saw the delicate balance between State and Federal authority rudely disturbed and have experienced the pernicious effect of that disturbance upon every branch of our Government. We have watched the development of a country-wide national bureaucracy, everywhere exposed to the corrupting influences of contact with an illicit enterprise engaged in minting a fortune out of violation of law. In the face of staggering national deficits we were helpless to exact a tax from a traffic which prospered outside the pale of law. In the presence of a mountain tide of unemployment we restrained hundreds of thousands of bread-winners from their only opportunity to earn a livelihood.

Out of these social, governmental, and fiscal causes grew the demand for repeal. And only by the forthright submission of the question of repeal or retention can the issue be settled. It can not be disposed of by an empty formula which pretends to repeal but actually perpetuates the unbearable conditions which have brought this question to the forefront of political discussion.

I am aware that the opinion is held in some quarters that the American people will not ratify an amendment providing for straightforward repeal. That decision lies with the American people. No one can speak more eloquently for them than the people themselves. And unless they have changed their minds since last November they have spoken out clearly in opposition to equivocation and sham and in favor of the thoroughgoing abandonment of the policy of national prohibition.

Our constitutional function is not to ratify, but to submit. In discharging our function let us courageously frame a resolution which will offer to the American people an honest and genuine choice between the eighteenth amendment and its repeal.

Mr. BRATTON. Mr. President, at the outset of the address delivered by the Senator from New York I offered a formal amendment, to provide that the proposed amendment shall be submitted to conventions in States instead of the legislatures of the States. The senior Senator from Massachusetts [Mr. WALSH] called attention to the fact that earlier in the day and obviously during my absence from the Chamber the senior Senator from Arkansas [Mr. RoBINsoN], the leader of the minority, had expressed his intention of offering a similar amendment. I have examined the amendment to which the Senator from Arkansas referred. It is intended to accomplish the identical purpose I have in mind, and in view of the Senator's announced purpose to offer that amendment, I withdraw the amendment which I tendered and which is now the pending question.

Mr. ROBINSON of Arkansas. Mr. President, I should be entirely content to have the vote either on my own amendment or on that of the Senator from New Mexico.

I now offer the amendment, on page 3, line 2, to strike out the words " the legislatures of " and to insert in lieu thereof the words "conventions in," and on the same page, line 16, to strike out the words " the legislatures of " and to insert in lieu thereof the words "conventions in," so as to make the joint resolution read:

That the following article is hereby proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by conventions in three-fourths of the several States:

"ARTICLE-

"SECTION 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

"SEc. 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors. in violation of the laws thereof, is hereby prohibited.

"SEc. 3. Congress shall have concurrent power to regulate or prohibit the sale of intoxicating liquors to be drunk on the premises where sold.

" SEc. 4. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress."

Mr. President, I presented the amendment in written form at the beginning of the debate this morning, but I offer it now verbally and ask for a vote on it.

Mr. WALSH of Montana. Mr. President, before the vote is taken on the amendment I feel compelled to say an additional word in explanation of the view taken by the subcommittee to which this matter was referred and by the Committee on the Judiciary, to whom they reported. Theoretically, ratification of amendments to the Constitution by conventions rather than by legislatures is strictly logical. It is, of course, desirable, if convenient and possible, to get an expression upon an amendment to the Constitution by a body which has no other consideration to divert attention from the real question at issue. However, for practical reasons the convention system has never been adopted in our hundred and forty-odd years of existence as a Nation, and, I take it, because there are very substantial practical objections to that method of procedure. It has been urged that it is within the power of the Congress, and . that Congress should provide for calling these conventions in the various States, but I have been unable to learn of any Member of the Senate who takes the view that Congress has any such power. I am convinced that it is contrary to the most fundamental principles upon which our dual system of government is founded. As has been stated heretofore on the floor, if Congress did have the power, I undertake to say that at the present time, in the present depressed state of business throughout the country and with the necessity of exercising economy in every pa r ticular in which it can be observed, the Congress would not make provision, with all the attendant expense, for holding conventions in the 48 States of the Union for the purpose of getting an expression of the opinion of the people upon this particular subject.

