March 19, 1962

Mr. STENNIS. I appreciate the remarks of the Senator from Florida.

Mr. HOLLAND. I invite attention to the fact that each of those who serve in this body is a Senator of the United States. I also invite attention to the fact that many of us in this body have an experience which is at least a little wider than that which the Senator has, in that we have lived in States and still live in States which for part of our time of service have been poll-tax States and which for part of our time of service have gotten away from poll taxes. We certainly are entitled to have opinions based upon a comparison of the results obtained under the two systems.

Mr. STENNIS. Will the Senator yield on that point?

Mr. HOLLAND. It is from that standpoint that the Senator from Florida has a very deep conviction, because he has seen much better government come in his own State and much more active participation in the casting of votes come in his own state since the poll tax was eliminated. Therefore, he asks his distinguished friend to bear with him and to remember that the Senator from Florida is as much entitled to the same assumption, and he believes to the same conclusion, that he is animated by a sound conscience ~ and by conviction as he accords to the Senator from Mississippi. .

Mr. STENNIS. I thank the Senator from Florida.

I say to the Senator, I made a little inquiry about some pending questions, and happened to learn incidentally about the reapportionment of the Florida State Legislature, and the problem of a great influx of people in certain areas of the Senator's fortunate State. It is said that some people do not think they have anything like equal representation. I might conclude that a constitutional amendment or whatever might be proposed should be passed, but certainly I would never think of intruding or trying to pass a law, even with valid grounds, to attempt to do anything which would impose upon the people of Florida a socalled . solution to their problem. ·

Those fine people in Florida repealed their poll tax. That was their judgment. I am certainly in agreement that they were entitled to do so.

I plead with those people and with their Senators-! am personally disappointed to get such a cold answer-for the privilege of permitting the people of my State to make their decision as to whatever they think is right and just. I believe, with all deference, we have about as much conscience as the people in the Senator's great State.

Madam President, I wish to go a little further into the historical background with respect to the meaning of the word "qualifications" and with respect to the power of the Congress, and I desire to call certain witnesses to testify on the subject. Perhaps we may waive the oath, by reason of their prestige and reputation over the years as to intelligence and patriotism, which will supply the necessary requirements.

I first call for the benefit of the Senate a witness whose name is George Mason. I ask him a few questions, very briefly, on this point. I wish to ask him if he is the George Mason who wrote the Bill of Rights, and his answer is "I am."

I then ask: "Now, Mr. Mason, what do you say about the Congress regulating or altering the qualifications of electors?"

In reply, reading from Madison's report of the Convention , page 386, George Mason has this to say:

A power to alter the qualifications would be a dangerous power in the hands of the Legislature.

Meaning the National Legislature. Since the context shows that the subject under discussion was the National Government, when he speaks of the Legislature, the reference, of course, is to Congress. He said, "It would be a dangerous power in the hands of the Legislature." Mr. President, under the agreement heretofore entered into, the Senator from Mississippi was to be excused at 2: 30 p.m. without losing his right to the floor and without the resumption of his speech counting as another speech on the pending motion. It was understood that the Senator from South Carolina [Mr. THURMOND] would be recognized. Is my understanding correct?

The PRESIDING OFFICER (Mr. HICKEY in the chair). What the Senator has stated is the understanding of the Chair.

Mr. STENNIS. Mr. President, I ask unanimous consent that I may suggest the absence of a quorum, after which the Senator from South Carolina will proceed.

The PRESIDING OFFICER. Is there objection? The Chair hears n.one, and the clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mr. MANSFIELD. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. THURMOND. Mr . President, . I rise in opposition to the - proposed constitutional amendment which would prohibit the imposition of a poll tax as a condition of suffrage by .. a State.

Let me say at the · outset that I find no particUlar virtue or advantage in a poll tax as a condition to voting. At the time I was elected Governor of South Carolina in 1946, the constitution of South Carolina contained a provision which made the payment of a poll tax a prerequisite to voting eligibility. I felt then, and I feel now, that the poll tax was not a satisfactory source of revenue for the State, nor was it a suitable or workable prerequisite to exercise of the ballot. I, therefore, proposed to the legislature that a constitutional amendment repealing this requirement be submitted to the people of the State. The legislature concurred in my proposal and submitted the constitutional amendment to the people, who voted favorably thereon. The payment of a poll tax is, therefore, no longer a condition of suffrage in South Carolina.

There have been numerous proposals for Congress to attempt to prohibit poll taxes by enactment of a statute. It is a credit to the Senate that the question we face now is not before us in the form of a propose . d statute, for the Constitution gives the Federal Government no authority to act in this :field. The very fact that we are now debating a proposed constitutional amendment dealing with this matter is a clear-cut recognition by the Senate that Congress at present has no constitutional authority in the matter of voter qualifications or eligibility. This is, however, about the only encouraging feature of the proposal with which we are confronted.

Mr. HOLLAND. Mr. President, will the Senator yield for a question?

Mr. THURMOND. I am glad to yield to the Senator from Florida.

Mr. HOLLAND. I thoroughly approve of the statement which the Senator from South Carolina has just made. I would not be a party to attempting to deal with this question by statute, as the Senator knows. Regardless of what the Senator will have to say later, with which I may or may not be in accord, because I do not know what it is, it is clear that the Senator recognizes that the Senate proposes now to debate in a thoroughly constitutional and conscientious way the question of whether, in the proper way, this problem should be consigned to the jury of the States for their decision. I thank the Senator for the high ground upon which he is placing his remarks.

Mr. THURMOND. I believe the amendment approach is the proper and only constitutional approach to the matter, if the poll tax is to be repealed. Of course, as I stated, I am opposing the joint resolution.

Mr. President, in the days following the war with England for independence, commonly referred to as the American Revolution, our forefathers inaugurated what historians call an "experiment in democracy." I believe that the historians' characterization is accurate, when properly defined.

Mr. Webster gives two definitions to the word "experiment." One definition defines an "experiment" as "a trial or special observation made to confirm or disprove something doubtful." It appears, Mr. President, that the proponents of the proposed constitutional amendment view the work of our Founding Fathers in light of this definition, and that they particularly dwell in their thoughts on the last word, "doubtful." There is another definition given by Mr. Webster for the word “experiment,” and it is in the sense of this definition that history will affirm that our constitutional federated Republic was an experiment in democracy. The definition which is correct for this use of "experiment" is "an act or operation undertaken to test, establish, or illustrate some suggested or known truth."

The difference in these definitions as applied in this instance is simple. The former suggests that our Founding Fathers were basically ignorant of the principles of government, embarking on an unlighted course without means of navigation or, in modern parlance, betting blindly on a long shot. Our 170 years of glorious history and progress under the Government planned by the God-inspired wisdom of the drafters of the Constitution dramatically demonstrates the inaccuracy of the phrase "experiment in democracy" if defined in such a sense.

Every facet of our daily lives bears unquestionable proof that those who conceived our governmental system were steeped in understanding of the lessons taught by the history of man's struggle to devise a government under which he could enjoy the opportunity to achieve his destiny. Their thinking was balanced by practical experience of the inequities and abuses that inevitably flow from ineptly designed or selfishly administered government. With what could have been no less than divinely inspired wisdom, their experiment in democracy was an operation to illustrate a known truth.

Mr. President, let us examine some of the practical problems and basic concepts which were foremost in the thinking of those who conceived our constitutional federated republican form of government.

There were in America 13 newly independent States, isolated geographically from the rest of the civilized world, and from a contemporary standpoint, weak militarily, individually, and even collectively. Far from being a homogeneous society, they were bound together by no legal bonds-their working relationship having sprung primarily from a common cause against a common enemy. Even the fervor for the common cause varied substantially in degree from one State to another.

The efforts for union of these States was born, not from any feelings of selfidentification by the peoples of one State with those of another but from a necessity for survival. There was no desire for equality or similarity of treatment with the peoples of another State, for all of those hearty souls were too fresh in the memory of the suffering which stemmed from an equality of treatment given by England to the several colonies. The experience acquired as colonists inspired an intense desire for self -determination, as well as a wellfounded mistrust of any governmental unit which could not be observed and controlled close at hand.

It was undoubtedly this very heterogeneity among · the several independent States that emphasized in the minds of the Founding Fathers the historically proven truth that any government worthy of existence must preserve and protect the maximum degree of local self-government, with only the minimum degree of power absolutely essential to military survival and economic progress vested in a central government. This principle of government is a truth, as valid in every respect today as it was in the days following the Revolution, specifically proved once and for all by the constitutional drafters' experiment in democracy.

Mr. President, the federated structure of our governmental system is the principal reason for its continued successful existence. It was not for the primary purpose of protecting basic rights of individuals that the U.S. Constitution was designed. The people of the various States were aware that they could . well protect themselves from despotic action by a government within their own State. Each State government is completely capable of protecting individual rights of its citizens with safeguards against the loss of personal liberty and freedom. The governments of the several States served their people well in this respect before the Union was formed, and have continued to do so within the framework of the Union. All of the States do not impose the same requirements on their citizens, nor do all the States provide either the same substantive rights nor the same procedural remedies for their citizens.

The lack of uniformity among the several States is not to be deplored, but rather acclaimed. Conformity is not natural to people of different regions, who enjoy different political, religious, and social heritages, who live under different economic conditions or even who live in different climates. We should constantly keep in mind that conformity is not a goal of our form of government. It is a goal of absolute forms of government, such as communism; and absolute forms of government exist, in the :final analysis, by force-not from the support of the people. The advantages we enjoy as contrasted to those enjoyed by people who live under dictatorial regimes stems solely from the individualism nurtured and protected by our Constitution.

Let us be candid. Conformity is despicable, a blight and leech on the progress of society, for it can be attained only at the level of the lowest common denominator.

