DAVID E. KYVIG
Amending the U.S. Constitution:
Ratification Controversies,
1917-1971
Do the American people have the final
approval of proposed amendments to the
Constitution of the United States, or is
that power solely in the hands of their state
legislators? This might seem an
inconsequential legal point had not state legisla-
tures on various occasions in the
twentieth century actually ratified amendments in
the face of clear voter opposition. By
referendum, voters in several states rejected
national prohibition, woman suffrage,
and the lowering of the voting age to eighteen
at practically the moment their state
legislatures were approving such constitutional
amendments. In 1920 the United States
Supreme Court ruled that the Ohio Gen-
eral Assembly had the prerogative to
ratify amendments despite a referendum di-
rective from the state's voters that it
do otherwise. The subsequent outcry against
the court's ruling stirred a revolt
against both the Eighteenth Amendment and the
process by which it had been ratified.
The controversy over the national prohibi-
tion amendment revealed the great
elasticity of the amending process: its capacity
to respond directly to the preferences
of the electorate or to allow state legislatures
to ignore their constituents entirely.
Therefore, although the issue of amending
procedure has scarcely been discussed
since direct voter participation in the repeal
of prohibition was secured, it remains
significant in a contemporary as well as an
historical sense.
Ohio was a major battleground in the
fight to prohibit alcoholic beverages. As
the twentieth century began, the Buckeye
State was a major producer of beer and
distilled liquors. At the same time Ohio
was the home of the Anti-Saloon League,
since its formation in Oberlin in 1893
the leader of the battle for local, state, and ul-
timately national prohibition. The first
decade of the century produced many hot
contests throughout Ohio over the issue
of local option, and the next decade fea-
tured an equally fierce struggle over a
state prohibition law.1 In 1915 and again in
1917 a million voters participated in a
referendum on a prohibition amendment to
the state constitution. In the first
instance the measure lost by 55,408 votes, but
when it reappeared on the ballot, it
failed by only 1,137.2
On December 18, 1917, Congress submitted
to the states, for ratification by their
legislatures, a constitutional amendment
to prohibit throughout the United States
the manufacture, sale, or transportation
of intoxicating liquors for beverage pur-
poses. A few weeks earlier, on November
5, Ohio voters had finally adopted a
statewide prohibition law by a vote of
463,654 to 437,895, but at the same time they
1. James H. Timberlake. Prohibition
and the Progressive Movement, 1900-1920 (Cambridge, 1963). 103,
150 151. 159.
2. Ohio. Annual Report of the
Secretary of Stale, 1919, pp. 255-256.
Mr. Kyvig is Assistant Professor of
History at the University of Akron.
Ratification Controversies
157
had approved a significant change in
their state constitution. Mindful that their
General Assembly would soon be
considering the proposed federal amendment and
would be likely to ratify it, they voted
overwhelmingly (508,282 to 315,030) to re-
serve to themselves the power to approve
or reject the General Assembly's action.
This plan, placed on the Ohio ballot by
opponents of national prohibition, stipu-
lated that no ratification of a federal
amendment by the legislature should go into
effect for ninety days. During that
time, a petition signed by six percent of the
state's voters could be filed to force a
referendum, and the Assembly's ratification
would then not take effect unless
approved by a majority of those voting.3
On January 7, 1919, the Ohio General
Assembly, by a vote of 20 to 12 in the sen-
ate and 85 to 29 in the house, ratified
the national prohibition amendment. Within
days, Governor James M. Cox forwarded
the joint resolution to Secretary of State
Robert Lansing, who counted Ohio among
the thirty-six states having ratified when
he proclaimed the Eighteenth Amendment
adopted as of January 16, 1919. In
Ohio, opponents of national prohibition
responded swiftly. On March 11, 1919,
they filed a referendum petition bearing
the requisite signatures with Ohio Secre-
tary of State Harvey C. Smith. Thereupon
Smith ordered a referendum on the
state's ratification of national
prohibition to be held at the November 1919 general
election.4
At this point George S. Hawke, a
Cincinnati attorney and a prohibitionist, sought
an injunction to prevent Smith from
spending public funds for a referendum which,
said Hawke, was unconstitutional. The
Franklin County Court of Common Pleas
refused Hawke's request as did the Court
of Appeals and eventually the Ohio Su-
preme Court. On November 4, 1919, Ohio
voters rejected the national prohibition
amendment by the slender margin of 500,450
to 499,971.5 The first state referen-
dum ever held to consider ratification
of a federal constitutional amendment had
overturned the action of the state
legislature, or so it appeared.
Had Ohio ratified the national
prohibition amendment? George Hawke immedi-
ately asked the United States Supreme
Court which was valid: the Ohio General
Assembly's "yes" or the
voters' "no." When the court heard the case April 20,
1920, Hawke and his attorneys, including
Wayne B. Wheeler, general counsel of the
Anti-Saloon League, argued that the
legislative ratification should stand and that
the referendum was unconstitutional.
Article V of the U.S. Constitution specified
that amendments proposed by Congress:
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 there of,
as the one or the other mode of
ratification may be proposed by the Congress.
Ohio could not, it was asserted, impose
any limitation upon the ratification process
set forth in the federal Constitution.6
Defending the Ohio referendum before the
Supreme Court were Ohio Attorney
General John G. Price, Lawrence Maxwell
of Cincinnati, a former solicitor general
of the United States and author of the
referendum provision, and several other at-
torneys. They contended that the
Constitution did not require states to have any
particular form of legislature. Indeed
the people of a state had the right, if they
3. Ibid., 253-254; Akron Beacon
Journal, November 7, 1981; Hawke v. Smith, appellate case file
27337,
Records of the Supreme Court of the
United States, Record Group 267. National Archives.
4. Ibid.
5. Ibid.; Ohio. Annual Report of the Secretary of State, 1920, pp. 313-314. At the same election, voters
chose to retain the state prohibition
law, 496, 786 to 454,
933.
