Full opinion text
CLARK, District Judge. The traditional method of adopting amendments to the United States Constitution is challenged. Upon the outcome of that challenge depends the disposition of the ease at bar. Even if this opinion meets with-a cold reception in the appellate courts, we hope that it will at least have the effect of focusing the country’s thought upon the neglected method of considering constitutional amendments in conventions. We have often wished for some statute kin to that of mortmain to remove the dead hand of tradition from the domain of ideas. As is familiar, all amendments so far made part of onr constitutional structure have been proposed by Congress for ratification “by the Legislatures of three-fourths of the several. States.” This accustomed procedure has left unnoticed in article 5 of the Constitution the companion provision for ratification, “or by Conventions in three fourths thereof.” This language is now being lifted from its obscurity by the elaim that a lack of compliance therewith has invalidated the ratification of the Eighteenth Amendment, upon which the present indictment depends. At the outset, the court wishes to disavow, for itself at least, any credit or discredit, as the case may he, for the change in emphasis to be accorded the phrasing of article 5. It cannot speak for counsel, as the following quotations are not to he found in their brief. The human mind is stimulated to inventive thought by particular needs; hence Poor Richard’s homely proverb. It is not surprising, then, to find the contention of the counsel in the case at bar first appearing in the congressional debates on the proposal of the amendments ensuing upon the conclusion of the war between the States. So exactly has Senator Dixon, of Connecticut, anticipated the gist of our present argument in his discussion of the Fourteenth Amendment that we quote from his speech as reported in the Congressional Globe for January 29, 1869 (3d Session, 40th Cong., p. 706), at some length: “It has been said that the proposition is to deprive the people of the respective States of this power of controlling the right of suffrage within their own limits by their own consent, and that therefore their rights are not interfered with. How by their consent? Technically or in fact? I admit that technically this question is proposed to be submitted to the people of this country, but is it in point of fact? Is there any real submission? * * * Would it be fair to submit a question of this character to the present Legislature of the State of Ohio? You would not think so if every Legislature had the same sentiments and had been elected a year and a half ago, and was still in existence. I ask any Sénator whether it could be said that a Legislature with those sentir ments thus elected upon other issues was a fair, tribunal to express the sentiments of the people of that State upon a question of this character? * * * It may even be said that the Legislature of the State of Ohio was chosen with more reference to this question than the Legislatures of other States, because when 'that Legislature was chosen the question was pending before the people of the State, and the people actually voted down the proposition by a majority of nearly fifty thousand votes. But notwithstanding that fact, which shows that the subject was under consideration, I still say that I cannot as a Senator declare that I believe it would be fair to submit a proposition of this character to the Legislatures of all the States having the same views as,the Legislature of Ohio, chosen a year and a half ago. That, sir, is what you propose to do, because it happens that the Legislatures are in favor of your proposition. Would you do it if they were against it? “A word further as to the question whether this is a submission to the people. When the Constitution was formed provision was made that amendments to it might be submitted to the Legislatures or to conventions in the various States. Of course the intention was that Congress should select and judge as between these forms of submission; but can any man suppose that at that period in the history of our country it was' ever supposed that questions of amendments to the Constitution would come to be party questions, submitted with party views, and to a party majority? I do not reproach anybody that that should now be the fact. It is, perhaps, a necessity of the ease, and cannot well be otherwise; but when the Constitution was formed there was probably no anticipation of sueh a state of things, and therefore when it was proposed to submit questions of amendment to Legislatures or conventions the meaning and intent was that the people should have an opportunity to act, that they should at least have an opportunity to elect those Legislatures or those conventions with reference to the consideration,of the proposed amendments. “But suppose you now say that this question shall be considered by the Legislatures of the States, and not by conventions. Then, from the very necessity of the ease, you must place it before bodies actually chosen by the people before the question was presented. It is impossible, in my judgment, for Congress by any particular phraseology of their submission of the proposition, to prevent an existing Legislature from- acting on a question submitted. The legislature of Ohio chosen two years ago, if this subject is submitted before they go out of existence, have a right to act on it. The Legislature of Connecticut now existing, if the proposition were submitted in season, might be -called together by the Governor and act upon it. You cannot prevent it. Therefore it seems to me that it is absolutely essential, in order to get the action of the people on this question, that it should be submitted to bodies to be elected by themselves subsequently, to wit, conventions, because you cannot control the question of submission to the Legislatures.” We find another echo of it in one of President Johnson’s messages of those years: “Nor have the sovereign people of the nation been afforded an opportunity of expressing their views upon the important questions 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.” Message of June 22, 1866. Richardson, Messages and Papers of the Presidents (1789-1897), vol. VI, p. 391. Coming, now, to our own times and the Eighteenth Amendment, an examination of a series of articles appearing in various legal periodicals in the year 1920 discloses a parallel line of reasoning. We quote from two: “And it will also be conceded that even though the state legislatures of fifty years ago had no right, power, or authority, under Article V, to adopt such amendments as these so-called War Amendments — such power not having been delegated to those legislatures by the people, in adopting Article V — nevertheless, if after these so-called War Amendments were thus adopted the people had assembled in convention, either in one national convention or in separate conventions held in each state, and ratified that action of the state legislatures, the validity of these amendments would have been put beyond question.” Marbury, The Limitations Upon the Amending Power, 33 Harv. Law Rev. 232. “ * * * Third, that such consent (i. e. to the 18th Amendment) cannot be given by the legislatures of the States, but must come from conventions duly convened in accordanee with a specific vote of a majority of the enfranchised citizens of the States respectively.” White, Is There an Eighteenth Amendment? 