ferred upon the legislatures of three fourths of the states, by the people of the United States in adopting the article above quoted?

It must be frankly admitted that the idea seems to have generally prevailed, even among lawyers, in this country, that there is something sacred-immutable — about an amendment to the Federal Constitution, and that when once an amendment has been ratified by legislatures of three fourths of the states, its validity as a part of the Constitution is not open to question.

In this article it is proposed to point out, as briefly as may be, some of the considerations which ought to be taken into account before any such conclusion shall be finally adopted.

I

It may be safely premised that the power to "amend" the Constitution was not intended to include the power to destroy it. The purpose of "the people of the United States" in adopting this Constitution, as expressed in the preamble, was, "to form a more perfect Union" of the States-a Union more perfect than the "perpetual" Union which had been established under the original Articles of Confederation.

It is not conceivable that the people, when they conferred upon the legislatures of three fourths of the states the power to amend this Constitution, intended to authorize the adoption of any measures, under the guise of amendments, the effect of which would be to destroy, wholly or in part, any of the members of this perpetual Union.

It may be safely assumed that the scholarly men - the great lawyers who constituted the Committee on Style of the Constitutional Convention of 1787 clearly understood the meaning and scope of the term which they employed:

"The term Amendment implied such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed." 1

Clearly, if the purpose of the framers of the Constitution was to establish a perpetual union of the states, it could not have been the purpose of the framers of that instrument, or of the people who adopted it, in authorizing the legislatures of three fourths of the

1 Livermore v. Waite, 102 Cal. 113, 119, 36 Pac. 424 (1894). Italics are author's.

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states to amend it, to adopt any amendment which would destroy the states, or any of them, by depriving them of all their local legislative powers.

If, for example, an amendment were adopted in this way whereby the New England states were deprived of the right to levy taxes for the support of their state governments, and that power transferred to the central government at Washington, it would not be seriously contended that such an amendment would be valid; and the reasons why it would not be valid have been made very clear by the Supreme Court of the United States in a number of cases dealing with other powers granted in the Constitution to the states, and especially in connection with the taxing power and the treatymaking power.

In Section 8 of Article I of the Federal Constitution the taxing power is conferred upon Congress in terms quite as broad as those by which the amending power is conferred upon the legislatures of three fourths of the states in Article V, above quoted. Under that section Congress is given the power "to lay and collect taxes, duties, imposts and excises, and to provide for the common defense and the general welfare of the United States." Nowhere in the Constitution is there any express limitation upon this taxing power.

Nevertheless, the Supreme Court held, in the case of Collector v. Day, that an Act of Congress imposing a tax upon the salaries of state officials was void, because of the tendency of such laws to destroy the states, and thereby destroy the Union. In the course of the opinion of the court, as delivered by Mr. Justice Nelson in that case, it is said:

"The cases of McCulloch v. Maryland, 4 Wheaton, 316, and Weston v. Charleston, 2 Peters, 449, were referred to as settling the principle that governed the case, namely, 'that the State governments cannot lay a tax upon the constitutional means employed by the government of the Union to execute its constitutional powers.'

"The soundness of this principle is happily illustrated by the Chief Justice in McCulloch v. Maryland: 'If the states,' he observes, 'may tax one instrument employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent-rights; they may tax judicial process; they may tax all the means employed by the gov

2 11 Wall. (U. S.) 113 (1870).

ernment to an excess which would defeat all the ends of government. This,' he observes, 'was not intended by the American people.'

“. . . And if the means and instrumentalities employed by that government to carry into operation the powers granted to it are, necessarily, and, for the sake of self-preservation, exempt from taxation by the States, why are not those of the states depending upon their reserved powers, for like reasons, equally exempt from Federal taxation?" 3

Again, in the case of Lane County v. Oregon, the Supreme Court had to deal with the question of the validity vel non of an Act of Congress under which it was claimed that the state of Oregon was required to accept, as legal tender, notes of the United States in payment of state taxes. The right of Congress to provide for the issue of legal tender notes was not denied, but the act was held void, in so far as it might require a sovereign state to accept these notes in payment of its state taxes, because it would have the effect of taking away from the state, in some measure, its taxing power — a power without which it could not continue to exist as a state, within the meaning of the Constitution. To quote from the opinion of the court in that case:

"On the other hand, the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence. The States disunited might continue to exist. Without the States in union there could be no such political body as the United States.

