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Thus we find Cain became a husbandman, while Abel guarded sheep.
We learn that Tubal Cain had the vocation of manufacturing cutting instruments of copper and iron; which incidentally signified that these basic metals and their uses were. then known.
The construction of an ark seems to have been known to Noah, for by that means the deluge did not affect its occupants. Windows were also then known, for the ark was so provided.
The building of the Tower of Babel, signified that the art of construction was known at this period.
Gideon made use of lamps and pitchers in his nocturnal surprise to his enemies.
We thus discover that diversification of labor was early ascertained to be a wise expedient, as promotive of commerce. Money was also known, because Abraham purchased a burial site for his wife with silver.
In the United States the two great political parties have recognized that inequality in cost of production, of articles of commerce, was a subject of governmental concern.
The parties have differed however as to whether there should be protection with incidental revenue; or whether a tariff levy should be for revenue only, with incidental protection.
Both parties have agreed however that only importations from foreign countries shall be subject-matter of a tariff; while domestic importations, from one part of the United States to another, shall not be subject to such levies (Ring cases, 183 U. S. 176.)
Our legislators have always recognized that domestic inequalities in cost of production of articles of commerce have existed; but have not made it a subject of Federal legislation.
Thus the fact that white laborers come in competition with negroes, Chinese, Japanese, Hindus, and other inhabitants has not induced Congress to legislate thereon, except indirectly through exclusion of Asiatic immigration.
That males and females come in competition in pursuit of identical vocations, has not spurred Congress to enact laws to prevent it; even though the former may have families dependent on them for maintenance, while the latter may be alone and unencumbered.
That minors and adults have likewise come into competition has also failed to arouse the Congress to its prohibition, even though disastrous to both-in denying the former opportunities for education, and in preventing the latter from obtaining employment on a living basis.
Congress has regulated hours of labor, etc., in the District of Columbia, the territories, and other places where it had legislative power and exclusive jurisdiction.
The Congress has not, except in two cases, undertaken to supervise vocations in the several States, and in both instances its laws were held void, because it had no jurisdiction so to do (Hammer v. Dagenhart, 247 U. S. 251; Baily ". Furniture Co. 259 U. S. 20).
From the time of the severance of our allegiance to Great Britain, expressed in the Declaration of Independence, issued July 4, 1776, the 13 Colonies were strong against centralization, and insistent upon autonomy, sovereignty, selfdetermination, and home rule.
No room for doubt can exist on this subject after perusal of the Articles of Confederation, agreed to November 15, 1777.
But during the 11 years intervening between the latter date and July 26, 1788 (when 11 States had ratified the Constitution agreed to by Congress September 28, 1787, and thence transmitted to the States for action), it was found that this local autonomy was too rigid to enable the Colonies to deal efficiently with foreign nations, Indian tribes, and in interstate matters. Experience had indicated that a central organization had to be created to meet such emergencies, just as banks have found a clearing house an aid to adjust interbank questions.
Thus our first presidential election, under the Constitution, occurred in 1788, and the first President, Washington, was inaugurated in New York City on April 30, 1789.
In adopting a Constitution, in place of the Articles of Confederation, the Colonies had not abated their desire for local self-government, but rather had conceded that certain powers were national in scope, and certain other powers were local, and reserved to each.
These national powers were enumerated in sections 8 and 9 of Article I of the Constitution, and were intended to constitute the chart of congressional jurisdiction. Legislation beyond its powers was held void (Scott v. Sanford, 19 Howard 393; Hammer v. Dagenhart, 247 U. S. 251; Bailey v. Furniture Co., 259 U. S. 20.)
But while Federal encroachments on State powers were challenged, State encroachments on Federal powers met the same fate (McCullough v. Maryland, 4 Wheaton 316; Gibbons v. Ogden, 6 Wheaton 448; 9 Wheaton 1).
An enactment within the Federal power was, however, sustained (Lottery Cases, 188 U. S. 321); but thereunder the manufacture, sale, and transportation of lottery tickets within Louisiana was not inhibited.
The ordinary and extraordinary powers of Congress are alike measured by its jurisdiction.
The framers of the Constitution foresaw that in course of time amendments thereto might be wise, and so Article V was provided as the sole door to this end; but the amending power of Congress was as limited by its jurisdiction as its other powers.
