Federal Constitution, outside and beyond their Federal government. An amending clause for perfecting and changing the Federal Constitution bears no relation to the sovereignty of the people, cannot deal with it, cannot amend or destroy it. Their sovereignty and its ultimate expression through suffrage remain the same forever, until changed by the people themselves, by their own political action in amending their state constitutions, where they have deposited it, unless forcibly changed by revolution. Assembled in state conventions for the purpose of discarding their present form of government and adopting a new one, as they adopted the present Constitution, they could, of course, change it or surrender it. They could thus surrender their ultimate sovereignty to a king, to an aristocracy, to a dictatorship (of the proletariat or otherwise). But this again amounts to revolution. No mere legislatures, acting representatively in amending a mere grant of powers for Federal purposes (which is all the Constitution is), can take upon themselves the sovereignty of the people and determine for them, by practically irrepealable rule, who shall govern them, who shall exercise their sovereignty. The Federal Constitution did not destroy the sovereignty of the people. It protected it, both in the perpetual proviso in article 5 itself and in the whole scheme of the instrument. The Federal Constitution is not a grant of "sovereignty," but a mere grant of Federal powers to a common agency, created to protect and preserve the rights of the people and to safeguard in perpetuity their sovereign power. Federalist, No. 46; Income Tax Cases (Pollock v. Farmers' Loan & T. Co.) 158 U. S. 660, 39 L. ed. 1133, 15 Sup. Ct. Rep. 912. The power of the amending agents is necessarily limited to the Federal grant, which did not include the right to grant or withhold suffrage, the determination of who shall exercise the sovereignty of the people. This same sovereignty of the people who ratified the Constitution, the original fountain of power, acting in their states, has been recognized by this court ever since the decision in M'Culloch v. Maryland, 4 Wheat. 403, 4 L. ed. 600, as the source of the grant itself, and of all the new governmental powers added thereto by amendment. Having taken no sovereignty away from the people who ratified, having constituted no new sovereignty in the Constitution itself, it conclusively follows that no provision for amending or changing this mere grant of governmental powers can subtract from the sovereignty of those who made the grant, the sovereign people of the United States. Hamilton demonstrates: (1) That under the Federal plan of the Constitution "determination of suffrage qualifications" was within the sphere of neither Federal nor state governments, but rests with the people alone, through their state Constitutions. (2) That outside interference with the internal elections of a state (even without dictating the suffrage qualifications of her people) destroyed the state and was not contemplated by the plan. (3) That to deprive a state of the unhampered right to select, or even to refuse to select, her own Senators, would violate the compromise establishing the "equality of the states in the Senate," made perpetual by the plan. Federalist, Nos. 52, 59. If, in spite of the 10th Amendment, new legislative powers may be conferred on Congress, as appellees claim, they must be governmental powers, not sovereignty. Suffrage, at least, cannot be fossilized. The people's sovereignty is forever reserved to them in their several states. Even if the 10th Amendment can be modified pro tanto, as appellees claim, by transferring a state legislative power to the Congress, thus leaving somewhere to the people's representatives legislative power for modification or repeal; nevertheless we maintain that the 10th Amendment cannot be violated in a matter not affecting a governmental power by setting up a rigid, practically irrepealable, self-executing, rule of sovereignty. Suffrage is sovereignty. The 19th Amendment attempts to destroy, in part, the people's right to repeal, amend, or modify local suffrage qualifications except with the permission of stranger legislatures of other states, whom they cannot influence or control. In other words, if the 10th Amendment does not prevent the addition of new national legislative powers, it does prevent the fossilization of local suffrage, leaving no democratic remedy in the people in Congress, or in state legislatures, to change or modify it. It does prevent the destruction of all power over suffrage either by the people themselves or through legislative bodies in which they are represented. If state control is destroyed, national control at least must be substituted. Some democratic remedy for repeal or, & Teleg. Co. v. Oregon, 223 U. S. 118, modification must remain. 