5 Cornell Law Quarterly, 89; reprinted 54 Am. Law Rev. 245, at page 261. “Such of the sovereign powers as were originally surrendered by the States to the United States were, therefore, so surrendered, not by the States as sovereignties acting through their legislatures, but by the People of the several States acting in the only way in which they can act, by conventions. If, in order to delegate to the United States, those powers which were delegated by the Constitution, it was necessary that the people as such should act in the matter and they did so act, equally is it necessary, in order to surrender other powers ‘not delegated to the United States by the Constitution/ but ‘reserved to the States respectively or to the People/ that the people should act in the same formal and specific manner.” Ibid. And so the Honorable Louis A. Coolidge, of Milton, Mass., in a letter to the Committee of the Judiciary of the House of Representatives with respect to the Wadsworth-Garret Amendment then being considered by that Committee, says on page 6: “It is a grave question in the minds of some eminent legal authorities whether any existing amendment, surrendering the rights of citizens, is validly a part of the Constitution if ratified by Legislatures solely and not by conventions of the people. See also Intrinsic Limitations on the Power of Constitutional Amendment, by Skinner, 18 Mich. Law Rev. 213; Inalienable Rights and the Eighteenth Amendment, by Abbott, 20 Col. Law Rev. 185; Is the Eighteenth Amendment Void Because of its Contents? by McGovney, 20 Col. Law Rev. 499. It must be confessed that the learned authors of these brochures propound our present theory rather by way of incidental suggestion than with any desire to follow it to its ultimate conclusions. In fact, they become enmeshed in a consideration of the constitutionality of the substance of the amendment. We also are concerned with the substance or subject-matter of the Eighteenth Amendment, but our interest is not intrinsic and per se. It lies only in the relation between that substance or subject-matter and the manner of its adoption. This destinction is important perhaps from the point of view of the justiciable character of the question and certainly with reference to the doctrine of stare decisis. It is clear that a court’s investigation as to whether the procedure prescribed for adoption of an amendment has been legally followed is one thing, and a similar investigation into the legality of the government of which the court is a branch is quite another. Consideration of amendments from the angle of their permissibility under an existing constitutional system must lead to the court’s being the final arbiter of the form of government under which they function. Until the so-called National Prohibition Cases (Rhode Island v. Palmer, Feigenspan v. Bodine, etc., 253 U. S. 350, 40 S. Ct. 588, 64 L. Ed. 946 [1920]), there had been only one case in the United States Supreme Court (Hollingsworth v. Virginia [1798] 3 Dall. 378, 1 L. Ed. 644) wherein an amendment to the Constitution (the Eleventh) had been drawn in question. There, as here, only the procedure (failure of the President to sign the resolution) was objected to. In 1849 the events arising out of Dorr’s rebellion in Rhode Island (for an interesting account of this “most remarkable struggle for Constitutional Government in our history,” see Me-Master, History of the United States, vol. 7, p. 165 et sequitur), brought before the Supreme Court of the United States in the case of Luther v. Borden (1849) 7 How. 1, 12 L. Ed. 581, rights dependent upon the validity of various Constitutions of that state. Chief Justice Taney in a dictum (the merits of the ease turned on the right of the President to call out the militia) declared the question to be a political one. One might pause to observe that Taney’s propensity for dicta finally ended in the tragedy of the Dred Scott Case. This dictum was widely followed in the state courts. These decisions are collected in an article in 11 Minn. Law Rev. p. 369, entitled, “Federal Amending Power, Genesis and Justiceability.” An excellent illustration of the distinction we are seeking to make is to be found in two eases arising in New Jersey. In the first of these, Bott v. Secretary of State, 63 N. J. Law, 289, 43 A. 744, 881, 45 L. R. A. 251, the phrase “majority of voters” in the amending clause was construed and the lottery amendment found to have been approved in accordance therewith. In Carpenter v. Cornish, 83 N. J. Law, 254, 83 A. 31, on the other hand, the Constitution of 1844 of this state was attacked on the ground that women had not been permitted to vote for the delegates whose deliberations had respited in its submission to the male voters. Mr. Justice Swayze, speaking for the Court of Appeals, pointed out that the courts do not undertake to determine so fundamenal a political question as the existence of the government they serve. No Constitution, federal or otherwise, was attacked in the federal courts from the time of the dictum of Luther v. Borden until the argument of the National Prohibition Cases. There those arguing for validity contended that the issues were not judicially cognizable. We agree with Professor Dodd that the state.ments in the briefs regarding this point are not always clear and confuse adoption and substance. Amending the Constitution, W. P. Dodd, 30 Yale Law Jour. 321. However, the ultimate decision of the ease, instead of its dismissal for want of jurisdiction, would seem to establish the doctrine that the substance of an amendment, and therefore, of course, of an entirely new Constitution, might have to conform to the particular theories of political science, sociology, economics, etc., held by the current judicial branch of the Government. This court has never been especially impressed with the theory, stare decisis et non quieta movere. It is too often invoked as an agreeable substitute for mental effort. A Chief Justice of Georgia once remarked that courts of last resort lived by correcting the errors of others and adhering to their own. The leading writer on the question has laid down what seems to us the sensible rule. Chamberlain, Stare Decisis, at page 19: “The degree of authority belonging to such a precedent depends, of necessity, on its agreement with the spirit of the times or the judgment of subsequent tribunals upon its correctness as a statement of the existing or actual law, and the compulsion or exigency of the doctrine is, in the last analysis, moral and intellectual, rather than arbitrary or inflexible.” Moreover, Chief Justice Mosehzisker, of Pennsylvania, in an article published in 1924 points out that the rule should not be applied with “undue severity” in constitutional eases. Stare Decisis in Courts of Last Resort, 37 Harv. Law Rev. 409, 420. The Supreme Court of the United States has taken much the same position. Famous examples are the different views expressed on the citizenship of a corporation under the diversity clause (Bank of U. S. v. Devereaux, 5 Cranch, 61, 3 L. Ed. 38 [1809] Louisville Ry. Co. v. Letson. [1844] 2 How. 497, 11 L. Ed. 353); on the Gredt Lakes as navigable waters under the commerce clause (The Thomas Jefferson [1825], 10 Wheat. 