an experimental change is going to work well. They must find it absolutely necessary that an amendment be adopted in order the better to carry on the national government. In a word, the proposal shall go forth to the states stamped with the deliberate finding of two-thirds of both houses that, in their opinion, it is necessary to amend the Constitution.

It may not be too strongly insisted that the wise fathers who drafted the Constitution bore it in mind that no body of statesmen would be quicker to discern when and to what extent an amendment becomes necessary than Senators and Representatives of the national Congress. Nor was a bare Nor was a bare majority entrusted with the grave duty of declaring the existence of a necessity. Two-thirds must be convinced that a change is needed. Bearing in mind the existence, likely to continue, of two great political parties, it was conjectured that the decision as to the question of necessity might safely be left to the deliberate action of so large a proportion as that of two-thirds of the membership of each house. A vote thus registered would signify a conviction not simply that the Constitution had better be changed, but that a change is necessary, subject to a later decision by three-fourths of the legislatures of the states that they too are of a like conviction. The word "necessary," to be sure, is not used when the state legislatures are mentioned. Their duty is fulfilled by ratifying what both houses of Congress have already done. Ratification means an approval of action previously taken by some one else. The legislature of a state ratifies the

action of the Congress. The members will be influenced by the fact that twothirds of both houses of Congress have, upon full deliberation, found the change to be necessary. It may be taken for granted that the legislature of each state is likewise governed by a firm belief that the needs of the country demand that they render, so to speak, a second verdict in favor of the proposed amendment.

The action which the legislatures ratify consists not simply in passing a resolution to propose an amendment, but in recording an expression of opinion that it is necessary to amend. Thus there has been provided a plan for two distinct proceedings, one a vote that an amendment is necessary, the other a vote of the people of each state, through its representatives in the legislature, that they approve and ratify what Congress, after a deliberate examination, has seen fit to do. This carefully arranged plan would seem to furnish a safeguard against the evils of ill-considered attempts at amending the Constitution. ing the Constitution. For a long stretch of years no amendments had been found necessary, although many bills for such a purpose had from time to time been introduced in the Congress. The Supreme Court will assume that the Congress obeyed the injunctions of the Constitution, unless, indeed, incontestable proof be brought forward that they have failed in their duty. We must, therefore, inquire into the details of the procedure, in order to discover, if we may, whether the Senate and House acted in conformity with the requirements laid upon them by the language of Article V.

We believe it can be proved that beyond question each house has gone on record as failing to exhibit to the legislatures of the states its conclusion that this amendment has been deemed necessary. Indeed, so plainly to be seen is this attitude on the part of the Congress that we have only to lay before the reader an extract or two from the reports respectively of the Judiciary Committee of the Senate and House. The position taken by these committees negatives any theory that a necessity of amending the Constitution entered into their minds. Each committee concluded that they ought to propose the amendment in question because a large number of people had petitioned for such an amendment. They shirked the duty of deciding whether in their opinion the amendment was "necessary." It can be said without fear of contradiction that the record does not show that either one of the committees deemed it necessary to amend the Constitution. On the contrary they did in effect say that they deemed it necessary to favor the passage of a Senate resolution because they thought the people had a right to have the state legislatures decide whether or not the proposed amendment should be adopted.

Senate Report No. 52, Sixty-fifth Congress, first session (June 11, 1917), accompanying Senate Resolution 17 (being the report of Senator Overman, of North Carolina, of the Judiciary Committee) nowhere declares that the committee deem the amendment necessary. It cites approvingly a report of the Committee on Education and Labor

of the Forty-ninth Congress. We quote: "The question considered by the committee is not one primarily touching the merits of the proposed amendment itself, but whether there is a sufficient public sentiment in favor of the submission of the amendment to the action of the people to require the passage of the joint resolution." It also reprints a Senate Report from the Committee on Education and Labor, Fiftieth Congress, first session, from which we quote: "It is proper to say that there are members of the committee who concur in the report recommending the submission of the proposed amendment to the States, who do not, by such action, indicate their approval of the amendment as a part of the Constitution, nor that they would themselves advocate its ratification by the legislatures of the states; but in deference to the immense mass of petitioners for this amendment of the organic law, coming from the people in all parts of the country, and believing that an opportunity should be given to them to be heard upon the merits of their cause in the forum of the states, where alone it can be heard and decided, the majority of the committee would deem a refusal to submit the proposed amendment to the states for consideration analogous to the denial of the right of a party to be heard in court upon a question of private right."