The federated system of government is designed to thwart conformity. It is a system whereby the peoples of different mores can work together in harmony for their mutual advantage. The federated system is, if you please, an agreement to disagree. Let us not endanger the structure itself by attempting to achieve a greater degree of conformity.

One of the great assets of our federation, Mr. President, is that no one need endure the laws of a particular State if they be repugnant to him. The Constitution provides for a full and free commerce between States. If, for instance, one objects to the poll tax as a condition of suffrage in the States of his residence, he is perfectly free to remove to one of the 45 States which impose no such qualification.

As I stated in the beginning, my State does not impose a poll tax as a prerequisite for voting. That tax was repealed during my tenure as Governor of South Carolina, upon my recommendation.

When the Union was formed, there was a total of 13 States. There were substantial differences in the economies of the various States, as there were in the areas of political, religious, and social heritages. They were truly heterogeneous, as I have stated. But how much greater the heterogeneity of the various States today, now that there are 50. They are spread from the semitropics of Florida to the arctics of Alaska, from the deserts of Arizona to the Pacificwashed isles of Hawaii. Where the 13 Original States had differences in economy, we now have a dissimilarity which is far greater in degree. Where once a dozen religious beliefs held sway, thousands flourish. The common language which we share has facilitated understanding, but let us not deceive ourselves into believing that it has destroyed our differences. God willing, our individualism will survive forever.

There is no reason, therefore, to change the pattern of nonconformity which has proved successful. We have already endangered the system by our conformity efforts at the Federal level through an abusive expansion of powers of the Central Government. If, indeed, there should be any additional transfer of constitutional powers, it should be in the other direction.

Mr. President, a constitutional amendment is a serious matter and should not be proposed in the absence of compelling reasons. Partisan or political considerations should be put aside, and play no part in this vital area.

How much urgency is there for such drastic action in the form of a constitutional amendment to eliminate the poll or capitation tax as a condition of suffrage? None. It is a matter of small import, blown all out of proportion by overemphasis from politically inspired propaganda.

In the days immediately following the Revolution, the former Colonies, then States, performed a minimum, but adequate for the times, amount of service. The expenses of government were comparatively slight. The burdens of government fell less evenly on the population than is normal in a State today. It was the general feeling that those who bore the responsibilities of government should exercise the ballot. It is not surprising that the ownership of property and the payment of taxes were common and usual prerequisites to the right of su:firage.

In the early days of the Union, there were no direct taxes of any consequence on the populace for the support of the - Federal Government. The costs were so slight that they could be and were borne almost entirely by tariffs.

As an expression of the belief that those who bore the responsibility of gov­ · ernment should vote, all of the States imposed tax-payment of its equivalent, property ownership, as a condition of ellgtblllty for voting. These voter eligibility requirements were summarized by the U.S. Supreme Court in Minor v. Happerset (21 Wallace 162) as follows:

Thus in New Hampshire "every male inhabitant of each town and parish with town privileges, and places unincorporated in the State, of 21 years of age and upward, excepting paupers and persons excused from paying taxes at their own request" were its voters; in Massachusetts, "every male inhabitant of 21 years of age and upward, having a freehold estate within the Commonwealth of the annual income of 3 pounds, or any estate of the value of 60 pounds"; in Rhode Island, "such as are admitted free of the company and society" of the Colony; in Connecticut such person as had "maturity in years, quiet and peaceable behavior, a civil conversation, and 40 shillings freehold or 40 pounds personal estate," if so certified by the selectmen; in New York, "every male inhabitant of full age who shall have personally resided within one of the counties of the State for 6 months immediately preceding the <Jay of election • • • if during the time aforesaid he shall have been a freeholder possessing a freehold of the value of 20 pounds within the county, or have rented a tenement therein of the yearly value of 40 shillings, and been rated and actually paid taxes to the State"; in New Jersey, "all inhabitants • • • of full age who are worth 50 pounds; proclamation money, clear estate in the same, and have resided in the county in which they claim a vote for 12 months immediately preceding the election"; in Pennsylvania "every free man of the age of 21 years, having resided in the State for 2 years next before the election, . and within that time paid a State or county tax which shall have been assessed at least 6 months before the election"; in Maryland, "all freemen above 21 years of age having a freehold of 50 acres of land in the county in which they offer to vote and residing therein, and all freemen having property in the State above the value of 30 pounds current money, and having resided in the county in which they offer to vote 1 whole year next preceding the election"; in North Carolina, for Senators, "all freemen of the age of 21 years who have been inhabitants of any one county within the State 12 months immediately preceding the day of election, and possessed of a freehold within the same county of 50 acres of land for 6 months next before and at the day of election," and for members of the house of commons, “all freemen of the age of 21 years who have been inhabitants in any one county within the State 12 months immediately preceding the day of any election, and shall have paid public taxes"; in South Carolina, "every free white man of the age of 21 years, being a citizen of the State and having resided therein 2 years previous to the day of election and who hath a freehold of 50 acres of land, or a town lot of which he hath been legally seized and possessed for at least 6 months before such election, or (not having such freehold or town lot), hath been a resident within the election district in which he offers to give his vote 6 months before such election, and hath paid a tax the preceding year of 3 shillings sterling toward the support of the Government"; and in Georgia, "such citizen and inhabitants of the State as shall have attained to the age of 21 years, and shall have paid tax for the year next preceding the election, and shall have resided 6 months within the county."

Clearly, Mr. President, conditioning suffrage on payment of taxes was the normal and usual practice in the early days of the Union.

As time has passed, the services and misservices of government, both of which are extremely expensive-as is illustra ted by . the size of the national debt-have increased enormously. In an unsuccessful attempt to pay for these government functions, innumerable taxes at both the Federal and State levels have been levied. As a result, there is almost no one who does not share in the responsibility of government insofar as finances are concerned. With a few exceptions, the burden of taxes is so widespread that a tax-payment prerequisite to suffrage excludes practically no one. Most States have recognized this fact, and have repealed meaningless con- stitutional and statutory provisions imposing such eligibility requirements . At the present time, there remain only five States which still have such requirements on voting privileges.

As in the States which have abandoned such voting requirements as the poll or capitation tax payment, the requirements in the remaining five are undoubtedly meaningless from a practical standpoint. Such a tax is rarely as high as $5 per year; and, in this inflationary economy, the number of people who cannot pay this low amount is small, indeed. Mr. President, I do not mean to imply that in the five States which require payment of poll or capitation tax as a condition to voting, there are not substantial numbers of people who do not pay the poll or capitation tax. Although I have no statistics on this matter, I would assume that there are large numbers who are delinquent. It is a known fact that large numbers of the American people are complacent about exercising their ballot. This is amply illustrated by the fact that a substantial percentage of those who register to vote do not participate in the election itself. It is only logical to assume that a major portion of those who do not pay their poll or capitation tax, have the financial ability, but do not have sufficient interest in voting to pay the tax. This is borne out in States which had, but recently repealed, poll tax requirements. There has been no substantial increase in the registration or voting in South Carolina since the repeal of the constitutional provision which made payment of a poll tax a condition of eligibility to vote.

The only logical conclusion to be drawn from an objective analysis of the situation is that we are conducting an exercise in self-deceit and public deceit. There is no real consequence to the issue which has given rise to this proposal. Even were the proposed constitutional amendment passed by the Senate and the House, and ratified by the States, it would have no significant effect on the numbers of persons who have the opportunity to vote, or on the number of persons who fulfill their responsibility by exercising the right of the ballot.

Mr. President, before we take this hasty action in approving another constitutional amendment I think it would be best to discuss the matter in more detail. Many of the constitutional amendments which have been passed in previous years have been highly criticized and it has . even been necessary, in the light of experience and calm judgment, torepeal one. One particular one which has received much criticism is the 14th amendment. I think that a general dis- cussion of it would be ' highly beneficial to us all before final action is taken on the amendment now before us.

The controversy surrounding the 14th amendment is the subject of a very well written article which appeared in the summer, 1959, issue of the South Carolina Law Quarterly by the Honorable Pinckney G. McElwee. I would like to read this article so that we all can have the benefit of his research:

The able and wise patriots who drafted our Constitution were careful to protect its provisions against actions of a temporary majority of the Congress by requiring for its amendment not only a two-thirds approval by both Houses of the Congress, but ratification by three-fourths of the States. A study of the history of the 14th amendment reveals the irregular manner in which these requirements were overcome, and a consideration of the precedents established thereby reveals the danger to our form of government.

The Civil War was fought over the asserted right of the Southern States to secede from the Union. The Southern States claimed they had such a right. The President, the Congress, and the Northern States denied that the Southern States had any such right under the Constitution of the United States. As Mr. Lincoln said, the aim of the Federal Government was to preserve the Union first; to preserve the Union without slavery, to preserve the Union with slavery if it must be, but the Union forever. This issue was decided on the battlefield and the Union Army upheld the position taken by all departments of the Federal Government; i.e., that the Southern States had no right to secede and had never been out of the Union. Incidentally, Mr. Lincoln recognized that his emancipation of the slaves was a war measure and that it would require a constitutional amendment to abolish slavery after the end of the war. Mr. Lincoln was steadfast in his position that the Southern States had never left the Union, although individual officials and soldiers of the South may have forfeited some rights; but not the States whose rights were fixed by the Constitution and . thus beyond the power of Congress to add or detract. As stated by George Tickner Curtis in volume II, page 342, of his famous "History of the Constitution":

"After the Civil War was ended, the Constitution was left just as it was before the war began; the United States had just the same sovereign rights as before and no others."

The House on July 22, 1861, and the Senate on July 25, 1861, adopted resolutions both resolving to maintain the Constitution in the rebellious States and to maintain the Union and the rights of the States unimpaired.