56 L. ed. 377, 32 Sup. Ct. Rep. 224. That contention, moreover, is clearly frivolous. Irrepealable legislation controlling the people's sovereignty has no place in the democratic government of the United States. If local self-government can be destroyed, some sort of self-government must at least remain. Appealing to stranger legislators (perhaps 3,000 miles away) whose opinions we can neither influence nor affect, because they are not responsible to us, to relieve us from obnoxious suffrage rules affecting our right to vote, is most emphatically not a political remedy. It by no stretch of the imagination can be called self-government. It is the slave's petition to irresponsible power. Likewise the imposition upon us of such unchanging suffrage rules is not an orderly, responsible democratic process of government. The 10th Amendment certainly protects us from that kind of tyranny. Re Duncan, 139 U. S. 449, 461, 35 L. ed. 220, 224, 11 Sup. Ct. Rep. 573; Monroe, II Messages & Papers of Presidents, 144, 147-150. Solicitor General Beck argued the cause, and, with Messrs. Robert P. Reeder and W. Marvin Smith, filed a brief for appellees: The case presents a moot question. California v. San Pablo & T. R. Co. 149 U. S. 308, 314, 37 L. ed. 747, 748, 13 Sup. Ct. Rep. 876; United States v. Hamburg-Amerikanische Packet-fahrt-actien Gesellschaft, 239 U. S. 466, 475, 60 L. ed. 387, 391, 36 Sup. Ct. Rep. 212; United States v. American-Asiatic S. S. Co. 242 U. S. 537, 61 L. ed. 479, 37 Sup. Ct. Rep. 233; Commercial Cable Co. v. Burleson, 250 U. S. 360, 63 L. ed. 1030, 39 Sup. Ct. Rep. 512; United States v. Alaska S. S. Co. 253 U. S. 113, 64 L. ed. 808, 40 Sup. Ct. Rep. 448; Wilson v. Shaw, 204 U. S. 24, 51 L. ed. 351, 27 Sup. Ct. Rep. 233; American Book Co. v. Kansas, 193 U. S. 49, 48 L. ed. 613, 24 Sup. Ct. Rep. 397; Jones v. Montague, 194 U. S. 147, 48 L. ed. 913, 24 Sup. Ct. Rep. 611; United States ex rel. Widenmann v. Colby, 265 Fed. 998, 49 App. D. C. 358. Leser v. Board of Registry, 139 Md. 46, 114 Atl. 846. The question whether the proposed Amendment to the Constitution has received the approval of the necessary number of state legislatures is not a judicial question. Marshall Field & Co. v. Clark, 143 U. S. 649, 672, 673, 680, 36 L. ed. 294, 303, 304, 306, 12 Sup. Ct. Rep. 495; Flint v. Stone Tracy Co. 220 U. S. 107, 143, 55 L. ed. 389, 410, 31 Sup. Ct. Rep. 342, Ann. Cas. 1912B, 1312; Rainey v. United States, 232 U. S. 310, 317, 58 L. ed. 617, 620, 34 Sup. Ct. Rep. 429; Lyons v. Woods, 153 U. S. 649, 660, 663, 38 L. ed. 854, 858, 859, 14 Sup. Ct. Rep. 959; Harwood v. Wentworth, 162 U. S. 547, 562, 40 L. ed. 1069, 1073, 16 Sup. Ct. Rep. 890; Rex v. Arundel, Hobart, 109, 80 Eng. Reprint, 258; Lapeyre v. United States, 17 Wall. 191, 21 L. ed. 606; Doe ex dem. Clark v. Braden, 16 How. 635, 657, 658, 14 L. ed. 1090, 1099, 1100; Hawke v. Smith, 253 U. S. 221, 230, 64 L. ed. 871, 876, 10 A.L.R. 1504, 40 Sup. Ct. Rep. 495; White v. Hart, 13 Wall. 646, 20 L. ed. 685. The judiciary is without power to decide political questions. Except only as limited in article 5, the Constitution may be amended in any respect deemed advisable. Federalist, No. 43. Mr. Justice Brandeis delivered the opinion of the court: On July 7, 1920, Charles S. Fairchild, of New York, brought this suit in the supreme court of the District of Columbia against the Secretary of State and the Attorney General. The prayers of the bill are that "the so-called Suffrage Amendment [the 19th to the Federal Constitution] be declared unconstitutional and void;" that the Secretary of State be restrained from issuing any proclamation declaring that it has been ratified; and that the Attorney General be restrained from enforcing it. is also a prayer for general relief and for an interlocutory injunction. The plaintiff, and others on whose behalf he sues, are citizens of the United States, taxpayers, and members of the American Constitutional League, a voluntary association which describes itself as engaged in diffusing "knowledge as to the fundaLuther v. Borden, 7 How. 1, 