The American issue. [volume] (Westerville, Ohio) 1912-19??, 1931-01-01
Soon Decide Point Involved

lions, call for action by deliberative as
senbage representatives of the people,
which it was assumed would voice the will
of the people
The fifth article is 4 grant Of author
ity by the people 10 congress. The deter
mination Of the method Of ratification IS
the exercise of a national power specific
ally granted by the constitution; that
power is conferred upon congress- and is
limited to two methods. by action Of the
legislatures of three-fourths OF the states,
or conventions in a like number of states.
Dodge VS. Woolsey, Is How. 81, 348, Is
l. ed 401. 407 The trainers Of the consti-
tuition might have adopted different
method Ratification might have been left
to 4 vote Of the people, or to some author
ity Of government rather than that Sc
lected The language OF the article is plain
and admits of no doubt in its interpreta-
ton 1t is not the function of courts or
legislative bodies national or state, to al
ter the method which the constitution has
fixed
All of the amendments to the consti-
tuition have been submitted with a re-
quirement for legislative ratification; by
this method all of them have been
adopted. =.
The power to ratify proposed amend
ment to the federal constitution has its
source in the federal constitution. The act
or ratification by the state derives its au-
thorlty from the federal constitution to
which the state and its people have alike
assented."
It is now we'll settled that the people Of
the states have no right 10 make ratifiea-
ton of an amendment to the federal con-
stitution dependent upon a referendum. If
the people of a state cannot pass d.
vote as the supreme court has decided,
there is much less reason to suppose the
court will imply an inherent right to act
INDIRECTLY through conventions.
Judge Clark cites no provision in the
federal constitution which expressly re-
Quires any amendment to be submitted for
ratification to conventions in the states.
His opinion turns upon an implication
which he reads into the constitution
through abstruse reasoning based upon a
vague theory of political science which is
no part of our basic law. The opinion con-
tains few references to the constitution or
decisions of the supreme court 1t reads
like a photography of particular school
of thought in political science. Whenever
there is substituted for the plain, simple
language Of the constitution the uncertain
views of writers whose idealistc dreams
are unfettered by substantive provisions
of constitutional law, constitution be-
comes meaningless. If Judge Clark's sug-
gestions be followed to their logical con-
Clusion court decisions will turn upon the
unknown political philosophy of the ma
jority Of the judges who may at any given
time constitute the personnel of the court.
Judicial preeedents heWn out of past eX-
peTience will cease to be a guide to hui
man conduct, and the validity Of govern
mental acts will depend upon the caprice
OF The court at the moment. The personal
prediction of the judge rather than
principles of presidents will decide vital
questions CT government. This would be
an innovation in the Interpretation of
American institutions.
Substantially the same point with re-
spect to the necessity for the ratification
Of the Eighteenth Amendment by conVen-
tons was made in 1920 by Mr. Elihu Root,
among others, in his bill Of complaint in
the national prohibition cases he used the
following language:
WHATEVER MIGHT BE THE POWER
OF THE PEOPLE OF THE UNITED
STATES ACTING THROUGH CONVEN-
TIONS ELECTED FOR THAT PURPOSE
or otherwise to include in their national
constitution ordinary acts of legislation in
conuavention of Article I and of the
tenth amendment of the present constitu-
tion of the United States, NO SUCH
POWER HAS BEEN EXERCISED OR
DELEGATED OR RATIFIED BY THE