6. Hawke v. Smith, appellate case file 27337, NA.
158 OHIO HISTORY
wished, to abolish their representative
assemblies and take all legislative matters
into their own hands. Or more
practically, the people had the power, affirmed by
the Supreme Court in another case
brought by Ohio in 1916, to suspend legislative
acts pending a referendum vote to accept
or reject them. In other words, the argu-
ment ran, the term
"legislature" included the entire legislative power of the state,
not only the two houses of the general
assembly but also the popular will as ex-
pressed in a referendum.7
The outcome of Hawke v. Smith was
of great interest in many quarters. Referen-
dums on national prohibition had been
sought in other states besides Ohio. In
Maine and Oregon courts had refused to
sanction them, while in California a refer-
endum bill failed in the legislature. In
Washington wets obtained a mandamus or-
der from the state supreme court
ordering acceptance of a referendum petition on
the legislature's unanimous ratification
of the Eighteenth Amendment, but all went
for naught as the secretary of state
then found the petition lacking sufficient signa-
tures to place the question on the
ballot. If the Supreme Court upheld the Ohio
referendum, anti-prohibitionists
indicated they would probably seek referendums in
several states in the hope of
invalidating enough legislative ratifications to bring the
total below the required three-fourths
of all states.8 Encouraged by the referendum
defeat of national prohibition in Ohio,
even though by only 479 votes, wets felt they
might still overturn the Eighteenth
Amendment.
The woman suffrage amendment was also
before the states in 1920. George
Hawke instituted a second suit against
Secretary of State Smith, eventually com-
bined with the first, in an effort to
block a referendum scheduled for November
1920 on the Ohio General Assembly's
ratification of this amendment. By the late
spring of 1920, thirty-five legislatures
had approved the suffrage amendment, and
its supporters were frantically seeking
one more endorsement. Suffragists allied
themselves with prohibitionists to
oppose ratification referendums, fearing that
these might doom the women's quest for
the ballot. In recent years, statewide
woman's suffrage had been defeated by
popular vote in the Dakotas, Massachusetts,
Maine, Missouri, Nebraska, New Jersey,
Pennsylvania, and twice by wide margins
in Ohio. In several of these states,
legislatures had nonetheless proceeded to grant
women the vote (the second Ohio
referendum overturned such an act) and to ratify
the federal amendment, but these actions
were clearly jeopardized if ratification ref-
erendums were allowed by the court.
Efforts to secure popular votes on the federal
suffrage amendment were already underway
in at least six states. Therefore, not
only wets and drys but also suffragists
and their opponents awaited with apprehen-
sion the Supreme Court ruling in Hawke
v. Smith.9
On Tuesday, June 1, 1920, a unanimous
Supreme Court upheld the ratifications
of the Eighteenth and Nineteenth
Amendments by the Ohio General Assembly:
Ratification by a State of a
constitutional amendment is not an act of legislation within the
proper sense of the word. It is but the
expression of the assent of the State to a proposed
amendment.... 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
7. Davis v. Hildebrant, 241 U.S. 565; Hawke v. Smith, appellate case file 27337, NA.
8. William Howard Taft, "Can
Ratification of an Amendment to the Constitution Be Made to Depend
on a Referendum?" Yale Law
Journal, XXIX (June 1920), 822-823; John R. Meers, "The California
Wine and Grape Industry and
Prohibition," California Historical Society Quarterly, XLVI (1967), 26-27;
Norman C. Clark, The Dry Years:
Prohibition and Social Change in Washington (Seattle, 1965), 142.
9. Elizabeth Flexner, Century of
Struggle: The Woman's Rights Movement in the United States (Cam-
bridge, 1959), 268-320.
Ratification Controversies
159
derives its authority from the Federal
Constitution to which the State and its people have
alike assented.10
In the opinion of the court, when the
Congress stipulated that a constitutional
amendment be ratified by state
legislatures, no referendum was authorized or per-
mitted. Six days later, in the course of
deciding a series of national prohibition
cases, the Supreme Court reiterated its
view that state referendum provisions could
not constitutionally be applied to the
ratification process.11
Having heard the Hawke v. Smith decision,
the Tennessee General Assembly
moved to ratify the woman suffrage
amendment in the summer of 1920. For
months the legislators had hesitated
because the state constitution prohibited action
on federal amendments unless the general
assembly voting on them had been
elected after the amendment in question
had been submitted to the states. The sys-
tem clearly had been designed to make
assembly elections a form of a referendum
on proposed constitutional change.
Suffragists had grown desperate as hopes for
other ratifications faded. Heeding Hawke
v. Smith and the urgings of President
Wilson that they ratify, the governor
and legislature decided that the Tennessee
constitution could safely be ignored.
After the legislature approved the resolution,
about thirty representatives left the
state to prevent assembly of a quorum to re-
consider the 49-47 house vote. The chief
justice of the Tennessee supreme court,
the governor, and legislative supporters
of suffrage believed that Hawke v. Smith
overrode state provisions regarding
quorums and reconsiderations, and ratification
was reported to Secretary of State
Bainbridge Colby who accepted it. Anti-suffrag-
ists protested and later tried to
withdraw Tennessee's ratification, but to no avail.
Tennessee provided the crucial
thirty-sixth ratification, and the Nineteenth Amend-
ment as well as the Eighteenth became
the law of the land.12
Regardless of the logic and legal
soundness of the Supreme Court's rulings in
Hawke v. Smith and the National Prohibition Cases, the Ohio
referendum con-
troversy left an impression in some
minds that national prohibition had been foisted
on an unwilling American people by a
crafty, well-organized minority using undem-
ocratic means. Despite a hostile
majority in the only specific test of public support
for the proposed Eighteenth Amendment,
national prohibition had, after all, be-
come part of the Constitution. Because
no ratification referendum on the woman
suffrage amendment had been held to
directly contradict legislative action, and also
because most people quickly accepted
voting by women, the Nineteenth Amend-
ment soon faded as an issue. Not so the
controversial Eighteenth.
Throughout the 1920's concerned citizens
continually reminded the American
people of the circumstances by which
national prohibition had been adopted. In
April 1921, Republican Senator James W.