In the proclamation of President Lincoln of December 8, 1863, he offered "pardon to lows: all those who swear henceforth to support the Constitution of the United States and that those who, accepting this amnesty, shall have taken the oath of allegiance, each being a qualified voter by the election laws of the several States immediately before the socalled secession and excluding all others, shall reestablish a State government, which shall be republican in form and nowise contravening said oath; such shall be recognized as a true government of the State."

On February 1, 1865, the 13th amendment to the Constitution to abolish slavery was proposed and passed by Congress. On April 9, 1865, Gen. Robert E. Lee surrendered to General Grant at Appomattox Court House. General Johnston surrendered to General Sherman at Durham Station April 26, 1865. In 40 days after surrender of General Johnston there was not a single Confederate soldier in arms. Submission to the authority of the United States was complete. Postal . service and tax collections resumed: On December 18, 1865, General Grant reported to Congress that the South had accepted defeat and had accepted authority of the Federal Government.

President Lincoln prepared a proclamation to restore North Carolina to its proper position as a State but it was not yet issued before his death. At the first meeting of the Cabinet after his death it was read and unanimously adopted as the policy of the administration. Mr. Lincoln was assassinated on April 14, 1865, and died April 15, 1865. Andrew Johnson took the oath and succeeded Mr. Lincoln.

On May 29, 1865, President Johnson issued Mr. Lincoln's proclamation for North Carolina; and through June 30, 1865; similar proclamations were issued by President Johnson setting up the local State government of all Southern States.

The Southern States having been restored to a legal and operational basis by elections and the convening of State legislatures, most of them proceeded to ratify the 13th amendment which was then proclaimed to have been ratified on December 18, 1865. Included in the 27 States then needed for its adoption were Louisiana, Tennessee, Arkansas South Carolina, Alabama, North Carolina, Georgia, Maryland, Mississippi, Florida, and Texas.

On April 2, 1866, the President, by proclamation, declared: "It is the manifest determination of the American people that no State, of its own will, has the right or power to go out of, or separate itself from or be separated from the American Union, and that therefore each State ought to remain and constitute an integral part of the United States. And whereas the Constitution of the United States provides for constituted communities only as States, and not at territories, dependencies, provinces or protectorates. And whereas such constituent States must necessarily be, and by the Constitution of the United States are made equals, and placed upon a like footing as to political rights, immunities, dignity, and power with the several States with which they are united. I do hereby declare that the insurrection which heretofore existed in the States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Arkansas, Mississippi, and Florida at an end, and is henceforth to be regarded.

On August 20, 1866, a similar proclamation was issued by the President in respect to Texas.

Article V of the U.S. Constitution provides: "No State, without its consent, shall be deprived of its equal suffrage in the Senate." Nevertheless, peace having been restored, the U.S. Senate refused to seat the Senators from all of the Southern States. The House did likewise.

Article V of the Constitution provides the method and manner of amendment, as fol­ "The Congress, · whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or on application of the legislatures of twothirds of the States, shall call a convention for proposing amendments, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in threefourths thereof, as the one or the other mode of ratification may be proposed by the Congress."

The 39th Congress, which proposed the 14th amendment, met on December 5, 1865. There were 72 seats in the Senate for 36 States; 22 seats for 11 Southern States were vacant because of a joint resolution of the House and the · Senate which voted not to seat any Senator or Representative from any Southern States until the Congress decided that each of sa:id States was entitled to such representation. In the House there were 240 seats, and 58 seats from the 11 Southern States were vacant. Nebraska was not admitted to the Union as the 37th State until March 1, 1867. One of the new Senators who recently had been elected by the legislature of his State was Mr. John P. Stockton of New Jersey. John P. Stockton was introduced by the senior Senator of New Jersey on December 5, 1866, took the oath and was duly seated.

While H.J. 127 was still in Mr. Thaddeus Stevens' Committee on Reconstruction, there was a private polling of Senators and Representatives to see how they stood on the measure. Mr. Stockton was an outspoken opponent of the proposal. Furthermore, since there were 50 Senators seated, the Constitution would require a 33 Y:J vote, or 34, in order to propose it by a two-thirds vote, and a counting _ of prospective Senate votes showed that there were only 33 who would vote in favor of it. In a maneuver to reduce the Senate to 49 Members in order that a vote of 33 yeas would meet the requirements of the Constitution, a motion was made not to seat Mr. John P. Stockton, in spite of the fact that he had already been seated, on the ground that his election was invalid because he had been elected by a mere plurality and not a majority. It was the law of New Jersey and most of the other States that a plurality determined the election.

The motion not to seat was made because it was impossible to obtain the necessary vote required to expel Mr. Stockton, which was the only legal means available to prevent a Member from voting once he has been seated. In order to expel a Member of the Senate or House a two-thirds vote was required, and this vote of two-thirds simply could not be mustered. However, a refusal to seat is determined by a majority. Whe:Jil this motion was finally called to a vote, after much debate, it was defeated by a vote of 22 to 21. During the night the hard core of Reconstructionists persuaded one of the Senators to change his vote. The next day a motion to reconsider the motion not to seat Mr. Stockton was sustained by a vote of 22 to 21; thus he was removed from the Senate and the number reduced to 49.

The 14th amendment originated in the House of Representatives by House Joint Resolution 127, introduced by Thaddeus Stevens of Pennsylvania, and was referred to the Committee on Reconstruction of which Mr. Stevens was chairman. Two other bills were offered and referred to the Committee on Reconstruction and there consolidated with House Resolution 127 and reported out of the House. It was passed by the House on May 10, 1866, and sent to the Senate. In the Senate, Mr. Wade proposed an amendment by adding what is now paragraph 3. As thus amended, it was passed by the senate on June 8, 1866, and returned to the House where it was ' passed on June 13, 1866. In the Senate, the vote was 33 yeas and 11 nays, with 5 not voting. In the House there were 182 Representatives seated and of those the vote was 120 yeas and 32 nays, with 32 not voting.

If the 22 Senators and 58 Representatives from the Southern States who had been arbitrarily and unlawfully refused seats by the Senate and House are counted, the number is 71 Senators and 240 Representatives. The vote in the Senate of 33 for and 11 against by the Members present and voting was two-thirds. But if the two-thirds required had included the 22 arbitrarily and illegally excluded from voting, there was not a twothirds vote. Likewise, the vote of 120 for and 32 against in the House was two-thirds of those present and voting. But if the 58 Representatives who were arbitrarily and illegally excluded had been counted against, the vote would be 120 for and 90 aga . against, and the vote would have failed to carry by two-thirds.

In the foregoing state of the record, the proposed amendment was certified to have been passed by a two-thirds vote of each House and transmitted to the Secretary of State for transmission to the 36 States then composing the United States. Twenty-eight were needed to ratify. Ten States could prevent ratification. The process of ratification began. By February 1, 1867, 17 States had ratified and 11 had rejected.

RATIFIED

Connecticut: June 30, 1866.

New Hampshire: July 7, 1866.

Tennessee: July 7, 1866. New Jersey: September 11, 1866. Oregon: September 19, 1866. Vermont: October 30, 1866. New York: January 10, 1867. Kansas: January 11, 1867. Ohio: January 11, 1867. Dlinois: January 15, 1867. West Virginia: January 16, 1867. Michigan: January 16, 1867. Minnesota: January 17, 1867. Maine: January 19,1867. Nevada: January 22, 1867. Indiana: January 23, 1867. Missouri: January 26, 1867.

REJECTED

Texas: October 27, 1866. Georgia: November 9, 1866. Florida: December 3, 1866. Alabama: December 7, 1866. North Carolina: December 13,1866. Arkansas: December 17, 1866. South Carolina: December 20, 1866. Virginia: Janu a ry 9, 1867. Kentucky: January 8, 1867. Mississippi: January 29, 1867.

California: March 17, 1868.

The 14th amendment was thus defeated. An editorial in the Philadelphia Enquirer on Saturday, February 9, 1867, gave a clue to what was to come. It states:

"The constitutional amendments having passed both branches of the Legislature of Pennsylvania will be sent to Governor Geary, who will undoubtedly sign them next week. Thus another State will be added to the list of those who have ratified these amendments. As it is probable that nearly all of the States which sustained the Government during the rebellion will ratify those amendments, and as all of the Southern States we believe have now rejected them, the question arises: What will be done? There is a growing disposition to regard the States which maintained their relation with the Union as the only ones which have a voice in this matter, that a resolution will be brought before the present Congress, or the next, declaring that the consent of threefourths of those is all that is necessary to give force and validity to an amendment to the Constitution is extremely probable. In that case, we suppose the question will have to be fought over again in some way, and it is probable that it will finally enter the Supreme Court, where the decision, according to present appearances, will be against The editor was not aware that, 4 days prior to his editorial, H.R. 1143 had been introduced using a different scheme to accomplish the desired result.

THE RECONSTRUCTION ACT

On February 5, 1867, H.R. 1143 was introduced in the House. This was a bill whose stated purpose was to provide for the more efficient government of the rebel States. This is what historically was called the of fact. Reconstruction Act. Although these socalled rebel States had been functioning as loyal States of the Union in complete peace for nearly 2 years, during which time they had ratified the 13th amendment abolishing slavery, this act began by declar­

"Whereas no legal State governments or adequate protection for life or property now exists in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi. Alabama, Louisiana, Florida, Texas, and Arkansas; and whereas it is necessary that peace and good order should be enforced in said States until loyal and republican State governments can be legally established."

Of course, the State governments were and had been functioning in peace at all times since the surrender of General Johnston.

