SEC. 2. The Congress shall have power to enforce this article by appropriate legislation. SCHUYLER COLFAX, Speaker of the House of Representatives. President of the Senate, pro tempore. STATE OF CALIFORNIA, EXECUTIVE DEPARTMENT, } GENTLEMEN OF THE SENATE AND ASSEMBLY : A proposed amendment to the Federal Constitution, embodied in a concurrent resolution of Congress, has been received at this Department and is hereby transmitted for your ratification or rejection. It is in the form of an additional article, and is as follows: ARTICLE XV. SECTION 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude. SEC. 2. The Congress shall have power to enforce this article by appropriate legislation. The importance of the principle involved in this amendment will be accepted as a sufficient justification for accompanying it with some views upon the subject. It is well to understand, at the outset, that the issue is not, what classes ought or ought not to be intrusted with the elective franchise, or whether, under any circumstances, race should or should not debar any from the exercise of this privilege. All this is a proper subject for consideration and settlement by the people of a State when they frame their organic law, but is not necessarily involved in considering the proposition submitted by Congress, which is to restrict the people of the several States from exercising their own independent judgment upon the subject. Whether, therefore, Chinese and Indian suffrage is expedient, is not directly in issue at present, but the question is whether the Federal Constitution ought to be so amended as, on one hand, to prevent the people of each State from excluding either of these races from the ballot box, if in their judgment such exclusion is necessary, and on the other, to give Congress the power to place other restrictions upon the exercise of suffrage without the assent of the State Legislatures; in other words, whether suffrage should be controlled and regulated by each State for itself or controlled, enlarged and restricted by Congress alonę. Keeping, therefore, the issue separate from collateral ones, two questions are presented in the proposition. The first is a question of power, and the second one of policy. If it is not in the power of Congress, in conjunction with three-fourths of the States, to take from any State without its consent a right reserved at the formation of the Constitution; in other words, if to deprive a State of a distinct right, originally reserved, is not within the purview of the clause relating to amendments, then of course the proposed amendment must be rejected. And if it is in conflict with sound policy, the same result ought to follow. WOULD THE AMENDMENT BE VALID IF IT WENT THROUGH THE FORMS OF ADOPTION? This inquiry can only be intelligently answered by considering the nature and history of the Federal Constitution. When the people of any State, through their delegates in convention, frame a Constitution, they confide to it the whole mass of sovereign powers appertaining to the body politic, with such limitations only as are expressly imposed. The Constitution thus formed represents and embodies the entire sovereign. power of the people with such exceptions as are stated in the instru ment. The Constitution of the United States is not such an instrument as this. It was not formed upon any such principles, and is not subject to any such rules of construction. It does not represent the whole sovereign power of the people of the United States, considered either in their aggregate capacity or in their several distinct State organizations. It is not an instrument embodying the entire political power of the people, or of the States, with only specified exceptions, but on the contrary, it is a simple delegation to a constituted Federal authority of certain defined and enumerated powers. There is much unprofitable quibbling on this subject, and much disputation about words instead of substance. There are certain facts of history which bear upon the legal questions involved, and to which it is well briefly to recur. When the Constitution was framed, the States of the Union were so many distinct independent sovereign communities. Great Britain was no more absolutely Sovereign and independent than were the States of New York and Massachusetts, Rhode Island and others. Each of the States had a political organization or framework of government, based upon republican principles, which answered very well all the legitimate ends aimed at in political institutions. For the purpose, however, of harmonious co-operation in dealing with foreign nations, and to prevent collision. among themselves, these independent States determined to confer certain governmental powers upon a federal head, and for this purpose the convention of seventeen hundred and eighty-seven was called together. It was composed of delegates from States, each of which was then an independent nationality. They framed an instrument which confided certain powers to a Federal Executive, Legislature and Judiciary, and which was acted upon and approved by the people of each State separately. No one State was bound without its assent, and each retained its absolute independence, except only so far as it parted with it to the Federal Government thus formed. There has been an infinitude of discussion as to whether the Federal Constitution was framed by the people of the United States considered in mass, or by the people of cach State acting as a separate political community. The simple truth of history