Wadsworth, Jr., of New York, who had
actively opposed both the Eighteenth and
Nineteenth Amendments, and Demo-
cratic Representative Finis J. Garrett
of Tennessee, a critic of woman suffrage who
would become Democratic floor leader in
the next Congress, proposed revision of
Article V of the Constitution to prevent
a repetition of the Ohio debacle. They did
not tamper with the provision for
convention ratification of amendments, feeling
that delegates popularly elected on the
basis of a single issue would accurately re-
flect the public will. However, the
Wadsworth-Garrett resolution sought to limit
legislative ratification in three ways
by stipulating:
10. Hawke v. Smith, 253 U.S. 221,
229-230.
11. National Prohibition Cases, 253
U.S. 350.
12. Flexner, Century of Struggle, 320-323;
Stanley J. Folmsbee, el al, Tennessee: A Short History
(Knoxville, 1969), 452-455; Lesser v.
Garnett, 258 U.S. 130.
160 OHIO HISTORY
that the members of at least one house
in each of the legislatures which may ratify shall be
elected after such amendments have been
proposed; that any State may require that ratifica-
tion by its legislature be subject to
confirmation by popular vote; and that, until three-
fourths of the States have ratified or
more than one-fourth of the States have rejected or de-
feated a proposed amendment, any State
may change its vote.13
Its sponsors held no hope of overturning
the Eighteenth or Nineteenth Amend-
ments. Repeal of either, they realized,
could be blocked by only thirteen states.
But they did seek through this device to
prevent a recurrence of the Ohio or Ten-
nessee experiences and to allow states
to reconsider decisions regarding con-
stitutional amendments. "The story
of the ratification of the 18th and 19th Amend-
ments contains so many extraordinary
incidents," explained Wadsworth, "that no
sane, thinking man can fail to realize
the necessity for guarding the Constitution
against such methods of ratifying
amendments in the future."14
In a 1923 Lincoln Day dinner speech to
the National Republican Club, the Sena-
tor pointed to the accelerating pace of
constitutional change. Of nineteen amend-
ments to the Constitution, ten were
virtually a part of the original document while
of the remaining nine, four had been
adopted since 1913. He expressed alarm over
the number of amendments proposing
"revolutionary change in government" cur-
rently before Congress, especially in
light of "recent events comparatively unno-
ticed." Wadsworth referred in
particular to the way in which Ohio's referendum
overturning the ratification of
prohibition had been ignored. He also expressed
concern that several states had acted on
the federal woman suffrage proposal con-
trary to referendum results or without
the issue having been raised in an election of
state legislators. Wadsworth insisted
that the people must have the power to ap-
prove or disapprove of constitutional
amendments. "We cannot afford," he con-
cluded, "to have some future
amendment, destructive of our whole theory of gov-
ernment, manipulated through the
requisite number of legislatures, with the people
standing helpless to prevent it."15
Although the Senate Judiciary Committee
considered the Wadsworth-Garrett
resolution in 1923 and sent to the floor
an amended version requiring referendums
in all cases, neither house of Congress
ever voted on it. Still the proposal swelled
the chorus of criticism of the amendment
procedure which grew throughout the dec-
ade. The New York Times, no
enthusiast for referendums, called the Hawke v.
Smith decision a "shocking" failure to represent
the will of the people of Ohio. The
Times believed that:
If the principles laid down in this
decision and their application in this particular case had
been present in the minds of the members
of the Convention and of the people 130 years
ago, the Constitution itself would not
have been ratified.16
Clarence Darrow and H. L. Mencken, who
crusaded against prohibition in the
pages of Vanity Fair, The American
Mercury, and other widely-read magazines, both
repeatedly suggested that the amendment
had been imposed on the country by a
minority. Columbia University professor
Peter Odegard's 1928 study of the Anti-
Saloon League, Pressure Politics, pictured
the Eighteenth Amendment as having
13. S. J. Res. 40, 67 Cong., I Sess.,
Original Senate Joint Resolutions (S. 67 A-B2), Records of U.S.
Senate, Record Group 46, National
Archives.
14. James W. Wadsworth, Jr., to John A.
Richardson, July 3, 1923, Wadsworth Papers, Library of Con-
gress.
15. Wadsworth, "Amending the
Constitution," speech of February 12, 1923, Wadsworth Papers.
16. New York Times, June 3, 1920.
Ratification Controversies 161
been forced through state legislatures
by a well-organized, fanatical pressure group
lacking broad public support. Three
years later, in his book, The Dry Decade,
Charles Merz suggested that prohibition
had been adopted while public attention
was diverted by World War I, that
prohibitionists had enjoyed disproportionate in-
fluence in state legislatures as a
result of rural overrepresentation, and that dry lob-
bies had been extremely effective in the
ratification struggle. While Merz refused
to generalize on a national basis from
the Ohio referendum results, he obviously re-
mained skeptical of claims that a
majority of Americans had supported the adop-
tion of prohibition.17 The
cumulative effect of these attacks on the manner in which
the Eighteenth Amendment had been
ratified served to undermine its stature.
A number of states held referendums on
prohibition during the 1920's, the results
of which seemed to confirm the critics'
views. Nearly every state had initially
adopted a state prohibition enforcement
law to complement the federal Volstead
Act. Between 1920 and 1930 no fewer than
seventeen referendums in nine widely
scattered states considered such laws.
In nine instances in five states (California,
Illinois, Massachusetts, Montana, and
Wisconsin) the people registered majorities
against continued state enforcement of
strict prohibition. Furthermore in other
balloting, large majorities in both
Illinois and New York appealed to Congress in
1926 to modify the Volstead Act, while
voters in Nevada in 1926, Massachusetts in
1928, and Rhode Island and Illinois in
1930 asked for repeal of the Eighteenth
Amendment.18 Opponents of prohibition,
such as the nationwide Association
Against the Prohibition Amendment, long
critical of the manner in which the
amendment had been adopted, cited all
such returns as evidence of popular repu-
diation of the law.19 Perhaps the
referendum results reflected nothing more than
growing doubts about prohibition after
several years' experience with the law, but
they reminded Americans of the 1919 Ohio
episode and reenforced the belief that
prohibition existed contrary to the
wishes of a majority.
