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eral a concurrence in some very injudicious recommendations. I allude more particularly to the power of taxation. The more I consider requisition in any shape, the more I am out of humor with it. We yesterday passed through the Constitution. Today some definite proposition is to be brought forward, but what we are at a loss to judge. We have good reason to believe that our opponents are not agreed and this affords some ground of hope. Different things are thought of-conditions precedent, or previous amendments; conditions subsequent, or the proposition of amendments, upon condition that if they are not adopted within a limited time, the State shall be at liberty to withdraw from the Union; and lastly, recommendatory amendments. In either case, constructive declarations will be carried as far as possible.
“A. Hamilton.' Again he wrote to the same correspondents a few days later:
"Poughkeepsie, Saturday, July, 1788. "I thank you, my dear sir, for yours by post. Yesterday I communicated to Duer our situation, which I presume he will have communicated to you. It remains exact. ly the same. No further question having been taken, I fear the footing I mentioned to Duer is the best upon which it can be placed; but everything possible will yet be attempted to bring the party from that stand to an unqualified ratification. Let me know your idea upon the possibility of our being received on that plan. You will understand that the only qualification will be the reservation of a right to recede, in case our amendments have not been decided upon in one of the modes pointed out by the Constitution within a certain number of years, perhaps five or seven. If this can in the first instance be admitted as a ratification, I do not fear any further consequences. Congress will, I presume, recommend certain amendments to render the structure of the Government more secure. This will satisfy the more considerate and honest opposers of the Constitution, and with the aid of them will break up the party.
“A. Hamilton." 57 Works of Hamilton, vol. 1, 464, 465.
To this letter Madison58 replied:
“New York, Sunday evening. "My dear Sir:
“Yours, of yesterday, is this instant come to hand, and I have but a few minutes to answer it. I am sorry that your situation obliges you to listen to propositions of the nature you describe. My opinion is, that a reservation of a right to withdraw, if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification; that it does not make New York a member of the Union, and consequently that she could not be received on that plan. Compacts must be reciprocal—this principle would not in such a case be preserved. The Constitution requires an adoption in toto and forever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short, any condition whatever must vitiate the ratification. What the new Congress, by virtue of the power to admit new States, may be able and disposed to do so in such case, I do not inquire, as I suppose that is not the material point at present. I have not a moment to add more than my fervent wishes for your success and happiness. The idea of reserving a right to withdraw was started at Richmond, and considered as a conditional ratification which was itself abandoned as worse than a rejection.
Madison's expression that the Constitution requires an adoption in toto and forever shows his opinion was that affirmative action having once been exercised by the legislature, it must stand for all time and could not be affected by any subsequent legislation. The principle is similar to cases where the right to vote to authorize the issuance of bonds is conferred by statute and where there is nothing in the act limiting the number of times the vote may be taken. In such cases it has been held that a negative vote does not prevent the submission of the question again, even though several votes have been taken with a negative
58 Works of Hamilton, vol. 1, 465.
In the United States district court it was held: “One election does not exhaust the power, unless the result is in favor of affirmative action.
In Fletcher v. Peck, Marshall, C. J., said:
“The principle is asserted, that one legislature is competent to repeal any act which a former legislature was competent to pass; and that one legislature cannot abridge the powers of a succeeding legislature. The correctness of this principle, so far as respects general legislation, can never be controverted. But if an act be done under a law a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power.'
The underlying principle seems to be that where the result of a vote is negative, it is the same as though no action had been taken. If it is affirmative, it exhausts the power under the right to vote and is final. Thus where a vote has once been taken with an affirmative result, the power under the act is exhausted and the result cannot be rescinded by a subsequent vote, but until affirmative action is taken the power to have another vote is not exhausted. In the cases of the amendments in question, affirmative action was taken in each instance, and therefore the power to vote on the amendment was exhausted, and subsequent legislatures had no power to rescind the former acts.
The approval of the President is not necessary to the validity of an amendment.-When Congress proposed the first ten amendments it did not submit them to the President for his signature. The question whether the signature of the President is necessary to an amendment arose over the adoption of the 11th amendment, and went to the Supreme Court where it was held in Hollingsworth et al. v. Virginia, 62 that the amendment was constitutionally adopted though it was not presented to the President for his approval. When the 12th amendment was being considered by the Senate the question again came up, notwithstanding the decision of the Supreme Court, but, by a vote of twenty-three to seven, it was
59 29 Conn., 174.
