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ment two-thirds meant two-thirds of the total membership, and later Mr. Ebenezer Hill, of Connecticut, had the same view.
I have talked with Senator Brandegee, of Connecticut, and he has the same view, that two-thirds means of the total membership.
And right at the threshold, we have not gotten an amendment in our Constitution where there was a two-thirds vote of both Houses, and I am frank to say that in my judgment we haven't got one valid constitutional amendment to-day. They all of them are void; all of our nineteen amendments are absolutely void.
Now, what is the third requ site? The third requisite is a valid ratification. Right there, Senator, is the question of ratification. There has been a great deal of talk here about whether the ratification should be by constitutional convention. That constitutional convention business relates to the proposal. It does not relate to the ratification.
Senator COLT. But the ratification amendment proposes that it may be ratified by conventions in each State.
Mr. ADRIAANS. Right there, if you will permit me, the fact has been lost sight of by those who have interested themselves in the matter of amendments that a Federal amendment has a duality of function. Primarily it amends the Federal Constitution; secondarily, it amends every State constitution of the whole number of States, as well those assenting as those dissenting. The consequence is that the Federal amendments operates to amend every State constitution.
If there was the word "black" or the word "white" in any State constitution, and the fourteenth and fifteenth amendments are valid, then that word "black" or the word "white" was stricken out, and if the word "male was in any State constitution and the nineteenth amendment is valid, then that word "male" is stricken out.
The consequence is that the secondary effect of a Federal amendment is to amend the State constitution.
We have three classes of States in our Union. The first class is where a tentative amendment is proposed to the first legislature, and is, after passage by the legislature, submit to the people on a direct referendum.
The second class of Sates is where the tentative amendment is approved by the first legislature, and it is then submitted to the people on an indirect referendum, so that the next legislature if elected with reference to the attitude of the people on the proposed amendment, and if the people favor the amendment they will vote in the man who stands for the amendment, and if the people do not favor it they will vote for the man who is against the amendment.
The third class of States is that where the tentative amendment is approved by the first legislature it is then passed on to the second legislature, the following legislature, and if it is approved by two successive legislatures it is then passed to the people on a direct referendum.
There is not a single solitary State in this Union where you can attach an amendment to the State constitution except with the approval of the people.
Now, since the Federal amendment has the effect, the necessary, the logical effect of amending the State constitution, the only deduction that I can draw is that a Federal amendment should be consistent both with the Federal Constitution and also with the State constitution. If there is any limitation upon the legislature of a State that directs it to do a certain thing in a certain way that limitation follows upon the legislaure and may be shown in the United States Supreme Court as producing an effective ratification. In other words, we must judge between an effective ratification and an ineffective ratification.
We have a right to say in the case of Missouri that the constitution of the State forbids the legislature to do anything that embarrasses the autonomy of the State. We have the right to show in the United States Supreme Court when that case comes there for review that that State constitution had been violated, and we have the right to show
Senator COLT. Mr. Witness, how does your discussion here bear on this amendment? The first 10 amendments have nothing to do with State constitutions, the eleventh, about a suit brought by an individual against a State by citizens of another State, has nothing to do with a State consitution; the twelfth amendment changing the manner of choosing a president and vice president has nothing to do with a State constitution. Will you please come down to what you have to say bearing on this amendment here?
Mr. ADRIAANS. I am very glad to have you call it to my attention. I am coming right to it now. My proposition is that the proper construction of Article V would prevent the necessity of passing this proposed amendment at all, because I say you can not legally ratify a Federal amendment except in consistency with the State constitution, and since the State constitution requires a referendum to the people and since the Federal amendment has a duality of function, it is absolutely necessary that the proposed amendment shall be in harmony both with the Federal Constitution and also
SENATOR COLT. But what is the use of our doing something that is right in the teeth of the Supreme Court?
Mr. ADRIAANS. The Supreme Court in the case of Hawke against SmithSENATOR COLT. I did not mean to lead you into that.
Mr. ADRIAANS. The Supreme Court in the case of Hawke against Smith had the two questions before it and they are both found in the same volume, 253 U. S. They sustained the Ohio constitution in so far as it required and permitted a number of people to sue out a referendum as to an amendment of the State constitution. They did not sustain the Ohio law as to a Federal amendment.
My position is that the Supreme Court erred in that decision and what we should do is to correct the Supreme Court. And it has not been the first time that the Supreme Court has erred. They have done it lots of times and they will do it lots of times more, and what we have got to do is to put some judges in there, and, Senator, I hope you will give your vote for some men to be put on that bench who will know when he sees an amendment.