428, 6 L. Ed. 358, and The Genesee Chief v. Fitzhugh [1851] 12 How. 443, 451, 13 L. Ed. 1058); the legal tender (Hepburn v. Griswold [1869] 8 Wall. 603, 19 L. Ed. 513, and Legal Tender Cases [1870] 12 Wall. 457, 20 L. Ed. 287); and income tax cases (Hylton v. United States [1796] 3 Dall. 171, 1 L. Ed. 556, and Pollock v. Farmers’ Loan & Trust Co. [1895] 158 U. S. 601, 15 S. Ct. 912, 39 L. Ed. 1108) under the borrowing and taxing powers; and, finally, the reasonableness of hours of labor legislation under the due process clause (Lochner v. New York (1904) 198 U. S. 64, 25 S. Ct. 539, 49 L. Ed. 937, 3 Am. Cas. 1133, and Bunting v. Oregon (1917) 243 U. S. 426, 37 S. Ct. 435, 61 L. Ed. 830, Ann. Cas. 1918A, 1043). Justice Brandeis, with his usual industry and ability, has made a collection of additional instances of such changes in his opinion in State of Washington v. W. C. Dawson & Co. (1924) 264 U. S. 219, 44 S. Ct. 302, 68 L. Ed. 646. A careful examination of the arguments (both oral and written) of counsel in the National Prohibition Cases in the light of the findings of the court (for in such unusual form were the cases decided) makes it plain that no such course will be imposed upon them in the decision of the case at bar. For convenience, the findings of the National Prohibition Cases essential to the present discussion are set forth below: “4. The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by Article Y of the Constitution. “5. Thát Amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument.” Findings 4 and 5, 253 U. S. 350, 386, 40 S. Ct. 588, 64 L. Ed. 946. Counsel attacked the substance or subject-matter of the Eighteenth Amendment on three grounds: The first, viz., that the word “Amendment” as used in article 5 did not include “alteration”; second that the amendment was in effect legislation; and third, and principally, Messrs. Root, Bullitt, and Mayer argued that either because of the Tenth Amendment or because of the nature of the federal system, or because of both, constitutional amendments changing the distribution of powers as between the states and United States, and by so doing reducing the state’s police power, are forbidden. Manifestly, they proceed on assumptions entirely foreign, to the present controversy. We cannot stop to discuss the merits o£ these final arguments. The first two are fully discussed and effectively answered both in the present Chief Justice’s brief in the National Prohibition Cases (Volume 108, New.York Bar Ass’n U. S. Supreme Court Briefs) and in Professor Dodd’s article, “Amending the Constitution,” above quoted. As to the third contention of Messrs. Root et al., we perhaps-need only quote from those two distinguished lawyers, Professors McBain and F. J. Stimson: “Let it be conceded that the good people of 1789 would have been horrified at any such invasion of state powers, although, incidentally, they would probably have regarded state prohibition as almost equally horrendous. Even so, how could it be rationally argued that by the ninth and tenth amendments they intended to make the division of powers between the nation and the states static throughout eternity — so static indeed that it could not be changed even by the difficult process of amending the constitution?” MeBain, Prohibition: Legal and Illegal, p. 61. “Such an event to their labors would make the framers turn in their graves. Never for one moment did the idea occur to them that the 5th Article of the Constitution providing for its future amendment might open the doo-r to the destruction of all its principles by changes sacrificing those elemental rights which they all believed no government might take away and which they had fought the Revolution to secure; by amendments qualitative or what I have termed substantive in nature, controlling or overriding those very rights which it was framed to protect, and losing sight of their own vision that this Constitution was being made to protect the people from their government even as to these essential human liberties, never to further bind them albeit it had a majority behind it. “Yet the Constitution cannot rise above the Constitution and it is by its own terms subject to amendment, save the provisions protecting slave importation and forbidding direct Federal taxation before 1808 and always the equal representation of States in the Senate.” Stimson, The American Constitution its it Protects Private Rights, p. 216. It is to be noticed that finding 5 of the National Prohibition Cases, above cited, included the word “ratification.” In the two cases of Hawke v. Smith (1920) 253 U. S. 221, 40 S. Ct. 495, 64 L. Ed. 871, 10 A. L, R. 1504, and Leser v. Garnett (1922) 258 U. S. 130, 42 S. Ct. 217, 66 L. Ed. 505, the United States Supreme Court passed upon the question of ratification of the Eighteenth and Nineteenth Amendments, respectively. An analysis of the briefs in the National Prohibition Cases and of the facts in the two last-named cases demonstrated that the only question at issue therein was the meaning of the word “Legislature” as used in article 5. One side contended that it meant a depository of legislative power, i e., the people; and the other, that it was used in what might he termed its trade meaning, i. e., a representative lawmaking body. The Supreme Court in both cases agreed with the latter view and held the referendum provisions of a state inappropriate to the ratification of a constitutional amendment. These decisions (in one of which ho later participated as Chief Justice) of the highest court had been foreshadowed -in an article by the late Chief Justice Taft in an article entitled, “Can Ratification of an Amendment to the Constitution he Made to Depend on a Referendum ?” wherein the previous conflicting state authorities are reviewed and discussed. Neither by holding nor by extraneous discussion did these cases assume to deal with the ratification of amendments by conventions — the second of the three conceivable methods. The late Chief Justice emphasizes this is the form of his argument in favor of the construction ultimately adopted by the Supremo Court: “That it was the intention to submit the ratification to the popular representative bodies named, and not to their constituencies, is clearly shown by the alternative for the state legislatures whieh under the Article Congress may in its discretion substitute as the ratifying agencies. These are conventions in the state ealled for the purpose.These are the same kind of representative bodies which adopted the Constitution and exclude necessarily any idea of further submission to the people directly of the proposed amendment. “This, too-, disposes -of the argument adopted by the Washington and Ohio courts, that the word ‘Legislatures’ means the lawmaking power of the states, for certainly a convention called for the purpose of ratifying an amendment is not part of the lawmaking power of the state. * * * “If proposal or ratification were mere law making, then under section 7, Article I, action of the two Houses of Congress must be submitted to the President for his approval or disapproval. Yet in Hollingsworth v. Virginia it was held that a proposal by two-thirds of both Houses was sufficient under the article without submitting it to the President for his approval or disapproval, and this view has been confirmed by the practice since and by express resolutions of the Senate.” 