2

hundred constitutional conventions have been called to frame or revise the State constitutions, renders it all the more remarkable that this method of proposing amendments to the Constitution of the United States has never been put in operation. This may be accounted for in part by the fact that there has never been a time when a general revision of the Constitution has been widely desired. Although conventions for the proposal or ratification of amendments have never been assembled, yet occasions have arisen when their trial has been urged. Passing over the propositions for a second convention, which were made in the Federal Convention itself, and in the States at the time of their ratification of the Constitution, we find that the Government had scarcely been established when Virginia and New York made application for a convention to draft amendments. In the winter of 1832-33, the legislature of South Carolina passed resolutions declaring it "expedient that a convention of the States be called as early as practicable to consider and determine such questions of disputed powers as have arisen between the States of this Confederacy and the General Government." This seems to have led to the legislatures of Georgia and Alabama passing resolutions in conformity to Article V, petitioning Congress to call a Federal convention to consider the proposal of amendments. The legislature of Delaware, on the other hand, in reply to the resolutions of South Carolina, declared that the Constitution does not recognize any such tribunal or political assemblage as a convention of the States, but has provided for modes of amendment, if amendment be necessary, in the fifth article; "any other mode, therefore, must be repugnant to its provisions;" that any such convention "must be a convention of the people," "and not a convention of the States;" and "that it is not expedient for Congress to call a convention for proposing amendments at this time." 7

Jameson, Constitutional Convention, p. 550. Tiedman, Unwritten Constitution, p. 42. 2 Article by E. P. Smith in Jameson's Essays, p. 46.

App., Nos. 125, 126.

4 Senate Journal, Twenty-second Congress, second session, p. 83.

5 App., Nos. 612a, 613-625.

That such a convention of the States, if assembled, could have no such power as that set forth by the resolutions of South Carolina."

'Senate Journal, Twenty-second Congress, second session, pp. 157-158. For Resolves of Massachusetts in disapproval to Resolves of South Carolina, see Resolves of Massachusetts, Vol. XIX, pp. 401-402; for report and reply of Massachusetts legislature disapproving of the Georgia resolutions, see ibid., Pp. 411-423.

Again, in the sessions of Congress just previous to the rebellion, when there was a general desire that every means should be tried before resorting to a civil war, petitions from the legislatures of six States,' besides nine propositions from members of Congress, were received calling for a drafting convention. On the invitation of Virginia, a peace convention was also held, at which commissioners from twenty-one States were present.3 As a result of its work, the convention recommended to Congress a series of amendments to the Constitution. In this same session of Congress, Mr. Florence of Pennsylvania offered the following singular amendment: "The reserved power of the people in three-fourths of the States to call and form a national convention to alter, amend, or abolish this Constitution, according to its provisions, shall never be questioned, notwithstanding the direction in Article v of the Constitution."5

Propositions for a convention were also offered at three different times during the period of the civil war, and again in 1866.6 Of those presented during the course of the war, the first was introduced by Mr. Vallandigham, in 1861, the other two by Senator Davis of Kentucky, who proposed such a convention of the States for the purpose of bringing about the restoration of peace and the Union."

1 Virginia, Kentucky, Now Jersey, Ohio, Illinois, and Indiana. The convention in Missouri also approved of a similar course. Stephen, War between the States, 11, p. 364. 2 App., Nos. 812, 834, 835, 873, 895, 900, 908, 911, 931n, 941, 954, 970, 970n, 940n.

App., No. 873. Seo auto, pars. 106, 107. Chittenden, Dobates and Proceedings of the Peace Convention; McPherson, History of the Rebellion, pp. 67-70. Twenty-two States appointed commissioners, but several did not attend. Foster, Commentary on Constitution, I, p. 173.

4 App., Nos. 917.

Б App., No. 892.

6 App., Nos. 972, 976, 1039a, 1115. The latter by Senator Lane of Kansas, for the Committee on the Judiciary to inquire into the expediency of calling a convention. The framers of the Confederate constitution, evidently profiting by the experience of the past, determined to make it easier to assemble a convention to amend. Provision was made that upon the demand of any three States legally assembled in their several conventions, the congress shall summon a convention of all the States to take into consideration such amendments as the said States shall concur in suggesting at the time when the said demand is made; the same to be submitted to the States for ratification, if agreed on by said convention, voting by States. Article V, of Confederate constitution. McPherson, History of the Rebellion, p. 99.

7 App., No. 976, submitted in 1862, called for a convention to meet in Louisville, Ky., on the first Monday in April, 1863, to take into consideration the condition of the United States and the proper means for the restoration of the Union. Each State to send as many delegates as it is entitled to Senators and Representatives in Congress. App., No. 1039a (1864), called for a convention for a similar purpose, and for the vindication of the Constitution, and the construction of additional and adequate guaranties of the rights and liberties of the people. He presented a series of propositions as the basis of a lasting settlement of all difficulties. See ante, par. 103.