Mr. President, I have made no estimate as to what the costs of such special elections would be, but, of course, they would be very considerable. That goes to the question of the power, but, of course, if Congress has any such power, it has power to go clear down the line and provide the qualifications for delegates to the conventions, the number of delegates, how they shall be elected, what shall be the qualification of electors of delegates to the conventions, and the laws in relation to the registration of voters and the qualification of voters, the supervisors, and all that kind of thing. However, Mr. President, that need not be discussed, because it is not a practical proposition at all. If the conventions are called, they will be called by the legislatures of the various States, as was done in the case of the adoption of the Constitution in the first place. The Constitution was submitted to conventions in the various States, but to conventions called by the legislatures of the various States. So we would have a question of the legislatures of the various States making provision for the calling of the conventions. The legislatures of many of the States are now in session. In most of the States biennial sessions are called. It seems quite improbable that any amendment proposing to repeal the eighteenth amendment could be submitted in time to secure action by the legislatures now in session. Accordingly, it would be impossible to submit the proposed amendment to any legislatures until after the lapse of two years more.

Let us assume that it would be possible to get the amendment of repeal before the legislatures during the current sessions of the legislatures, and then that the legislatures would proceed to legislate concerning the calling of conventions, providing when and where they should be called, the number of delegates, whether the delegates should be elected by congressional district or by State assembly districts, or by other districts to be created for that express purpose. Then would be the question of making an appropriation for the calling of a special election and making an appropriation for that purpose.

In some of the States in which the sentiment for repeal is overwhelming, as in the State of New York and the State of New Jersey, I dare say the legislatures might in their zeal in this matter provide for calling a special election some time within the next 2 or 3 or 4 or 6 months from now. But it is to be borne in mind that in order to be effective the amendment must be ratified by conventions in 36 of the States. I undertake to say that at least half of those States will not call a special election for the purpose of electing delegates to a State convention. They will let it go over until the next general election and then delegates will be elected without any special additional cost for the election. That seems to me the altogether probable result.

If the matter were submitted to the legislatures now and they could act upon it, we would get a determination of the matter quite promptly. If we submit it to conventions it is impossible to get a determination until after a lapse of two years before the conventions. But it is impossible to get the resolution of repeal before the legislatures of the States now in session. They will have adjourned before we can get it before them. They will not reassemble unless specially called by a special call of the executives until two years hence, and then they will vote on the election of convention delegates, and I am perfectly confident they will provide that they shall be elected at the next general election. So there is no possibility of getting this matter before a convention in the various States, I undertake to say in one-half of years. the States, before four years from the present time and then, if it is at a special election, at very great expense to the people of the United States.

So the subcommittee to which this question was referred, consisting of the Senator from Idaho [Mr. BoRAH], the Senator from Wisconsin [Mr. BLAINE], the Senator from Indiana [Mr. RoBINSON], the Senator from Washington [Mr. DILL], and myself all agreed, I believe, that it was unwise to submit the matter to conventions of the various States. The Senator from Wisconsin [Mr. BLAINE], who was chairman of the subcommittee, reserved his objections to the third paragraph of the resolution in relation to saloons, but all five members, upon careful consideration of the subject, in the interest both of expedition and of economy, deemed it wise to have ratification by the legislatures instead of by conventions in the various States.

The matter then went before the Judiciary Committee and, with a predilection upon the part of practically every member of the committee in favor of ratification by conventions rather than by legislatures, it went through the Committee on the Judiciary with a feeble protest from 1 or 2 of the 17 members of the committee.

Mr. BRATTON. 0 Mr. President!

The VICE PRESIDENT. Does the Senator . from Montana yield to the Senator from New Mexico?

Mr. WALSH of Montana. Certainly.

Mr. BRATTON. I think the Senator will recall that the vote was 8 to 6 on that question.

Mr. WALSH of Montana. I asked the secretary of the committee to give me the figures, and I have forgotten just what they were. However, the vote was decidedly against the system of ratification by conventions.

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

The VICE PRESIDENT. Does the Senator from Montana of the State. yield to the Senator from Ohio?

Mr. WALSH of Montana. I yield.

Mr. FESS. It appears that the prevailing opinion that led the party to adopt the convention plan was that if we provided the convention plan there would be only one question that would be before the convention after the delegates were elected instead of the many questions which would of course be pending before the legislature. I think what the Senator has said is tremendously important, but I am of the opinion that that is why the convention plan :was designed.

Mr. WALSH of Montana. I quite agree with the Senator. No doubt that is correct. Theoretically that is a sound contention, but I submit there are practical objections to proceeding in that way, while in this particular case I am entirely satisfied that the sentiment of the various States will be accurately reflected in the action taken by the legislatures of the States. I can not doubt that the Legislature of the State of New York will vote for repeal; I can not doubt that the Legislature of the State of New Jersey will vote for repeal, and so on down the line.