The bill provided for military occupation of the named Southern States to be conducted without interference from any State authorities. It further provided that the governments of such States were only provisional and subject to the paramount authority of the United States as exercised by the military government, and gave authority to the military commanders to try any persons by military commission. In addition it provided for new rules of suffrage under which a new constitution of each State was to be adopted and a new legislature elected, and disfranchised any person who had engaged in the rebellion or given aid and comfort to the rebels (which effectually disfranchised all white residents of the States). Nor, under the bill, was any Senator or Representative to be permitted to take the oath of office and be admitted to Congress until the new constitution had met with the approval of Congress, the newly qualified electorate of the State had elected a legislature, such legislature had adopted the proposed 14th amendment and the amendment had become a part of the Constitution.

It may be here noted that the U.S. Supreme Court has held that each of the States has the supreme and exclusive power to regulate the right of suffrage and to determine the class of inhabitants who may vote. Congress passed the bill and President Johnson promptly exercised his veto power. Congress overrode the veto of the President making the Reconstruction Act the law of the land. By this time 3 more States, for a total of 20, had ratified; namely, Rhode Island, February 7, Pennsylvania, February 12, and Wisconsin, February 13, and Louisiana, February 6, and Delaware, February 7, 1867, had rejected, bringing that total to 13. Thus a Northern State had now joined 12 Southern States in rejecting when it was only necessary to obtain 10 rejections in order to prevent adoption of the amendment.

President Johnson's veto message is enlightening and reads, in part, as follows:

"I have , examined the bill 'to provide for the more efficient government of the rebel States' with the care and anxiety which its transcendent importance is calculated to awaken. I am unable to give it my assent for reasons so grave that I hope a statement of them may have some influence on the minds of the patriotic and enlightened men with whom the decision must ultimately rest.

"The bill places all the people of the 10 States therein named under the absolute domination of military rules; and the preamble undertakes to give the reason upon which the measure is based and the ground upon which it is justified. It declares that there exists in those States no legal governments and no adequate protection _ for life or property, and asserts the necessity of enforcing peace and good order within their limits. This is not true as a matter "It is not denied that the States in question have each of them an actual government, with all the powers-executive, judicial, and legislative-which properly belong to a free State. They are organized like the other States of the Union, and, like them, they make, administer, and execute the laws which concern their domestic affairs. An existing de facto government, exercising such functions as these, is itself · the law of the State upon all matters within its jurisdiction. To pronounce the supreme law-making power of an established State illegal is to say that law itself is unlawful. "The provisions which these governments have made for the preservation of order, the suppression of crime, and the redress of private injuries are in substance and principle the same as those which prevail in the North­ -ern States and in other civilized countries. They certainly have not succeeded in preventing the commission of all crime, nor has this been accomplished anywhere in the world. But that these people are maintaining local governments for themselves which habitually defeat the object of all government and render their own lives and property insecure is in itself utterly improbable, and the averment of the bill to that effect is not supported by any evidenc-e which has come to my knowledge.

"The bill, however, would seem to show upon its face that the establishment of peace and good order is not its real object. The fifth section declares that the preceding sections shall cease to operate in any State where certain events shall have happened. These events are, first, the selection of delegates to a State convention by an election at which Negroes shall be allowed to vote; second, the formation of a State constitution by the convention so chosen; third, the insertion into the State constitution of a provision which will secure the right of voting at all elections to Negroes and to such white men as may not be disfranchised for rebellion or felony; fourth, the submission of the constitution for ratification to Negroes and white men not disfranchised, and its actual ratification by their vote; fifth, the submission of the State constitution to Congress for examination and approval, and the actual approval of it by that body; sixth, the adoption of a certain amendment to the Federal Constitution by a vote of the legislature elected under the new constitution; seventh, the adoption of said amendment by a sufficient number of other States to make it a part of the Constitution of the United States. All these conditions must be fulfilled before the people of any of · these States can be relieved from the bondage of military domination; but when they are fulfilled, then immediately the pains and penalties of the bill are to cease, no matter whether there be peace and order or not, and without any reference to the security of life or property. The excuse given for the bill in the preamble is admitted by the bill itself not to be real. The military rule which it establishes is plainly to be used, not for any purpose of order or for the prevention of crime, but solely as a means of coercing the people into the adoption of principles and measures to which it is known that they are opposed, and upon which they have an undeniable right to exercise their own judgment.

"I submit to Congress whether this measure is not in its whole character, scope, and object without precedent and without authority, in palpable conflict with the plainest provisions of the Constitution, and utterly destructive to those great principles of liberty and humanity for which our ancestors on both sides of the Atlantic have shed so much blood, and expended so much treasure. "The 10 States named in the bill are divided into 5 districts. For each district an officer of the Army, not below the rank of a brigadier general, is to be appointed to rule over the people; and he is to be supported with an efficient military force to enable him to perform his duties and enforce his authority. Those duties and that authority, as defined by the third section of the bill, are 'to protect all persons in their rights of person and property, to suppress insurrection, disorder, and violence, and to punish or cause to be punished all disturbers of the public peace or criminals.' The power thus given to the commanding officer over all the people of each district is that of an · absolute monarch. His mere will is to take the place of all law.

"It is plain that the authority here given to the mll1t a ry officer amounts to absolute despo t ism. But to make it still more unendurable, the bill provides that it may be delegated to as many subordinates as he choose-s to a p point, for it declares that he shall 'punish or cause to be punished.' Such a power has not been wielded by any monarch in England for more than 500 years . In all that time no people who speak the English language have borne such servitude. It reduces the whole population of the 10 States-all persons, of every color , sex, and condition, and every stranger within their limits-to the most abject and degrading slavery. No master ever had a control so absolute over the slaves as this bill gives to the military officers over both white and colored persons.

"I come now to a que s tion which is , if possib l e, still more important. Have we the power to establish and carry into execution a measure like this? I answer, 'Certainly not,' if we derive our authority from the Consti t ution and if we are bound by the limitations which it imposes.

"This proposition is perfectly clear, that no branch of the Federal Government--executive, legislative, or judicial-can have any just powers except those which it derives through and exercises under the organic laws of the Union. Outside of the Constitution we have no legal authority more than private citizens, and within it we have only so much as that instrument gives us. This broad principle limits all our functions and applies to all subjects. It protects not only the citizens of States which are within the Union, but it shields every human being who comes or is brought under our jurisdiction. We have no right to do in one place more than in another that which the Constitution says we shall not do at all. If, therefore, the Southern States were in truth out of the Union, we could not treat their · people in a way which the fundamental law forbids. Some persons assume that the success of our arms in crushing the opposition which was made in some of the States to the execution of the Federal laws reduced those States and all their people-the innocent as well as the guilty-to the condition of vassalage and give us a power over them which the Constitution does not bestow or define or limit. No fallacy can be more transparent than this . Our victories subjected the insurgents to legal obedience, not to the yoke of an arbitrary despotism. When an absolute sovereign reduces his rebellious subjects, he may deal with them according to his pleasure, because he had that power before. But when a limited monarch puts down an insurrection, he must stm govern according to law.

"This is a bill passed by Congress in time of peace. There is not in any one of the States brought under its operation either war or insurrection. The laws of the States and of the Federal Government are all in undisturbed and harmonious operation. The courts, State and Federal, are open and in the full exercise of their proper authority Over every State comprised in these five military districts, life, liberty, and property are secured by State laws and Federal laws, and the National Constitution is everywhere in force and everywhere obeyed. What, then is the ground on which this bill proceeds? The title of the bill announces that it is intended 'for the more efficient government' of these 10 States. It is recited by way of preamble that no legal State governments 'nor adequate protection for life or property• exist in those States, and that peace and good order should be thus enforced. The first thing which arrests attention upon these recitals, which prepare the way for martial law, is this, that the only foundation upon which martial law can exist under our form of government is not stated or so much as pretended. Actual war, foreign invasion, domestic insurrection-none of these appear; and none of these , in fact, exist. It is not even recited that any sort of war or insurrection is threatened. Let us pause to consider, upon this question of constitutional law and the power of Congress, a recent decision of the Supreme Court of the United States in Ex p a rte Mill i g a n.

"I will first quote from the opinion of the majority of the Court: 'Martial law cannot arise from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the courts and deposes the civil administration.'

"We see that martial law comes in only when actual war closes the courts and deposes the civil authority; but this bill, in time of peace, makes martial law operate as though we were in actual war, and becomes the cause instead of the consequence of the abrogation of civil authority. One more quotation: 'It follows from what has been said on this subject that there are occasions when martial law can be properly applied. If in foreign invasion or civil w a r the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theater of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority thus overthrown, to preserve the safety of the Army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course.'

"I now quote from the opinion of the minority of the Court, delivered by Chief Justice Chase: 'We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists. Where peace exists, the laws of peace must prevail.'

"This is sufficiently explicit. Peace exists in all the territory to which this bill applies. It asserts a power in Congress, in time of peace, to set aside the laws of peace and to substitute the laws of war. The · minority, concurring with the majority, declares that Congress does not possess that power. • • I need not say to the representatives of the American people that their Constitution forbids the exercise of judicial power in any way but one-that is, by the ordained and established courts . It is equally well known that in all criminal cases a trial by jury is made indispensable by the express words of that instrument.

"The Constitution also forbids the arrest of the citizen without judicial warrant, founded on probable cause. This bill authorizes an arrest without warrant, at the pleasure of a military commander. The Constitution declares that 'no person shall be held to answer for a capital or otherwise infamous crime unless on presentment of a grand jury.' This bill holds every person not a soldier answerable for all crimes and all charges without any presentment. The Constitution declares that 'no person shall be deprived of life, liberty, or property without due process of law.' This bill sets aside all process of law, and makes the citizen answerable in his person and property to the will of one man, and as to his life to the will of two. Finally, the Constitution declares that 'the privilege of the writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it ' ; whereas this bill declares martial law (which of itself suspends this great writ) in time of peace, and authorizes the military to make the arrest, and g i ves to the prisoner only one privilege, and that is a trial 'without unnecessary delay.' He has no hope of release from · custody, except the hope such as it is, of release by acquittal before a military commission.