In 1930 the Eighteenth Amendment's
ratification process was again challenged in
court. While upholding prohibition in Hawke
v. Smith and the National Prohibi-
tion Cases in 1920, the Supreme Court had not answered all
questions about the
amending procedure. At the time, several constitutional
scholars questioned
whether the amending power could be used
to take legislative or police functions
away from the states without the direct
assent of the people. If this were possible,
they argued, the states could be
destroyed by amendments approved by legislative
majorities in three-fourths of the
states but not by the people.20 After the Supreme
Court failed to deal with these issues,
the controversy died away.
17. Clarence Darrow, "The Ordeal of
Prohibition," American Mercury, II (1924), 419-427; "Tyranny
and the Volstead Act," Vanity
Fair, XXVIII (1927), 45-46, 116; "Our Growing Tyranny," ibid, XXIX
(1928), 39, 104; Peter H. Odegard, Pressure
Politics: The Story of the Anti-Saloon League (New York,
1928); Charles Merz, The Dry Decade (Garden
City, 1931), 36-46. For Mencken's complex views on
prohibition, see Andrew C.
McLaughlin, "Satire as a Weapon Against Prohibition, 1920-1928: Expres-
sion of a Cultural Conflict"
(unpublished Ph.D. disseration, Stanford University, 1969), Chapter 2.
18. For a convenient summary of
referendums through 1929, see Merz, Dry Decade, 334. For later
ref-
erendums, see Association Against
the Prohibition Amendment, 32 Reasons for Repeal (Washington,
1932), 34.
19. For example, Association Against the
Prohibition Amendment, Annual Report for 1930 (Washing-
ton, 1931), 2.
20. William L. Marbury. "The
Limitations upon the Amending Power." Harvard Law Review, XXXIII
(December 1919). 223-235; Justin DuPratt
White, "Is There an Eighteenth Amendment?" Cornell Law
Quarterly, V (January 1920), 113-127: Everett V. Abbot,
"Inalienable Rights and the Eighteenth Amend-
ment," Columbia Law Review, XX
(February 1920), 183-195; Charles K. Burdick, "Is Prohibition
Lawful?" New Republic. April
21, 1920, pp. 245-248; D. O. McGovney, "Is the Eighteenth Amendment
Void Because of Its Contents?" Columbia
Law Review, XX (May 1920), 499-518.
162 OHIO HISTORY
Late in 1927, the New York County
Lawyers' Association began to reexamine the
constitutionality of the Eighteenth
Amendment. A committee studied the matter
and in March 1930 released a report
prepared by one of its members, Selden Bacon.
He contended that Article V of the
Constitution, the amending article, was limited
by the Tenth Amendment which read:
The powers not delegated to the United
States by the Constitution, nor prohibited by it to
the States, are reserved to the States
respectively, or to the people.
In case of amendment, the choice of
ratification methods-state legislature or con-
vention of the people-was to be
determined not by congressional whim, but on the
basis of whether the proposal affected
the functions of the state or the rights and
powers of the citizenry.
If the amending power were unlimited,
Bacon said, it necessarily followed that all
individual rights protected by the first
eight amendments could be wiped out by
Congress and majorities of the
legislatures in three-fourths of the states, although
those eight amendments were assumed when
adopted to be beyond the possibility
of usurpation by the Federal Government
and subject only to the power of the
people themselves to surrender them. The
Supreme Court had ruled in Hawke v.
Smith that ratification of an amendment by a legislature was
a federal function, not
subject to any limitation imposed by the
people of a state. If so, complained Bacon,
all rights guaranteed the individual
could be voted away without citizen consent by
people exercising federal functions.
This had clearly not been intended by the
Founding Fathers.
Bacon pointed out that conventions, not
state legislatures, had ratified the original
Constitution. This acknowledged, he
argued, that authority lay with the people.
Concern with limiting the powers of the
Federal Government over the individual
led to the adoption of the first ten
amendments. The Ninth Amendment had been
adopted to prevent the informal
extension of federal powers. The Tenth Amend-
ment sought to check the extension of
federal powers through constitutional amend-
ment. Ratification of amendments by
state legislatures was appropriate only when
merely the rights of the states
themselves were involved; popularly elected con-
stitutional conventions were required
when individual rights were affected. Bacon
concluded that, since it involved
individual rights, the Eighteenth Amendment had
been improperly ratified.21
The committee issuing Bacon's report
urged that the issue be presented to the Su-
preme Court in a test case, but the
Lawyers' Association took no action. Selden Ba-
con, however, was a member of the
Association Against the Prohibition Amend-
ment, and that organization
enthusiastically supported him. The AAPA executive
committee immediately voted to print and
distribute 250,000 copies of Bacon's re-
port in pamphlet form. Within a few
months, Bacon and several colleagues ap-
peared in Federal District Court in
Newark, New Jersey, in behalf of William
Sprague, who had been caught
transporting beer in clear violation of the prohibi-
tion law. The AAPA's founder and
chairman of its board of directors, William H.
Stayton, attended the trial.22
21. New York Times, December 17,
1930; Selden Bacon, The X Amendment, Its Supreme Importance
and Its Effect on the XVIII Amendment
(New York, 1930); see also
Bacon, "How the Tenth Amendment
Affected the Fifth Article of the
Constitution," Virginia Law Review, XVI(June 1930), 771-791.
22. New York Times, December 17,
1930; Minutes of Executive Committee Meeting, April 1, 1930,
Irenee duPont Papers, Eleutherian Mills
Historical Library, Wilmington, Delaware; William H. Stayton
to the directors of the AAPA, July 8,
1930, and Stayton to John J. Raskob, November 10, 1930, John J.
Raskob Papers, ibid.
Ratification Controversies
163
On December 16, 1930, Federal Judge
William Clark startled the nation by
declaring the Eighteenth Amendment void
because it had not been ratified by the
convention method. He ordered the
indictment of William Sprague quashed.23
Clark, a young judge with a reputation
for judicial independence who was report-
edly advised by Professor Edwin S.