42, 12 mental principles of the American ConL. ed. 581, 599; Pacific States Teleph. | stitution, and especially that which gives The contention that the Amendment to the Federal Constitution which extends the right of suffrage within the states thereby deprives the states of a republican form of government does not present a judicial question. There 503 to each state the right to determine for itself the question as to who should exercise the elective franchise therein." The claim to relief was rested upon the following allegations: The legislatures of thirty-four of the states have passed resolutions purporting to ratify the Suffrage Amendment; and from one other state the Secretary of State of the United States has received a certificate to that effect, purporting to come from the proper officer. The proposed Amendment cannot, for reasons stated, be made a part of the Constitution through ratification by the legislatures; and there are also specific reasons why the resolutions already adopted in several of the states are inoperative. But the Secretary has declared that he is [128] without power to examine into the validity of alleged acts of ratification, and that, upon receiving from one additional state the customary certificate, he will issue a proclamation declaring that the Suffrage Amendment has been adopted. Furthermore, "a force bill" has been introduced in the Senate, which provides fine and imprisonment for any person who refuses to allow women to vote; and if the bill is enacted, the Attorney General will be required to enforce its provisions. The threatened proclamation of the adoption of the Amendment would not be conclusive of its validity, but it would lead election officers to permit women to vote in states whose constitutions limit suffrage to men. This would prevent ascertainment of the wishes of the legally qualified voters, and elections, state and Federal, would be void. Free citizens would be deprived of their right to have such elections duly held; the effectiveness of their votes would be diminished; and election expenses would be nearly doubled. Thus irremediable mischief would result. Colby, 265 Fed. 998, where it had refused to compel the Secretary to cancel the proclamation declaring that the 18th Amendment had been adopted. The grounds of that decision were that the validity of the Amendment could be in no way affected by an order [129] of cancelation; that it depended on the ratifications by the states, and not on the proclamation; and that the proclamation was unimpeachable, since the Secretary was required, under Revised Statutes, § 205, Comp. Stat. § 303, 9 Fed. Stat. Anno. 2d ed. p. 376, to issue the proclamation upon receiving from three fourths of the states official notice of ratification, and had no power to determine whether or not the notices received stated the truth. But we have no occasion to consider these grounds of decision. Plaintiff's alleged interest in the question submitted is not such as to afford a basis for this proceeding. It is frankly a proceeding to have the 19th Amendment declared void. In form it is a bill in equity; but it is not a case within the meaning of § 2 of article 3 of the Constitution which confers judicial power on the Federal courts, for no claim of plaintiff is "brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs." See Re Pacific R. Commission, 32 Fed. 241, 255, quoted in Muskrat v. United States, 219 U. S. 346, 357, 55 L. ed. 246, 250, 31 Sup. Ct. Rep. 250. The alleged wrongful act of the Secretary of State, said to be threatening, is the issuing of a proclamation which plaintiff asserts will be vain, but will mislead election officers. The alleged wrongful act of the Attorney General, said to be threatening, is the enforcement, as against The supreme court of the District election officers, of the penalties to be granted a rule to show cause why an imposed by a contemplated act of Coninterlocutory injunction should not issue. gress which plaintiff asserts would be unThe return was promptly made; and the constitutional. But plaintiff is not an defendants also moved to dismiss the bill. election officer; and the state of New On July 14, 1920, the rule was dis- York, of which he is a citizen, had charged; a decree was entered dismissing previously amended its own Constitution the bill; and an appeal was taken to the so as to grant the suffrage to women, and court of appeals of the District. The had ratified this Amendment. Plaintiff