29 Yale Law Journal, 824. As a matter of fact, though neither counsel has seen fit to furnish the court with a reference thereto, the utterance of the Supreme Court most damaging' to the theory that ratification of the Eighteenth Amendment 'by Conventions is necessary for its validity is to be found in the ease of Dillon v. Gloss (1921) 256 U. S. 368, at page 374, 41 S. Ct. 510, 512, 65 L. Ed. 994, wherein the court says: * “Thus the people of the United States, by whom the Constitution was ordained and established, - have made it a condition to amending that instrument that the amendment be submitted to representative assemblies in the several states and be ratified in three-fourths of them.* The plain meaning of this is (a) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratification by these assemblies in three-fourths of the states shall be taken as a decisive expression of the people’s will and be binding on all.” It must be noted, however, that the learned justice was only passing upon the power of Congress in proposing an amendment to the -Federal Constitution to fix a definite period for ratification by the states. This question is also discussed in Professor Dodd’s article .above cited, at page 340, and in an article published in 14 Va. Law Rev. entitled “Can 'a State Prescribe a Breathing Spell before its Legislature Acts upon a Proposed Amendment to the Federal Constitution?” at page 191, where it is pointed out that the seven-year provision did not harm the petitioner. The remarks of the court would seem, therefore, to be dictum* Limitations of both space and capacity prescribe our entering upon any extended discussion of'the theories underlying a Federal system.. Certain considerations lead, however, so directly to-the subject of Constitutional amendment that they should be mentioned. If states (used in the political rather than the geographical sense) decide to integrate (this term by definition excludes alliances or personal unions), they may do so by mutual absorption or else by a federation. If they choose the former course, they become a unitary state; if the latter, a federation. Gamer, Political Science and Government, p. 273; Strong, Modern Political Constitutions, p. 79; Burgess, Political Science and Constitutional Law, vol. 1, p. 81. By definition again, the component members of a federal state are not mere administrative circumscriptions, but subsidiary sovereignties retaining a wide legislative power. Garner, p. 274, and Strong, p. 62, above cited. Professor Dicey says a federal state is a political contrivance intended to reconcile national unity and power with the maintenance of “state rights.” Such reconcilement requires, of course, a distribution of powers between the central or federal organization and the component units, and equally of course requires some authority which shall determine this distribution. Not only must this authority be a Constitution, but a particular type of Constitution. Since a Federal Constitution partakes of the character of a treaty, “neither the ordinary legislatures of the individual states nor the legislature of the union can have the power to alter the constitution without some special means being adopted for discovering the views of the constituent members.” Strong, p. 61. Fortunately, the constitutional growth in the Colonies furnished ample precedent for the required type prior to 1787. The Mayflower Compact, John Robinson Scruby Congregation at Plymouth, and the Fundamental Orders of Connecticut of 1639 are familiar examples of early colonial agreements for government. See, Thorpe, Charters, Constitutions and Organic Laws, p. 519; David, John Robinson (1903), p. 48. Likewise, the “Agreement of the People,” granted by the. Council of the Army in 1647, was in fact a draft constitution for the commonwealth under Cromwell. Dunning, Political Theories, p. 238. These documents and some of'the later and more complete • frames of government did not contemplate any change and therefore provided no method for their own amendment; so the Constitutions of South Carolina (Thorpe, p. 3241), Virginia (Thorpe, p. 2812), New Jersey (Thorpe, p. 2594), New Hampshire (Thorpe, p. 2451), New York (Thorpe, p. 2623), and North Carolina (Thorpe, p. 3350). Hoar, Constitutional Conventions,' p. 8. They were, of course, “rigid,” as that term is used by Viscount Bryce. Even when the necessity for providing for alteration became apparent and amending clauses were included, this element of rigidity was preserved. The Constitutions were not permitted to become flexible. As Bryce defines the difference, the amending powers in the former type of Constitution must be exercised in a manner separate and distinct from that prescribed for ordinary legislation. Bryce, Studies in History and Jurisprudence, p. 50 et seq. Hoax has summarized the Constitutions of the American states prior to 1787 as follows: “Six of the early constitutions, and the rejected Massachusetts constitution of 3.778, provided no method for their own amendment. (See above.) “Of the eight constitutions which did provide for amendment, three provided for legislative action (in a manner different and more difficult, however, than the passage of a mere statute), (viz. Maryland, Thorpe p. 1686, Delaware, p. 262, and South Carolina (1778), p. 3248); two provided for submission by a council of censors for ratification by a specially called convention (Pennsylvania, p. 3079, and Vermont, p. 3737); one provided for a convention called by petition (Georgia, p. 7770); and one for a convention called by a popular Vote at a certain fixed date (Massachusetts, p. 1888).” Constitutional Conventions, p. 8. The provision of the Pennslyvania Constitution of 1776 (incidentally, the Pennsylvania frame of government of 1683, William Penn’s Charter Privileges of 1701 [Thorpe p. 3081], was the first American governmental framework which embodied the principle of rigidity, it requiring the consent of the governor for the' time being in six parts of seven of the Assembly for an amendment) is sufficiently suggestive, in our opinion, of article 5 of the Federal Constitution to justify its inclusion: “The said council of censors shall have also power to call a convention to meet within two years after their sitting, if there appear to them an absolute necessity for amending any article of the constitution which may be defective, explaining such as may be thought not clearly expressed, and of adding such as are necessary for the preservation of the rights and happiness of the people; but such articles as are proposed to be amended shall be promulgated six months before the day appointed for the election of such convention, for the previous consideration of the people that they, may have an opportunity of instructing their delegates on the subject.” Thorpe, p. 3092. The thirteenth and fifteenth of Randolph’s original resolutions, submitted on May 29 to the Constitutional Convention of 1787, read as follows: “13. ‘Resolved, that provision ought to bo made for the amendment of the Articles of Union, whensoever it shall seem necessary; and that the assent of the National Legislature ought not to be required thereto.” “15. ‘Resolved, that the amendments which shall be offered to the Confederation, by the Convention, ought, at a proper time or times, after the approbation of Congress, to be submitted to an assembly or assemblies of representatives, recommended by the several Legislatures, to be expressly chosen by the people to consider and decide thereon.’ ” Scott, Madison’s Journal, p. 63. On June 5 and June 11 there was some discussion in the Committee of the Whole as to the necessity of such a provision. Journal, p. 110, 149. The committee, and finally the convention, on July 23 accepted the resolution, with the exception of the clause requiring the assent of the national Legislature. Page 409. The Committee of Detail, in a Constitution reported on August 6, for the first time made provision as to the manner in which amendments should be proposed, in article 19, which read: “On the application of the Legislatures of two thirds of the States in the .Union, for an amendment of this Constitution, the Legislature of the United States shall call a Convention for that purpose.” Journal, p. 641. This proposed article was debated on September 10. Journal, p. 692. On that day, Hamilton suggested that the national Legislature, as it will be the first to perceive the most sensible of amendments, ought also to be empowered, with the concurrence of each Branch, to call a convention. Madison thought the article vague. It did not, in fact, make clear whether the Legislatures were to propose the amendments and the convention was to adopt them, or whether the conventions were to both propose and adopt them, or only propose them for adoption by some other body or bodies not specified. Gerry objected that two-thirds of the states may obtain a convention, a majority of which can bind the Union to innovations that may subvert the state constitution .altogether. He and Sherman, accordingly, moved to add to the article the words, “or the Legislature may propose amendments to the several States for their approbation, but no amendments shall be binding until consented to by the several States.” Journal, p. 693. This was finally agreed to, with the inclusion of the numerical qualification “three fourths of” before “the States,” submitted by Wilson. Journal, p. 693. Madison then proposed a substitute, which,, with the convention method of proposing amendments suggested by Morris, finally became article 5 of the Constitution, which reads as follows: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Contention fo)r proposing Amendments, which, in either Case,. shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Warren, The Making of the Constitution, p. 674. The significance, for our purposes, of these proceedings lies: First, in their exclusion of ‘the national Legislature from the original resolution of Randolph and from the initiation of the call for a convention in article 19 of the Committee of Detail’s report; second, in the insistence upon the approbation of the several states; and, third, in the use of a convention both in article 19, above cited, in Hamilton’s substitute, and in Morris’ amendment thereto. The stereotyped method of constitutional interpretation and/or construction is summed up by Mr. Justice Holmes in a very recent opinion, Ohio v. Agler (1930) 280 U. S. 379, page 383, 50 S. Ct. 154, 155, 74 L. Ed. 489, wherein he said: “The language so far as it affects the present case is pretty sweeping, but like all language it has to be interpreted in the light of the tacit assumptions upon which it is reasonable to suppose that the language was used.” And he went on to decide that “all,” the acme of inclusion, did not include divorce cases affecting Consuls, within the meaning of the third article. Counsel have accordingly laid before us an elaborate and brilliant argument based, first, on a “tired eyed” scrutiny of the Constitution as a document, and, second, op a study of its historical and political background. Any express limitation of the language of article 5 must be sought in some reservation. The only defeasance in the grant of the Constitution is found in the Tenth Amendment. Counsel have placed the two provisions in combination and have argued that the result justifies their thesis that any amendment granting governmental powers over the people to the United States must be submitted to conventions, instead of to state Legislatures. The historical background of the first ten amendments to the Constitution is too well known to require detailed repetition here. Barron v. Baltimore (1833). 7 Pet. 243, at page 250, 8 L. Ed. 672. The state Constitutions enacted prior to 1787 included various provisions borrowed from the English Bill of Rights (1689). Macaulay, History of England, vol. '3, p. 400. In the ratifying conventions in the larger states much was made by the opponents of the Constitution of the omission to include similar provisions therein. The Federalists finally secured a favorable vote by the promise that the first Congress would remedy these defects. Included with the amendments guarding against personal oppression were two, the Ninth and Tenth, prompted by the desire to safeguard the smaller governmental units from oppression by the larger. The Tenth Amendment reads as follows : “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It is interesting to students of constitutional law to observe that the identical language appears as section 107 of the Australian Constitution, and that problems similar in scope to our own have been recently agitating the courts of Australia and the Privy Council in England. Constitutional Relations, W. A. Hallman, Law Quarterly, No. 46, p. 184; Attorney-General v. Colonial Sugar Co. [1914] A. C. page 237. In Canada, on ’the other hand, what Viscount Bryce calls “the unallotted residue of powers” remains with the federal government, rather than with the various provinces. See Political and Provincial Taxation in Canada, chapter on the Growth of the Canadian Constitution, 28 Columbia University Studies. We have seen that the circumstance which gives a Constitution rigidity, within the definition of Viscount Bryee, lies in its amendment in a manner different from that followed in the enactment of legislation. Such difference may be evinced in several ways: The change may be formulated by an abandonment of the majority principle in favor of some greater proportion. This was the ease in the early charter granted by William Penn to his colonists and in the Constitutions of the two Carolinas and Georgia. The purpose of these differences being in the direction of greater difficulty and therefore greater deliberation, it is not surprising to And a requirement that in addition to formulation there also be approval or ratification. This second step in the process could be and sometimes was assigned to the same governmental body that had been engaged in the original formulation. On the other hand, it might