I have no particular concern in the matter. It is a matter of no consequence to me how the Senate shall decide about the matter, whether legislatures or conventions, but upon careful reflection and with a decided predilection, among other reasons, because so declared in the Democratic platform, my predilection was in favor of action by convention. But it seems to me a perfectly useless expenditure of money and in the second place it necessarily defers consideration for a period of at least two years.

So I submit, Mr. President, that those who are eager for a repeal of the eighteenth amendment ought to give serious consideration to the matter and determine whether or not in their opinion, inasmuch as they seek to accomplish what they desire, the matter ought not to be submitted to the legislatures rather than the conventions.

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

Mr. WALSH of Montana. I yield.

Mr. WAGNER. I do not think the Senator meant that it is absolutely necessary to defer action for a period of two

Mr. WALSH of Montana. Absolutely, unless special elections are called.

Mr. WAGNER. A special session of the legislature may be called to deal with the matter.

Mr. WALSH of Montana. Oh, yes. No doubt a special session of the legislature might be called and a special election could be called for the election of delegates. There is no doubt about that; but who thinks that 36 States of the Union are going to the expense of calling special sessions of the legislature to act upon this question, and then follow it up with special elections to elect delegates to State conventions? They may want to do that in New York, but we will have something of a time, let me say to those who are eager to see the amendment adopted, in getting 36 States to ratify in that way. It seems to me it is idle to expect that we are going to get special sessions of the legislatures and then special elections to elect delegates.

Mr. LEWIS. Mr. President---

The VICE PRESIDENT. Does the Senator from Montana yield to the Senator from illinois?

Mr. WALSH of Montana. I yield.

Mr. LEWIS. I desire the opinion of our able colleague now speaking. Does the Senator from Montana insist or presume that before we can adopt the convention method or any convention method legally, the respective States would first be required to have an enactment by their legislatures prescribing what constituted a delegate, what would be the requirements or qualifications of a delegate, what geography he represented, and lay the foundation first in that way before the convention is actually called?

Mr. WALSH of Montana. The Senator has accurately stated my position. I know of no other way of getting a convention except by legislative enactment by the legislature

Mr. BARKLEY. Mr. President---

The VICE PRESIDENT. Does the Senator from Montana yield to the Senator from Kentucky?

Mr. WALSH of Montana. I yield.

Mr. BARKLEY. The question that is now being discussed by the Senator troubles me from the standpoint of the Constitution and the legal machinery, in spite of my unequivocal pledge both in the primary and in the general election to vote to submit the resolution to conventions, by which I feel, of course, bound unless an insuperable and impassable difficulty should arise.

Of course, it was contemplated by the framers of the Constitution that Congress might at some time refer an amendment to conventions; otherwise they would not have mentioned conventions as one of the methods of ratification. Suppose that . we submitted it to conventions without any legislation on the part of Congress undertaking to supervise the holding of the conventions or the selection of delegates, and upon that subject I do not ask the Senator to express an opinion now. I think there is a wide difference of view as to whether Congress has the power to do that.

Mr. WALSH . of Montana. The Senator from Montana has already expressed his views.

Mr. BARKLEY. I realize the Senator has, and I do not want to enter that field just now; but, assuming that we refer this matter to conventions without any effort on the part of Congress to regulate the conventions or fix the qualifications of delegates or voters, and the legislatures of the various States or any number of States refuse to take any action establishing the conventions, then what could we do about it?

Mr. WALSH of Montana. We could do nothing.

Mr. BARKLEY. Would we have authority subsequently, Mr. WALSH in the light of the refusal of a number of States to provide for conventions, to enact a law of Congress forcing those States to hold convent i ons or providing qualifications for the delegates or voters, geographical locations which they shall represent in the conventions, and so forth?

Mr. WALSH of Montana. I am without any doubt of the conviction that Congress would have no such power.

Mr. BARKLEY. If it has power now to initiate the conventions and provide for them through the resolution of submission or subsequent statute, it would have the power later, would it not, to enact legislation dealing with the situation that might arise? · Mr. WALSH of Montana. I do not think so. If a State legislature refuses to enact the necessary legislation to call the convention, that amounts to a rejection of the amendment by that legislature. '

Mr. BARKLEY. Of course, there is nothing in the Constitution that says whether the States shall regulate and control and supervise the conventions, or whether the Congress itself might have the right to do so.

Mr. WALSH of Montana. Quite so.