Senator Ingalls, in 1876, in consequence of the disputed Presidential election in that year, introduced a resolution recommending the legislatures of the States to apply to Congress to call a convention to revise and amend the Constitution.' This resolution made full provision for the holding of the convention, and for the submission of the revised draft of the Constitution to a convention in each State, chosen by the people thereof. In 1884 an attempt was made to create a commission to call a convention,3 and as recently as 1886 a minority report of the Committee on Election of President and Vice-President suggested the recommendation of such a convention, owing to "the imperative necessity of a substantial change in the organic law," and the failure of Congress to give due consideration thereto.1

178. PROPOSED AMENDMENTS IN CONGRESS-PROCEDURE.

A brief examination of the reception and procedure upon proposed amendments in Congress will suffice to show how very little chance there is of such a proposition being brought to a vote in the branch of Congress in which it is introduced. Almost invariably a proposition to amend is in the form of a joint resolution, although there have been a very few bills introduced providing for amendments to the Constitution.5

In general, upon the introduction of a resolution proposing an amendment, it is customary, after it has been read twice, to refer it to some committee, usually to the Committee on the

1 App., No. 1429.

This made provision for a convention composed of as many delegates from each State as it is entitled to Senators and Representatives in Congress. Two to be chosen by the legislature in each State, the others in the Congressional districts, but no person holding any office of profit or honor under any State or the United States to be eligible as a delogate. The convention should assemble at Columbus, Ohio, May 2, 1877, the Chief Justice of the Supreme Court of the United States to be the presiding officer. Said convention should revise the Constitution and report "such alterations and amendments in the nature of an entire instrument," which should be reported to the President of the United States, who should immediately submit the same to a convention of delegates chosen in each State by the people thereof, undor recommendation of the legislature, for their assent and ratification.

3 App., No. 1631. This resolution, after reciting the failure of Congress to recommend needed amendments, provided for the appointment of a commission of seventy-six persons by the President, composed of two persons from each State from different political parties, for the purpose of considering and proposing to the States the propriety of the legislatures of at least two-thirds of the States uniting in calling a convention on the 4th of July, 1887, for the purpose of proposing amendments to the Constitution.

4 App., No. 1660. House Rep., No. 2493, Forty-ninth Congress, first session, p. 5. See ante, par. 35.

Manual and Digest of the Rules and Practice of the House of Representatives, Fifty. third Congress, second session, pp. 404-405.

Judiciary, unless there is a committee on the subject to which the amendment refers; thus in recent years the amendments in regard to the election of President and Vice-President have been referred in the House to the Committee on Election of President and Vice-President. In case the proposition is favored by a considerable number of members, who are par ticularly zealous in urging it, sometimes it is possible to secure the appointment of a select committee to which it is referred. All the most important propositions, like those now a part of the Constitution, were so referred.

Of the more than eighteen hundred propositions to amend the Constitution, introduced in Congress during the first century of its legislative history, over one-half have received no further consideration beyond their reception and reference to a committee. The remainder have either been reported or received further discussion, but only a very small percentage of these have been brought to a vote.

Only two attempts have been found which proposed to change in any way the customary method of procedure. The first of these was introduced in 1826, by Mr. Herrick of Maine.' It proposed to regulate the time for introducing amendments, prohibiting their proposal save in every tenth year. This was without doubt suggested by the flood of amendments which came pouring into Congress at about this time, to change the method of electing the President, owing to the defeat of Jackson in 1824. This regulation, however, failed to meet the approval of the House and it was never called up from the table. The other attempt was made by Mr. Beach of New York at the opening of the Forty-ninth Congress, in 1885.3 It was evidently called out by the marked increase, in recent years, of the number of constitutional amendments proposed, and the desirability of giving them more extended consideration. The resolution made provision for the appointment of a standing committee of fifteen members of the House, "to be known as the Committee on Constitutional Amendments, to which shall be referred all resolutions and bills proposing amendments to

'App., No. 571. See ante, par. 4.

2 Some of the State constitutions have provisions of this character. In Pennsylvania, New Jersey, and Tennessee it is unconstitutional to submit more than one plan of amend ment, in the case of the first two States during five years, the latter six years. Borgeaud, Adoption and Amendment of Constitutions, p. 189. By the constitution of Vermont, 1870, amendments could be proposed only at intervals of ten years. • House Journal, Forty-ninth Congress, first session, p. 81.

the Constitution." This resolution was referred to the Committee on Rules, but was never reported.'

179. RATIFICATION BY CONVENTIONS.

Several notable attempts have been made to have certain amendments submitted to conventions in the several States, instead of to State legislatures, for their ratification or rejection. Such propositions were made in connection with several of the amendments proposed in 1860 and 1861, notably in the case of the Crittenden amendments. The so-called "Corwin amendment" of 1861, although "proposed by Congress" to the legislatures of the several States for ratification, was "ratified" by a constitutional convention ordained by the people of the State of Illinois on February 14, 1862.3 As the other mode of ratification had been prescribed by Congress, the question naturally arises whether this could be considered a valid ratification, although in connection with this amendment it has no practical significance, as only two other States ratified it, and the progress of the war placed its adoption out of the realm of possibility. This is the only case where a constitutional convention in any State has acted upon an amendment submitted by Congress.

Since that time attempts have been made by the opponents of the proposed amendments, then under consideration by Congress, to make provision for this method of ratification. It was suggested by them as offering a better chance for the defeat of the amendment in the States. When the thirteenth amendment was about to be submitted to the States this method of ratification was proposed. The true reason for the introduction of this resolution was soon shown to be an effort to accomplish its defeat, for the speech of its author, Mr. Pendleton of Ohio, instead of being an argument in favor of the ratification by conventions, consisted simply of a statement of his reasons for thinking the time inauspicious for changing the Constitution, the country being engaged in a civil war. The resolution was rejected by a decisive vote.

1 Stated by W. A. Muller, a member of the Historical Seminary in American History. Harvard, 1891, from his work on the Committee System.

2 Original form of amendment provided for ratification by conventions only. Elliot, v, pp. 123, 381.

3 Certified copy in Bureau of Rolls and Library, State Department.

4 Ohio and Maryland. See par. 107.

5 App., No. 1023.