be assigned to one of the other elements that go to make up the body politic, most often, of course, to the people who originally submitted themselves to the particular frame of government it is sought to change. Because a federal government is only one step beyond an alliance, and because, therefore, its fundamental instrument partakes of the character of a treaty, although possible, it would be curious if the power of approval of changes therein was not accorded in some way to the original and component units. The submission for approval of an already formulated amendment requires as a ’condition precedent) a proposal. Thus, we have three steps — formulation, proposal, and approval. This is the procedure prescribed in the amend - ing clauses of the early! .Constitutions of Vermont, New Hampshire, Massachusetts, and Pennsylvania, and of the United States. We do not need the somewhat elaborate argument based upon the addition of the words “United States” to the Tenth Amendment by Roger Sherman, of Connecticut (1 Annals of Congress, 768) to aid us in holding that the power to amend is not delegated to the United States. In terms, the power of proposal alone is assigned to Congress, and therefore so delegated. The power of formulating amendments (the word “propose” seems somewhat ineptly used in the first part of article 5) is assigned to two-thirds of both Houses of Congress or to a convention called on application of the Legislatures of two-thirds of the several states. The power of approval is, on the other hand, lodged in the Legislatures of or conventions in three-fourths of the several states. If, then, the power to amend is included within the reserved powers, the Tenth Amendment applies, and the reservation must he to the states respectively, or to the people. Such a reservation is manifestly a nullity, if Congress is to have absolute and unlimited discretion in its exercise of the proposing power, as it can and always has placed the amendments before the Legislatures and excluded the conventions. A division or limitation upon its discretion is therefore required. Counsel have made this division and limitation according to the “source,” as they say, of the power granted by the amendment, and argue that a change granting governmental powers over the people must be ratified by Conventions of the people. In our judgment, this joint construction of article 5 and the Tenth Amendment is too strained to bo permissible. It involves, we think, a misconception of the meaning of the terms “people” and “power.” We quite agree with Professor Dunning that: “On one fundamental question the formal pronouncements of the Americans were hardly more coherent and logical than the multitude of democratic theories that had preceded them. They furnished no precise conception of ‘the people’ or ‘a people.’ The term was used indiscriminately in the collective and in the distributive sense. No criterion was afforded by which the possessor of sovereignty or of rights could he identified.” History of Political Theories, Prom Rousseau to Spencer, p. 97. We cannot, however, follow the argument that a convention is more within the definition of people than a state Legislature. There may be several stages in the politico-scientific conception of the people in relation to their government. It may mean, for instance, the mass of human beings in a geographical area, the electors, their agents for a special purpose, or their agents for general purposes. The nonfreeholding males of Rhode Island and the women of New Jersey earnestly, though unsuccessfully, contended that they were “people” in the constitutional controversies referred to earlier in this opinion. At any rate, both the convention, the special agent, and the Legislature, the general agent, are clearly hut different manifestations of the machinery of representation required by the inconvenience of direct action (an inconvenience greatly removed latterly by improvements in printing, postal service, and education; hence, the referendum). We have never before heard it contended that either one or the other is “the People.” It would be most extraordinary, therefore, to argue that one should and the other should not be so classified. So Senator Hoar, in Constitutional Conventions, said: “But in America the representative convention developed. It was a step as far beyond Runnymede as our constitutions were beyond Magna Charta.” Page 2. And Congressman Lnee, speaking of the ratification of the federal Constitution: “Had the decision been taken in the town-meetings and at the county courts, it is altogether probable that the new Constitution would not have been adopted. Luckily the final word rested not with the people but with their representatives, gathered in State Conventions.” Legislative Principles, p. 630. In Judge Jameson’s discussion of the various species of conventions, he lists the General Assembly under. the term, “legislative Convention.” Jameson, Constitutional Conventions, p. 5. The Tenth Amendment does not read “the people in Convention assembled” any more than it reads “the people by their legislative representatives,” and we see no warrant for placing the one or the other abstract interpretation on the single noun. In the second place, counsel seem to be talking about power (legal competence), when what they really mean is the application of power. In other words, they interpret the Tenth Amendment to read, “powers, whose application is to the people, are reserved to the people)” rather than to the states. This we think to be historically untrue. One might imagine powers not delegated to a particular state government at the time of the adoption of the Constitution; to give extreme 'examples, power to establish a state religion or to nationalize women. Such a power would be reserved to the people of that State. Our own view is that if the phrase “or to the people,” added without explanation by Carroll, of Maryland (1 Annals of Congress, p. 761), had any meaning at all, which many political theorists doubt (Merriam, American Political Theories, p. 257), it has reference to such a case. We are aware that this theory would be disputed by those thinkers and jurists who consider the phrase signifies some power reserved to the people nationally. Turner v. Williams (1904), 194 U. S. 279, 295, 296, 24 S. Ct. 719; 48 L. Ed. 979; Kansas v. Colorado (1906) 206 U. S. 46, 89, 90, 27 S. Ct. 655, 51 L. Ed. 956. The power to regulate the conduct of individuals for what is assumed to be the benefit of the general mass being to some extent the very purpose of association in government, it is certainly implicit in whatever authority is set up. It follows that this power, known as the “police power,” and described by Justice Holmes as “the general power of the Legislature to make a part of the community uncomfortable by a change” (Tyson v. Banton [1927] 273 U. S. 418, at page 447, 47 S. Ct. 426, 433, 71 L. Ed. 718, 58 A. L. R. 1236), was lodged in the thirteen states at the time of the adoption of the Constitution. The reservation of the Tenth Amendment must accordingly run to them. We must reject, therefore, counsel’s argument, based on their combination and subsequent interpretation of article 5 and the Tenth Amendment. We