may a State, having once voted on a proposed amendment, change its vote?

It is generally accepted that a State which has said "no" may change and say "yes," but that a State having once voted "yes" may not change to "no."

19 53

Senator Ashurst, however, is of the contrary opinion, declaring, "It is my opinion, after considerable research, that a State may at any time change its vote upon a ratification of a proposed amendment, provided the vote which it previously cast was not determinative of the result." 54

In an effort definitively to settle this question, 10 resolutions submitted so far have contained provisions that until three-fourths of the States shall have ratified, or more than one-fourth of the States have rejected, a proposed amendment, any State may change its vote.5% Two of these amendments contained the further provision that "if at any time more than one-fourth of the States have rejected the proposed amendment, said rejection shall be final and further consideration thereof by States shall

An amendment introduced by Senator Wadsworth, of New York, in 1921 carried the interesting provision that "when any amendment shall be rejected or defeated in more than one-fourth of the several States, the same may not be again proposed within two years.

53 68th Cong., H. Doc. No. 570, p. 20.

54 Cong Rec., Mar. 6, 1924 (vol. 65, pt. 4, p. 3675).

55 App., Nos. 1060, 1063, 1140, 1175, 1180, 1187, 1243, 1260, 1271, 1343.

56 App., Nos. 1175, 1243.

57 App., No. 1055.

CHAPTER VI

AMENDMENTS XIV TO XIX

86. The fourteenth amendment.

The freeing of the negro by the thirteenth amendment was intended to confer upon him the right of suffrage as well as the other civic rights of the white. Shortly after the termination of the Civil War the Southern States did grant the suffrage to the negroes, but, as the right was a revocable one, it was soon evident that in order to assure them a continuation of this right some form of a constitutional protection was necessary. Accordingly, the fourteenth amendment was made to include the provision that the basis of a State's representation in Congress would be decreased in the proportion which the number of disfranchised citizens bore to the whole number of citizens. Congress did not pass any law providing for the enforcement of this provision and, as the guarantee of the suffrage was only a negative one, two years later the fifteenth amendment was adopted affirmatively guaranteeing the negro against the deprivation of his vote.

The guarantees above mentioned were circumvented by the Southern States through the application of certain educational and property tests which the negroes were little able to meet. The educational test has been declared constitutional because while it deprives the negro of his vote, the deprivation does not come about on

account of his race.1 With these tests in effect, supplemented by the so-called "grandfather clause," the Southern States have succeeded in keeping the negro voteless without endangering the vote of the white.2

They have not, however, in accordance with section 2 of the fourteenth amendment, reduced their representation in Congress. As the negro was only counted as three-fifths of a man before the war, and as a whole man after the adoption of the thirteenth amendment, the Southern States have thus secured a larger delegation in Congress and a bigger vote in the Electoral College than when the negro was a slave. It was estimated that in 1884, when the Democrats were successful at the polls, they secured 24 seats in Congress and cast 38 votes in the Electoral College to which they were not entitled.3 In the election of 1888 the average vote cast for a Member in Congress in 5 Southern States was less than 8,000, whereas in 5 Northern States it was over 36,000. In an effort to remedy this anomalous situation the Republicans in Congress in 1890 introduced a bill providing for Federal supervision over all Federal elections. The measure was referred to as the "Force Bill" and passed the House, but failed in the Senate.*

Under the apprehension that Congress might at some time pass some measure enforcing the decreased representation called for by the action of section 2 of the four

1 Williams v. Mississippi (170 U. S. 222).

2 Hall, J. P., Constitutional Law, p. 80. See also Collins, C. W. The Fourteenth Amendment, Chapter VI, Results to the Negro Race, pp. 63-80.

3 Dewey, D. R., National Problems, p. 162.

4 Ibid., p. 170.

5

Iteenth amendment, nine attempts have been made to repeal all of section 2 but the first sentence. Two other resolutions provided for the repeal of the entire fourteenth amendment. With the exception of one," all these resolutions were introduced by Representatives from the South. Mr. Hardwick, of Georgia, was the most active of these introducers, having presented seven such resolutions from 1903 to 1913.

The last two proposals to effect a change in the fourteenth amendment were in no way connected with the I original purpose of that amendment. A resolution presented by Senator Jones, of Washington, in 1914 was designed to bring about applied representative government and declared that "Representatives shall be apportioned among the several States according to their respective number of electors vocationally. But when the right to vote," etc. An amendment by Senator Poindexter, introduced in 1919, was intended to accomplish universal woman suffrage by amending the fourteenth amendment by striking out the word "male."

87. The fifteenth amendment.

The same reasons that prompted southern delegates to attempt the repeal of section 2 of the fourteenth amendment have also led them to attempt to repeal the fifteenth amendment itself, the root of the trouble. From 1900 to 1915, 23 resolutions were introduced calling for the repeal

7

5 App., Nos. 395, 424, 439, 469, 492, 601, 605, 622, 701.

App., Nos. 533, 673.

App., No. 439 (introduced by Mr. Smith, of Pennsylvania). 8 App., No. 750.

of the fifteenth amendment.10 Six of these were introduced by Senator Underwood, of Alabama, five by Mr. Kitchin, of North Carolina, and five by Mr. Hardwick, of Georgia.

It is apparent that all these efforts must be in vain, for it is hardly possible that a three-fourths majority of the States can be secured to repeal the fifteenth amendment and any part of the fourteenth amendment, representing, as they do, the fruit of the Civil War, which cost the country so much blood and treasure.11

88. Income tax amendment.

The revenue act of 1894 provided, among other things, that

There shall be assessed, levied, collected, and paid annually upon the gains, profits, and income received in the preceding calendar year by every citizen of the United States, whether residing at home or abroad, and every person residing therein, whether said gains, profits, or income be derived from any kind of property, rents, interest, dividends, or salaries, or from any profession, trade, employment, or vocation carried on in the United States or elsewhere, or from any other source whatever, a tax of two per centum on the amount so derived over and above four thousand dollars, and a like tax shall be levied, collected, and paid annually upon the gains, profits, and income from all property owned and of every business, trade, or profession carried on in the United States by persons residing without the United States.12

In the famous case of Pollock v. Farmers' Loan & Trust Co.1 the Supreme Court in two decisions declared that,

10 App., Nos. 305, 313, 324, 354, 385, 393, 394, 414, 422, 425, 464, 470, 474, 491, 499, 534, 537, 542, 602, 622, 673, 702, 791.

11 Bryce, Vol. II, p. 511.

12 Sec. 27, 28 Stat., 509, ch. 349.

18 157 U. S. 429; 158 U. S. 601.