"The United States are bound to guarantee to each State a republican form of government. Can it be pretended that this obligation is not palpably broken if we carry out a measure like this, which wipes away every vestige of republican government in 10 States and puts the life, property, liberty, and honor of all people in each of them under the domination of a single person clothed w i th unlimi t ed authority?

"Here is a bill of attainder against 9 million people at once . It is based upon an accusation so vague as to be scarcely intelligible l e and found to be true upon no credible evidence. Not 1 of the 9 million was heard in his own defense. The representatives of the doomed parties were excluded from all participation in the trial. The conviction is to be followed by the most ignominious punishment ever inflicted on large m a s E es of men. It disfranchises them by hundreds of thousands and degrades them all, ev e n tho s e who are admitted to be guiltl less, , from the rank of freemen to the condition i on of slaves.

"The purpose and object of the bill-the general intent which pervades it from beginning to end-is to change the entire structure and character of the State governments and to compel them by force to the adopt i on of org a nic laws and regulations which they are unwilling to accept if left to themselves. The Negroes have not asked for the privilege of voting; the vast majority of them have no idea what it means. This bill not only thrusts it into their hands, but compels them, as well as the whites, to use it in a particular way. If they do not form a constitution with prescribed articles in it and afterwards elect a legislature which will act upon certain measures in a prescribed way, neither blacks nor whites can be relieved from the slavery which the blllimposes upon them. Without pausing here to consider the policy or impolicy of Africanizing the southern part of our territory, I would simply ask the attention of Congress to that manifest, well-known, and universally acknowledged rule of constitutional law which declares that the Federal Government has no jurisdiction, authority, or power to regulate such subjects for any State. To force the right of suffrage out of the hands of the white people and into the hands of the Negroes is an arbitrary violation of this principle.

"That the measure proposed by this bill does violate the Constitution in the particulars mentioned and in many other ways which I forbear to enumerate is too clear to admit the least doubt. It only remains to consider whether the injunctions of that instrument ought to be obeyed or not. I think they ought to be obeyed, for reasons which I will proceed to give as briefly as possible. In the first place, it is the only system of free government which we can hope to have as a Nation. When it ceases to be the rule of our conduct, we may perhaps take our choice between complete anarchy, a consolidated depotism, and a total dissolution of the Union; but national liberty regulated by law will have passed beyond our reach.

"It was to punish the gross crime of defying the Constitution and to vindicate its supreme authority that we carried on a bloody war of 4 years' duration . Shall we now acknowledge that we sacrificed a million of lives and expended billions of treasure to enforce a Constitution which is not worthy of respect and preservation?

"It is a part of our public history which can never be forgotten that both Houses of Congress, in July 1861, declared in the form of a solemn resolution that the war was and should be carried on for no purpose of subjugation, but solely to enforce the Constitut i on and laws, and that when this was yielded by the parties in rebellion the contest should cease, with the constitutional rights of the States and of individuals unimpaired. This resolution was adopted and sent forth to the world unanimously by the Senate and with only two dissenting voices in the House. It was accepted by the friends of the Union in the South as well as in the North as expressing honestly and truly the object of the war. On the faith of it many thousands of persons in both sections gave their lives and their fortunes to the cause. To repudiate it now by refusing to the States and to the individuals within them the rights which the Constitution and laws of the Union would · secure to them is a breach of our plighted honor for which I can imagine no excuse and to which I cannot voluntarily become a party.

"I am thoroughly convinced that any settlement or compromise or plan of action which is inconsistent with the principles of the Constitution will not only be unavailing, but mischievous; that it will but multiply the present evils, instead of removing them. The Constitution, in its whole integrity and vigor, throughout the length and breadth of the land, is the best of all compromises. Besides, our duty does not, in my judgment, leave us a choice between that and any other. I believe that it contains the remedy that is so much needed, and that if the coordinate branches of the Government would unite upon its provisions they would be found broad enough and strong enough to sustain in time of peace the Nation which they bore safely through the ordeal of a protracted civil war. Among the most sacred guarantees of that instrument are those which declare that 'each State shall have at least one Representative,' and that 'no State, without its consent, shall be deprived of its equal suffrage in the Senate.' Each House is made the 'judge of the elections, returns, and qualifications of its own Members,' and may, 'with the concurrence of two-thirds, expel a Member.' Thus, as heretofore urged, 'in the admission of , Senators and Representatives from any and all of the States there can be no just ground of apprehension that persons who are disloyal will be clothed with the powers of legislation, for this could not happen when the Constitution and the laws are enforced by a vigilant and faithful Congress.' "When a Senator or Representative presents his certificate of election, he may at once be admitted or rejected; or, should there be any question as to his eligibility, his credentials may be referred for investigation to the appropriate committee. If admitted to a seat, it must be upon evidence satisfactory to the House of which he thus becomes a Member that he possesses the requisite constitutional and legal qualifications. If refused admission as a Member for want of due allegiance to the Government, and returned to his constituents, they are admonished that none but persons loyal to the United States will be allowed a voice in the legislative councils of the Nation, and the political power and moral influence of Congress are thus effectively exerted in the interests of loyalty to the Government and fidelity to the Union.

"While we are legislating upon subjects which are of great importance to the whole people, and which must affect all parts of the country, not only during the life of the present generation, but for ages to come, we should remember that all men are entitled at least to a hearing in the councils which decide upon the destiny of themselves and their children. At present 10 States are denied representation, and when the 40th Congress assembles on the 4th day of the present month 16 States will be without a voice in the House of Representatives. This grave fact, with the important questions before us, should induce us to pause in a course of legislation which, looking solely to · the attainment of political ends, fails to consider the rights it transgresses, the law which it violates, or the institutions which it imperils.

"ANDREW JoHNSON."

In volume II, page 42 of the "Growth of the American Republic," Samuel Eliot Morison, professor of American history at Harvard University, and Henry Steel Commanger, professor of history, Columbia University, speaking of the Reconstruction Act stated: "Johnson returned the bill with a scorching message arguing the unconstitutionality of the whole thing, and the most impartial students have agreed with his reasoning, Professor Burgess writing, indeed, that there was hardly a line in the entire b111 which would stand the test of the Constitution.” On the same day of the veto, March 2, 1867, the House and the Senate overrode it by a two-thirds vote and the bill became Public Law 68. Although considering the act to be unconstitutional, as expressed in his veto message, President Johnson considered it his duty to enforce the law and proceeded to execute it. He thereupon sent the Army into the South; ousted all State legislatures and governments by military force; disfranchised all those who had participated in the rebellion or who had aided or abetted them (contrary to the constitutional law announced by the U.S. Supreme Court); held elections in which all of the Negroes but practically no whites were eligible to vote. New constitutions were adopted and new legislatures were convened and the latter proceeded to ratify the 14th Amendment. The Army, all the while, was in control.

When the supplemental Reconstruction Act was passed in March of 1867, and then passed over the veto of the President on March 23, 1867, the Baltimore Sun carried the followin,g editorial on March 25, 1867:

"THE LAST VETO

"The message of President Johnson, returning to Congress on Saturday last, the bill supplementary to the act to provide for more efficient government of the rebel state, assigning his reasons for nonapproval, one of the most plain and convincing in argument among the several able state papers he has been called upon to indite in his endeavors to stay the vandal hand of the congressional majority, and conserve the great fundamental principles of the Constitution and Government."

While the military occupation of the South was in progress, Massachusetts and Nebraska ratified, on March 20 and June 15, 1867, respectively. On March 23, by joint resolution, the State of Maryland rejected, becoming the 14th State to reject.

Observing how Congress had taken the Constitution into its own hands and was proceeding in willful disregard of the Constitution, on the 15th of January 1868- Ohio, and then on March 24, 1868, New Jersery, voted to withdraw their prior ratifications and to reject. Thus 16 States had now rejected prior to a full ratification by a three-quarters vote having been reached. Iowa ratified on March 9, 1868. Prior to the proclamation of the Secretary of State, Rhode Island, Pennsylvania, Wisconsin, and Massachusetts, for a total of 23 States, had ratified, but this number was reduced to 21 by the withdrawals of Ohio and New Jersey. The rejections, counting the withdrawals, numbered 16. On October 15, 1868, Oregon withdrew its ratification and became the 17th of 37 States to reject. The count stood: 20 ratifications and 17 rejections (hardly near the three-quarter majority required for adoption). Even without considering the rejection of Oregon, which came after the date of the proclamation of the Secretary of State (July 20, 1868), the 14th amendment had by legal means been overwhelmingly rejected.

After the U.S. Army had moved into the South and taken charge by force of arms and ousted the duly elected and qualified legislatures of all of the Southern States (except Tennessee) , disqualified practically all of the white voters (by act of · Congress and not by State law), enfranchised all of the Negroes, elected Negro legislatures, and adopted new constitutions by these purported legislatures, the matter of ratification of the 14th amendment as a condition to permission by Congress for the exercise of suffrage of the Southern States (violating article V of the U.S. Constitution) was presented to these newly constituted Negro legislatures of such States. The rejections by the legally elected and constituted legislatures of all of the Southern States were ignored and the newly constituted Legislatures of Arkansas, Florida, North Carolina, Louisiana, South Carolina, Alabama, and Georgia, ratified on April 16, June 9, July 2, July 9, and July 16, 1868, and July 21, 1868, respectively.