Mr. BARKLEY. It is a matter of sincere and profound legal difference of opinion among lawyers as to whether Congress has the power or not. But I am troubled by the difficulty which may arise in the event that, say, 13 States should refuse to call conventions, refuse to allow this matter to be passed on in any way except in a negative way by inaction, which I think would be unjustified. I think, regardless of the view of the legislature on the question of repeal, if this is submitted to conventions, morally they owe it to the people of their State to provide a convention and allow them to pass on the matter.

Mr. WALSH of Montana. It is a matter addressed to the legislatures of the various States. If the legislature of a State refuses or neglects to enact the necessary legislation for calling the convention, that is tantamount to a rejection of the amendment by that particular State.

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

The PRESIDING OFFICER (Mr. DICKINSON in the chair). Does the Senator from Montana yield to the Senator from Arkansas?

Mr. WALSH of Montana. I am glad to yield.

Mr. ROBINSON of Arkansas. There is no power in the Federal Government to compel the legislature itself to ratify or reject an amendment to the Constitution. The same difficulty that the Senator from Montana has pointed out with respect to conventions applies to the legislatures themselves. If the legislatures do not wish to take up the resolu ti on of ratifica t ion, there is no power to compel them to do so. If they do not wish to ratify it, there is no power . to compel them to do so. The function of ratification, while a Federal function in the sense that it is created by the Constitution. implies State action. If the legislature is in session now, it can call a convention before it adjourns. If it is not in session now, it can call a convention in 30 days after it meets again. The difference in time in action on the resolution of ratification need not be more than 30 days. So that, as I see it, the primary objection raised by the Senator from Montana to carrying out the platforms of the two parties, platforms which declare that it is material as to how the resolution shall be ratified, is, in my humble judgment, not based on sound reason.

Mr. BORAH rose.

Mr. WALSH of Montana. I yield to the Senator from Idaho.

Mr. BORAH. Mr . President, I was simply going to say that I agree with everything the Senator has said with the possible exception that if the legislature itself does not provide a method by which a convention may be called, may not the people of the State themselves organize through committees and call conventions without the aid of the legislature? I do not think we can deprive the people of the · right to assemble together in a convention if they desire to act upon such a question as this in that way. of Montana. Mr. President, I would gravely doubt the validity of a ratification that depended upon a convention in any State not called by an act of the legislature thereof.

Mr. BORAH. I am quite free to admit that is the orderly way in which to call a convention; there can be no question about that; but if, as has been suggested, the legislature should refuse to act, could the people be deprived of themselves coming together in a convention?

Mr. WALSH of Montana. It seems to me the way is open to them to elect a legislature that will call a convention instead of themselves holding a mass meeting, as it might be called. They can demand the election of representatives to the legislature who will vote in favor of legislation calling a convention.

Mr. GLASS. Mr. President, the people can not amend their own State constitutions without an act of the legislature calling a constitutional convention.

Mr. WALSH of Montana. Exactly.

Mr. BARKLEY. And no such mass convention or uprising of the people, whether it all converge in one place or whether it be by scattered resolutions, could do anything toward preserving the sanctity of the ballot and fixing the qualifications of voters or any other official act that would be recognized by any governmental function.

Mr. WALSH of Montana. Quite so.

Mr. BORAH. But suppose it should be certified to the Secretary of State of the United States that a convention of the people of the State of Kentucky had been held and that that convention had ratified this proposed amendment, would the Secretary of State of the United States go back of the certificate of secretary of state of the State in which the convention was held for the purpose of determining how the vote was cast or who voted or anything of the kind?

Mr. BARKLEY. If the Senator from Montana will permit me to answer, assuming that the legislature, which is the official legislative spokesman of the people of the State, does not act at all-and I imagine in none of the constitutions of the States is there any provision for such a convention as we contemplate here in this resolution-and would never act, and that a sort of a rump convention would be called by the people to pass on this question, I do not believe the Secretary of State of the United States would be justified in recognizing its action unless it were a convention that Congress itself authorized or prescribed as a precaution in the absence of action by the legislature.

Mr. ASHURST. Mr. President--

Mr. WALSH of Montana . . The Senator from Arizona has some very interesting information upon that aspect of the matter, and I yield to him for the present.