Now, to the existence of the States, themselves necessary to the existence of the United States, the power of taxation is indispensable. It is an essential function of government. . . . If, therefore, the condition of any State, in the judgment of its legislature, requires the collection of taxes in kind, that is to say, by the delivery to the proper officers of a certain proportion of products, or in gold and silver bullion, or in gold and silver coin, it is not easy to see upon what principle the national legislature can interfere with the exercise, to that end, of this power, original in the States, and never as yet surrendered." 5

In other words, the acts of Congress called in question in these cases were held by the Supreme Court to be void, for the reason that the court could not believe, notwithstanding the broad, general, and unqualified terms in which the power to levy taxes was conferred upon Congress, that it could have been the intention of 4 7 Wall. (U. S.) 71 (1868).

3 II Wall. (U. S.) 123, 125 (1870).

↳ Ibid., 76, 77. Italics are the author's.

the framers of the Constitution of the United States, or of the people of the United States in adopting that Constitution, to confer upon Congress the right to destroy a state, by taking away, or crippling, in whole or in part, any of the functions essential to its existence as a state.

Now, as already observed, the language with which the taxing power is conferred upon Congress, in the Constitution, is no less broad and unqualified than the language in which the power to adopt amendments is conferred upon the legislatures of three fourths of the states by Article V, which provides for amendments. Both of these powers are delegated powers, pure and simple.

Congress has no inherent power to adopt, and the legislatures of three fourths of the states have no inherent power to ratify, any amendment to the Constitution of the United States, and make it binding upon nonassenting states. The power to do so is derived entirely from the grant in Article V of the Constitution itself.

If the grant, in general terms, of the power to levy taxes does not confer upon Congress the power to levy any taxes which would impair the integrity, the autonomy and independent existence of the states, and thereby destroy the Union, which cannot exist without the states, as a perpetual Union of States, it would seem clear, by a parity of reasoning, that the grant of the power to amend the Constitution cannot be deemed to have been intended to confer the right upon Congress, with the assent of the legislatures of three fourths of the states, to adopt any amendment, or any measure under the guise of an amendment, which would have the same tendency, that is, the tendency to destroy the states, by taking from them, directly, any branch of their legislative powers.

The result would be the same in both cases. As was said by Chief Justice Marshall, in McCulloch v. Maryland: "The power to tax involves the power to destroy."

A right to tax would do little harm, perhaps, if the tax were light, but there is no definite point at which the line can be drawn; hence the power to tax the instrumentalities of the state government is denied absolutely, though there is no express provision in the Constitution denying this right.

So with the amending power. A so-called amendment which takes from a state the right to legislate with reference to the drinking habits of its people might not seriously interfere with the

state's autonomy. It would leave a vast field of state legislation uninvaded.

But it would be the beginning of the end. The next thing to be taken away might be the right to regulate the domestic relations, the right to fix the devolution of estates, the right to dispose of property by will, the right to determine the kinds of property which the people of the states might be permitted to own, etc., ad infinitum, until the state would cease to exist; certainly in the sense in which the word "state" is used in the Constitution of the United States.

II

But, aside from all this, there is one express limitation placed upon the amending power in Article V of the Constitution which is still in force. It is provided in that article that no amendment shall be adopted which shall deprive any state of its equal representation in the Senate.

It would seem to be manifest that this prohibition could not be nullified, indirectly, by taking away from the state any of those functions which are essential "to its separate and independent existence" as a state. Certainly the legislative power, the right to make laws for its own government, must be deemed one of those functions.

If by successive amendments a state could be deprived of its legislative powers, it would cease to be the state, which is guaranteed, by this limitation upon the amending power, perpetual, equal representation in the Senate.

III

There is another view of this subject which has been suggested by one of the greatest legal minds of the country, and which, it is submitted, is entitled to the serious consideration of the legal profession.

That view is that Article V of the Constitution whereby power is conferred upon Congress, with the assent of the legislatures of three fourths of the states, to propose "amendments," was never intended to confer upon Congress the power to enact ordinary legislation in that way, and thus make it irrepealable by Congress and binding upon future generations of Americans.