Secretary, having soon thereafter received has only the right, possessed by every a certificate of ratification from the citizen, to require that the government be thirty-sixth state, proclaimed, on August administered according to law, and that 26, 1920, the adoption of the 19th Amend- the public moneys be not wasted. Obviment. The defendants then moved to ously this general right does not entitle dismiss or affirm. The court of appeals a private citizen to institute in the affirmed the decree on the authority of [130] Federal courts a suit to secure United States ex rel. Widenmann v. by indirection a determination whether 258 U. S. courts. [For other cases, see Courts, I. e, 2, a, in Di gest Sup. Ct. 1908.] a statute, if passed, or a constitutional by his proclamation, is conclusive upon the Amendment about to be adopted, will be valid. Compare Giles v. Harris, 189 U. S. 475, 47 L. ed. 909, 23 Sup. Ct. Rep. 639; Tyler v. Judges of Ct. of Registration, 179 U. S. 405, 45 L. ed. 252, 21 Sup. Ct. Rep. 206. Decree affirmed. OSCAR LESER, Eugene H. Beer. Harry V. J. MERCER GARNETT, Frederick (See S. C. Reporter's ed. 130-137.) [No. 553.] Argued January 23 and 24, 1922. Decided IN ERROR, and on Petition for a Writ of Certiorari, to the Court of Appeals of the State of Maryland to review a judgment which affirmed a judgment of the Court of Common Pleas of W. Baltimore City, in that state, dismissing the petition in a suit to strike certain names from the registry of voters. Writ of error dismissed. Judgment affirmed on certiorari. Error to state court -error or certiorari. 1. Certiorari, not writ of error, is the proper mode of reviewing in the Federal Supreme Court a judgment of a state court adverse to the contention that a proposed Amendment to the Federal Constitution has not become a part of such Constitution. See same case below, 139 Md. 46, 114 Atl. 840. The facts are stated in the opinion. Messrs. Thomas F. Cadwalader and William L. Marbury argued the cause, and, with Mr. George Arnold Frick, filed a brief for plaintiffs in error: The power to amend the Constitution, Constitutional law - Amendment · -va-contained in article 5, is a delegated woman suffrage. lidity 2. There was nothing in the character of the proposed 19th Amendment to the Federal Constitution, extending suffrage to women, which prevented its adoption in the exercise of the power of amendment conferred by the Constitution, even as against a state which refused to ratify it. [For other cases. see Constitutional Law, I. in Digest Sup. Ct. 1908.] of limita power. Hawke v. Smith, 253 U. S. 221, 227, 64 L. ed. 871, 875, 10 A.L.R. 1504, 40 Sup. Ct. Rep. 495; Dodge v. Woolsey, 18 How. 348, 15 L. ed. 407. When investigating the nature and extent of the powers conferred by the Constitution upon Congress, it is indispensable to keep in view the objects for which those powers were granted. This is a universal rule of construction, applied alike to statutes, wills, contracts, and constitutions. If the general purpose of the instrument is ascertained, the language of its provisions must be construed with reference to that purpose and so as to subserve it. In no other way can the intent of the framers of the instrument be discovered. Legal Tender Cases, 12 Wall. 457, 531, 20 L. ed. 287, 305; Ex parte Yerger, 8 Wall. 85, 101, 19 L. ed. 332, 337. ment The power to adopt such an amendtion of constitutional Amendment. ment as this would mean the power to 4. Duly authenticated official notice to the Secretary of State that certain state add to or subtract from the electorate legislatures, having power to adopt a resoof a state without the consent of its lution ratifying a proposed Amendment to people, to such an extent as to totalthe Federal Constitution, have done so, isly destroy the state, the autonomy conclusive upon him, and, when certified to of the state as a political body possessNote.-On certiorari to state courts -see notes to Chicago, M. & St. P. R. Co. v. Minneapolis Civic & Commerce Asso. 62 L. ed. U. S. 1230; and Andrews v. Virginia R. Co. 63 L. ed. U. S. 236. ing all the functions essential to a separate and independent existence,thus defeating the very purpose which the people had in adopting the Constitution, which was to establish a per petual union of such states,-an inde-, Senate without its consent involves two structible union of indestructible states. things: first, that if the state chooses Lane County v. Oregon, 7 Wall. 71, to consent, it may be deprived of its 19 L. ed. 101; Texas v. White, 7 Wall. equal suffrage in the Senate; and, sec700, 19 L. ed. 227; White v. Hart, 13 ond, that it may not, by any amendment, Wall. 646, 650, 20 L. ed. 685, 687; Col- be deprived of its power to give or refuse lector v. Day (Buffington v. Day) 11 its consent. Wall. 113, 20 L. ed. 122. Questions of power do not depend upon the degree to which they may be exercised in the particular case. Brown v. Maryland, 12 Wheat. 