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States, upon a truthful basis of representation, would have such a moral power as to carry its resolves through the separate conventions unchanged, unless some absorbing sectional interest should control the conventions in more than one-fourth of the commonwealths. In such a case the national convention might be able to propose and cause to be applied a different method of ratification from that provided in the existing constitution, as did the convention of 1787; but this would be revolution again, as that was, and not existing law.

It will be seen that the constitution does not elaborate the details of this form of organization of the state. It therefore impliedly leaves that to the Congress. The Congress has never touched the subject, and the constitution has never been changed by the sovereign under this form of organization. From a theoretical standpoint, this is much to be regretted. We have here upon paper an organization of the sovereignty separate from the organs of government. It is a great advance in constitutional law, and if it could be actually applied to practice, it would give us the vantage-ground for the solution of the many difficulties which arise out of confounding the state with the government.

The second form of organization of the state within the constitution vests the sovereign power in the Congress and the legislatures of the commonwealths, the former originating, and the latter ratifying, the changes in constitutional law. The confederate constitution of 1781 vested the amending power in these same bodies; but that constitution required unanimity in the ratifying bodies, with simple majority of the commonwealths represented in the proposing body, while the present constitution requires only a three-fourths majority of the ratifying bodies, with a two-thirds majority of both houses of the proposing body. This difference is fundamental. It stamps the present system as consolidated over against the confederatism of the other. When any one

commonwealth can be bound against its will, confederatism is overcome.

The difficulty with this form of organization is that it identifies the organization of the state with the organs of government, and promotes that confusion of thought in dealing with the subjects of public law which arises from the lack of a sufficiently clear distinction of state from government. This is felt in a different way in our system from what it is in the English. We do not lose thereby the juristic test of constitutional law, as the English do. Only that which passes both Congress and the legislatures of the commonwealths is constitutional law, while ordinary statute law is made by these bodies separately. But we become confused upon the still more important point as to whether the sovereignty is in the United States or in the commonwealths; and we are led to misconceive the real character of the commonwealths, and to think of them really as states instead of merely as governments. This is also true, in some degree, when the ratifying bodies are conventions of the people resident within the commonwealths; but it is much easier to comprehend that these bodies, created directly by the constitution of the United States and solely for United States purposes, are institutions of the United States, than that the legislatures of the commonwealths are such, even when acting in this capacity only.

The advantage, on the other hand, of this form of organization of the sovereignty lies in its convenience. The bodies called upon to act are always in existence. It is not necessary, therefore, to exhaust time and energy and incur special expense to call them out of potential into actual being. It is to be presumed, moreover, that those accustomed to the work of legislation know best when and where the organic law should be changed or supplemented. The former consideration especially has, no doubt, determined the practice in our system. All the changes in our constitutional law

have been made by the sovereignty under this form of organization.

In the third place, it will be seen from an examination of the article of the constitution relating to this subject that the Congress may direct which method of ratification shall be followed. The Congress may, therefore, combine itself with conventions of the people within the commonwealths or may combine the general convention with the legislatures of the commonwealths. Either would be a more convenient form of organization than the first form treated. The combination of the general convention with the commonwealth legislatures, however, would be confusing upon the most vital topic of our system. The combination of the Congress with the conventions within the commonwealths would, on the other hand, furnish us a form of organization much less liable to misconception and, at the same time, fairly convenient.

Congress, as I have indicated, has never ordained any such combinations; and in the method actually followed, Congress has not elaborated any complete system of procedure. Anything approaching an exhaustive regulation of this subject. would require an express determination of the following questions, viz; whether the proposed amendment is subject to the President's veto power; how the submission of the same to the legislatures of the commonwealths is to be effected; whether the two houses of the commonwealth legislatures are to sit in joint session; whether the resolutions of these bodies upon the proposition or propositions of Congress are subject to the usual veto power of the executives of the respective commonwealths; what period is to be set for and to the deliberations of these bodies upon the proposition or propositions of the Congress; how the acts of these bodies shall be communicated to the Congress; whether a commonwealth legislature can reconsider its resolution either before or after notification of the same to Congress, and from what date an approved proposition shall be deemed in force as a

part of the constitution. All we have upon this subject from the Congress is contained in the formula of the resolution submitting a proposition for ratification which reads: "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, twothirds of both Houses concurring, That the following article be proposed to the legislatures of the several states, as an amendment to the constitution of the United States; which when ratified by three-fourths of the said legislatures shall be valid as part of the said constitution; and in the direction as to promulgation, which reads: "Whenever official notice is received at the Department of State that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published in the newspapers authorized to promulgate the laws, with his certificate, specifying the States" (commonwealths) "by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.' "2

It will be seen from an examination of the first of these provisions, that Congress treats the origination of the propositions of amendment as exempt from the veto power of the President. The resolutions of this nature are not printed in the statutes as approved by the President, but as signed by the speaker of the House of Representatives and the president of the Senate, and attested by the clerk of the House of Representatives and by the secretary of the Senate. The constitution of the United States declares, however, that "every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be nec

1 United States Statutes at Large, Vol. I, pp. 97, 402; Vol. II, p. 306; Vol. XIII, p. 567; Vol. XIV, p. 358; Vol. XV, p. 346.

2 Revised Statutes of the United States, p. 32, sec. 205.

essary (except on a question of adjournment)" is subject to the President's veto. There certainly seems to be here a repugnance between the law and the practice. It is sometimes said that this question is one of no practical consequence, since the two-thirds majority necessary to pass the proposition in the first place could override the President's veto. I think this a superficial view. The President may veto the resolutions of Congress, no matter by how great majority originally passed. If he does, the resolutions are thereby subjected to a second consideration and vote, and it is not at all improbable that the President's objections may produce a change in the vote sufficient to defeat the original proposition, or to cause a modification of the same.

Moreover, it will be seen that the practice of Congress is to connect the determination of the question as to whether the proposition or propositions of amendment shall be submitted to conventions of the people within the several commonwealths or to the legislatures thereof with the passage of the proposition or propositions, thus avoiding the veto of the President upon that point. The question of determining the bodies to whom submission shall be made is certainly a distinct one from the internal question of the proposition itself. It is a question determined finally by the Congress and not dependent for validity upon ratification, as is the content of the proposition. It might well be claimed that though the content of the proposition should be fixed by Congress alone, yet the act of submission should be in the form of a law; i.e. should be subject to the President's veto. If this be not so, then I do not see that it would ever be necessary, in the determination of this question, to unite more than a simple majority in the houses of Congress, since the constitution simply prescribes that Congress shall deter

1 Art. I, sec. 7, § 3.

2 Paschal, Annotated Constitution, p. 247, sec. 236.

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