Mr. ASHURST. Mr. President, I hold the same view as the Senator from Montana respecting the nonvalidity of a ratification by a convention which is not called by the legislature or authorized by a State, among other reasons, for the following:

On March 2, 1861, the so-called Corwin amendment, prohibiting Congress from interfering with slavery within the States, was submitted by Congress. That amendment was ratified by the Legislatures of the States of Ohio and Maryland. Later there happened to be in session in the State of illinois a convention that had been called to revise the constitution of that State; that convention discussed the proposed Corwin amendment to the Constitution and ratified the amendment, or at least attemped to do so. The lawyers of that day argued against the validity of such ratification in Illinois, and Illinois was never included by historians or lawyers among the States ratifying, for two reasons, one of which, of course, was all-conclusive, in that the Corwin amendment was not submitted by the Congress to conventions, and, secondly, many constitutional laWYers pointed out that the convention in Illinois was not called by the legislature to ratify or to pass upon an amendment to the Federal Constitution.

Mr. LEWIS. Mr. President--

The PRESIDING OFFICER. Does the Senator from Montana yield to the Senator from illinois? ·

Mr. WALSH of Montana. I yield.

Mr. LEWIS. May I ask the able Senator from Arizona has not his memory fallen into error, in view of the pressure of many important matters upon him? Was it not the real issue that the convention then assembled in illinois had not been directly authorized or in any wise qualified by any previous call to take up that subject matter? Was not that the case?

Mr. ASHURST. I would be offensively presumptuous to BORAH, and STEPHENS. place my knowledge of history, especially as to the history of the State of illinois, against the knowledge of the learned Senator from illinois; but I am quite certain that the lawyers of that day-respectable in character and numbers-held, even if that proposed constitutional amendment had actually been submitted by Congress to conventions, that the particular convention in illinois had no authority to ratify an amendment to Federal Constitution as it was not called for that purpose.

Mr. LEWIS. I may remind the able Senator, Mr. President, that was the subject over which a very serious discussion arose between General Shields, a subsequent United States Senator, and Abraham Lincoln, which unhappily led to a duel challenge, because the one or the other, losing his temper, characterized the former as having told a lie and being both a liar and a fool, which is usually regarded among gentlemen as a basis for personal conflict.

May I ask the Senator if I am not right in saying that the particular gathering referred to was already in session, called for some other purpose, and that there were those who then projected before that convention the matter to which he now alludes?

Mr. ASHURST. If the Senator will pardon me, I do not want to get away from the immediate subject.

Mr. LEWIS. Does the Senator recall that that was the reason?

Mr. ASHURST. The incident which led to the suggestion of the duel between Lincoln and Shields, the latter of whom was, by the way, sent to the Senate by three different States-

Mr. LEWIS. Yes; General Shields was a Senator at various times from illinois, Minnesota, and Missouri.

Mr. ASHURST. That incident of the proposed duel occurred many years anterior to the convention, whilst the convention itself which acted, or assumed to act, on the amendment in Illinois was assembled after Lincoln became President.

Mr. LEWIS. Then, I have in mind the wrong convention and the Senator may be wholly correct. I have no memory of the history of the one after Lincoln was elected President.

Mr. DILL. Mr. President--

The PRESIDING OFFICER. Does the Senator from Montana yield to · the Senator from Washington?

Mr. WALSH of Montana. I yield.

Mr. DILL. I merely wish to make the suggestion that the differences of opinion and the discussion of possibilities here as to what will happen under the convention system in themselves, it seems to me, are more or less reasons why we ought to follow the method we have always followed of · submitting proposed constitutional amendments to the legislatures of the States.

Mr. WALSH of Montana. Mr. President, I have heretofore adverted to the consideration of this subject by the subcommittee of the Judiciary Committee to which it was submitted, and I have called attention to the fact that every member of the committee, Democrat and Republican as well, agreed, notwithstanding the provisions of the platforms of both political parties, that it would be eminently unwise, indefensible indeed, to submit this proposed constitutional amendment to conventions rather than to legislatures.

Mr. BARKLEY. Will the Senator yield there?

Mr. WALSH of Montana. If the Senator will allow me to finish this statement, I will yield. The clerk of the committee is not able to furnish me any information concerning the direct vote on the question of the excision of that provision of the resolution reported by the committee; indeed, my recollection about the matter is that there was no real effort in the Judiciary Committee to excise that and to substitute the legislative system. The clerk has no record of any vote on that at all. So we have only the vote in the Judiciary Committee and the general vote to report the resolution, which stood as follows:

For: BLAINE, HASTINGS, HEEERT, AUSTIN, ASHURST, WALSH of Montana, KING, DILL, BRATTON, NEELY, and SCHALL.

Against: ROBINSON of Indiana, SCHUYLER, BLACK, NORRIS, I feel perfectly confident of the assertion that no one of those voting against it did so upon the ground that the resolution was to be submitted to legislatures rather than to conventions. I now yield to the Senator from Kentucky.