give, however, full weight to their development of the tacit assumptions drawn from both the historical and theoretical nature- of our federal system, although our development thereof does not altogether parallel that of their briefs. ’The statements of publicists, and even of judges, reveal some confusion of thought on the subject of local self-government in a federal as distinguished from an unitary state. They seem to assume that the problem is peculiar to the former style of government; whereas, it is, of course, implicit and variously solved in all 'government. In a federal state, however, its solution is achieved according to the nature of that state, by the rigid distribution of power between the subsidiary or local and central or federal authority. Any particular distribution is, of course, vitally affected by the theory and practice existing at the time of its origin or change. The writings (Federalist, Nos. 18, 19, and 20) and the speeches, both in and out of the convention, of those engaged in framing the Constitution, make it abundantly clear that the historical examples of attempted integration of separate communities with which they were familiar were the Greek leagues, the Swiss cantons, the Seven United Provinces of the Netherlands, and the German Bund. Freeman, in his History of Federal Government from the Foundation of the Aehaian League to the Disruption of the United States (1863), (it is library tradition that the result of the Civil War so disappointed the learned author that his opus stopped at volume 1), subdivides federal commonwealths into two classes. They are, first, the system of confederated states where the central power deals with the state governments only; and, second, the composite state, where the central power aets directly on all citizens. It is doubtful whether this classification would meet with the approval of later writers on political science whom we have quoted heretofore. Nevertheless, it is plain that of the examples mentioned only the Aehaian League came anywhere near fulfilling the latter condition. Freeman, p.' 12; J. S. Mill, Representative Government, p. 301; Motley, The Rise of the Dutch Republic, vol. 3, p. 415. For, although Polybios shows that every Achaian citizen stood in a direct relation to the federal authority and was in a strict sense a citizen of the league itself and not merely of the cities which composed it (Polybios, vol. 2, p. 37), we do not seem to know whether the federal taxes were gathered by federal tax collectors or merely requisitions apportioned, by the cities themselves. Volume 4, p. 60. Freeman seriously questions the scholarship of the Framers and points out that the chief source of their knowledge of the Greek Leagues was Abbe Mably, whose historical accuracy he seriously discredits. Freeman, p. 319. At any rate, they had before them only one precedent, and that a somewhat uncertain one, of a state with a central power acting directly on its citizens. The pre-existing theory, then, favored a confederate state and was opposed to a composite one, in which alone there was, of course, any power to distribute. The practice of local autonomy in the Colonies and their struggle for its maintenance, both before and during the Revolution, is so much and so well-known a part of their history that any extended citation of authority here would seem to be pedantie. Professor Dunning, in his History of Political Theories, above cited, discusses the development of the religious movement of “In-dependency,” or “Brownism,” as it is called, in England, together with its political implications, and its final outcome in the Separatist Movement and in the settlement of New England. Dunning, vol. 3, p. 231. The most learned and detailed exposition of the colonial institutions is found in the four volumes of Professor H. L. Osgood’s “The American Colonies in the 17th Century,” wherein the learned author discusses the particular institutions of the. individual Colonies and emphasizes the church community, the town, the county, and the parish. Although the degree of self-government varied somewhat between the corporate colonies and the proprietary provinces, Professor Osgood summarized the matter thus: "All writers who have discussed the early history of the British-American colonies have dwelt with greater or less emphasis on the degree of self-government which they enjoyed. In the preceding chapters an effort has been made to show in some detail in what that self-government consisted and under what forms it appeared. The degree to which it was actually enjoyed is indicated by the fact that it has been possible to describe thus fully the internal organization of the chartored colonies, and to follow the development of their policy, with only an occasional reference to king or parliament.” Volume II, p. 436. The part played by local self-government in the struggle for independence by the Colonies has been the subject of vast historical comment. Professor Corwin, in an article entitled “The Higher Law Background of the Constitution,” 42 Harv. Law Rev. 149 and 365, has thus cogently epitomized the matter: “At the same time it is necessary to recognize that the American Revolution was also a contest for local autonomy as well as one for individual liberty. The two motives were in fact less competitive than complementary. The logical deduction from the course of political history in the colonies, especially in the later decades of it, was that the best protection of the rights of the individual was to be found in the maintenance of the hard-won prerogatives of the colonial legislatures against the royal governors; in other words, of what they locally termed their ‘Constitutions.’ The final form of the American argument against British pretensions was, therefore, by no means a happy idea suggested by the stress of contention, but was soundly based on autochthonous institutional developments.” Pages 40.1, 402. See also Jefferson’s Summary Views, 11 Jefferson’s Writings, 258; Political Ideas of the American Revolution (1922), Adams, chapters 3 and 5; Mellwaine, The American Revolution. These ideas found such frequent expression in the Federalist and in the Debates at the principal and ratifying conventions that we are preparing a separate memorandum in which the language containing them is set forth. Most of those who spoke expressed a whole-hearted dread of “consolidation,” as they called it, and exhibited a firm determination to concede as little of the power of the individual states as was consistent with the breakdown in the previous Confederation, which had forced the calling of the convention and some change in the existing conditions of government. As typical, we are including here a quotation from the Federalist, in No. 17, two references each in the federal and ratifying conventions, and two from the most famous of the opinions of Chief Justice Marshall: “The regulation of the mere domestic police of a state, appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war, seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects, ought, in the first instan.ee, to be lodged in the national depository. The administration of private justice between the citizens of the same state; the supervision of agriculture, and of other concerns of a similar nature; all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.” Lodge’s Ed., The Federalist, p. 98. Mr. Rutledge, of South Carolina, from, the Committee on Detail, reported: “At the end of the sixteenth clause, of the second section, seventh article, add, ‘and to provide, as may become necessary, from time to time, for the well managing and securing the common property and general interests and welfare of the United States in such manner as shall not interfere with the government of individual States, in matters which respect only their internal police, or for which their individual authority may be competent.’ ” Madison’s Journal, p. 585. And Mr. Sherman, of Connecticut: “Thought it reasonable that the proviso in favor of the States importing slaves should be extended, so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate.” Journal, p. 737. And see his remarks to the same effect on page 361. He then put the motion (page 738), which was lost by a vote of eight to three, New Jersey, however, voting in favor of the motion. It is perhaps not generally realized that a suggestion that Congress be given power to enact sumptuary laws was made at the federal convention; Oliver Ellsworth, of Connecticut, afterwards Chief Justice, saying with respect thereto that “as far as the regulation of eating and drinking can be reasonable, it is provided for in the power of taxation,” Journal, p. 562; and Gerry, of Massachusetts, adding “the law of necessity is the best sumptuary law.” The motion was lost by a vote of eight to three. The same sentiments are portrayed in the ratifying Conventions. So, James Monroe, in the Virginia Convention: “What are the powers which the federal government ought to have? I will draw the line between the powers necessary to be given to the federal, and those which ought to be left to the state governments. To the former I would give control over the national affairs; to the latter I would leave the care of local interests.” Elliot’s Debates, vol. 3, p. 214. And to the same effect, Colonel Vamum in Massachusetts: “After stating the difference between delegated power and the grant of all power, except in certain eases, the colonel proceeded to controvert the idea that this Constitution went to a consolidation of the Union. He said it was only a consolidation of strength, and that it was apparent Congress had no right to alter the internal relations of a state.” Elliot, vol. 2, p. 78. Finally, let us hear Chief Justice Marshall, speaking in the famous ease of McCulloch v. Maryland (1819) 4 Wheat. 316, at pages 403 and 431, 4 L. Ed. 579: “No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. * * * “Would the people of any one State trust those of another with a power to control the most insignificant operations of their State government? We know they would not.” The nuances of political theorists with respect to the doctrine of popular sovereignty-are difficult to follow. To what extent the Constitution finally reflects them is also in dispute. We think that Walter Lippman correctly appraises the situation. He says, in Public Opinion (1921), p. 283: “But though popular sovereignty was not clearly understood by anybody, it seemed to imply so great an' enhancement of human life, that no constitution could stand which frankly denied it. The frank denials were therefore expunged from consciousness, and the document, which is on its face an honest example of limited constitutional democracy, was talked and thought about as an instrument for direct popular rule.” And see, Lecky, Democracy and Liberty, vol. 1, p. 55; Myer’s History of the Supreme Court, c. 3, “Real Forces of the Revolution.” This “talking and thinking” had an ample reservoir to draw from in the writings of those who were participating, with their pens at least, in the attempts to resist the oppressions of the Stuarts and the Bourbons. As a matter of fact, the idea of popular sovereignty and of a contract between governors and governed were outlined in Cicero’s De Republica, Book 1, pp. 25, 26, 32, and Book 3, p. 13, and in Sir John Fortescue’s Do Laudibus Legem Angliae, pp. 9, .13, 14, and 18. The much more classical education of those days made the framers familiar with both such works. The contact of the colonists with the events in the mother country preceding establishment of the Protectorate (Macaulay, History of England, vol. 1, pp. 113 to 155) was naturally particularly close, and it is not surprising to find them thoroughly conversant with the political literature of that period, including the pamphlets of Colonel Lilburne, above mentioned, of- the Levellers, and the more sober Milton, Harrington, Sydney, and Locke. As Professor Dunning says, most of the catchwords of modern democracy are to be found in the pamphlets of the first named, e. g. “We, the people” (of the Preamble of the Constitution) in his “Vox plebis.” So, in Milton’s Tenure of Kings and Magistrates (1649), in Harrington’s The Commonwealth of Oceania (1656) (This work embodied a scheme for a Constitution of Great Britain to be instituted by Cromwell), and Algernon Sydney’s Discourses concerning Government (1688), repeated references to the authority of the people appear. It is in Locke’s Treatise on Civil Government (1690) that this doctrine finds most complete expression, and it is with Locke’s work that the framers were most familiar and to which they made most frequent reference. So, we find in the Treatises, Book 2, § 149, the following: “The community perpetually retains a supreme power of saving themselves from the attempts and designs of anybody, even of their legislators, whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject.” (Montesquieu, another favorite of the framers, manifested no interest in the idea of popular sovereignty, but devoted most of L’Esprit D’Lois to the theory of the separation of powers.) We have not overlooked, of course, Rousseau, and his American prototype, Thomas Paine. The former’s doctrines indirectly affected the writings of the Englishmen we have referred to. The latter’s violent hatred of monarchy, as evinced in his Common Sense, contributed to the general exaltation of the people. The references to the people in the Convention Debates and in the early Supreme Court opinions are so numerous that here again we have prepared a separate memorandum setting them forth. Practice undoubtedly lagged behind profession. The extent of this difference between ideal and reality varied in the different colonies and early states, and is discussed in more detail than we can afford it in Professor Osborne’s book above cited. And see also McKinley, The Suffrage Franchise in the Thirteen English Colonies, and Bishop’s History of Elections in the American Colonies. The court was somewhat surprised to find that counsel were advocating the convention method of ratification and yet had not referred it to the four books which have been written on the use of the convention in formulating and amending Constitutions. They are, in order of publication: Jameson, Constitutional Conventions; Dodd, Revision and Amendment of State Constitutions; Borgeaud, Adoption and Amendment of Constitutions; and Hoar, Constitutional Conventions. (And see also an