is, that the Constitution was not the work of the people of the United States in their aggregate capacity, but was the work of the States acting as distinct and independent bodies. The word "State" is used in so many different senses that it is well to fix its signification in considering this subject. Using the word as signifying the people of each State, and not the territory or the legislative, executive and judicial authorities, it is an undeniable fact that the Federal Constitution was adopted by the States, and not by the people of the whole country acting collectively. Each of the political communities termed States, in ratifying the Federal Constitution, delegated to the Government provided for by it the powers expressed in the charter, and none other. Each one reserved certain great sovereign powers, among which was the fundamental and essential attribute of all self-governing communities, to wit: that of determining who and what classes should participate in the election of its officers and in framing and administering its laws. The clause of amendment in the Federal Constitution, although general in its language, should be construed in its relations to what was really the subject matter upon which it was to operate. It was a right to amend the Constitution, and this latter was simply the powers delegated to the Federal authority. Those powers might, by amendment, be modified, but the power to amend is properly and legitimately confined to this. The States can amend the Constitution," that is, the "powers delegated," by pursuing certain steps, but farther than this, the right of amendment cannot go. This is not theory; it is simple history and fact. It is law as expounded in effect and in analogy by Chief Justice Marshall, one of the earliest and, perhaps, the greatest jurist our country has produced. Though he was in politics a Federalist and leaned toward strong central authority and against strict construction; though he went much farther in favor of federal power than either Jefferson, Madison or Monroe, still even he judicially declared, in the case of Gibbons vs. Ogden, in delivering the opinion of the Supreme Court of the United States, that the Federal Government "possessed only certain enumerated powers." In the same case, he says: "It has been said that they" (the States anterior to the formation of the Constitution) "were completely independent, and were connected with each other only by a league. This is true." In the case of McCullough vs. The State of Maryland, he used these expressions: "No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass." This opinion was delivered in the year eighteen hundred and nineteen. Had Judge Marshall lived just half a century later, he would hardly have ventured to give this unqualified assurance; for we have not only many such men now in high places, but we have seen at this day those who advocate the erection of a grand central consolidated Government upon the ruins of the Constitution. In this same case, he says further: "This Government is acknowledged to be one of enumerated powers. The principle that it can exercise only the powers granted to it, is now universally admitted." In the case of Briscoe vs. The Bank of the Commonwealth of Kentucky, Judge McLean, in delivering the opinion of the same Court, says: "The Federal Government is one of delegated powers; all powers not delegated to it are reserved to the States or to the people." This principle is not new. It is as old as the Government. It is a fact of history. It is inscribed upon the very front of the Constitution; expressed in so many words in that instrument. It is a principle of law adjudged by the highest tribunal in the country. Such is the Constitution to which the article relating to amendments was applied. That article provides that Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments, which, when ratified by the Legislatures of three-fourths of the States, shall be valid as parts of the Constitution; provided, that no State shall, without its consent, be deprived of its equal suffrage in the Senate. This proviso has been quoted to found upon it an argument that it constitutes the sole exception to an unlimited power of amendment, which might radically change and transform the whole system. It is obvious, however, that this proviso is entirely consistent with the limitation of the right of amendment to the powers delegated. It would be irrational to infer from a proviso inserted out of abundant caution any such sweeping results. The proviso was evidently inserted lest there might be some claim to modify what was part of the framework as originally constructed, and to appease the extreme jealousy entertained by the States lest there might be some interference with their perfect equality as distinct and independent communities. Under this same omnipotent power of amendment, this very proviso might be stricken out by threefourths of the States, if the power of amendment has no limit. The same logic which sustains the proposition under review, would sustain the modification of that clause by striking out the prohibition. It would hardly be contended that, by amendment, this right of equal suffrage could be infringed, and yet this is no more sacred than any right which is reserved by each State, and no more absolutely outside of the operation of the Constitution. When the tenth article was adopted, which declares that "all powers not delegated to the United States are reserved to the States respectively or to the people," is it probable, or