At this point, by counting the ratifications of Ohio and New Jersey, who had in the meanwhile withdrawn their ratifications and had rejected, and by not counting the rejections of Arkansas, Florida, North Carolina, Louisiana, South Carolina, and Alabama, who had later by way of illegally established legislatures, ratified under compulsion of the military force of the U.S. Army, the total of 28 States needed to ratify was achieved.

The Secretary of State then proceeded to publish an equivocal proclamation. Therein he stated that whereas under an act of Congress it had been made the duty of the Secretary of State to cause any amendment to the Cons · Constitution which had been adopted according to the provisions of said Constitution to be published with his certificate specifying the States by which the same had been adopted, and that the same had become a part of the Constitution of the United States and, whereas neither the act referred to, nor any other law authorized the Secretary of State to determine and decide questions as to the authenticity of the organization of State legislatures, or as to the power of any State legislature to recall a previous act or resolution or ratification, or rejections of any amendment, that if the ratification of the States of Ohio and New Jersey were counted as having ratified, notwithstanding their subsequent rejection; and if the ratifications of the newly constituted and newly established bodies avowing themselves to be and acting as the legislatures, respectively, of Arkansas, Florida, North Carolina, Louisiana, South Carolina, and Alabama, were counted, the 14th amendment was ratified. This proclamation was made on July 20, 1868. Although the question as to whether an amendment of the U.S. Constitution has been properly submitted by Congress and properly ratified by the State in accord with the Federal Constitution, is properly a legal question to be determined by the U.S. Supreme Court, and Congress has no more right to decide this than the Secretary of State, the Senate, and the House 1 day later, on July 21, 1868, by majority voice vote, proceeded by separate resolutions to resolve that the 14th amendment had been adopted and was a part of the Constitution. Then, pursuant to this resolution, the Secretary of State issued a new proclamation on July 27, 1868, reciting resolutions of the House and the Senate which declared the 14th amendment adopted, and he thereby proclaimed it had been adopted.

ATTEMPTS TO OBTAIN A DECISION OF THE SU• PREME COURT

Although repeated efforts have been made to get the U.S. Supreme Court to directly pass on the question as to whether the 14th amendment was adopted, the issue has invariably been dodged and no opinion has ever considered or discussed it. There have been several hundred cases in which the Supreme Court has based its holding on the 14th amendment, but all of these have been based upon prima facie presumption of validity resulting from the proclamation of the Secretary of State, and a majority vote of Congress.

In Ex parte Milligan, decided by the Supreme Court on December 17, 1866, the Court held that the trial and conviction of a civilian by a military commission where peace exists and the civil courts were open was null and void as the commission had no jurisdiction, and further that Congress had no authority to apply the laws of war when no war existed. Despite this ruling, William McCardle was arrested and held for trial in Mississippi by a military commission when no war existed and the civil courts were open. This case clearly demonstrated that the Congress of the United States was aware of the unconstitutionality of the Reconstruction Act and was unwilling to permit a decision of the Supreme Court to prevent the carrying out of their known illegal plan. The Members of Congress had read the veto message of President Johnson and recognized its validity and were well aware of what the result would be if the Court were forced to pass on the question.

William McCardle was the editor of the Vicksburg Times. He was arrested by the military authorities in Mississippi for publishing an editorial regarding the validity of the Recons tr uction Act, and they proposed to try him before the military commission for imp eding reconstruction, inciting disorder a d disturbance of the peace. On November 12, 1867, he applied to the U.S. circuit court for a writ of habeas corpus on the ground that the Reconstruction Act was unconstitutional and void and that the military commission was without legal authority to try him. The writ was issued directing the military commission to produce the body of McCardle and to present the cause of his imprisonment. The military authorities delivered McCardle into the custody of the U.S. marshal showing they were holding him under authority of the Reconstruction Act.

Robert A. Hill of Jacinto, Miss., had been appointed judge of said court on May 1, 1866. He was a native of North Carolina, age 54, and an old line Whig. He had had experience as a State court judge in Tennessee and northern Mississippi. Both the judge and McCardle recognized that this case was a means of obtaining from the Supreme Court a ruling on the constitutionality of the Reconstruction Act on appeal. A hearing was held and on November 25, 1867, the court adjudged that McCardle be remanded into the custody of the military authorities from which judgment McCardle appealed to the U.S. Supreme Court. The Supreme Court allowed his release on bond. In the Supreme Court a motion to dismiss was filed by the Government on the ground that the Court lacked jurisdiction to hear the case, based upon the act of February 1867 relating to suits begun in State courts involving haebeas corpus. On February 17, 1868, the Court decided that .it had jurisdiction and denied the motion to dismiss.

Word was passed to the leaders of Congress that the Court would be forced to declare the Reconstruction Act to be unconstitutional. While the case was thus pending Congress acted quickly. A b111 was presented to the House to deprive the Supreme Court of jurisdiction to decide the case. Mr. Schenck, chairman of the Ways and Means Committee, in reporting the bill to the House with recommendation that it be passed, stated that the bill was designed to prevent the Supreme Court from passing on the validity of reconstruction legislation. Congress quickly passed this bill, which was vetoed by the President, and on March 27, 1868, it was enacted over his veto. This statute deprived the Supreme Court of any jurisdiction to decide that type of case. Th~ case was not argued until March 19, 1869, and, on April 12, 1869, the Supreme Court dismissed the case for want of jurisdiction. The Legislature of the United States had thus deliberately and intentionally prevented the Supreme Court of the United States from declaring the Reconstruction Act unconstitutional. If it had done so, the whole military occupation of the Southern States would probably have forthwith terminated and the Legislature of the United States would have been thwarted in its effort to force the adoption of the 14th amendment by such illegal and unconsti• tutional means.

In Marbury v. Madison, decided February 24, 1803, the Supreme Court in an opinion by Chief Justice Marshall had held that an act of Congress which was repugnant to the Constitution was invalid and that it was within the judicial powers of the courts to so decide. The contention was made that the act of Congress was a political act and could not be inquired into by the courts. Chief Justice Marshall said: "This doctrine would subvert the very foundation of all written constitutions." And "It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict its powers within narrow limits." Again, in Luther v. Borden, in an opinion by Chief Justice Taney, the Court had said:

"The high power has been conferred on this court, of passing judgment upon the acts of the State sovereignties and the legislative and executive branches of the Federal Government, and of determining whether they are beyond the limits of power marked out for them respectively by the Constitution of the United States."

In March 1867, the State of Mississippi filed a motion for leave of court to file a bill in the name of the State to enjoin President Johnson from executing the Reconstruction Act on the ground it was unconstitutional. It was argued on April 12 and on April 15, the Court held it had no jurisdiction to enjoin the President in the performance of his official duties, as the legislative, executive, and judicial departments of the Government were equal, the President being the Executive.

Later, in Georgia v. · Stanton, argued in April and May of 1867, decided May 13, 1867, but opinion withheld until February 10, 1868, the constitutionality of the Reconstruction Act was directly attacked and an injunction sought in the U.S. Supreme Court to enjoin Secretary of War Stanton and General Grant and others from carrying out the military occupation of Georgia, inasmuch as the execution of this law would totally abolish the existing government of the State of Georgia. The Supreme Court has held on many occasions that the acts of an individual officer of the Government, which are void because of unconstitutionality, even though acting under an act of Congress, are merely acts as an individual and may be enjoined by the courts. Despite these holdings and the holdings of Marbury v. Madison and Luther v. Borden, which held the Court had the power and duty to determine whether an act of Congress violated the Constitution of the United States, the Supreme Court dismissed the complaint for alleged lack of jurisdiction on the ground that only a political question was presented. The case . of Mississippi v. Stanton was decided at the same time with the identical opinion.

In volume II of the "Growth of the American Republic," it was said, at page 51:

"Many of the acts which Congress passed to carry into effect its reconstruction policy were palpably unconstitutional, but the attitude of the radicals was well expressed by General Grant when he said of this legistion that 'much of it, no doubt, was unconstitutional; but it was hoped that the laws enacted would serve their purpose before the question of unconstitutionality could be submitted to the judiciary and a decision obtained.'"

Mr. STENNIS. Mr. President, will the Senator yield for a question?

Mr. THURMOND. I am pleased to yield to the distinguished Senator from Mississippi.

Mr. STENNIS. I . appreciate the speech the Senator is making. Other duties have compelled me to be absent from the floor until I came in a few moments ago. I understand that the Senator has already undertaken a discussion with reference to the question of the adoption of the 14th amendment and its never having been actually passed on by the Supreme Court of the United States so far as its legal adoption was concerned. Has the Senator covered that part in his speech?

Mr. THURMOND. I have.

Mr. STENNIS. Was the Senator's conclusion that, there never having been any test case, the matter is still an open question and has not been adjudicated?

Mr. THURMOND. The Supreme Court never passed on the constitutionality of the act. As I said a few moments ago, probably before the Senator came to the floor, the Supreme Court was almost at the point of passing on it, when word was passed to the congressional leaders, and a law was passed by Congress prohibiting the Supreme Court from passing on matters pertaining to the Reconstruction Act.

Mr. STENNIS. That is the very point I believe should be underscored and emphasized again, that resort was had to a congressional act, which could hardly be valid itself. Is that the opinion of the Senator from South Carolina?

Mr. THURMOND. I heartily agree with the Senator from Mississippi that the Reconstruction Act could not have been valid itself, and I do not understand why Congress would have passed a law prohibiting the Supreme Court from passing on a question of that nature, unless they were of the opinion that the Court would find it unconstitutional. This case involved a man's appeal to the Supreme Court. He had been arrested by the military in charge and was being held. When the court of appeals turned him back to the military court, he appealed to the U.S. Supreme Court. The indication was that the Supreme Court felt that that would test the Reconstruction Act and that, when tested, it would not stand the test and would be thrown out. That is when the word was passed to the leaders in Congress, and they passed the bill prohibiting the Supreme Court from hearing the appeal under the Reconstruction Act.

