« ForrigeFortsett »
been offered.1 The Fifteenth Amendment-ratified March, 1870-was not sent to the President. With this uniformity of action by Congress, and the decision of the Supreme Court, we may say that the approval of the President is not essential to a resolution of Congress proposing Amendments to the Constitution.
When an Amendment becomes
An Amendment becomes valid when ratified by the legislatures of three fourths of the States; that is, it becomes a part of the Constitution when the ratification has been made by the last State necessary to complete the constitutional number. Thus, the first ten Amendments, proposed by the First Congress September 25th, 1789, were ratified by New Jersey November 20th of that year, then by others, till December 15th, 1791, when the ratification of Virginia took place, making eleven States, the whole number being fourteen. December 15th, 1791 is thus considered the date of these Amendments. The Eleventh Amendment was declared, in a message from the President to Congress, dated January 8th, 1798, to have been adopted by the requisite number of States, and the Amendment bears the date of the President's message. Of the adoption of the Twelfth Amendment public notice was given by the Secretary of State, September 25th, 1804. In 1818, an act was passed making it the duty of the Secretary of State, on receiving official notice from the States of the adoption of an Amendment by the requisite number, to cause the Amendment to be published, with his certificate that it has been duly ratified. This act is still in force.
Act of 1818.
A question has arisen as to the power of a State to withdraw her ratification of an Amendment to the Constitution. The legislature of New York ratified the Fifteenth Amendment, and subsequently voted to withdraw the ratification. The same was true of New Jersey and Ohio with regard to the Fourteenth Amend
of a Ratification.
1 Senate Jour., 39th Cong., 1st Sess., page 563.
ment. In the latter case the Secretary of State, after reciting the facts of the ratification by various States, including New Jersey and Ohio, and of the subsequent rejection by these two, proceeds: "I do hereby certify that if the resolutions of the legislatures of Ohio and New Jersey, ratifying the aforesaid Amendment, are to be deemed as remaining of full force and effect, notwithstanding the subsequent resolutions of the legislatures of those States, which purport to withdraw the consent of said States from such ratification, then the aforesaid Amendment has been ratified, etc."
Congress was not satisfied with this conditional notice of adoption, and the next day adopted a concurrent resolution, declaring the Fourteenth Amendment to be a part of the Constitution, and directing the Secretary of State to promulgate it as such. The two Houses of Congress have thus given their opinion that a State can not withdraw its consent when once given to a Constitutional Amendment.
The ground of this decision may be thus stated. The Constitution declares that an Amendment duly proposed shall become valid when ratified by three fourths of the legislatures of the several States. When a legislature has voted affirmatively on the question of ratification, the work of the State is done so far as regards that Amendment. That State is counted as in favor of it. Had the vote been a negative one, the State could not have been counted as in favor; neither could it had there been no vote. "Nothing but ratification forecloses the right of action. When ratified, all power is expended. Until ratified, the right to ratify remains."1
In the case of the Fourteenth Amendment the Secretary's first proclamation was on the 20th of July, and the action of Congress on the 21st. Georgia, which had rejected it, ratified it on the 21st, making the requisite majority-twenty-eight in thirty-seven-without New Jersey and Ohio. The second
1 Governor Bramlette to the legislature of Kentucky, quoted by Jameson, page 520.
proclamation of the Secretary was on the 28th. The Amendment was thus ratified by the requisite number of States independently of the action of Congress.1
Another question has been discussed. In a time of rebellion, is a ratification of a proposed Amendment by the legislatures of three fourths of the loyal States sufficient to make by a Disthe Amendment valid? According to the views loyal State. given in commenting upon Sections 3 and 4 of the previous Article, this question must be answered affirmatively. If a State has forfeited her right to participate in the ordinary legislation of the Nation, if she is deemed unfit, because of the disloyalty of her people, to assist in enacting the ordinary laws, much less can she claim participation in the higher and more sacred work of changing the great organic law of the Union. A proposed Amendment to the Constitution is no more dependent upon the assent of a State holding such relation to the Nation, than upon that of a Territory.
But did not Congress direct the recent Amendments to be sent for ratification to the disloyal as well as to the loyal States? This was done, it is true; but this does not prove that their ratifications were essential to the validity of the Amendments. The explanation of the seeming inconsistency of Congress is to be found in the peculiar character of these Amendments as affecting the seceding States. They all had reference to the abolition of slavery, and to the status of the freedmen. Congress made the ratification of these Amendments by those States a condition of their restoration to the Union. It was for this reason that the Amendments were sent to them, and not because such ratification was essential to their validity. They were all ratified by three fourths of the loyal States, and would have been valid without the assent of the others. The ratification by the disloyal States was simply the formal approval by their legislatures of the principles contained in the Amendments, and was to that extent an evidence that they might be restored with safety to their former condition in the Union.
1 For the other view, that a State may withdraw its ratification, see Cooley in Story, II, page 652.
The Amendments-fifteen in all-will be made the subject of comment in subsequent pages. The years when they were severally ratified are as follows:
The First Ten Amendments, 1791.
Of the four Amendments proposed by Congress but not ratified by the constitutional number of States, two were proposed by the First Congress, at the same time with the ten that were ratified. The third was proposed at the second session of the Eleventh Congress. The fourth was that relating to slavery, proposed March 2d, 1861, at the close of the Thirty-sixth Congress.
Clause 1.-All debts contracted and engagements entered into before the adoption of this Constitution, shall be as valid against the United States under this Constitution as under the Confederation.
A similar provision was made in the Articles of Confederation. There was a new Constitution, but the nation was the same. The nation under its new Constitution would be subject to all the obligations assumed before this Constitution had been adopted.
Clause 2. This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding.
Supremacy of the Constitution.
The language of this clause is clear and explicit. The people of the United States established this Constitution for the United States. It was the work of the Nation itself, and was binding in every part of the Republic. This clause was intended to affirm the supremacy of the National government over the State governments. If a law of a State, though in accordance with the constitution of that State, should be in conflict with the Constitution or a law of the United States, the former must yield. The judges in every State are expressly required to declare null and void any law of a State thus in conflict with a law of the United States or with its Constitution.
The Constitution of the United States is the organic law, and all statutes, National and State, must be in conformity with its provisions. But there is this wide difference between the legislation of Congress and that of a State legislature. The former body is guided by the Constitution only. The latter must regard not only the National Constitution, but the laws enacted by Congress, as well as its own State constitution.
A law of the United States is binding until declared unconstitutional by the Courts. As already stated, the Supreme Court has declared very few acts of Congress unconstitutional since the Constitution was adopted.
An attempt was made by South Carolina, in 1832, to nullify certain laws of the Union, but it was promptly suppressed by President Jackson.1
Clause 3.-The Senators and Representatives before mentioned, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and of the several
1 Mr. John C. Calhoun's plan is here given as a curiosity. If Congress should pass a law objectionable to any State, the State might reject it, and require that it be submitted to the several States. If three fourths of the States approved it, the State objecting should submit; otherwise the law should be null and void so far as concerned that State.