60 Woodward v. Board of Supervisors, etc., 2 Central Law Journal, 396.
61 6 Cranch, 87.
decided not to submit it to the President for his signature.63 The question does not seem to have come before the Senate again until 1861, when an amendment was submitted to and approved by President Buchanan.64
The 13th amendment was proposed in January, 1865, and submitted to the President. On the 4th of February, following, Senator Trumbull introduced a resolution in the Senate declaring that “the article of amendment, proposed by Congress, to be added to the Constitution respecting slavery, having been inadvertently presented to the President for his approval, it is declared that such approval was unnecessary and should not constitute a precedent for the future, etc.” The Senate considered the resolution.
All the provisions of the Constitution bearing upon the question were quoted and commented upon, but there does not seem to have been entire unanimity of opinion among the Senators. Mr. Howe, a Senator from Iowa, thought an amendment should be presented to the President for his signature. Referring to the vote on the subject in the Senate in 1803, he said he noticed among the names of Senators who voted to present the amendment to the President those of John Quincy Adams and Mr. Pickering, and thought, with all deference to the opinion of Justice Chase, in Hollingsworth v. Virginia, that when such gentlemen affirmed that a step is necessary, some argument may fairly be offered to show that it is not necessary.
Senator Johnson thought if the question was an original one, it would be very improper to say it was free from doubt, but thought it fairly settled that-an amendment need not be presented to the President. On a vote being taken the resolution of rescission was agreed to. Thus a second time the Senate put itself on record as saying that an amendment to the Constitution need not be approved by the President.
The 14th amendment proposed by Congress in 1866 was not submitted to the President for his approval. The failure of Congress to submit the amendment to the President caused him to send this message to that body calling their attention to the omission:
63 Dec. 12, 1803, Senate Journal, 323. 64 Senate Journal, Second Session, 36th Congress, 397.
“Even in ordinary times any question of amending the Constitution must be justly regarded as of permanent importance. This importance is at the present time enhanced by the fact that the joint resolution was not submitted by the two Houses for the approval of the President.
65 Message of President Johnson, June 22, 1866, 391, 392.
“I submit to Congress a report of the Secretary of State, to whom was referred the concurrent resolution of the 18th instant, respecting a submission to the legislatures of the States of an additional article to the Constitution of the United States. It will be seen from this report that the Secretary of State had, on the 16th instant, transmitted to the governors of the several States certified copies of the joint resolution passed on the 13th instant, proposing an amendment to the Constitution.
“Even in ordinary times any question of amending the Constitution must be justly regarded as of paramount importance. This importance is at the present time enhanced by the fact that the joint resolution was not submitted by the two Houses for the approval of the President, and that, of the thirty-six States which constitute the Union, eleven are excluded from representation in either House of Congress, although, with the single exception of Texas, they have been entirely restored to all their functions as States, in conformity with the organic law of the land, and have appeared at the National Capital by Senators and Representatives who have applied for and have been refused admission to the vacant seats. Nor have the sovereign people of the nation been afforded an opportunity of expressing their views upon the important question which the amendment involves. Grave doubts, therefore, may naturally and justly arise as to whether the action of Congress is in harmony with the sentiments of the people, and whether State legislatures, elected without reference to such an issue, should be called upon by Congress to decide respecting the ratification of the proposed amendment.
"Waiving the question as to the constitutional validity of the proceedings of Congress upon the joint resolution proposing the amendment, or as to the merits of the article which it submits, through the executive department, to the legislatures of the States, I deem it proper to observe that the steps taken by the Secretary of State, as detailed in the accompanying report, are to be considered as purely ministerial, and in no sense whatever committing the Executive to an approval or a recommendation of the amendment to the State legislatures or to the people. On the contrary, a proper appreciation of the letter and spirit of the Constitution, as well as of the interests of national order, harmony, and union, and a due deference for an enlightened public judgment, may at this time well suggest a doubt whether any amendment to the Constitution ought to be proposed by Congress, and pressed upon the legislatures of the several States for final decision.