Mr. STENNIS. They withdrew the jurisdiction of the Supreme Court in these matters, in other words.

Mr. THURMOND. Yes, that is what they attempted to do.

Mr. STENNIS. That is what the purpose was.

Mr. THURMOND. Yes.

Mr. STENNIS. Was the purpose to withdraw the jurisdiction in favor of a military court?

Mr. THURMOND. They were trying Mr. THURMOND. - to withdraw the jurisdiction of the Supreme Court from passing upon appeals that might come up from decisions of the military court and also decisions that might come from the civilian court to the Supreme Court, if they arose out of the military courts. In this particular case the man who was being held by the military court appealed the matter, and he was turned back to the military court.

Mr. STENNIS. I thank the Senator very much. I shall avail myself of the opportunity to hear the remainder of the Senator's argument. I will follow it very closely.

Mr. THURMOND. I wish the people in this country would take the time to read the veto message of President Andrew Johnson on the Military Reconstruction Act. It is one of the finest messages, one of the finest legal documents and one of the clearest and most concise state papers that any person in this country has ever delivered. Every lawyer ought to read it and every citizen ought to read it. President Johnson not only pointed out many reasons why this act was unconstitutional, but he pointed out the rights of the citizens of this country. It is a magnificent message. I read the veto message into the RECORD this afternoon.

Mr. STENNIS. If the Senator will yield further, I should like to say that I am glad he did read it into the RECORD. Was that not the message that really proved to be the ground for impeaching President Johnson, and when he finally prevailed by such a narrow margin?

Mr. THURMOND. By one vote.

Mr. STENNIS. I thank the Senator very much.

Mr. THURMOND. It took real courage for him to deliver that veto message, knowing the temper of both Houses of Congress and knowing the action that probably would be taken against him in reprisal. He was a man of great courage. He acted without regard for the consequences as his principles dictated. He stood by the Constitution. Later on, as I stated, editors in the North and other places undoubtedly agreed that he was on sound constitutional ground and that the action he took was the only action that could have been taken.

Mr. STENNIS. Thus this became a landmark, although a neglected one. It was a shining light and a landmark in American history.

Mr. THURMOND. That is exactly right. As time passes I am sure future generations in this country who study the Constitution and who study the laws and who really understand fully the many rights under the Constitution will agree with President Andrew Johnson in the action he took because any student of the Constitution and the laws could not take any other position. In fact, Congress practically admitted that what it was doing was done purely from political motivations. It was trying to do indirectly what · it could not do directly.

Mr. STENNIS. I thank the Senator.

I continue to read: The 14th amendment contains many desirable provisions as may be observed. It provides:

"SECTION 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws. "SEc. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a State, or members of the legislature thereof, is denied to any of the male inhabitants of such State, being 21 years of age, and citizens of the United States, or is any way abridged, except for participation in rebellion, or other crime , the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens 21 years of age in such State. "SEc. 3. No person shall be a Senator or Representative in Congress, or elector of President or Vice President, or hold any office, civil or military, under the United States, or under any State, who, having p r eviously taken an oath, as a Member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United states, shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

"SEc. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions anct bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss , or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

"SEc. 5. The Congress shall have power to enforce by appropriate legislation, the provisions of this article."

There are also many excellent and highly desirable provisions in the first 10 amendments, commonly called the Bill of Rights and in the amendments adopted before and after the 14th. But, the desirability of an amendment to the Constitution cannot accomplish the adoption thereof, nor can the passage of time override the specific provisions of article V which details the only method by which the Constitution can be changed. The Congress has expended its function in the amending process when it has proposed the amendment to the States. Any further action is completely outside the scope of the amending process.

On July 12, 1909, when Senate Joint Resolution 40 proposing the 16th amendment was under consideration, the Honorable Cordell Hull, in a speech in Congress, referred to the unconstitutionality of the purported adoption of the 14th amendment. He stated:

"While the sole function of CongresS with respect to amendments _ is to propose to the States such amendments as two-thirds of both Houses sees fit; tO be ratified or rejected, either of the State legislature or by conventions, yet Congress in this instance did not permit all of the States to act upon this proposed amendment. • * * It must be conceded that the moment three-fourths of the States duly ratify an amendment it becomes a part of the Constitution, the proclamation of the Secretary of State being a mere ministerial act. Hence, it follows that Congress has not power in the premises after it has once proposed an amendment to the States as the Constitution provides, not even of recalling the amendment; therefore, the passage of any resolution by Congress declaring that a given amendment has or has not been duly ratified by the States, such as was done with respect to the 14th amendment, is ultra vires and void."

Many legal questions arise in respect to the existence or not of the 14th amendment. Some of these will be discussed hereafter. 1. Were the Southern States ever out of the Union?

This question is answered in the negative by the U.S. Supreme Court in Texas v. White, which was an original case brought by Texas, filed on February 15, 1867, decided April 12, 1869. It was contended that the State by reason of its act of secession had so changed its status as not to be a State entitled to file suit against the United States in the Supreme Court. In holding that Texas was and always had been a State in the Union from the date of its admission, the Court, after discussing its acts of secession, etc., said:

"Did Texas in consequence of these acts cease to be a State? Or if not, did the State cease to be a member of the Union? • • *

"The Union of the States never was a purely artificial and arbitrary relation • * *. It was confirmed and strengthened by the necessities of war and received definite form and character and sanction from the Articles of Confederation. By these the Union was solemnly declared to 'be perpetual. • And when these articles were found to be inadequate to the exigencies of the country, the Constitution was ordained 'to form a more perfect union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words • • •.

"When therefore Texas became one of the United States she entered into an indissoluble relation. All the obligations of perpetual union, and all the guarantees of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete and perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution or through consent of the State. Considered, therefore, as transactions under the Constitution, the ordinance of secession adopted by the convention and ratified by a majority of the citizens of Texas, and all of the acts of her legislature intended · to give effect to that ordinance, were null and void. They were utterly without operation of law. The obligations of the State as a member of the Union, and of every citizen of the State as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union." 2. Were the duly elected and organized bodies, acting as the legislatures in the 11 Southern States, prior to March 2, 1867, duly organized under the Constitution of the United States?

For nearly 2 years prior to March 2, 1867, the Civil War had ended and peace had been restored. By procla.mation of President Johnson of April 2, 1866, the 1T'ar had been declared ended. Under the Constitution which required that all States be equal, the rebellious States were restored to an equal basis and placed on a like footing as to political rights, immunities, dignities, and power as the remainder of the Union. During the year of 1865, following the surrender of General Lee at Appomattox on April 9, and General Johnston at Durham Station on April 26, legislatures of the Southern States had organized pursuant to President Johnson s proclamation. These legislatures had ratified the 13th amendment abolishing slavery which was proclaimed adopted by the Secretary of State on December 18, 1865. This ratification was recognized by all departments of the Government, executive, legislative, and judicial. Of legal necessity they recognized the then existing legislative bodies of at least the Southern States who had ratified; namely, Tennessee, Arkansas, South Carolina, Alabama, North Carolina, and Georgia. The legislatures of the Southern States were duly organized and existing, and since Congress lacked authority to oust these legislatures by military power or otherwise, they never legally ceased to exist. The new legislatures installed by the Army were, therefore, null and void and all new State officers were likewise usurpers, totally lacking in State authority.

3 .' Were the two Houses of the 39th Congress organized according to the Constitution? If not, what effect did the failure to seat Senators from the Southern States have upon the proceeding?

Section 5 of article I of the Constitution provides that: "Each House shall be the judge of the elections, returns, and qualifications of its own Members."

While each House is made the sole judge of the elections, returns, and qualifications of its Members, there is no authority granted by the Constitution to refuse to "judge." The whole purpose of this constitution~! provision relates to the judging of each individual Member. It contemplates a hearing and the taking of evidence with a right to be heard before being judged. To arbitrarily decide not to seat any of the Senators or Representatives from any specified States without even a hearing was not a judging, but rather an arbitrary deprivation of the equal suffrage of these States in violation of Article V of the Constitution. Upon a hearing and judging the Houses might lawfully have refused to seat all or most of such duly elected persons, or they might have decided to seat any portion of them. But an arbitrary refusal to judge as authorized by the Constitution was an arbitrary refusal to seat in violation of the Constitution, and was therefore unlawful.

4. Is the election of the members of a State legislature, conducted under military force by the U.S. Army, in violation of the laws of suffrage of such State, a valid election?

In the case of Breedlove v. Suttle, the U.S. Supreme Court has held that each of the States has the supreme and exclusive power to regulate the right of suffrage and to determine the class of inhabitants who may vote. The use of the U.S. Army in 1867 to occupy several of the sovereign States, change the State rules of suffrage, and to purportedly elect new State officers and new State legislatures was just as patently illegal as it would be today. If the officers of the Federal Government could in 1867 send the Army into a State, oust its legislators and officers, and elect new ones under their own rules of suffrage, then a political party today could, after coming to power, use the U.S. Army to seize and occupy all States having a predominantly different party, oust its officers and legislators and make its return to selfgovernment conditional on its ratification of an amendment to the Constitution abolishing all other political parties. In other words, if the action of the Congress in the Reconstruction Act and all done under it be valid, then the United States can at any time by a simple majority vote of the Congress establish an absolute dictatorship.

Mr. Thaddeus Stevens, of Pennsylvania, on December 14, 1865, said:

"According to my judgment they (South­ Act. ern States) ought never to be recognized as capable of being counted as valid States until the Constitution has been so amended as to secure ascendancy of the party of the Union (Republican)."