An analytic study of this article indicates that three barriers, or safeguards, were intended to prevent improvident alteration of the Constitution:
First. By Congress, when the subject matter related to a reserved power retained by the States;
Second. By a mere majority, when the word "two-thirds " therein, and implied of the total membership;
Third. That a ratification should occur by a legislature, when the proposal emanated from Congress, and pertained to the enumerated powers granted to it; and that it should occur by a State constitutional convention, when it emanated from a Federal constitutional convention, convened by Congress, when the proposal related to the reserved powers retained by the States. Furthermore, a ratification was to be consistent both with the Federal Constitution and that of each ratifying State, since the Federal amendment had the dual function of synchronously amending both.
Unfortunately the Congress, in successive proposals of our 19 proclaimed amendments, has ignored all three of these tests, with the result that we have now 19 counterfeit, spurious amendments, with more in sight, none of which agree with Article V, properly interpreted.
In the following cases Federal amendments have been challenged as to validity in the United States Supreme Court:
Eleventh. Hollingsworth v. Virginia (3 Dallas 378), where the sole question raised and decided negatively was whether a resolution under Article V was embraced under resolutions mentioned in Article I, section 7, clause 3.
Thirteenth, fourteenth, fifteenth. Slaughterhouse cases (16 Wall., 83 U. S. 36), where a Louisiana statute was claimed to be violative of the Federal amendments, which the court found not to be true. No assault was made on the Federal amendments.
Fifteenth. In Guinn et al. v. United States (238 U. S. 347) J. H. Adriaans, as amicus curiæ, filed a brief denying its validity, which was left undecided by the court.
Sixteenth. In Evans v. Gore (253 U. S. 245) the sole question raised and decided was whether the amendment conflicted with Article III of the Constitution, as to diminution of a judge's salary during his term of office.
Eighteenth. National Prohibition cases (253 U. S. 350), which is a chain decision composed of 11 links, assuming each link to be sound; it is susceptible of proof that 10 links are unsound.
Nineteenth. Leser v. Garnett (258 U. S. 130), which affirmed the nineteenth amendment upon the supposition that the fifteenth was valid, from which it did not materially differ in language, only substituting 66 " for women negro." This chaotic and unfortunate genesis of our Federal amendments renders it wise that by 10 original State actions, to be simultaneously filed in the United States Supreme Court, the entire series should be intelligently tested, in order that a judicial interpretation of Article V may be obtained before proceeding with any new proposals to amend this revered chart of our liberties.
We should remember how foreign nations watch our experiment in self-government.
In my book entitled "The History and Validity of Federal Constitutional Amendments (H. Res. 345, 67th Cong.), detailed data are given concerning each proclaimed amendment; references to Federal and State decisions con
cerning the Constitution and its amendments; and results of presidental elections from 1788 to 1920, showing fluctuations of political power of each State, as reflected therefrom. This book is not in print, but is ready for the printer. Eighty-eight resolutions further to amend the Constitution have been introduced to January 30, 1924, in the Sixty-eighth Congress.
J. H. ADRIAANS.
STATEMENT OF MR. JOHN H. ADRIAANS, OF WASHINGTON, D. C.
Mr. ADRIAANS. Mr. Chairman and gentlemen, it has been my privilege for over 30 years to give extended attention to the subject of Federal amendments, and I have written several briefs on the subject. I have a brief here that was presented in the United States Supreme Court touching the fourteenth and fifteenth amendments, giving all the data concerning them, and I am going to leave that with this committee.
Senator COLT. Have you several copies of it?
Mr. ADRIAANS. I will get more copies.
Senator COLT. If you will have enough copies for the members of the committee.
Mr. ADRIAANS. While I am on that subject, I want to say that the Supreme Court left the questions which I presented in that brief undecided, and to-day we do not know what are the essential requisites of a valid constitutional amendment.
For instance, I cite in there the proclamation of the Secretary of State, Seward, in his proclamation of July 21, 1868, of the fourteenth amendment; he himself expressed the view that in his judgment that amendment was not legally adopted. And seven days after that, July 28, 1868, he gave a further proclamation based upon an interim resolution of Congress, and he stated then in the second proclamation that it was his duty as the Secretary of State under the act of 1828 to proclaim the laws of Congress.