Mr. BARKLEY. I wanted to ask the Senator whether he had given thought to and intended to discuss the propriety, in the event this resolution shall be submitted to the legislatures rather than to conventions, of providing that it shall not be acted upon by any legislature not elected after its submission to the legislatures, so as to bring about practically the same effect that would be brought about by the convention method, by having a direct vote of the people for or against candidates for the legislature on that question.

Mr. ASHURST. Mr. President, will the Senator from Montana yield to me on that?

Mr. WALSH of Montana. I yield.

Mr. ASHURST. I see no necessity for that, for if a State should reject the proposed amendment it is fully within the power and authority of the legislature of the State subsequently to ratify it.

Mr. BARKLEY. Yes; but if it ratifies, it can not subsequently reject it if its ratification has been proclaimed · and is a part of the required number of States in order to make the amendment a part of the Constitution.

Mr. ASHURST. That is quite true.

Mr. WALSH of Montana. Exactly. After it has taken effect the State can not change it; it may change it at any time until the 36 States have ratified; but I seriously question whether we have any power to provide that ratification must be by a legislature thus elected. I am inclined to think that if the proposed amendment were submitted with such a provision as that and were ratified by 36 States, including some not so . constituted, it would be ratified, nevertheless.

Mr. BARKLEY. Is there not a difference between that and the provision that sometimes is carried in proposed constitutional amendments that, unless it be ratified by the States within seven years, or any other period of years, it shall be null and void?

Mr. WALSH of Montana. I think so, because the supreme Court of the United States has said that it is implied by the Constitution that ratification must be within a reasonable time, so that an amendment submitted in 1910 could not now be considered as a live thing to be ratified by States so that they might act on it now. The Supreme Court has held that ratification must be within a reasonable time after submission; and they have said that, under the conditions under which the amendment then before them was submitted, seven years was a reasonable time, and that Congress might so provide. So that is quite a different question from the power of Congress to provide that an amendment shall be ratified by legislatures the members of which are elected after the proposed amendment is submitted.

Mr. BARKLEY. Of course I would not put my judgment against that of the Senator from Montana, but my inquiry 1s prompted by the feeling that the Congress which submits an amendment to the Constitution in the form of a resolution has the power to fix the terms upon which it may be considered.

Mr. WALSH of Montana. No. If the Senator will say the "time," I might agree with him, but not the "terms."

Mr. BARKLEY. Well, in the absence of any prohibition or restriction in the Constitution as to the method of submitting resolutions except that they shall be submitted either to the legislatures or to conventions, it can not be successfully contended that Congress has no power at all to fix any of the conditions except as to time.

Mr. WALSH of Montana. I can not think of any other conditions that Congress might provide.

Mr. BARKLEY. I just mentioned one a moment ago, that it shall not be ratified by legislatures which are not chosen subsequent to its submission.

Mr. ASHURST. Mr. President, silence is negation in such matters.

Mr. WALSH of Montana. Let me say in that connection that the Senator will doubtless remember that there was a provision in the constitutions of a number of States which attempted to prohibit the legislatures of those States from ratifying amendments until the legislature was constituted of members who were elected after the question was sub­ Illinois. mitted, and it was held that the people of the State could not thus restrict the power of the legislatures.

Mr. BARKLEY. Yes; but that was an effort on the part of State constitutions to prescribe the conditions under which a constitutional amendment submitted by Congress might be ratified or rejected.

Mr. WALSH of Montana. Exactly.

Mr. BARKLEY. That is quite different, it seems to me. from the original body taking such action.

Mr. WALSH of Montana. It is different. It is a question as to whether the people of the States through theiiState constitutions can make a prescription such as the Senator suggests. The Supreme Court has stated they can not do that. The Senator asked me, " Can the Congress do it?" And my view about the matter is that the Congress is as much restrained from doing so as are the people of the States.

Mr. BARKLEY. It seems to me, then, according to that theory, if the power of Congress and the power of the State legislatures is coequal, that the State legislatures, by a reverse system of logic, could pass a resolution and say that after 7 years or after 10 years if the legislative shall not act upon a proposed constitutional amendment submitted to it by Congress it shall not have further power to act. I am taking the position that the original body submitting the proposed amendment to the States has more power to fix the conditions of that submission than the legislature to which it is submitted.

Mr. WALSH of Montana. I think .that the only principle upon which that could be justified would be the basis upon which the power of Congress in the premises is regarded as plenary when it makes provision for ratification.