Corwin of Princeton, did not use the same rea-
soning as Bacon. He held that historical
and theoretical principles of local self-gov-
ernment and popular sovereignty required
that when amendments transferring
powers reserved to the states or the
people were being considered, the method of
ratification which most directly
represented the people must be used. A con-
stitutional convention, elected on the
basis of one issue and devoting its deliber-
ations entirely to that question, was
satisfactorily representative. The members of a
state legislature, who had been elected on
a variety of issues, perhaps not even in-
cluding the proposed amendment, were not
necessarily reflective of the popular will
regarding such an amendment and were not
competent to act for the people in such
a matter.24
Although elated anti-prohibitionists
hailed Judge Clark's decision, a unanimous
Supreme Court quickly reversed it. The
court rejected Bacon's and Clark's argu-
ments. Congress was held to have a clear
right to choose the method of ratification.
Neither the Tenth Amendment nor a
reasonable interpretation of Article V placed
any limitation on the amending power.
The Eighteenth Amendment had been le-
gally adopted, the Supreme Court once
again declared.25
Nevertheless, the Sprague case
drew new attention to the significance of the
method by which amendments were
ratified. In the nearly 150 years since the Con-
stitution had been approved by state
conventions, only the legislative process had
been used. The Sprague case
served as a reminder that the Article V provision for
ratification of amendments by elected
state conventions was available as a form of
referendum. Thereafter, the AAPA and
other repeal advocates insisted that con-
ventions be used in changing the
prohibition amendment so that the public's wishes
could be accurately represented. Pierre
S. duPont, chairman of the AAPA execu-
tive committee, insisted that individual
rights guaranteed in the Constitution could
not legitimately be altered except by
common consent of the people.26
The National Commission on Law
Observance and Enforcement, appointed by
President Herbert Hoover to conduct a
thorough investigation of prohibition en-
forcement, issued a report in January
1931 which supported critics of the ratification
procedure. The commission, best known by
the name of its chairman, former At-
torney General George W. Wickersham,
concluded that the difficulty of enforcing
national prohibition was due in part to
the manner of its adoption.
The ratification of the Amendment was
given by legislatures which were not in general
elected with any reference to this
subject. In many instances, as a result of old systems of
apportionment, these legislative bodies
were not regarded as truly representative of all ele-
ments of the community. When
ratifications took place a considerable portion of the popu-
lation were away in active military or
other service. It may be doubted if under the condi-
23. New York Times, December 17,
1930; "Prohibition: William Sprague Decision," Time, December
29, 1930, pp. 8-9: "No Eighteenth
Amendment for Judge Clark," Literary Digest, December 27, 1930, p.
6.
24. Joseph P. Pollard, The Road to
Repeal: Submission to Conventions (New York, 1932), 154-156;
Clement E. Vose, Constitutional Change:
Amendment Politics and Supreme Court Litigation Since 1920
(Lexington, Mass., 1972), 98; United
States v. Sprague, 44 F. (2nd) 967 (1930).
25. New York Times, December 17,
1930; Pollard, Road to Repeal, 177-181; United States v. Sprague,
282 U.S. 716 (1931).
26. Pierre S. duPont to Raskob, January
14, 1931, Raskob Papers.
164 OHIO HISTORY
tions then prevailing the results would
have been any different if these things had not been
true, yet these circumstances gave
grounds for resentment which has been reflected in the
public attitude toward the law and has
thus raised additional obstacles to observance and en-
forcement.
The Wickersham Commission report was
ambiguous as to whether national prohi-
bition should be retained, but
Commissioners William S. Kenyon, Paul J. McCor-
mick, and George Wickersham individually
urged that the issue be put to a vote of
the people by having Congress submit a
repeal amendment to popularly-elected
state conventions.27
A steadily rising chorus of criticism of
the law as well as the pressures of the eco-
nomic depression-the demand for jobs,
the agricultural surplus, the need for tax
revenue-made prohibition increasingly
vulnerable after 1930. Throughout the
1920's it had been generally assumed
that the repeal of a constitutional amendment
was politically impossible. This belief
must have angered and frustrated anti-prohi-
bitionists critical of the methods by
which the amendment had been adopted. But
now opinion began to change.
Organizations seeking repeal stepped up their ef-
forts. They persistently demanded that
any new amendment regarding prohibition
be submitted to state conventions for
ratification in order to reflect public opinion
and avoid repetition of the 1919 Ohio
fiasco. Democratic National Chairman John
J. Raskob, a leader of the AAPA and an
ardent advocate of repeal, asked the Demo-
cratic National Committee, "Can any
patriotic citizen deny the people opportunity to
vote on this important and vital
question and properly call himself a Democrat?"28
The House of Representatives in March
1932 nearly mustered a majority for a
proposed constitutional amendment that
would permit states to set up their own
system of liquor control. For the first
time, House wets rallied enough support to
force a roll call vote on repeal, and,
significantly, their resolution provided for ratifi-
cation by state conventions.29 The
following month, James Wadsworth, represent-
ing the AAPA, urged a Senate Judiciary
Subcommittee to submit any repeal resolu-
tion to state conventions rather than
state legislatures.30 Journals which had earlier
favored a nationwide referendum on
prohibition but had seen no possibility of one,
now called for use of the convention
ratification provision.31
When the national party conventions met
in Chicago in June 1932, wets called
upon both Republicans and Democrats to
give the people a chance to decide the
prohibition issue. AAPA President Henry
H. Curran appealed by letter to each Re-
publican delegate to declare for repeal,
or at least pledge to submit the question to
popularly-elected state conventions. A
similar plea to Democratic delegates came
from the Women's Organization for
National Prohibition Reform, an AAPA ally.32
27. National Commission on Law
Observance and Enforcement, Report on the Enforcement of the Pro-
hibition Laws of the United States (71 Cong., 3 Sess., House Doc. 722), 45, 135-136, 156,
162. The
commission as a whole recommended
further trial, but in appended statements a majority of the commis-
sioners advocated major modification or
repeal.
28. For a detailed examination of the
growth of repeal sentiment, see David E. Kyvig, "In Revolt
Against Prohibition: The Association
Against the Prohibition Amendment and the Movement for Re-
peal, 1919-1933" (unpublished Ph.D.
dissertation, Northwestern University, 1971); Raskob to members
of the Democratic National Committee,
April 4, 1931, Raskob Papers.