It is significant that the Senate committee adopts the theory that it is in the state legislatures alone that the question can be heard and decided whether an amendment shall be made. That is to say, neither house of Con

gress is free to decline to send a proposal to the legislatures of the several states where a great number of petitions have come in, even though the house itself does not deem the amend ment necessary.

On the House side, Mr. Carlin of Virginia, from the Committee on the Judiciary, filed a majority report December 14, 1917 (Rep. 211), from which we quote as follows: "Without considering the merits of the prohibition policy of dealing with the alcoholic liquor traffic, when considerably more than half the states in the Union have declared in favor of prohibition, when 85 per cent of the territory of the United States has outlawed the saloon, and more than 60 per cent of the population live in such territory, and when approximately 10,000,000 of our people, residing in all sections of the Union, have petitioned directly for the passage of this resolution, your committee is of the opinion, and feels that it is incumbent upon the Congress, to submit the issue to the states in the

of the Judiciary Committee, said to the present writer that he voted for the amendment while he was himself opposed to prohibition. The number of those in each house who pursued a similar course must have been not inconsiderable. In a word, these men evaded their duty. Many experienced lawyers have assured the writer that mands of both houses of the Congress in their opinion the Constitution dethat they, in the first instance, must pronounce the amendment to be necessary in order to qualify them to vote islatures of the states. for submitting the proposal to the leg

The court will not resort to the text

of arguments made upon the floor during the debate. But it may interest the reader to listen to the following extraordinary utterance from Senator Sheppard of Texas, the champion of the proposed amendment, as reported in the Congressional Record of July 30, 1917. It carries to an extreme the doctrine that a Senator is not required to believe an amendment necessary:

terms of the Constitution itself. The question submitted by this report to the Congress is not whether the manufacture and sale, etc., of alcoholic liquors shall be prohibited, but whether the matter shall be submitted to the states for their determination."

These reports show that our congressional legislators have persuaded themselves that their duty is performed when they submit a proposal, irrespective of the question whether in their opinion the amendment is necessary. Indeed, one Senator, a member

not vote for the submission of a constitutional amendment to the decision of the states, where it belongs, unless he personally believes it should become a part of the Constitution, usurps the function of the states, arrogates to himself and the federal government a prerogative that belongs to the states, and violates the very essence of their sovereignty. sovereignty. ... Were I opposed on principle to nation-wide prohibition, I would vote to submit the amendment to the states in order that they might exercise one of their fundamental rights."

The reader will agree that the question of what shall be the duty of Congress in proposing an amendment to the Constitution is of great importance. At present there is manifest danger in the people's silent approval of a lax method growing up in Congress of passing along a proposed amendment to the legislatures of the several states, whenever it may appear that a very large body of petitioners are requesting that it be done. It is to be hoped that the question of the legal meaning of the term "deem it necessary" will in due time be ably argued to the court, to the end that the various amendments that are likely to be urged in

future shall be subjected to a test which will preserve the measure of protection to personal and property rights that our forefathers sought to establish.

(Note: The foregoing argument, originally published as a newspaper article, appears to the Editor to be so cogent and so valuable, as bearing not only on the immediate question of the adoption of the Eighteenth Amendment, but on the essential steps in the process of proposing and adopting amendments in general, that he is glad to be able to present it to the readers of the CONSTITUTIONAL REVIEW.)