Mr. SCHUYLER. Mr. President--

The PRESIDING OFFICER. Does the Senator from Montana yield to the Senator from Colorado?

Mr. WALSH of Montana. I yield.

Mr. SCHUYLER. I wish to state to the Senator that, while his statement of the attitude of · the members of the Judiciary Committee is undoubtedly as he recollects it, yet I do think the RECORD ought to show that my vote against the favorable report of the joint resolution was based entirely upon the proposition that it contained a provision for the submission of the proposed const i tutional amendment to the legislatures of the States. I took position against the measure and voted against it because I felt that we were bound to submit the proposed amendment, and th a t as a matter of principle, it should be submitted to conventions in the States.

Mr. WALSH of Montana. I am thankful to the Senator from Colorado for the statement he makes. I quot e d the matter, of course, from my recollection of what transpired before the committee; and I have no recollection that the Senator thus expressed himself before the committee.

Mr. SCHUYLER. However that may be, that was my position in the committee and my reason for voting against the submission of a favorable report.

Mr. WALSH of Montana. As I stated heretofore, I have no particular concern about this matter either one way or the other, whether it goes to legislatures or to conventions. What I have said is simply in the interest both of expedition and economy; but I do desire to say that it is my conviction that the provision of the platform in both cases ought to be regarded by this body as simply advisory. I do not think that any of the considerations which are now being addressed to this body were present in the minds of the drafters of the platforms at all. In other words, what they wanted was the submission of a proposition to repeal the eighteenth amendment. In that respect I regard the platform as binding and authoritative. The other I regard as incidental and simply advisory.

That is all I care to say about that.

Mr. LEWIS. Mr. President--

The PRESIDING OFFICER. Does the Senator from Montana yield to the Senator from Illinois?

Mr. WALSH of Montana. I yield to the Senator from

Mr. LEWIS. I seek the opinion of the Senator from Montana upon the following premise: Supposing Congress should pass an act directly authorizing a convention and prescribing, as it is an amendment of the Constitution we are repealing, that each State have a convention of, say, 2, 3, or no more than 4 from each county, they to have the qualifications of members of the legislature of the respective States, and they then assemble. Would not the Senator from Montana regard such prescription as sufficient qualification, and the very prescription by Congress as legalizing such as a convention within the meaning of conventions for the amendment of the Constitution?

Mr. WALSH of Montana. Mr. President, if Congress has power to legislate in the matter at all, I have no doubt Congress could provide that there should be conventions held, designating the time and place, and providing that the delegates to the convention should have the qualifications requisite for election to the lower house of the State legislature, or any other provision; and it could also provide that all State laws in relation to elections should be applicable to such an election, without going into the details. I have no doubt that that could be done; but to start with, of course, I dispute the proposition that Congress has any power to legislate in the premises at all, because, as I say, if it can legislate in the way the Senator suggests, it can go clear down the line and provide all the machinery for the election different from that which is prescribed by the States; and I do not think there is a Member here, at least from the South, who wants to accord any such power as that to the Congress of the United States.

Mr. LEWIS. May I ask our friend from Montana, in what way, then, does he assume that the convention system as provided under the Constitution could be carried out?

Mr. WALSH of Montana. Exactly as it was in the first place. The legislatures call the conventions and prescribe all the qualifications, and provide that the general laws in relation to elections shall be applicable to the election of delegates to the conventions, or make any other provision that they see fit to make.

Mr. LEWIS. But the Senator, as I gather from him, assumes that that provision of the Federal law which permits repeal by convention does not authorize . the body that gives permission to can the convention, and authorizes the convention, power to prescribe the method of summoning that convention. .

Mr. WALSH of Montana. I think, as I said before, that that is contrary to the most fundamental principles of our dual system of government; namely, that all elections are under the control of the States themselves.

Mr. LEWIS : Then does not the Senator see that the evil might follow that the States . then could really call the conventions with a view to subverting and defeating . the very object the Federal Government had in prescribing conventions?

· Mr. WALSH of Montana. But . the only object of the Federal Government is to submit the matter to the various States. That is all the interest the Congress has in the matter.

Mr. LEWIS. I think there is where the able Senator and myself have a very decided and wide difference. Provision is made for submission to the legislature, yes. That is intended for the respective sovereignties; but the reason why conventions are provided for, in addition to the legislatures, is in order to provide a method apart from the legislatures, to get away from the legislatures of the States, and to provide one that is directed by the Federal Government.