His plan was twofold: First, to reduce the representation to which the Southern States were entitled under the Constitution; second, to enfranchise the blacks and disenfranchise the whites. This was calculated to keep the Southern States out of the Union until the Constitution had been so amended as to accomplish his objects and after that have control of the Southern States in the hands of the party of the Union (RepubliIf Mr. Thaddeus Stevens could legally accomplish his objects in 1867, and 1868, some political leader fired with personal ambition could make himself dicta tor and override and destroy the Constitution in 1968 with the support of a majority in Congress and the Army to back him. The pattern is already established and he need but follow precedent . 5. Is the ratification of a constitutional amendment by a legislature elected, as in question No. 4, valid and effective?

The votes of the southern legislatures which were counted as having ratified the 14th amendment by the Secretary of State when he issued his proclamation were not the votes of the duly constituted and existing legislatures of such States, and the certification of ratification by a usurper claiming to be Governor of a State was no certification at all. The acts of Congress asserting that it had been ratified did not add 1 inch to its size. The proclamation of the Secretary of State added no more to the compliance with the requirements of article V of the Constitution than if there had been not a single ratification. By these methods, the Speaker of the House, the President of the Senate, and the Secretary of State, without even a vote of the Senate or House, or a ratification by a single State, could amend the Constitution at will.

6. May a State change its position toward an amendment before there has been a ratification by three-fourths of the States?

Many experts on constitutional law have taken the position and expressed the view that such a change can be made. The Supreme Court of Kentucky, in the case of Wise v. Chandler, has held that when a State has acted on a proposed amendment to the Federal Constitution, to either ratify or reject, its }::ower further to consider the question has been exhausted without a resubmission by the Congress. Certiorari . was granted in this case to the U . S. Supreme Court, but the case was dismissed on the ground that there was no controversy susceptible of judicial determination. The U.S. Supreme Court in Coleman v. Miller, held that the Supreme Court of Kansas had a right to consider the question as to whether the proposed Child Labor Amendment to the U.S. Constitution had been properly ratified under a claim of members of the State senate that their votes had not been given effect. But the specific question here considered has never been passed upon directly by the U.S. Supreme Court.

7. Is the question of the validity of the 14th amendment a legal or a political one? Applying the test as announced by the Supreme Court in Marbury v. Madison, the question as to whether a constitutional amendment has been effectuated is properly a judicial rather than a political one. However, that the question is a political one seems to be so well established as not to afford a contrary view.

Early in April 1867, Georgia and Mississippi filed bills for leave of the Court to enjoin the Secretary of War Stanton and General Grant from carrying out the Reconstruction In Georgia v. Stanton and Mississippi v. Stanton the constitutionality of the Reconstruction Act was directly attacked and the Supreme Court dismissed the complaints for alleged lack of jurisdiction on the ground that only a political question was presented. In Coleman v. Miller, the Court discussed the questionable nature of the adoption of the 14th amendment pointing out the incongruity of the failure to recognize the withdrawals of the ratifications by Ohio and New Jersey as compared to the subsequent ratifications of North Carolina, South Carolina, and Georgia, after such States had formally rejected. The Court referred to the dubious first proclamation of the Secretary of State and the following act of Congress which declared the 14th amendment to have been adopted and the second proclamation of the Secretary of State proclaiming adoption. The Court then stated:

"This decision by the political departments of the Government as to the validity of the adoption of the 14th amendment has been accepted. We think that in accordance with this historic precedent the question of the efficacy of ratifications of State legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in Congress in the exercise of its control over the promulgation of the adoption of the amendment."

In Leser v. Garnett, it was held that the certificate of the Secretary of State certifying to the ratification of the 19th amendment was binding on the courts. The duty to act in regard to constitutional amendments has now been given to the Administrator, General Services Administration. That the rulings in Leser v. Garnett, Coleman v. Miller, and Chandler v. Wise are of doubtful wisdom is emphasized by the actions of the legislatures of Oregon and New Jersey. At the time of the proclamation of Secretary Seward, the legislature of Oregon had ratified and such ratification had been duly attested to by the Governor. But, upon investigation it was found that such vote was based upon fraud and that two of the members of the legislature, whose votes were essential to ratification, had not in fact been elected. Their seating had been procured by a fraudulent certification of election of a county clerk. After the facts were discovered, these two members were unseated and the duly elected ones were seated. Upon a demand by them, a new vote was taken in which their legal votes were counted. The amendment was rejected. Nevertheless, Oregon was counted as having ratified the 14th amendment.

At the time of the proclamation, New Jersey had withdrawn its ratification because of the unlawful action of Congress in purportedly unseating Senator John P. Stockton by a majority vote; whereas, having been duly seated, section 5 of article I of the Constitution required a two-thirds vote to expel. Yet we are told that the same Congress by a majority vote in making a so-called political decision will be the sole judge of its own misconduct, in open and flagrant violation of the Constitution, when the rights of citizens and the rights of States reserved by the lOth amendment are involved.

DANGER TO OUR FORM OF GOVERNMENT

Coleman v. Miller, Chandler v. W · Wise, and Leser v. Garnett, seem to be decisive of the question -as to a lack of authority 1n the supreme Court to decide whether an amendment has been legally adopted. If it be so. the whole constitutional structure of the United States is in -serious d-anger and Congress should forthwith initiate the necessary action to give jurisdiction to the courts to determine whether an amendment has been legally adopted. Under the authority of Coleman v. Miller, Leser v. Garnett, and Chandler v. Wise, any political party which came to power in sufficient strength to propose an amendment to the Constitution by a two-third vote could propose an amendment to abolish all other political parties for the style of government we see in many foreign countries. A mere proclamation of one man (Administrator General of Services Administration) that such amendment had been adopted by three-fourths of the States would make it an incontestable amendment despite the fact that not a single State actually ratified. In similar fashion, the provisions of section 1, article II, of the Constitution, which fixes the term of office of the President at 4 years, could quickly be amended to a term for life; thus a dictator could be born. In like manner, it would be a simple matter to withdraw from the courts the power to declare an act of the President or of Congress a violation of the Constitution. An amendment might abolish the sovereignty of the States and leave but one Federal Government. This sort of thing can be anticipated in time of great national stress as the panacea for the Nation's ms.

Perhaps such a bold attempt to change the Constitution by the mere false certification by the Administrator of General Services Administration would be too unpalatable to the public conscience, as would be the military invasion by Federal troops o~ States having recalcitrant legislatures. But a recourse to a pretense of ratification · could more readily be procured by the organization of "rump" legislatures composed of h~nchmen of the Federal executive. Such ratifications would thereupon be accepted by the pOlitical decision of the Congress based on a majority voice vote. There is no legal difference in such action from what was done in respect to the 14th amendment. And the Supreme Court has declined to afford to the citizens or the States protection from such usurpation of power under the pretext that these are "political" questions.

No such ability to change our form of Government through the wm of a majority in Congress was ever intended by those who framed the Constitution. Checks and balances should be restored, . red, so this cannot happen.

It may be said by shortsighted persons now that it is preposterous to suggest that some Congress in the future might pass amendments to the Constitution to abolish all political parties other than the one in power and to change the tenture of office of the President to life instead of 4 years, by the simple expedient of Congress by joint resolution declaring the amendments to be adopted followed by a certification to that effect by the Administrator of General Services Administration. However, such unforeseen things have happened before. It would be much wiser to preclude such a possibility now than to regret its occurrence later.

REMEDIES

It would serve no useful purpose to discuss the correctness of the decisions of the supreme Court in Leser v. Garnett · tt and Coleman v. Miller other than to mention that 1n the latter case th~e was a dissent by Justices Butler and McReynolds. There is a long line of decisions of the Supreme Court on questions that it cons · considered not to be Justiciable because they were political; most of them relating to foreign af;fairs, but unfortunately lt has also -construed this particular area as political and wm consequently not entertain it as matters now stand.

In order to reestablish the traditional checks and balances in this area between the three departments of the Government, as designed by our Founding Fathers and destroyed by the 39th and · 40th Congresses, it f:s imperative that the legality of the adoptions of constitutional amendments be subJected to judicial scrutiny.

The Congress could, of course, by ordinary act, by majority vote of both Houses, and signature of the President, confer jurisdiction on the courts of the United States and the Supreme Court to make a determination whether an amendment to the Constitution has been adopted.

Whether an amendment to the Constitution has been adopted is actually a mixed question of law and fact, or at worst a mixed question of law, fact, and poll tics. That the Congress has the power to authorize the courts to determine such . question was decided by the Supreme Court in Luther v. Borden, which related to the provision of the Constitution in which the United States guarantees to each State a republican form of government. In a unanimous opinion, written by Chief Justice Taney, it was said: "Under this article it rests with Congress to decide what government is the established one in a State. For as the U.S. guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. • • •

"So, too, as relates to the clause in the above-mentioned article of the Constitution, providing for cases of domestic violence. It r.ested with Congress . . too, to determine upon the means proper to be adopted to fulfill this guaranty They might, if they had deemed it most advisable to do so, have placed it 1n the power of a court to decide when a contingency had happened which required the Federal Government to interfere."

The relative ease by which a remedy is obtainable by act of Congress loses its attractiveness, however, when it · is realized that such act could be repealed with equal ease by the same willful, shortsighted men against whom protection is sought. The only r.emedy which would reestablish the checks and balances contemplated by the framers of the Constitution with safety against a willful congressional majority would be an amendment to article V -of the Constitution, conferring on the judiciary the authority to determine whether an amendment has been adopted. In my opinion the heritage of our constitutional form of government will be in danger of destruction until .such an amendment to the Constitution is adopted.