In re Opinion of the Justices

• Decision Date: 28 August 1919
• Citation: 107 A. 673
• Parties: In re OPINION OF THE JUSTICES.
• Court: Maine Supreme Court

107 A. 673

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Maine.

Aug. 28, 1919.

Answers to question propounded by the Governor to the Justices of the Supreme Judicial Court.

To the Honorable Carl E. Milliken, Governor of Maine:

The undersigned, Justices of the Supreme Judicial Court, having considered the questions propounded by you under date of July 9, 1919, relating to the ratification of the Eighteenth Amendment to the Constitution of the United States and the necessity of submitting by referendum the ratifying resolve of the Legislature to the qualified voters of the state, respectfully submit the following answer:

The request for our opinion is accompanied by a statement of facts, from which it appears that the Sixty-Fifth Congress of the United States on December 3, 1917, adopted a joint resolution proposing an amendment to the Constitution of the United States, which amendment provides that after one year from the ratification thereof 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, is thereby prohibited.

This amendment, thus adopted by joint resolution of Congress, was proposed to the Legislature of Maine of 1919 for ratification, and was ratified by a joint resolve of the Senate and House of Representatives; the concluding paragraph, after reciting all the preliminary steps, being of the following tenor:

"Therefore resolved that the Legislature of the state of Maine hereby ratifies and adopts this proposed amendment to the Constitution of the United States. And that the secretary of state of the state of Maine notify the Secretary of State of the United States of this action of the Legislature by forwarding to him an authenticated copy of this resolve."

Petitions apparently bearing the requisite number of signatures having been seasonably filed with the secretary of state, requesting that this resolve be referred to the people under Amendment 31 of article 4 of the Constitution of Maine, known as the initiative and referendum amendment, the question is now asked of the Justices whether this joint resolve of the Legislature of Maine, ratifying an amendment to the federal Constitution, proposed by and duly submitted for ratification by the Congress of the United States, is subject to the provisions of Amendment 31, and therefore must be referred to the people under the facts existing in this case.

Answer.

This question we answer in the negative. In our opinion this resolve does not come within the provisions of the initiative and referendum amendment, and cannot be referred to the people for adoption or rejection by them. The ratification of the proposed amendment to the Constitution of the United States was complete, final, and conclusive, so far as the state of Maine was concerned, when the Legislature passed this resolve.

Our reasons are as follows: The subject-matter of the action of the Legislature under consideration is a proposed amendment to the Constitution of the United States, the proposal and ratification of which are wholly governed by the provisions of that Constitution. Those provisions are clear and explicit. They are as follows:

"Art. 5. The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to" this Constitution, or, on the application of the Legislature 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 may be proposed by the Congress. * * *"

This article was a part of the original Constitution of 1789, and has remained unchanged to the present day.

It will be observed that there are two distinct stages in the process, the proposal and the ratification. The proposal may originate in either of two ways:

First, from Congress, by joint resolution, whenever two-thirds of both Houses deem it necessary.

Second, from the states, whenever two-thirds of the Legislatures of the several states may request that a national constitutional convention be called for that purpose, in which case Congress must call such a convention.

All the federal amendments which have thus far been adopted have been proposed in compliance with the first method; that is, by a joint resolution of the two Houses of Congress. No national constitutional convention has ever been called or held. Such proposed amendment is a matter within the sole control of the two houses, and is independent of all executive action. The signature of the President is not necessary, and it need not be presented to him for approval or veto. Hollingsworth v. Virginia, 3 Dall. 378, 1 L. Ed. 644; State v. Dahl, 6 N. D. 81, 68 N. W. 418, 34 L. R. A. 97. Nor is Congress, in proposing constitutional amendments, strictly speaking, acting in the exercise of ordinary legislative power. It is acting in behalf of and as the representative of the people of the United States under the power expressly conferred by article 5, before quoted. The people, through their Constitution, might have designated some other body than the two houses or a national constitutional convention as the source of proposals. They might have given such power to the President, or to the Cabinet, or reserved it in themselves; but they expressly delegated it to Congress or to a constitutional convention.

As there are two methods of proposal, so there are two methods of ratification. Whether an amendment is proposed by joint resolution or by a national constitutional convention, it must be ratified in one of two ways:

First, by the Legislatures of three-fourths of the several states; or,

Second, by constitutional conventions held in three-fourths thereof, and Congress is given the power to prescribe which mode of ratification shall be followed.

Hitherto Congress has prescribed only the former method, and all amendments heretofore adopted have been ratified solely by the approving action of the Legislature in three-fourths of the states. That is the mode of ratification prescribed by Congress in case of the amendment now under consideration, and it was in pursuance of that prescribed mode that this ratifying resolve was passed by the Legislature of Maine.

Here, again, the state Legislature in ratifying the amendment, as Congress in proposing it, is not, strictly speaking, acting in the discharge of legislative duties and functions as a law-making body, but is acting in behalf of and as representative of the people as a ratifying body, under the power expressly conferred upon it by article 5. The people, through their Constitution, might have clothed the Senate alone, or the House alone, or the Governor's Council, or the Governor, with the power of ratification, or might have reserved that power to themselves to be exercised by popular vote. But they did not. They retained no power of ratification in themselves, but conferred it completely upon the two houses of the Legislature; that is, the Legislative Assembly.

It is a familiar, but none the less fundamental, principle of constitutional law that the Constitution of the United States is a compact made by the people of the United States to govern themselves as to general objects in a certain manner, and this organic law was ordained and established, not by the states in their sovereign capacity, but by the people of the United States. The preamble, "We, the people," so states, and such is the fact. Chisholm v. Georgia, 2 Dall. 419, 1 L. Ed. 440. It is equally well settled that it was competent for the people to invest the federal government, through the Constitution, with all the powers which they might deem necessary or proper, and to make those powers, so far as conferred, supreme, to prohibit the states from* exercising any powers incompatible with the objects of the general compact, and to reserve in themselves those sovereign authorities which they did not choose to delegate either to federal or state government. Martin v. Hunter's Lessee, 1 Wheat. 304, 4 L. Ed. 97. Whether a certain power has been conferred either expressly or by reasonable implication upon the national government, or has been reserved to the states or to the people themselves, must depend upon the construction of the...