Mr. WALSH of Montana. No-; I differ very radically from the Senator.

Mr. LEWIS. There is where our difference lies.

· Mr. WALSH of Montana. The idea undoubtedly was to submit the matter to a body elected with that one issue before them, and nothing else.

Mr. LEWIS. And yet the Senator feels that in a case like this we could not ourselves, in a mere directory statute, direct those conventions by prescribing that they may be called in each State with qualifications such as their local law prescribes for members of the legislature?

Mr. WALSH of Montana. My conviction on that point is very definite and sound.

Mr. LEWIS. Then I do not know how Congress could provide a convention at all.

Mr. HEBERT. Mr. President--

The PRESIDING OFFICER. Does the Senator from Montana yield to the Senator from Rhode Island?

Mr. WALSH of Montana. I yield.

I\.Ir. HEBERT. The Senator will recollect that I was a member of the subcommittee which considered this amendment, although that fact escaped his recollection.

Mr. WALSH of Montana. No; I gave the Senator's name when I mentioned the names of members of the committee.

Mr. HEBERT. However, I have no quarrel with that. The Senator will recollect, too, that we discussed at very considerable length the question of reference either to legislatures or to conventions. My own notion was, and still is, that the amendment can be referred to conventions.

The Senator will have in mind that the Supreme Court decided that whenever a legislature passes upon a constitutional amendment it performs a Federal function; and by analogy it seemed to me that if we were going to submit an amendment of this kind to conventions they would be performing a Federal function; and, following that analogy one step further, if they are going to perform a Federal function it is within the power of the Congress to say how that function shall be performed.

There was another point that arose in our discussion of this amendment, to which the Senator alluded at the beginning of his remarks and upon which I now wish to interrogate him.

The Senator referred to the expense that would be involved in holding these conventions. I had hoped that the Senator would have made some estimate or made some inquiry about what would be the cost of providing for holding these conventions in the several States to consider the ratification of this amendment, if he has given it any consideration.

Mr. WALSH of Montana. No; I have not. I am not able to supply any figures at all on the matter, but I should think the aggregate would be very great.

Mr. GLASS. Mr. President--

The PRESIDING OFFICER. Does the Senator from Montana yield to the Senator from Virginia?

Mr. WALSH of Montana. I yield to the Senator.

Mr. GLASS. Does the Senator from Montana admit that when a State legislature is called upon to act upon a constitutional amendment, it is performing a Federal function?

Mr. WALSH of Montana. So . the Supreme Court has held.

Mr. GLASS. Well, it ought to have held differently.

Mr. HEBERT. Yes, Mr. President; if the Senator will yield, the Supreme Court held that in the Ohio case, involving the adoption of the eighteenth amendment.

Mr. GLASS. As it seems to me, it is performing strictly a State function. ·

Mr. ROBINSON of · Arkansas. · Mr. President, will the Senator yield?

The PRESIDING OFFICER. Does the Senator from Montana yield to the Senator from Arkansas?

Mr. WALSH of Montana. I do.

Mr. ROBINSON of Arkansas. I made reference to that myself in a brief statement.

Undoubtedly the Supreme Court has held that the ratification of a constitutional amendment is a Federal function; and that is strictly and legally correct, as the Senator from Virginia will see when the fact is pointed out that the power of ratification is derived from the Federal Constitution. and not from any act or constitution of the State.

There is a clear distinction between a Federal function and a State action. The function that the State performs whether it acts by a convention or by the legislature, as the Senator from Montana has indicated. is a Federal function.

Mr. WALSH of Montana. Let me remark in that connection that under the original Constitution Senators were elected by the State legislatures; but that was a Federal function which the State legislature was exercising.

Mr. ROBINSON of Arkansas. Because the Federal Constitution authorized their election in that way.

Mr. WALSH of Montana. For that particular purpose, it was an agency of the Federal Government.

Mr. ROBINSON of Arkansas. But they were ambassadors of the States; and the action was taken by the legislatures, and not by any Federal agency.

Mr. GLASS. In my layman's view, the Federal function ceases when the Congress of the United States submits a proposition to a State legislature; and the State function preceeds when the legislature acts, either for or against the question submitted.

Mr. WALSH of Montana. It seems to me that is largely a matter of terminology,

Mr. ROBINSON of Arkansas. Of course this whole phase of the discussion is academic.

Mr. GLASS. I am engaged in it because I have Mr. Jefferson's authority for saying that you lawyers never can decide a question. [Laughter.]