29. New York Times, March 15,
1932.
30. U.S. Senate, Committee on the
Judiciary, Modification or Repeal of National Prohibiton: Hearings
Before a Subcommittee (72 Cong., 1 Sess.; Washington, 1932), 17-18, 152-159.
31. "Why Not Count Noses-Wet or
Dry?" World's Work, LIX (March 1930), 40; "Vox Pop: Can It
Bring Repeal?" ibid (January
1932), 28; "Repeal the Eighteenth Amendment," Nation, May 4,
1932, p.
502.
32. Henry H. Curran to Republican
National Convention delegates, May 28, 1932, Irenee duPont Pa-
pers; New York Times, June 27,
1932.
Ratification Controversies
165
The prohibition issue stirred intense
feelings at both conventions. Hoover and his
lieutenants felt that abandoning
prohibition would be politically disastrous, but
other Republicans urged repeal. The
Republican plank eventually adopted con-
tended that prohibition was not a
partisan issue, and suggested that any change
should be effected by submitting a new
amendment to state conventions so that the
people might decide the matter.33
Wets remained unhappy over the platform's in-
sistence that the Federal Government
should retain power to deal with "the evils in-
herent in the liquor trade," to
protect states where prohibition existed, and to pre-
vent "the return of the saloon and
attendant abuses," but they had won a concession
on the issue of ratification procedure
which would later prove helpful.
The Democratic convention divided over
whether or not to endorse repeal. A
resolutions subcommittee, heavily
weighted with supporters of New York Governor
Franklin D. Roosevelt, the driest of the
major presidential aspirants, drafted a plank
similar to that of the Republicans,
endorsing submission of the repeal question to
state conventions but not committing the
party on the issue. However, the full reso-
lutions committee noted the convention's
warm reception to calls for repeal made
by Chairman Raskob and keynote speaker
Alben Barkley and approved by a wide
margin a strong anti-prohibition plank.
We advocate the repeal of the Eighteenth
Amendment. To effect such repeal we demand
that Congress immediately propose a
constitutional amendment to truly representative con-
ventions in the states called to act
solely on that subject.
When read to the full convention, it set
off a spontaneous demonstration lasting
twenty-five minutes. After a brief
debate, the repeal plank was adopted 934 3/4 to
213 3/4, the most lopsided margin of any
roll call at the convention.34
Since the Democratic platform
forthrightly endorsed repeal while the Republican
platform equivocated and since
prohibition was considered a prominent issue in the
1932 campaign, the landslide Democratic
victory was widely regarded as a mandate
for repeal of the Eighteenth Amendment.
Many Congressmen who previously sup-
ported national prohibition quickly
reversed their position during the post-election
final session of the Seventy-second
Congress. On the first day, House Democratic
leaders introduced a resolution for a
new constitutional amendment to repeal the
Eighteenth. It fell only six votes short
of the two-thirds required for adoption; only
the votes of eighty-one lame duck
Congressmen keep the measure from passing.35
On January 9, 1933, the Senate Judiciary
Committee reported out a repeal resolu-
tion drafted by Senator John J. Blaine
of Wisconsin. The committee had consid-
ered the touchy question of procedure
and provided for ratification of the proposed
amendment by state legislatures. Blaine
explained that over forty state legislatures
were then in session, and if Congress
passed the resolution promptly, the legislatures
could act immediately. The convention
method, the Senator argued, might take
four years or more and would involve
heavy expenses for campaigns, delegate elec-
tions, and conventions. Blaine implied
that repeal was inevitable, and convention
ratification therefore unnecessary. The
AAPA's new president, Jouett Shouse, chal-
lenged this view. He assailed the Blaine
resolution for according undue influence to
rural supporters of prohibition in
malapportioned state legislatures. Recalling that
33. Official Report of the
Proceedings of the Twentieth Republican National Convention, 1932 (New
York, 1932), 119-121.
34. Official Report of the
Proceedings of the Democratic National Convention, 1932 (n.p., n.d.),
146-150,
192.
35. New York Times, December 6,
1932.
166 OHIO HISTORY
both party platforms had endorsed
convention ratification, Shouse in a speech in
Louisville, Kentucky, and later in a
nationwide radio address insisted that such
pledges be kept.36
For more than a month, repeal efforts
were stalemated. The situation changed
abruptly when Senator Joseph T.
Robinson, the Democratic majority leader and
formerly a staunch defender of national
prohibition, decided to support repeal by
state ratification conventions. The
Senate promptly voted 45 to 15 to amend the
Blaine resolution to provide for
ratification by conventions. After other revisions,
the Senate adopted the resolution 63 to
23 on February 16. Four days later, the
House approved the measure 289 to 121
and sent it to the states.37
Never before having been called upon to
hold conventions to ratify an amend-
ment, the states seemed uncertain how to
proceed. Constitutional scholars dis-
agreed as to whether Congress or the
individual state legislatures had the authority to
set up conventions. As early as January
1933, the California legislature had asked
Congress to enact a law covering
delegate selection, the scheduling and conduct of
elections and conventions, and the
payment of expenses incurred. New Mexico, on
the other hand, declared that any
attempt by Congress to prescribe the details gov-
erning conventions would be null and
void in that state. When Congress failed to
reach a consensus after much debate,
observers anticipated a long delay while the
Supreme Court resolved the procedural
issue.38
Wet organizations, however, realized
that many state legislatures then in session
would not meet again for a year or more.
If they adjourned without providing for
conventions, repeal might be postponed
by as much as two years. Motivated as
much by fears of delay as by certainty
of state prerogatives, officials of the AAPA
and the Voluntary Committee of Lawyers,
a New York-based national association
of 4,000 attorneys formed in 1927 to
seek repeal of the Eighteenth Amendment,
worked feverishly through January and
February 1933 to prepare a model bill
which any state legislature could use to
create a ratification convention. Drafted
primarily by Joseph H. Choate, Jr., a
distinguished New York attorney and chair-
man of the VCL executive committee, it
provided for an at-large election of conven-
tion delegates with one slate pledged to
repeal and another opposed so that a state
referendum on prohibition could, in
effect, be conducted. To mollify critics of at-
large elections, an alternative plan for
delegate selection by legislative districts was
also prepared.39
Completed only days before congressional
passage of the repeal resolution (the
Twenty-first Amendment), the model
convention bill was quickly circulated to state
legislatures by AAPA and VCL
representatives. Choate wrote every governor urg-
ing its use.40 The provision of a
detailed plan for creating ratification conventions
along with well-marshaled arguments on
the right of states to proceed rather than
await congressional action reduced
legislative indecision and delay to a minimum.
