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SUPREME COURT OF THE
UNITED STATES
253 U.S. 221
HAWKE v. SMITH
Decided June 1, 1920.
Mr. Justice DAY delivered the opinion of the Court.
Plaintiff in error (plaintiff below) filed a petition
for an injunction in the court of common pleas of Franklin county,
Ohio, seeking to enjoin the secretary of state of Ohio from spending
the public money in preparing and printing forms of ballot for
submission of a referendum to the electors of that state on the
question of the ratification which the General Assembly had made of
the proposed Eighteenth Amendment to the federal Constitution....
A joint resolution proposing to the states this
amendment to the Constitution of the United States was adopted on
the 3d day of December, 1917. The amendment prohibits the
manufacture, sale or transportation of intoxicating liquors within,
the importation thereof into, or the exportation thereof from, the
United States and all territory subject to the jurisdiction thereof
for beverage purposes. The several states were given concurrent
power to enforce the amendment by appropriate legislation. The
resolution provided that the amendment should be inoperative unless
ratified as an amendment of the Constitution by the Legislatures of
the several states, as provide in the Constitution, within seven
years from the date of the submission thereof to the states. The
Senate and House of Representatives of the state of Ohio adopted a
resolution ratifying the proposed amendment by the General Assembly
of the state of Ohio, and ordered that certified copies of the joint
resolution of ratification be forwarded by the Governor to the
Secretary of State at Washington and to the presiding officer of
each House of Congress. This resolution was adopted on January 7,
1919; on January 27, 1919, the Governor of Ohio complied with the
resolution. On January 29, 1919, the Secretary of State of the
United States proclaimed the ratification of the amendment, naming
36 states as having ratified the same, among them the state of Ohio.
The question for our consideration is: Whether the
provision of the Ohio Constitution, adopted at the general election,
November, 1918, extending the referendum to the ratification by the
General Assembly of proposed amendments to the federal Constitution
is in conflict with article 5 of the Constitution of the United
States. The amendment of 1918 provides:
'The people also reserve to themselves the
legislative power of the referendum on the action of the General
Assembly ratifying any proposed amendment to the Constitution of
the United States.'
Article 5 of the federal Constitution provides:
'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 convention for
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: 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.'
The Constitution of the United States was ordained by
the people, and, when duly ratified, it became the Constitution of
the people of the United States. The states surrendered to the
general government the powers specifically conferred upon the
nation, and the Constitution and the laws of the United States are
the supreme law of the land.
The framers of the Constitution realized that it
might in the progress of time and the development of new conditions
require changes, and they intended to provide an orderly manner in
which these could be accomplished; to that end they adopted the
fifth article.
This article makes provision for the proposal of
amendments either by two-thirds of both houses of Congress, or on
application of the Legislatures of two-thirds of the states; thus
securing deliberation and consideration before any change can be
proposed. The proposed change can only become effective by the
ratification of the Legislatures of three- fourths of the states, or
by conventions in a like number of states. The method of
ratification is left to the choice of Congress. Both methods of
ratification, by Legislatures or conventions, call for action by
deliberative assemblages representative of the people, which it was
assumed would voice the will of the people.
The fifth article is a grant of authority by the
people to Congress. The determination of the method of ratification
is the exercise of a national power specifically 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. The framers
of the Constitution might have adopted a different method.
Ratification might have been left to a vote of the people, or to
some authority of government other than that selected. The language
of the article is plain, and admits of no doubt in its
interpretation. It is not the function of courts or legislative
bodies, national or state, to alter the method which the
Constitution has fixed.
All of the amendments to the Constitution have been
submitted with a requirement for legislative ratification; by this
method all of them have been adopted.
The only question really for determination is: What
did the framers of the Constitution mean in requiring ratification
by 'legislatures'? That was not a term of uncertain meaning when
incorporated into the Constitution. What it meant when adopted it
still means for the purpose of interpretation. A Legislature was
then the representative body which made the laws of the people. The
term is often used in the Constitution with this evident meaning....
There can be no question that the framers of the
Constitution clearly understood and carefully used the terms in
which that instrument referred to the action of the Legislatures of
the states. When they intended that direct action by the people
should be had they were no less accurate in the use of apt
phraseology to carry out such purpose....
At an early day this court settled that the
submission of a constitutional amendment did not require the action
of the President. The question arose over the adoption of the
Eleventh Amendment. Hollingsworth et al. v. Virginia, 3 Dall. 378.
In that case is was contended that the amendment had not been
proposed in the manner provided in the Constitution as an inspection
of the original roll showed that it had never been submitted to the
President for his approval in accordance with article 1, section 7,
of the Constitution. The Attorney General answered that the case of
amendments is a substantive act, unconnected with the ordinary
business of legislation, and not within the policy or terms of the
Constitution investing the President with a qualified negative on
the acts and resolutions of Congress. In a footnote to this argument
of the Attorney General, Justice Chase said:
'There can, surely, be no necessity to answer
that argument. The negative of the President applies only to the
ordinary cases of legislation. He has nothing to do with the
proposition, or adoption, of amendments to the Constitution.'
The court by a unanimous judgment held that the
amendment was constitutionally adopted.
It is true that the power to legislate in the
enactment of the laws of a state is derived from the people of the
state. But the power to
ratify a proposed amendment to the federal Constitution has
its source in the federal Constitution. The act of ratification by
the state derives its authority from the federal Constitution to
which the state and its people have alike assented....
It follows
that the court erred in holding that the state had authority to
require the submission of
the ratification to a referendum under the state Constitution, and its judgment is
reversed and the cause remanded for further proceedings not
inconsistent with this opinion.
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