The Constitution of the United States of America: Analysis and Interpretation Part 134

[263] United States _v._ McGowan, 302 U.S. 535 (1938).

[264] United States _v._ San Francisco, 310 U.S. 16 (1940).

[265] Van Brocklin _v._ Tennessee, 117 U.S. 151 (1886); _cf._ Wilson _v._ Cook, 327 U.S. 474 (1946).

[266] Gibson _v._ Chouteau, 13 Wall 92, 99 (1872). _See also_ Irvine _v._ Marshall, 20 How. 558 (1858); Emblem _v._ Lincoln Land Co., 184 U.S. 660, 664 (1902).

[267] Wilc.o.x _v._ Jackson ex dem. M'Connel, 13 Pet. 498, 517 (1839).

[268] Oklahoma _v._ Texas, 258 U.S. 574, 595 (1922).

[269] United States _v._ Oregon, 295 U.S. 1, 28 (1935).

[270] Simms _v._ Simms, 175 U.S. 162, 168 (1899). _See also_ United States _v._ McMillan, 165 U.S. 504, 510 (1897); El Paso & N.E.R. Co.

_v._ Gutierrez, 215 U.S. 87 (1909); First Nat. Bank _v._ Yankton County, 101 U.S. 129, 133 (1880).

[271] Binns _v._ United States, 194 U.S. 486, 491 (1904). _See also_ Sere _v._ Pitot, 6 Cr. 332, 336 (1810); Murphy _v._ Ramsey, 114 U.S. 15, 44 (1885).

[272] Walker _v._ New Mexico & S.P.R. Co., 165 U.S. 593, 604 (1897); Simms _v._ Simms, 175 U.S. 162, 163 (1899); Wagoner _v._ Evans, 170 U.S.

588, 591 (1898).

[273] 24 Stat. 170 (1886).

[274] Downes _v._ Bidwell, 182 U.S. 244, 271 (1901). _See also_ Interstate Commerce Commission _v._ United States ex rel. Humboldt S.S.

Co., 224 U.S. 474 (1912); Church of Jesus Christ of L.D.S. _v._ United States, 136 U.S. 1, 44 (1890).

[275] Dorr _v._ United States, 195 U.S. 138, 149 (1904). _See also_ Balzac _v._ Porto Rico, 258 U.S. 298 (1922).

[276] Ra.s.smussen _v._ United States, 197 U.S. 516 (1905).

[277] Hawaii _v._ Mankichi, 190 U.S. 197 (1903); R.M.C. Littler, The Governance of Hawaii, Chap. III (1929).

[278] American Ins. Co. _v._ Canter, 1 Pet. 511, 546 (1828). _See also_ Romeu _v._ Todd, 206 U.S. 358, 368 (1907); United States _v._ McMillan, 165 U.S. 504, 510 (1897); McAllister _v._ United States, 141 U.S. 174, 180 (1891); The "City of Panama" _v._ Phelps, 101 U.S. 453, 460 (1880); Reynolds _v._ United States, 98 U.S. 145, 154 (1879); Hornbuckle _v._ Toombs, 18 Wall. 648, 655 (1874); Clinton _v._ Englebrecht, 13 Wall.

434, 447 (1872).

[279] American Ins. Co. _v._ Canter, 1 Pet. 511, 545 (1828).

[280] 7 How. 1 (1849).

[281] Ibid. 42. _See also_ Ohio ex rel. Bryant _v._ Akron Metropolitan Park District, 281 U.S. 74, 80 (1930); Mountain Timber Co. _v._ Washington, 243 U.S. 219, 234 (1917).

[282] 7 Wall. 700, 729 (1869).

[283] Pacific States Teleph. & Teleg. Co. _v._ Oregon, 223 U.S. 118 (1912); Kiernan _v._ Portland, 223 U.S. 151 (1912); Ohio ex rel. Davis _v._ Hildebrant, 241 U.S. 565 (1916).

[284] Ohio ex rel. Bryant _v._ Akron Metropolitan Park District, 281 U.S. 74, 80 (1930); O'Neill _v._ Leamer, 239 U.S. 244 (1915); Highland Farms Dairy Inc. _v._ Agnew, 300 U.S. 608, 612 (1937); Forsyth _v._ Hammond, 166 U.S. 506, 519 (1897).

[285] Taylor _v._ Beckham, 178 U.S. 548 (1900). _See also_ Marshall _v._ Dye, 231 U.S. 250 (1914).

[286] Minor _v._ Happersett, 21 Wall. 162, 175 (1875).

[287] 7 How. 1 (1849).

[288] 1 Stat. 424 (1795).

[289] 7 How. 1, 43 (1849).

[290] 158 U.S. 564 (1895).

[291] Ibid. 582.

[292] On the decline in observance of the formalities required by the provision both before and during World War I, _see_ Corwin, The President, Office and Powers (3d ed., 1948), 164-166.

ARTICLE V

MODE OF AMENDMENT

Page Amendment of the Const.i.tution 711 Scope of the amending power 711 Procedure of adoption 712 Submission of amendment 712 Ratification 712 Authentication and proclamation 713 Judicial review under article V 714

MODE OF AMENDMENT

Article V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Const.i.tution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Const.i.tution, 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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Amendment of the Const.i.tution

SCOPE OF AMENDING POWER

When this Article was before the Const.i.tutional Convention, a motion to insert a provision that "no State shall without its consent be affected in its internal policy" was made and rejected.[1] A further attempt to impose a substantive limitation on the amending power was made in 1861, when Congress submitted to the States a proposal to bar any future amendments which would authorize Congress to "interfere, within any State, with the domestic inst.i.tutions thereof, * * *."[2] Three States ratified this article before the outbreak of the Civil War made it academic.[3] Many years later the validity of both the Eighteenth and Nineteenth Amendments was challenged because of their content. The arguments against the former took a wide range. Counsel urged that the power of amendment is limited to the correction of errors in the framing of the Const.i.tution; that it does not comprehend the adoption of additional or supplementary provisions. They contended further that ordinary legislation cannot be embodied in a const.i.tutional amendment and that Congress cannot const.i.tutionally propose any amendment which involves the exercise or relinquishment of the sovereign powers of a State.[4] The Nineteenth Amendment was attacked on the narrower ground that a State which had not ratified the amendment would be deprived of its equal suffrage in the Senate because its representatives in that body would be persons not of its choosing, i.e., persons chosen by voters whom the State itself had not authorized to vote for Senators.[5]

Brushing aside these arguments as unworthy of serious attention, the Supreme Court held both amendments valid.

PROCEDURE OF ADOPTION

Submission of Amendment

When Madison submitted to the House of Representatives the proposals from which the Bill of Rights evolved, he contemplated that they should be incorporated in the text of the original instrument.[6] Instead the House decided to propose them as supplementary.[7] It ignored a suggestion that the two Houses should first resolve that amendments are necessary before considering specific proposals.[8] In the National Prohibition Cases[9] the Supreme Court ruled that in proposing an amendment the two Houses of Congress thereby indicated that they deemed it necessary. That same case also established the proposition that the vote required to propose an amendment was a vote of two thirds of the members present--a.s.suming the presence of a quorum--and not a vote of two thirds of the entire membership present and absent.[10] The approval of the President is not necessary for a proposed amendment.[11]