All but a handful of states quickly made
the necessary arrangements for conven-
tions, generally along the lines
suggested by the AAPA and the VCL.
36. Everett Somerville Brown, comp.. Ratification
of the Twenty-first Amendment to the Constitution of
the United States: State Convention
Records and Laws (Ann Arbor, 1938). 4;
[Jouett Shouse]. Annual Re-
port of the
President of the Association Against the Prohibition Amendment for the Year
1933 (Washington,
1934). 12-15.
37. Ibid., 16-17.
38. Brown, Ratification of the Twenty-first Amendment, 5, 515; New York Times, February 26, 1933.
39. A full account of the development of
the model convention bill is provided in Vose, Constitutional
Change, 112-120.
40. Kyvig, "In Revolt Against
Prohibition," 334-337; Vose, Constitutional Change, 120.
Ratification Controversies
167
Of forty-three states which established
conventions (only Georgia, Kansas, Loui-
siana, Mississippi, and North Dakota
failed to do so), thirty-nine acted within four
months of the amendment's submission.
Twenty-five states chose their convention
delegates at large, fourteen selected
them by districts, and four combined the meth-
ods. Twelve states followed the model
bill almost exactly, while at least eight others
used it with some modification and
several more adapted portions. In the absence
of congressional guidance, the AAPA-VCL
measure provided guidelines for the
states, although practically every
convention had its own peculiar features.41
So that the election of delegates would
serve as a referendum on prohibition,
nearly every state provided for separate
slates of delegates pledged to favor or to op-
pose ratification of the proposed
amendment. Eight states provided for the election
of an unpledged slate as well, but only
Wyoming made no mention of delegate pref-
erences, leaving the convention free to
act as a truly deliberative body. Delegates
in Alabama, Arkansas, and Oregon were
required to vote in accordance with a ref-
erendum on the amendment to be held at
the same time as the delegate election.
The surest sign that the convention was
expected to reflect a popular referendum
decision came from New Mexico. There, if
a delegate failed to vote in accordance
with the position stated on his
nominating petition, he would "be guilty of a mis-
demeanor, his vote not considered, and
his office deemed vacant."42
Once the mechanisms were formulated, the
selection of delegates and the meeting
of state conventions moved smoothly and quickly.
Michigan, the first state to act,
held its delegate election on April 3,
1933, convened its convention on April 10, and
in less than three and one-half hours
ratified the amendment 99 to 1.43 By the end
of June, sixteen states had voted for
delegates, with the results all favoring repeal.
During July and August, eight other
states did the same, and by mid-October voters
in nine additional states had cast
ballots for repeal. On November 7 six more states
voted and assured the repeal of the
Eighteenth Amendment before the end of the
year. Ironically, on the very day that
repeal triumphed, the only two states to vote
in 1933 against repeal-North and South
Carolina-registered their position.
Nearly twenty-one million voters
participated in elections in thirty-seven states (Ne-
vada and Wyoming selected delgates in
precinct-level open meetings and county
conventions). Fifteen million, or 73
percent, favored repeal, while slightly more
than five and one-half million, or 27
percent, opposed it. Whatever the status of
public opinion in 1919, this nationwide
referendum made it clear that in 1933 an
overwhelming majority approved the
Twenty-first Amendment.44
The conventions proved to be brief,
non-deliberative affairs which merely con-
firmed the voters' decisions. None
lasted more than a day, and New Hampshire
managed to conduct its proceedings in
seventeen minutes! In only eight of the con-
ventions which approved the new
amendment were negative votes cast. Only in In-
diana, where 83 of the 329 delegates
favored prohibition, did any significant opposi-
tion appear. So perfunctory were the
actions of conventions in carrying out the
voters' wishes that the question arose
as to whether a simple, direct referendum
would not have been more sensible and
economical. Nevertheless, with the action
of state conventions in Ohio,
Pennsylvania, and finally Utah on December 5, 1933,
41. Brown, Ratification of the
Twenty-first Amendment, 515-700; draft bill. Voluntary Committee of
Lawyers Papers. Collection on Legal
Change, Wesleyan University. Middletown. Connecticut.
42. Brown, Ratification of the
Twenty-first Amendment, 518.
43. Ibid., 214-233.
44. [Shouse], Annual Reportfor 1933, pp.
18-22. An analysis of the vote within each state is on 22-27.
168 OHIO
HISTORY
the Twenty-first Amendment was
ratified.45 For the first and thus far the only time
in American history, a constitutional
amendment had been repealed.
The use of state conventions to ratify a
constitutional amendment proved no
more time-consuming than legislative
action. In fact, the nine and one-half months
or 288 days between its submission to
the states on February 21, 1933, and its adop-
tion on December 5 made the Twenty-first
Amendment among the most rapidly rat-
ified amendments. Indeed, not until
1971, when the Twenty-sixth Amendment
lowering the voting age to eighteen was
approved by thirty-eight state legislatures in
only 100 days, was an amendment much
more quickly accepted.46
In the course of the various conventions
in 1933, several speakers commented on
the significance of the process. There
were no means of knowing whether the
people would have ratified the
Eighteenth Amendment, Governor Stanley C. Wil-
son of Vermont remarked, "but we do
know that if this method is adopted of pro-
viding for an amendment to the
Constitution, there can be no question about how
the people feel as to the
amendment." State senate president Emerson L. Richards,
presiding at the New Jersey convention,
praised "this ancient form of popular ex-
pression-the convention" as
"the greatest weapon for the correction of the evils of
government." "In this day of
Fascism and Sovietism and the subjugation of peo-
ples to the domination of the State or a
man," said Leonard Weinberg, chairman of
the Maryland convention's resolutions
committee, "this marks a rededication of the
people of America to the principles of
Democracy."47
Speaker after speaker insisted that
individual freedoms could not be altered
through constitutional amendment except
with the direct concurrence of the
people-possible only through
ratification of amendments by convention. No direct
reference was made to the Ohio
ratification controversy of 1919, the Hawke v. Smith
or United States v. Sprague decisions,
and the interest thus generated in the conven-
tion system, but Sidney Stricker, Ohio
VCL leader and chairman of the resolutions
committee at the state's ratification
convention, alluded to them. He told the con-
vention that "tyranny and
intolerance" could not be imposed by a minority and that
America now enjoyed "a government
of free institutions responsive to the will of the
people."48 To Stricker
and many other delegates, the conventions of 1933 repre-
sented the discovery of a better, more
democratic method of revising the Con-
stitution.