possible, that those who supported this article would have sanctioned the doctrine that, by process of amendment, any one State could be deprived of rights so carefully and jealously reserved? It would occupy too much space to review at length the various judicial decisions which bear upon the question. Indeed most of the decisions, including those above referred to, declare axioms rather than solve problems, and state facts rather than announce principles. A man may deny that the world is round, that the sun is the source of light and heat, that General Jackson commanded the American army at New Orleans, or any other fact, either of history or of nature; and much of what is termed " argument" against the right of each State to regulate its domestic concerns, and much of the claim made in behalf of Federal encroachment, has consisted in a bold denial of facts of history and in a vigorous assertion of fictitious events. The very idea of amendment, it may be well said, involves the preexistence of something which is to be amended, and, in this case, the proposition is to amend the powers originally delegated by depriving the States of a right reserved. In common and parliamentary language there is a clear and definite meaning attached to the term "amendment," which implies the modification of some proposition already formed and stated, and, without doing violence to this ordinary use of the word, it cannot be said that a power which has no existence in the Federal Constitution can, by amendment, be either enlarged or abridged. WHAT LIMIT CAN BE SET TO THE POWER OF AMENDMENT, AS CLAIMED BY CONGRESS? This right to amend either has a limit or it has none. No rational man, however, would have the hardihood to contend that by an amend ment a hereditary monarchy could be established, or provision made for breaking down State lines and "compounding the States into one com mon mass;" for depriving the people of any State of the power to elect their Executive, Legislature and Judiciary, or for accomplishing any complete subversion of our system. It is no answer to this to say that such things are too improbable and monstrous to be supposed, because we are discussing the simple question of power. If there is no limit to this process of amendment, the people of a section of the country could be deprived of every vestige of self-government, and held in a condition of provincial servitude. Whether such monstrous results are probable or improbable is not material to the present inquiry; but it may be truly said, in passing, that the abolition of civil government, and the the establishment of military rule and military tribunals, years after hostilities have ceased, is as monstrous a violation, not merely of law and Constitution, but of the first principles of civil liberty, as could well be conceived of. The right of amendment, then, must have some limit. It is not an unlimited license to deprive any State of a right which it refused to surrender at the time it entered the Union, but in its spirit and essence has relation to the mass of delegated powers which compose what we call "the Federal Constitution." Those who favor the proposition, argue that the clause of amendment is so general in its terms that it gives to Congress and three-fourths of the States power to construct a totally different system of government, and to deprive the remaining fourth of any or all the rights and powers heretofore possessed. The unsoundness of this view will sufficiently appear from a candid consideration of the subject in the light of settled rules of construction. The clause ought not to be interpreted as standing separately by itself, but in its relations to other parts of the instrument, and in view of the whole scope and theory of the system. The great jealousy manifested by many of the original States when they entered into the Union shows clearly that they would never have voluntarily become entangled under a constitution which provided the means for their subversion and extinction. The people of Rhode Island, when they ratified the Constitution, did so with this explicit delaration: "That the rights of the States, respectively, to nominate and appoint all State officers, and every other power, jurisdiction and right which is not clearly delegated to the Congress of the United States, or to the departments of Government thereof, remain to the people of the several States, or their respective State Governments, to whom they may have granted the same," etc. All the other States, doubtless, ratified with the same understanding as that expressed by the people of Rhode Island. We are now asked to believe that every one of these powers, jurisdictions and rights, may be wrested from one-fourth of the States, by this process of amendment, and conferred, against their will, upon the Federal authority. Of all the rights reserved, the last one probably which the States would have surrendered, was that of regulating and controlling the elective franchise within their borders. A proposition to allow the people of New York or Virginia to impose restrictions upon, or make rules respecting suffrage in Massachusetts, would have been rejected without a division. Neither the people of New York, or Virginia, or Massachusetts, would have tolerated the suggestion that the people of some other State should interfere with the exclusive regulation, by the former, of the elective franchise, or say who should or should not vote in the election of their Legislatures, and State and local officers. Nothing can be |