So that the questions that he raised concerning the validity of the fourteenth amendment are to-day as unsolved and as undecided as they were then. Senator COLT. You know the court never decides anything except it has to decide upon the case as presented.
Mr. ADRIAANS. Certainly.
I want to call attention, Mr. Chairman-and I want to say in this connection that we could not have a better chairman, from the fact the chairman has been a judge so long that he appreciates these things from a judicial standpoint. I have recently written a book, just about to be printed, on the subject of the Federal amendments. The title of the book is History and Validity of Federal Constitutional Amendments. That is the subject matter of House Resolution 345. I am going to leave that with the committee. And in that book I review all of the 19 amendments that have so far proclaimed and give the complete history of each.
My study of Elliott's debates
Senator COLT. Can you leave a number of copies of that?
Mr. ADRIAANS. They are exhaused. I have sent them all over the country and there is great demand for the book, but it has not as yet been published, and when it is published it will shed a great deal of light on the subject of amendments.
The view that I derive from a careful study of Elliott's Debates is that the framers of the Constitution in formulating Article V as a part of the Constitution intended to create three tests by which we might know whether an amendment squared with that article.
There was the utmost solicitude expressed in the convention lest through the amending power there might be an encroachment by the Federal Government on the reserved powers of the States, and so in framing this Article V, it was intended to frame it in such a way that obstacles would be created to the addition of amendments to the Constitution.
As the chairman very accurately stated this morning, it was intended by calling for a two-thirds vote of both Houses and three-fourths of the States-it was intended by the framers of the Constitution to make it difficult to amend the Constitution and place it beyond the power of a mere majority.
Now, that being so, we then ask ourselves what are those three tests.
The first test is a jurisdictional test. Now what do I mean by that? All through the debate this morning, we have advanced the proposition that where there was a provision in Article V for a constitutional convention that related to a ratification. But it does not. It does not relate to the ratification; it relates to the proposal.
In other words, that no amendment to the Constitution could be proposed by the Congress unless it was within the enumerated powers granted to the Congress by the Constitution, by the reserved powers. All those powers that have not been granted to the Congress were reserved by the States. Now, suppose that it was intended to amend one of those reserved powers. Was that a subject that could be proposed by the Congress? No.
When the Congress was concerned with the proposition to amend the Constitution the first duty cast upon the Congress was to determine whether the proposed amendment related to a subject within the enumerated powers granted to the Congress by the Constitution. If they found it did not, then it was the duty of the Congress to call a constitutional convention of the States, not in the States, but of the States, and each State was to send delegates to the constitutional convention of its selection.
Senator COLT. That is your inference.
Mr. ADRIAANS. That is the deduction that I draw.
Senator COLT. Well, that is your deduction.
Mr. ADRIAANS. Yes; that is the deduction I draw from Elliott's Debates. Senator COLT. There is nothing in the language of article 5 itself which positively states any such thing.
Mr. ADRIAANS. Why, Senator, if you read Article V you will see
Senator COLT. There is nothing there which says that the proposals made by Congress shall be within the limited powers conferred on the Federal Government by the Constitution.
Mr. ADRIAANS. It presents this question which has been debated very frequently in Congress: Is there a limited amending power or is there an unlimited amending power?
Now, I contend there is a limited amending power.
Senator COLT. You belong to that school?
Mr. ADRIAANS. Yes.
Senator COLT. But supposing I should say to you there is conferred upon it certain national powers. You know that.
Mr. ADRIAANS. That is right.
Senator COLT. Suppose that in the development of this Federal form of government the people thought that there should be an additional national power conferred, taking away one reserved power in the State, have you any idea that that was beyond the purview of the amending power?
Mr. ADRIAANS. If the Senator will permit me to use an illustration I can make very clear what I have in mind.
Suppose now if you read the article relating to the declaration of war, the Constitution gives the Congress the power to declare war but it does not give the Congress the power to declare the termination of war. Now suppose that somebody would offer a resolution that would amend that article to read this way: The Congress of the United States shall have the power to declare war and the termination thereof.
Then that is a cure of a defective power granted to the Congress.