Senator COLT. You would pack the court, then?
Mr. ADRIAANS. No, sir; I would not pack the court, but put men there who would know an amendment when he sees it.
Senator OVERMAN. What is your name?
Mr. ADRIAANS. My name is Adriaans.
Senator OVERMAN. Are you the man who furnished this brief?
Mr. ADRIAANS Yes, sir.
Senator OVERMAN. Where are you from?
Mr. ADRIAANS. I came originally from Holland. I came here, a Dutchman. to tell you how to amend your own Constitution.
Senator OVERMAN. Where do you live?
Mr. ADRIAANS. I live in Washington.
Senator OVERMAN. You are not a Member of Congress?
Mr. ADRIAANS. No, sir; I would not be in Congress. I would sooner be a lawyer.
I would like to call your attention to one thing more to show you how necessary and how vital it is that this question be decided now. I have here a table showing that in the Sixtieth Congress, 62 joint resolutions were introduced to further amend the Constitution; in the Sixty-first Congress, 51; in the Sixtysecond, 84; in the Sixty-third, 120; in the Sixty-fourth, 71; in the Sixty-fifth, 87; in the Sixty-sixth, 63; and in the present Congress up to December 30, 1922, there have been 94 joint resolution introduced to further amend our Constitution.
Now, gentlemen, you are up against it when you find out that 94 different propositions are urging your attention and you do not know what is necessary to make a valid amendment. It is time to come to the hill and see what is necessary to make a valid amendment in order to get the next ones there square. Senator COLT. Senator Overman suggests the question whether you would demolish the Constitution altogether.
Mr. ADRIAANS. No; all I ask is that you put the correct interpretation on Article V.
Mr. DYER. Are there any other witnesses to be heard to-day?
Mr. MOORE. Yes.
The CHAIRMAN. You want to be heard?
Mr. MOORE. Yes, sir.
The CHAIRMAN. Mr. Adriaans, would you mind if we filed your brief and had it printed in the record? Would that be sufficient for vou?
Mr. ADRIAANS. I would like to have it in the record, but I would like to suggest in this connection-which is not in the brief-up to date, in the present Congress, there have been 21 joint resolutions introduced in the Senate and 72 in the House, making 93 joint resolutions pertaining to amendments to the Constitution.
Mr. FOSTER. How many of those are child labor?
Mr. ADRIAANS. I could not tell you.
Mr. FOSTER. Would not that interest you?
Mr. ADRIAANS. I have not enumerated what each is. Some are on the same subject, but the point I want to get at is how important it is for the Congress to interpret Article V, because all of our amendments rest upon Article V as a foundation. Now, it happens that Article V has never been construed by the Supreme Court as a whole. It has been construed in segments, but not as a whole, and since the article has never been construed it is of intense importance, not only to the Congress but to the whole Nation, that there should be an assiduous study of that article to ascertain what is the meaning of it. I hold to-day that we have 19 counterfeit amendments in our Constitution. I hold to-day there is not one of our constitutional amendments which has been promulgated that is genuine, and so they all rest on this Article V, and I want to impress upon Congress, and the whole Nation, that we should study this article very carefully, especially with a view to new amendments.
The CHAIRMAN. We will now hear from you, Mr. Moore.
STATEMENT OF MR. HENRY W. MOORE, PHILADELPHIA, PA.
Mr. MOORE. I am here representing the Pennsylvania Manufacturers' Association.
Mr. Chairman and gentlemen of the committee, I will take a very few minutes, because the point I propose to discuss is merely the legal position, the legal effect upon the Constitution of the adoption of such an amendment.
I will omit all reference to the social, ethical, or economic points, because I am not a Socialist, and can not discuss those points intelligently, but for the purpose of this discussion we can take as admitted all the benefits that are ascribed to it, so far as my remarks are concerned.
The question before the committee, Do they overcome the possible objection to the adoption of such an amendment, in view of the possible effect it may have upon the Constitution itself? I think it may be taken as admitted by all constitutional writers and expounders that the original purpose and effect of the Constitution was to establish a pure frame of government, to which we annexed the 10 amendments, the bill of rights; otherwise it could not have been adopted. All the subsequent amendments, with the exception of the eighteenth, will be found to be restrictions upon the States, looking to the protection of the rights of individuals. The eighteenth, I think, is the only one really acting directly upon the individual, looking to the restrictions of the rights which it theretofore exercised. Now it seems to me that was an entering wedge, tending to destroy the original purpose of the Constitution as a pure frame of government and a protection of rights of individuals. The inten
tion was to form a limited government for strictly Federal purposes, leaving to the States those local questions which it was thought they could better handle. All of the amendments to the Constitution, with the exception of the eighteenth, are in that line. They look to the franchise or protection of individual rights or personal rights or property rights.
