When proposing amendments it has been held that twothirds of those present in the Houses of Congress and not two-thirds of their entire membership is required.

The requirement of a two-thirds vote applies only as to the vote on the final passage of the proposal. Proposed amendments, it has therefore been held, may be amended by a majority vote, but two-thirds are required when one House is voting finally to concur in proposals of the other House.1

The President's approval of a proposed amendment is not required. In Hollingsworth v. Virginia 2 the court without argument say: "The negative of the President applies only to the ordinary cases of legislation; he has nothing to do with the proposition or adoption of amendments to the Constitution."

In scope the amending power is now limited as to but one subject, namely, the equal representation of the States in the Senate. It has by some been argued that even this limitation may be evaded by adopting a constitutional amendment eliminating this limitation upon the amending power, and thus opening the way to subsequent amendments providing for an unequal senatorial representation of the States.3

It would seem that a State legislature which has rejected an amendment proposed by Congress, may later reconsider its action and give its approval. This in fact was done by several States with reference to the Fourteenth Amendment, and the ratifications thus given were accepted. That a ratification once given may not be withdrawn would also seem to be settled by the action taken by the

1 Hinds Precedents of the House of Representatives, V, §§ 70297039.

23 Dall. 378; 1 L. ed. 644.

3 Cf. Von Holst, Constitutional Law of the United States, 31, note.

4

Jameson, The Constitutional Convention, § 576.

Federal authorities in counting among those ratifying the Fourteenth Amendment certain States which, having ratified, later attempted to reverse this action.5

5 Jameson, Id., §§ 577–584. For an excellent treatment of the various constitutional questions that have been raised in the States with reference to the amendment of their several Constitutions, see Dodd, The Revision and Amendment of State Constitutions (1910).

CHAPTER XXVII

CONGRESS-ITS ORGANIZATION: PRIVILEGES OF MEMBERS

The first section of Article I of the Constitution provides that "all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." The following sections of this article provide for the composition and organization of these two branches of the national legislature and enumerate the powers which they may collectively and severally exercise. In the present chapters we shall be concerned with the constitutional provisions for the organization of Congress.

Qualifications for senators and representatives

It is required by the Constitution that Representatives shall have attained the age of twenty-five years, have been seven years citizens of the United States, and be, when elected, inhabitants of the State in which they are chosen. Senators are required to be thirty or more years of age, to have been nine years citizens of the United States, and to be, when elected, inhabitants of the State for which they are chosen.

It is furthermore provided by the Constitution that "no person holding an office under the United States shall be a member of either house during his continuance in office."

Furthermore, by $3 of the Fourteenth Amendment it is declared that: "No person shall be a Senator or Representative in Congress, or Elector of President and

Vice-President, or hold an office, civil or military, under the United States, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House remove such disability."1 It will be observed that habitancy and not mere residency in a State is required. Habitancy implies greater permanency than does residence. "A man's residence is often a legal conclusion from statements showing his intention. Habitancy is a physical fact which may be proved by eyewitnesses." 2

The constitutional provision is that habitancy shall exist at the time of election. It is thus legally possible for a member of Congress, after election, to become an inhabitant of another State without thereby forfeiting his seat.

Qualifications determined by Congress

Though essentially a judicial function the conclusive determination as to whether the constitutional qualifications for membership have been met is, by the Constitution, placed in the hands of each of the two Houses of Congress. It thus happens that, though neither House may formally impose qualifications additional to those mentioned in the Constitution, or waive those that are

1 Congress has removed this disability from all, or practically all persons suffering from it because of participation in the Civil War. Delegates from the Territories who are given the right to sit and speak but not to vote in the House of Representatives have their qualifications and terms of office determined by the Congress. 2 Foster, Commentaries, § 62.

mentioned, each may in practice do either of these things. For example, in 1900, the House excluded Brigham H. Roberts of Utah because of various charges brought against him, none of which, however, alleged a constitutional disqualification. In this case it was strenuously argued that, having the necessary constitutional qualifications, Roberts should be admitted to membership, and then if the House should see fit, he might be expelled by a twothirds vote. For the right to expel, it is admitted, is absolute, and may be exercised for any reason which the House thinks adequate. The House, however, by a large majority, voted to exclude Roberts.4

It is plain that no State may add qualifications to those required by the Constitution of members of Congress. Thus in 1865, the governor of a State having refused to issue credentials to the rival claimants, because they were disqualified under provisions of the State Constitution to membership in the House, the House seated the one shown prima facie by official statement to have a majority of votes.5 Similar action was taken by the Senate the same year.

The disqualification of a member of Congress, it has been held, does not entitle the person receiving the next highest vote, to his seat.6

Members who have already taken the oath may, it has been held, be unseated by a majority vote. That is to say, disqualification being shown the process of expulsion, which requires a two-thirds vote, is not needed.7

3 Const., Art. I, § 5, cl. 2.

4 For a full statement of the arguments pro and contra in this important case, see House Rpt. 85, 56th Congress, 1st Session. Also Hinds Precedents of the House of Representatives, Vol. I.

Hinds, § 415. Story's Commentaries, §§ 623-629.

⚫ Hinds, § 424.

7 Hinds, § 424.