The record of the evolution of Article V, in the proceedings of the Federal Convention of 1787, fully supports the view that Congress has no function at all to perform in that stage of the amending process which comes after submission of the proposed, i.e., during consideration of ratification by the States, and action thereon by the States. It is significant that, in the Convention, a proposal8 for excluding the “National Legislature” entirely from the amending process, and leaving the whole of that process to the States, was seriously made and considered. There was never any corresponding proposal that the States be excluded entirely from the amending process or that this process should be entrusted entirely to Congress.
Mason argued,9 in support of excluding the “National Legislature” entirely from the amending process, that “they may abuse their power, and refuse their assent on that very account.” Of course, that view in precisely that form did not finally prevail. However, it is significant that Article V, as evolved and adopted, contains a safeguard against what Mason apprehended—a power in Congress to completely block an amendment proposal. This safeguard against possible Congressional obstruction appears in the provision that two-thirds of the States may by-pass a refusal of Congress to submit a particular amendment proposal, by voting through their legislatures for a Convention to propose such an amendment.
As the proposed language of the provision for amendments began to take form, the sole method at first for initiating amendments10 was to be an application by the legislatures of two-thirds of the States for the calling of a Convention for that purpose, the “legislature of the United States” having merely the ministerial function of calling the Convention upon such an application by the required number of state legislatures.
Hamilton had a leading part in changing the language so as to permit Congress to have a power to propose a constitutional amendment. In arguing in favor of giving this power of initiating an amendment proposal to Congress, he said: “There could be no danger in giving this power, as the people would finally decide in the case.” 11
How remote was this Hamiltonian concept12 from the events of 1867 and 1868, when a “rump” Congress arrogated to itself the power to force ratification of a rejected amendment, through coercing ratifications by several of the rejecting States!
After Hamilton had made his point that Congress could be safely invested with a power of initiating amendment proposals, since that would not give it power of final decision on these proposals, the language of this provision was then and there worked out in substantially the final form of what later became Article V.13 This was done14 under the leadership of Madison and Hamilton, who thus collaborated on giving Congress a power (but not even an exclusive power) to initiate amendment proposals, with power of final decision as to ratification or rejection reserved to the States.
A power in the States to initiate amendment proposals, through action to that end by the legislatures of two-thirds of the States, was retained in this product15 of the joint work of Madison and Hamilton. As already noted, this affords a possibility for completely by—passing Congress on a constitutional amendment proposal, and prevents a Congressional power to initiate amendment proposals from becoming a veto power.
It should also be noted that, on this same occasion, the rather general language, which would apparently have required unanimity of action by the States for ratification, was amended so as to fix proportion of the whole number of States required for ratification. Rejecting a motion to fix this proportion at two-thirds, the Convention voted to required ratification by three-fourths of the States in order to effectuate an amendment.16 The significance of this choice of the larger of two proposed proportions as to the state action requisite for ratification is that the right to defeat an amendment proposal was thereby vested in a smaller proportion of rejecting States. It was this constitutional right of a group of rejecting States, sufficient in number to defeat ratification of the Fourteenth Amendment, which was infracted by the unconstitutional action of Congress in coercing ratification by several of the rejecting States through the compulsions of the Reconstruction Act.
Evidently to safeguard, as far as possible, against the risk of an obstructive attitude on the part of Congress, the provision for Congress submitting amendment proposals on the applications of the legislatures of two-thirds of the States was changed17 to a requirement that Congress should call a Convention for that purpose upon such an application from state legislatures. This proposal was made by Governor Morris and Gerry, following a warning by Mason that Congress could be expected to use its power relating to the proposing of amendments to prevent the States from having an opportunity to ratify proper amendments.18
It is also interesting t note that the final change, in the provision which was about to become Article V of the Constitution, was the insertion, on the motion of Governor Morris, of the prohibition19 against depriving any State of its equal suffrage in the Senate, without its consent. As pointed out elsewhere in this article, a gross and wholesale violation of this plain constitutional provision, through the exclusion from the Senate of all persons holding credentials as Senators from the ten Southern States, made it possible for the advocates of the amendment proposal to obtain in the “rump” Senate the two-thirds vote required to submit to the States the proposal for the Fourteenth Amendment.
The Fourteenth Amendment was proposed by Congress to the States for adoption, through the enactment by Congress of Public Resolution No. 48,20 adopted by the Senate on June 8, 186621 and by the House of Representatives on June 13, 1866.22 That Congress deliberately submitted this amendment proposal to the then existing legislatures of the several States is shown by the initial paragraph of the resolution.23
This submission was by a two-thirds vote of the quorum present in each House of Congress, and in that sense it complied with Article V of the Constitution. However, the submission was by a “rump” Congress. Using the constitutional provision24 that “Each House shall be the judge of the Elections, Returns and Qualifications of its own Members. . .” each House had excluded all persons appearing with credentials as Senators or Representatives from the ten Southern States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Arkansas and Texas. This exclusion, through the exercise of an unreviewable constitutional prerogative, constituted a gross violation of the essence of two other constitutional provisions,25 both intended to protect the rights of the States to representation in Congress.
Had these ten Southern States not been summarily denied their constitutional rights of representation in Congress, through ruthless use of the power of each House to pass on the election and qualifications of its members, this amendment proposal would doubtless have died a-borning. It obviously would have been impossible to secure a two-thirds vote for the submission of the proposed Fourteenth Amendment, particularly in the Senate, if the excluded members had been permitted to enter and to vote. Of course, that was one of the motives and reasons for this policy of ruthless exclusion.
Assuming the validity of the submission of this amendment by a two-thirds vote of the “rump” Congress, there is no gainsaying the obvious proposition that whatever “contemplation” or “understanding” this “rump” Congress may have had, as to the intent, or the scope, or the effect, or the consequences of the amendment being submitted, was necessarily a “rump” contemplation or understanding. The ten Southern States, whose Senators and Representatives were all excluded from the deliberations of this “rump” Congress, could have had no possible part in the development or formation of any “contemplation” or “understanding” of what the consequences and effects of the proposed amendment were to be.
If the Supreme Court now finds that the Congress submitting the proposed Amendment understood and contemplated that it would abolish segregation in the public schools, either immediately or ultimately, one naturally wonders whether the Supreme Court will then enforce this necessarily “rump” contemplation or understanding against the ten Southern States who were deliberately and designedly excluded from any possible participation in these “rump” submission proceedings.
When the Fourteenth Amendment was submitted, these ten Southern States, which had been excluded from representation in Congress, had existing governments and legislatures. Congress had sought to avoid extending any recognition to these existing state governments, and the legality of these governments, in what the radical majority in Congress termed the “rebel States,” was disputed in some quarters. However, in practically all of these ten States, these governments were the only governments then in existence and these legislatures, being the only legislatures then existing in these States, were in June 1866, the only legislatures in these States to which the Fourteenth Amendment could be then submitted under the directive in the proposal resolution that the amendment be submitted “to the legislatures of the several states.”
These State governments had received Presidential recognition and, through their legislatures, they had participated actively in the then recent ratification and adoption of the Thirteenth Amendment abolishing slavery. Indeed, ratification of that amendment by these legislatures in these Southern States had aided in making up the ratification of that amendment, abolishing slavery, by the required three-fourths of the States.