The disappearance of national
prohibition eliminated the prime concern of the
most vocal advocates of approving
amendments by state conventions. The excite-
ment and upheaval of the New Deal caused
the innovation in constitutional pro-
cedure to be obscured and soon
forgotten. Until the 1960's only one new con-
stitutional amendment-limiting a President
to two full terms-was adopted, ratified
by state legislatures between 1947 and
1951. When a new wave of amendments fi-
nally did appear, legislative
ratification proved once again to be the method regu-
larly employed and apparently the only
procedure given serious consideration.
The movement in the late 1960's to lower
the voting age created a situation remi-
niscent of 1919-1920. The Federal Voting
Rights Act of 1970 reduced the age for
45. Brown, Ratification of the
Twenty-first Amendment, 5-9.
46. The Twelfth Amendment was ratified
in 190 days in 1803-1804, but required the approval of only
twelve states. The Twenty-third
Amendment was ratified by thirty-eight states in 291 days in 1960-61.
All other amendments took longer to be ratified, anywhere
from eleven to forty-seven months. U.S.
Senate. Proposed Amendments to the
Constitution of the United States of America (S. Doc. 91-38, 91
Cong.. 1 Sess., 1969), 76-89.
47. Brown, Ratification of the
Twenty-first Amendment, 196, 280-281, 432-433.
48. Ibid., 330.
Ratification Controversies
169
voting in federal elections to eighteen
years. During 1970 eight states held referen-
dums on proposals to lower the state
suffrage age. In Colorado, Connecticut, Flor-
ida, Hawaii, Michigan, Oregon, and
Washington voters rejected such propositions,
while only in Alsaka did the electorate
approve. In December 1970 the Supreme
Court ruled that the 1970 federal act
did not prevent a state from setting a higher
age qualification in state elections.49
The prospect of a confused system loomed
large, with younger persons eligible to
participate only in federal elections.
In March 1971 the Senate Judiciary
Committee recommended a new suffrage
amendment, claiming, despite referendum
results of the previous year, "In recent
years, we have achieved a nationwide
political consensus favoring a lowering of the
voting age to 18." The Judiciary
Committee also recommended use of the "custom-
ary procedure" of legislative
ratification.50 On March 23 Congress submitted to the
state legislatures a proposed amendment
lowering the voting age to 18 years in all
elections. Within 100 days, the
necessary thirty-eight legislatures-including six of
the seven whose voters had only months
before rejected such a proposal-ratified
the Twenty-sixth Amendment. Curiously,
in light of the vociferous protests of the
1920's, no significant public outcry was
heard regarding this apparent flaunting of
the popular will.
Ohio, the focus of the 1920 controversy,
provided a vivid example of how con-
cerns had changed in a half century. In
1969, Ohio voters rejected by a vote of
1,274,334 to 1,226,592 a state
constitutional amendment to lower the voting age
from 21 to 19 years.51 When the General
Assembly considered the federal amend-
ment in June 1971, no one mentioned Hawke
v. Smith, and only two legislators
complained that ratification might
ignore the people's wishes. After the senate rati-
fied the amendment 30-2, the house
recognized that Ohio had an opportunity to
beat Oklahoma in a race for the
distinction of being the thirty-eighth and last state
to ratify. House leaders thereupon
called a special evening session, cut off debate
after only ten minutes, and hurriedly
won ratification of the amendment by a vote
of 81 to 9. No public complaint about
these procedures arose.52
Perhaps by the 1970's the convention
ratification system was a dead issue, impor-
tant only to the Founding Fathers who
created it and to the opponents of national
prohibition who briefly revived it. The
question nevertheless remains: should legis-
lators exercise their best judgment or
respond to the wishes of the people-assuming
that the two are not always identical?
No obligation exists, as it now stands, for
Congress or the state legislatures to
consult the people, much less respect their pref-
erences, in considering amendments to
the Constitution, such as the current Equal
Rights Amendment. However, it may be
worthwhile for both proponents and op-
ponents of future amendments to remember
that a convention system of ratifying
amendments did work effectively in a
twentieth century setting to provide a referen-
dum of sorts on constitutional change,
and that the procedure is still available if leg-
islators should ever care to consult the
electorate on amendments to the Con-
stitution.
49. U.S. Senate. Committee on the
Judiciary, Constitutional Amendments Subcommittee, Lowering the
Voting Age to 18: A Fifty-state
Survey of the Costs and Other Problems of Dual Age Voting [committee
print] (92 Cong.. 1 Sess., Washington,
1971), 22-49; Oregon v. Mitchell, 400 U.S. 112.
50. U.S. Senate, Committee on the
Judiciary, Lowering the Voting Age to 18 (92 Cong., 1 Sess., Report
92-26, Washington, 1971), 2, 5.
51. Ohio, Annual Report of the
Secretary of State, Election Statistics, 1969-1970 (Columbus, 1971), 7-8.
52. Akron Beacon Journal, July 1,
1971; Cincinnati Enquirer, July 1, 1971: Cleveland Plain Dealer,
June 30. 1971; Columbus Citizen
Journal, July 1, 1971. Only the Beacon Journal commented
editorially,
and it approved of ratification
wholeheartedly.