Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-08-25
THE PRETENCE OF POLITICAL
DISABILITIES.
Arsaasas Of MAJOR Holm Q. Thenp.


Argument Of Major Holm Q. Themp.
-ll-- ---- son.
The recently published argument of
Mr.. Ewing In support of the proposition
that the third secion of the Fourteenth
Amendment can have no retroactive scope,
and that an act of Congress aiming TO
predicate such effect would be q bill of
sttainder embracing class, and void by
reason of the fifth Article of the Consti-
tuition, is generally admitted to be conclu-
sire In the estimation of the bar. His
argument being directed more especially
to one vital point that distinguished
lawyer rightly holds to one line of argu-
ment; consequently leaving more or less
to others, the task of recurring to certain
of the points involved as consequence
of the legal position assumed in his argu-
ment, but either neglected or only pass
ingly touched by himself. Therefore,
and without further apology, I beg leave
to submit the following five propositions
Of constitutional law:
/ 1. The power to amend the Constitu-
ton of the United States under the pro-
visions of Article V thereof, is not the
same unrestricted power which was ex-
ercised by the original parties to the COM
pact in forming that instrument. The
| entire argument of those who would raise
| the question of polite al disabilities against
any of the newly elected judges, rests en-
tirely on the contrary proposition: namely,
that by a merely strict conformity to the
mode of amendment pointed out by Arti-
Gle Y, any new provision whatever may be
introduced in the Federal Constitution
and become a part of that fundamental
law, however subversive of the original
purpose of the compact, or contradictory
to all the other provisions of the instru-
ment. On that position their argument
is based; and if therefore, it can be made
manifest that there is anywhere q
limit to such power of amend
ment, as there was none, OF
course, to the powers creating the instru-
ment, then it is not true that the amending
power is as unrestrained as was the ere
ating power, and, as logical necessity,
an amendment must conform to the
general scope and purpose of the instru.
ment. In other words the Fourteenth
and Fifteenth Amendments, and the acts
of Congress predicated thereon must, as
Mr.. Ewing has commended, have a pro.
spective, and not aretrospective operation.
Let US see how this is:
The Constitution Of the United States
, sets out with the asseveration that it has
for Its purpose the formation of more
, perfect union. Here is comparison Of
two Unions. The one is the Imperfect
Union of Sovereign States under the ole
articles of Confederation, and the other ii
the Union of the same sovereign States un
der the present Federal Constitution. Both
were admitted to be of the same kind by
the very language in which the one wa:
claimed to be more perfect than the other.
Either was federal union of States, con-
shutting family of which each member
was a sovereign State. Now let US sup
IpOse that at this day an amendment
should be proposed, which would oblite.
rate all State lines and make this g con.
solidated government. Certainly It would
be in the power of the States, all acting
together, to adopt that as the fundamental
law; but such change could not be intro
duced into the Constitution by the mode
of amendment provided in Article v.
Such provision would not be binding on
any State that did not assent to it. Be-
cause the Federal Constitution is q cove
nant entered into as a means to accom-
plish a certain specified purpose, namely
union of States; and those States have
not covensnted therein for any other and
different purpose. Not three-fourths, nor
nine -tenths of the States can assume to
alter the expressed purpose of the Consti-
tuition, on the faith of which all the States
entered into the compact, and for which
expressed purpose alone the mode of
amendments, there indicated, as well as
all other of its provisions, were stipulated.
1t Is therefore demonstrsbly certain that
whereas thepowers entering into the COM
pact being sovereign were unrestricted,
the power of amendments in the mode
indicated in the Constitution is restricted
to certain purpose by the initiatory
words of the compact.
2. Being constitutional government
| the right to amend the Constitution exists
er neceS8itdte rel and totally independent
of Article V. Thatarticle is no more than
q stipulation in the compact that while it
exists the parties thereto will not exer-
CleS llCll hatul al qua W olACuN AZ III any
other mode than as there stipulated. An
amendment which should be originated
and ratified by the requisite number of
States in pursuance of Article V. becomes
at integral part of the Constitution and is
as binding on all the States as are any of
the other provisions Of the instrument;
but provided, however, that such amend
ment is not at war with the fundamental
purpose of the compact as therein ex-
pressed. For if it is so, one of
two alternatives is inevitable; either
the States which decline to rstify
such amendment are released from
their membership in the Union, or
else, remaining in it, such amendment is
no part of the Constitution because not
binding on all the States. Of course the
courts of the country could only look to
the latter alternative.
Q 40 lOnu sa thu Ea1ara1 no-,o-,,-o.. -