Mr. Woodrow Wilson contended that the Congress could only terminate the war by a treaty. There was a large number of gentlemen who took the liberal view of the Constitution and said, why, if the Congress can declare war it can declare a condition terminating the war. Yet the language is not there.
Now, that is an illustration of where the Congress could propose such an amendment.
Take the other view of the case. Here is somebody who comes in and says, why, the Congress of the United States should have power to provide uniform laws relating to marriage and divorce. Now everybody knows that the laws relating to marriage and divorce are laws that pertain to each State. The Federal Government has no jurisdiction over the laws pertaining to marriage and divorce. There has been much talk along that line in the direction of uniformity, and the American Bar Association has worked along that line to get the States to adopt some desirable uniform law, but they have, on the other hand, been very solicitous to prevent the Federal Government from interfering in the matter.
24666-H. Doc. 497, 68-2- -9
I would contend, and do contend, that if we are supposed to amend the Constitution of the United States so that the Congress of the United States could pass laws relating to marriage and divorce, that when the Congress was confronted with this proposition it would be the duty of the Congress to call a constitutional convention of the States and let the States propose such an amendment by two-thirds of the States proposing it and three-fourths of the States ratifying it, and then it becomes a part of the Constitution without any action by Congress at all.
Now that is what I call the jurisdictional prerequisite, the first prerequisite, of a valid amendment.
Senator COLT. No; Congress would still have power to direct how this proposed amendment should be ratified under that amendment.
Mr. ADRIAANS. I do not understand it that way, Senator.
Mr. ADRIAANS. I contend that the duty is passed upon Congress to determine if the matter in respect of which an amendment is sought is within the enumerated powers or is it within the unenumerated powers, within the reserved powers. If it is within the reserved powers belonging to the States then the Congress has no function in the matter at all except the one function of calling the constitutional convention.
Senator COLT. You would hold that the eighteenth amendment was beyond the power of amendment.
Mr. ADRIAANS. Yes; and the nineteenth and the fourteenth and the fifteenth. Senator COLT. Does that help us at all in considering the question we have here? The Supreme Court brushed those questions aside. You know it was argued by Elihu Root and other counsel that it was beyond the amending power of the Constitution; in other words, it was a broad fundamental power that ought to go to the States, etc.
Mr. ADRIAANS. Well, Senator, I am contending my interpretation of Article V as it was formulated by the constitutional convention.
Senator COLT. Yes.
Mr. ADRIAANS. And I say there were three tests intended to be created by them whereby we might know whether an amendment squared with Article V. I have gone through the first test, which is the jurisdictional test. I claim where it is once apparent that the proposed amendment does not relate to the prescribed powers granted to Congress and is within the reserved powers retained by the States, that then the Congress has no function whatever except to call a constitutional convention of the States to which delegates are selected by each State to attend. The constitutional convention is not in the State, it is a national constitutional convention to which delegates are accredited by every State, and if two-thirds of those delegates propose it and three-fourths of the delegates ratify it, then it becomes a part of the Constitution without any action by Congress at all and is entitled to be enforced just the same as any other amendment.
Now the second test is the proposal test.
The proposal test is that when the amendment is within the enumerated powers granted to the Congress, then it requires two-thirds of both Houses to propose it.
From the very earliest period we have gone astray right there.
10 amendments came up under one resolution, and what happened? All three of these tests that I have enumerated were violated in the first 10 amendments. I am in favor of the first 10 amendments, but I say they did not get there right, and since that time those first 10 amendments have been the precedents of all subsequent amendments.
Of the first 10 amendments there was a tie vote and the Vice President of the United States cast a ballot on a tie vote.
Mr. LESER. Were there not 12 amendments?
Mr. ADRIAANS. There was one resolution offering 10 amendments at one time. Mr. LESER. There were 12.
Mr. ADRIAANS. Yes; there were 12, but 2 of them had insufficient ratification and they were dropped.
On that resolution there was a tie vote in the Senate which was decided by the Vice President in the face of Article V, which says there must be a twothirds affirmative vote.
Then on the eleventh amendment Senator Stone called the attention to the fact that there was not a two-thirds affirmative vote; and later on, when Mr. Jefferson Davis got in the Senate he called attention to the fact that in his judg