419, 439, 6 L. ed. 678, 685. The test of the validity of a power is not how it is probable that it may be exercised in particular cases, but what can be done under it. Keller v. United States, 213 U. S. 138, 148, 53 L. ed. 737, 740, 29 Sup. Ct. Rep. 470, 16 Ann. Cas. 1066. Surely it cannot be said that article 5 confers upon Congress and the state legislatures, or three fourths of them, the power thus to destroy the indestructible Union of indestructible states in language which expresses such a purpose too clearly to admit of doubt. Slaughter-House Cases, 16 Wall. 36, 78, 21 L. ed. 394, 409; See also Collector v. Day (Buffington v. Day) supra; Evans v. Core, 253 U. S. 245, 64 L. ed. 887, 40 Sup. Ct. Rep. 550. The decision of this court in the case of Rhode Island v. Palmer, wherein it was held that the 18th, or Prohibition. Amendment, was within the scope of the amending power granted in article 5, constitutes no precedent for holding valid the 19th Amendment. The 18th Amendment did not attack or interfere with the government of the state,-the structure of the state government,or deprive it of any function essential to its separate and independent exist ence. The adoption of such an amendment as the 19th is forbidden by the express limitation contained in article 5, viz.: That "no state, without its consent, shall be deprived of its equal suffrage in the Senate;" in that the state of Maryland, as that state was constituted prior to the submission of this Amendment, is deprived altogether of its suffrage in the Senate, and will be represented hereafter in the Senate by persons not of its own choosing; i. e., by Senators chosen by voters whom the state itself has not authorized to vote for Senators. Federalist, No. 43, p. 204. The prohibition against the adoption of any amendment whereby a state is deprived of its equal suffrage in the Federalist, No. 59, 238, 239. The various cases decided by this court since the Civil War, including the case of Myers v. Anderson, 238 Ū. S. 368, 59 L. ed. 1349, 35 Sup. Ct. Rep. 932, in which, without going at all into the question of the scope and limits of the amending power granted in article 5, this court nevertheless then recognized the 15th Amendment as being in effect valid as a part of the Constitution, constitute no precedents for holding the 19th Amendment valid, for the reason that any amendment, however radical, which has received the unanimous assent of the states-has been, in fact, consented to, however reluctantly, by each and all of them-is valid, and had to be accepted by this court as being valid when the question of its validity was raised for the first time in Myers v. Anderson, forty-five years after its adoption, no state nor any citizens of any state having ever disputed its validity prior to that case. Slaughter-House Cases, 16 Wall. 36, 67, 71, 21 L. ed. 394, 405, 407; Geofroy v. Riggs, 133 U. S. 258, 267, 33 L. ed. 642, 645, 10 Sup. Ct. Rep. 295; Neal v. Delaware, 103 U. S. 370, 26 L. ed. 567; United States v. Reese, 92 U. S. 214, 23 L. ed. 563; Guinn v. United States, 238 U. S. 347, 59 L. ed. 1340, L.R.A. 1916A, 1124, 35 Sup. Ct. Rep. 926; United States v. Mosley, 238 U. S. 383, 59 L. ed. 1355, 35 Sup. Ct. Rep. 904; Munro, Government of United States, p. 68; 1 Watterson, "Marse Henry," p. 183. The 19th Amendment has never been legally ratified by the requisite number of states, even assuming that the state legislatures are competent to ratify an amendment like the Nineteenth, which radically changes, and, in fact, nullifies, so vital a part of their state Constitution as that which limits the right of suffrage to men, by conferring it upon women. Neither Tennessee nor West Virginia ever ratified at all. That the legislature of Tennessee not only did not ratify, but actually rejected, the amendment, by a large majority, appears from a simple inspection of the official record of the proceedings of that legislature, produced in evidence in this case. That record shows these |