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not final, they may yet be ratified or rejected by the state legislatures. But the spirit of the constitution seems to require two thirds of the nation, acting by its proper organs, to propose amendments; and that, in so interesting a subject as a constitutional alteration, a less number should have no authority.
The letter of the constitution will certainly justify this idea of its spirit. When two thirds of the senate are requisite to consent and advise to a treaty, the words are “ two thirds of the senators present." To convict on impeachment, “ two thirds of the members present." Yeas and nays are to be entered on the journal, “ at the desire of one fifth of those present." In the two first cases, it is requisite to act immediately, whether two thirds of the whole are present or not; then we see the expressions are clear, “ two thirds” refers to the numbers present. Why so? Because, without these expressions, the reference would have been understood to be the whole number of members. In the last case, why add the word “ present” to the one fifth ? Because, without that word, one fifth of the whole would have been its meaning. In all other cases, when two thirds are required, the spirit of the constitution certainly is, and the words seem to carry the meaning, “ two thirds" of the whole numbers. It is said, “ that a majority of each House shall constitute a quorum to do business.” House, in this case, must mean all the members. Two thirds of both Houses must, on the same principles, mean two thirds of all the members of both. There is, I acknowledge, some obscurity, in the constitutional use of the word House, when either of the two branches of Congress is described by it; but if the intention and sense, as well as words are attended to, I am forcibly led to believe, that two thirds of all the members of both Houses are required to sanction propositions for amendments, and that this construction is most consistent with the wisdom and political skill of the convention. The construction for which I contend, is analogous to the caution manifest in other parts of
the constitution. It was well known to the convention, that amendments, if recommended or proposed by Congress, would have an imposing influence with the state legislatures; and that, in no possible instance, could more evil arise from indigested measures, than in the case of amendments, owing to the impossibility of clearly foreseeing their operation and effects on the general constitutional system. It was made requisite, therefore, to wait for the uninfluenced movement of two thirds of the popular and federative representatives of the nation. Whatever may be our opinion on the point now discussed, the state legislatures have a constitutional right to judge of it for themselves, and to determine whether a proposition for an amendment is presented to them, with the sanction required, and if, in their opinions, the requisite numbers have not agreed to the proposition, they will guard the constitution, by refusing to ratify such amendment. My honorable friend from New Hampshire, (Mr. Plumer,) has done such ample justice to this part of the subject, as to place it out of the reach of my assistance and beyond the need of any.
Í am convinced, Mr. President, that the amendment now under consideration could not, in the senate, obtain a constitutional majority, of two thirds, or even a simple majority, were it not for the influence of instructions. Some gentlemen have ingeniously said, that until they gave this amendment the present particular examination, they had not contemplated the extent of its probable effects, and although they entertained doubts, yet they were induced by the instructions given them, to make the proposition to the legislatures, and let them decide for themselves.
Whatever may or can be said in favor of instructions generally, cannot be applicable to this case. For the purpose of obtaining amendments to the constitution, Congress can only propose, and the state legislatures ratify. The duties are appropriate and distinct, and the uninfluenced, independent act of both. requisite. The legislatures cannot ratify, till a proposal is made. This subject can be elucidated and enforced by familiar examples. The House of Representatives alone, can originate a bill for raising revenue, but it cannot become a law without a concurrence of the senate. Would not the advice and instruction of the senate to the House, intimating our desire that they would originate and send to us for concurrence, a revenue bill, be thought improper, indelicate and even unconstitutional ? The President and senate can appoint certain officers, but they have distinct and appropriate agencies in the appointment. The President can nominate, but cannot appoint without the advice and consent of the senate.
But the senate cannot nominate, nor could their advice to the President, to make a nomination, be either binding or proper. The character of the several independent branches of our government, forming constitutional checks upon each other, cannot be exemplified more fully, than in the mode of producing amendments. And an interference of one independent body, upon the appropriate and distinct duties of another, can, in no instance, have a more prejudicial effect. Can it be thought, then, either proper, or constitutional, for the state legislatures to assume the power of instructing to propose to them a measure, when the power of proposing is not only not given to them, but given exclusively to Congress? As well and with as much propriety might Congress make a law, attempting to bind the state legislatures to ratify; as the legislatures by instructions, bind Congress to propose. In either case, the check, which, for obviously wise purposes, was introduced into the constitution, is totally destroyed. And we have not as much security against improper amendments, as we should have, if the power were exclusively vested in the state legislatures, and for this obvious reason, that in this mode of operation the responsibility, for the adoption of an improper amendment, is divided and destroyed. Is the
sentiment correct, sir, that we shall be justifiable in sending forth this proposition to be considered by the state legislatures, if we believe it ought not to be ratified? What would be thought of the senate, if they should pass a bill, and send it to the House of Representatives for concurrence, the provisions of which they disliked entirely, and wished not to be established? And can any sound distinction be made between such a measure and the one now before us? In either case, the single act of the other body would be final; and in either case, the people at large would be safer to have but one body in existence, to legislate, or make amendments; for all our agency in both cases would only tend to deceive and mislead, apd, in addition, to diminish, if not destroy, as has just been observed, the responsibility of the other body.
It has been said, sir, that the House of Representatives have twice given a sanction to this measure, and that their conduct, in this particular, adds weight to it; I wish to treat that honorable body with the highest respect; but I must deviate from the truth, were 1 to acknowledge that their conduct upon this amendment, has a tendency to convince me that they have a full understanding of the subject. Twice have they sent us a resolution, similar in its leading feature to that on your table, and made no provision that the person to be vice president should be qualified for the highly responsible office, either in age, or citizenship. And for aught that they had guarded against, we might have had a man in the chief magistracy, from Morocco, a foreigner, who had not been in the country a month.
Mr. Preisdent, it was suggested, in a former part of the debate, by a gentleman from South Carolina, (Mr. Butler,) that the great states, or ruling party of the day, had brought forward this amendment, for the purpose of preventing the choice of a federal vice president at the next election. And we are now put beyond the power of doubt, that this is, at least, one motive, by the observations of several of the majority, but es
pecially by those of the gentleman from Virginia. He informs us, and I appreciate his frankness, that if the friends of this measure do not seize the present opportunity to pass it, the opportunity will never recur. He tells us plainly, that a minor faction ought to be discouraged, that all hopes or prospect of rising into consequence, much more of rising into office, should be crushed, and that this amendment is to produce a part of these beneficial effects ; which amendment he compares to the bill which was introduced into the British parliament, to exclude a popish successor to the crown, commonly called the exclusion bill. Have the minority then, no right lest but the right to be trampled upon by the majority? This is identically the conduct, which is mentioned in the quotation which I have had the honor to make from the secretary of state; to which I ask leave to recur. “ The majority, by trampling on the rights of the minority, have produced factions and commotions, which, in republics, have more frequently, than any other cause, produced despotism."
What avails it then, that this country has triumphed over the invasion and violence of one oppressor, if they must now be victims to the violence of thousands? Political death is denounced now; what denunciation will follow? It would be a useless affectation in us, to pretend to close our eyes upon either the cause or consequences of this measure.
The spirit of party has risen so high, at the present day, that it dares to attempt, what in milder times would be beyond the reach of calculation. To this overwhelming torrent, every consideration must give
The gentleman is perfectly correct, in supposing that now is the only time to pass this resolution; there is a tide in the affairs of party most emphatically, and unless its height is taken, its acme improved, the shallows soon appear, and the present demon of party gives place to a successor. A hope is undoubtedly now in