citizen, on whose rights of property it operates, has no means of knowing anything of it while before the Senate, it would be wrong in principle to hold him bound by it, as the law of the land, until it was ratified and proclaimed. And to construe the law, so as to make the ratification of the treaty relate back to its signing, thereby divesting a title already vested, would be manifestly unjust, and cannot be sanctioned."

§ 223. The Denunciation of Treaties.

Though the Senate participates in the ratification of treaties, the President has the authority, without asking for senatorial advice and consent, to denounce an existing treaty and to declare it no longer binding upon the United States. In important cases, however, he would undoubtedly seek senatorial approval before taking action. But whether or not this approval be sought, the courts hold themselves bound by the denunciation, the existence or non-existence of a treaty being a political question the decision upon which by the political departments of the government is binding upon the judicial departments.38

§ 224. The Construction of Treaties.

As to public rights the courts hold themselves bound by the construction given to treaties by the political departments. As to private rights, however, arising under treaties in force, and even as to public rights when these are inseparable from private rights, the courts exercise independent judgment as to the meaning to be given to treaty provisions.39

38 See Chapter LI, and especially the case of Terlinden v. Ames, 184 U. S. 270; 22 Sup. Ct. Rep. 484; 46 L. ed. 534.

39 See Chapter LI.

CHAPTER XXXVI.

THE AMENDMENT OF THE FEDERAL CONSTITUTION.

§ 225. The Amending Clause.

The amendment of the federal Constitution, while politically a subject of great importance, has given rise to few legal adjudi

cations.

Article V of the Constitution provides: "The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes as parts of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article;1 and that no State, without its consent, shall be deprived of its equal suffrage in the Senate."

It will be seen that two methods for proposing, as well as two methods for ratifying proposed amendments are provided. In practice, however, the fifteen amendments which have been added to the Constitution as originally adopted have all been proposed by Congress and that body has in each instance provided for ratification by the state legislatures.

1 Art. I, Sec. 9, Cl. 1: "The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation not exceeding ten dollars for each person."

Art. I, Sec. 9, Cl. 4: "No capitation, or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken."

When proposing amendments it has been held that only twothirds of those present in the House of Congress and not twothirds of their entire membership is sufficient."

The requirement of a two-thirds vote applies only as to the vote on the final passage of the proposal. Proposed amendments, it has therefore been held, may be amended by a majority vote, but two-thirds are required when one House is voting finally to concur as to proposals of the other House.3

§ 226. Presidential Approval not Required.

The President's approval of a proposed amendment is not required. In Hollingsworth v. Virginia the court without argument say: "The negative of the President applies only to the ordinary cases of legislation; he has nothing to do with the proposition or adoption of amendments to the constitution."

In 1865 a proposed amendment having been inadvertently sent to the President for his approval, the Senate adopted the following resolution:

2 The question having been raised by a member, Speaker Reed of the House said:

'The question is one that has been so often decided that it seems hardly necessary to dwell upon it. The provision of the Constitution says "twothirds of the House." What constitutes a House? A quorum of the membership, a majority, one-half and more. That is all that is necessary to constitute a House to do all the business that comes before the House. Among the business that comes before the House is the reconsideration of a bill that has been vetoed by the President; another is a proposed amendment to the Constitution; and the practice is uniform in both cases that if a quorum of the House is present the House is constituted and two-thirds of those voting are sufficient in order to accomplish the object. It has nothing to do with the question of what States are present and represented, or what States are present and vote for it. It is the House of Representatives in this instance that votes and performs its part of the function. If the Senate does the same thing, then the matter is submitted to the States directly, and they pass upon it.

The first Congress, I think, had about sixty-five members, and the first amendment that was proposed to the Constitution was voted for by thirtyseven members, obviously not two-thirds of the entire House. (First session First Congress, Journal, p. 121, Gales and Seaton-ed.) So the question seems to have been met right on the very threshold of our Government and disposed of in that way."

3 Hinds, Precedents of the House of Representatives, V, §§ 7029-7039. 43 Dall. 378; 1 L. ed. 644.

"Resolved, That the article of amendment proposed by Congress to be added to the Constitution of the United States respecting the extinction of slavery therein having been inadvertently presented to the President for his approval, it is hereby declared that such approval was unnecessary to give effect to the action of Congress in proposing said amendment, inconsistent with former practice in reference to all amendments to the Constitution heretofore adopted, and being inadvertently done, should not constitute a precedent for the future; and the Secretary is hereby instructed not to communicate the notice of the approval of said proposed amendment by the President to the House of Representatives."5

§ 227. Scope of the Amending Clause.

In scope the amending power is now limited as to but one subject, namely, the equal representation of the States in the Senate." It has by some been argued that even this limitation may be evaded by adopting a constitutional amendment eliminating this limitation upon the amending power, and thus opening the way to subsequent amendments providing for an unequal senatorial representation of the States.7

It would seem that a state legislature having rejected an amendment proposed by Congress, may later reconsider its action and give its approval. In 1865 the legislature of Kentucky having rejected a proposed amendment the governor of the State, in a recommendation to the legislature, said: "When ratified by the legislatures of the several States the question will be finally withdrawn, and not before. Until ratified it will remain an open question for the ratification of the legislatures of the several

5 For similar decisions in the House of Representatives, see Hinds, Precedents of the House of Representatives, V, § 7040.

It has at times been alleged that no amendments in violation of the "spirit" of the Constitution or providing for a change in the essential nature of the American State would be valid. The argument in support of this view rests, however, upon a conception of the Constitution as a contract between the States.

7Cf. von Holst, Constitutional Law, p. 31, note.

8 Jameson, Constitutional Conventions, § 576.

States. When ratified by the legislature of a State, it will be final as to such State; and, when ratified by the legislatures of three-fourths of the several States, will be final as to all. Nothing but ratification forecloses the right of action. When ratified, all power is expended. is expended. Until ratified, the right to ratify

remains."

In the foregoing quotation it is said that a state legislature having once ratified its action is final. Until three-fourths of the States have ratified, any State may withdraw a rejection previously given. This in fact was done by several States with reference to the Fourteenth Amendment, and the ratifications thus given accepted as valid. That a ratification once given may not be withdrawn would also seem to be settled by the action taken by the federal authorities in counting among those ratifying the Fourteenth Amendment certain States which, having ratified, later attempted to reverse this action."

The submission in 1866 of the Fourteenth Amendment to the legislatures of the States at a time when a number of the Southern States had not yet been "reconstructed" and admitted to the full enjoyment of privileges belonging to member States of the Union, gave rise to the question whether the legislatures of the reconstruction governments in those States were constitutionally qualified to act in the premises. Seward, Secretary of State, seemed at first doubtful of this. In his proclamation of July 20, 1868, announcing the adoption of the Amendment, after saying that in six States ratification had been had "by newly constituted and established bodies avowing themselves to be and acting as the legislatures respectively" of those States, and after calling attention to the fact that Ohio and New Jersey had withdrawn their ratifications, he said, hypothetically: "If the resolutions of the legislatures of Ohio and New Jersey ratifying the aforesaid Amendment are to be deemed as remaining in full force and effect, notwithstanding the subsequent resolutions of those States which purport to withdraw the consent of those States from such ratification, then the aforesaid Amendment has 9 Jameson, §§ 577-584.