Now, then, if all the amendments, with the exception of the eighteenth, which I feel was an innovation, and amendments of that nature are in the nature of a wedge, tending to open wider the split which has occurred, and if followed by other similar amendments, it will tend to open that rift so wide there may be a flood of poor legislation which, in our opinion, would have no place in a frame of government which should be strictly limited to its purpose, to control legislation and not to speak it, if that occurs it seems to me there is danger that the Federal Constitution may be open to the same criticism which so many State constitutions are now subject to, in the attempt to regulate everything, and the adoption of State legislation, which at the time is popular, or supposed to be imporant, they have loaded them down to the point where they are digests of the law, and I can not think that is the purpose of the people who had in their mind a rigid, written Constitution, which we have been told, and I believe it to be true, is the admiration of most legal thinkers throughout the world, and it seems to me it should be the purpose of Congress to rigidly guard that frame of Government with the original point of view, and not to let it degenerate, if I may use that expression, to the point where it becomes loaded up with legislation.
I thank you very much. My remarks are brief, and I hope to the point.
The CHAIRMAN. If no one else wants to be heard, the committee will stand adjourned until to-morrow morning at 10 o'clock. (Whereupon, at 4.25 o'clock p. m., the committee adjourned until to-morrow, Thursday, February 28, 1924, at 10 o'clock a. m.)
COMMITTEE ON THE JUDICIARY,
The committee this day met, Hon. George S. Graham (chairman) presiding.
The CHAIRMAN. At our meeting a few days ago we agreed that a minority might go on with the hearings. I suppose that holds good for to-day. I will call Dr. Charles O'Donovan.
STATEMENT OF DR. CHARLES O'DONOVAN, BALTIMORE, MD.
Doctor O'DONOVAN. Mr. Chairman and gentlemen of the committee, I am a practicing physician, a citizen of Baltimore, Md., where I am in the active practice of medicine, and have been for 43 years. I am a voter; a taxpayer in that city. I am married. I am the father of four children, all grown. I have two grandchildren.
I have read this resolution, and I wish to appear here in protest against its passage. The important part of this resolution, of course, is contained in the first section.
The Congress shall have power to prohibit the labor of persons under the age of 18 years and to prescribe the conditions of such labor.
To me it appears that this section immediately resolves itself into two paragraphs, and I wish to speak in protest against both of them, but first to address my attention to the second portion of the paragraph.
I protest against this for the following reasons, taking my stand upon my citizenship in the State of Maryland, in which I was born and in which I have always lived and under the laws of which I have developed and lived my life.
I am familiar with the Constitution of the United States, reasonably familiar with its history, reasonably familiar with the constitution of the State of Maryland, and the Bill of Rights under which I enjoy citizenship in this Nation.
I ask permission to read a few extracts from the Declaration of Rights of the State of Maryland, which is of course the law under which I have developed and lived. It says:
We, the people of the State of Maryland, grateful to the Almighty God for our civil and religious liberty, and taking unto our serious considerations the best means of establishing a good constitution in this State for the sure foundation and more permanent security thereof, declare that the government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole. The Constitution of the United States and the laws made, or which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States are and shall be the supreme law of the State.
I pause for a moment to say that that paragraph is what has impelled me to appear here to-day to protest against the passage of this proposed amendment to the Constitution of the United States.
We recognize the fact that while we are bound immediately by the laws of the State in which we live, that over and above these laws the Constitution of the United States is the overlaw.
I do not intend to read all of the articles of Maryland's Bill of Rights, but am picking out certain features as they apply to this particular question under discussion. Article 3 of the Bill of Rights reads:
The powers not designated to the United States by the Constitution thereof nor prohibited by it to the States are reserved to the States respectively or to the people thereof.
The State of Maryland put into its Bill of Rights that reservation to the people thereof, distinctly stating that it recognizes herself and her people recognize her as a sovereign State, and that is more definitely stated in the fourth article of the Bill of Rights in the following language: "That the people of this State have the sole "-Notice the language. "The people of this State "-the State of Maryland"have the sole and exclusive right of regulating the internal government and the policing thereof as a free, sovereign, and independent State."
Gentlemen, that is the law under which I was born, under which my father lived, because this constitution was adopted in 1867, under which my children and grandchildren have been born and which