Under the Constitution, Art. V, a proposed amendment can be
ratified by two methods only -- by the legislatures of
three-fourths of the states or by conventions in three-fourths of
the states, the choice of method being left to Congress. P.
253 U. S.
The term "legislatures," as used here and elsewhere in the
Page 253 U. S. 222
means the deliberative, representative bodies that make the law
for the people of the respective states; the Constitution make no
provision for action upon such proposals by the people directly. P.
253 U. S.
The function of a state legislature in ratifying a proposed
amendment to the federal Constitution, like the function of
Congress in proposing such amendments, is a federal function,
derived not from the people of that state, but from the
Constitution. P. 253 U. S.
The ratification of a proposed amendment to the federal
Constitution by the legislature of a state is not an act of
legislation in the proper sense of the word; it is but the
expression of the assent of the state to the proposed amendment. P.
253 U. S. 229
Davis v. Hildebrant, 241 U. S. 565
The action of the General Assembly of Ohio ratifying the
proposed Eighteenth Amendment cannot be referred to the electors of
the state, the provisions of the state constitution requiring such
a referendum being inconsistent with the Constitution of the United
States. P. 253 U. S. 231
100 Ohio St. 385 reversed.
The case is stated in the opinion.
Page 253 U. S. 224
MR. JUSTICE DAY delivered the opinion of the Court.
Plaintiff in error (plaintiff below) filed a petition for an
injunction in the Court of Common Pleas of Franklin County, Ohio,
seeking to enjoin the Secretary of State of Ohio from spending the
public money in preparing and printing forms of ballot for
submission of a referendum to the electors of that state on the
question of the ratification which the General Assembly had made of
the proposed Eighteenth Amendment to the federal Constitution. A
demurrer to the petition was sustained in the court of common
pleas. Its judgment was affirmed by the Court of Appeals of
Franklin County, which judgment was affirmed by the Supreme Court
of Ohio, and the case was brought here.
A joint resolution proposing to the states this amendment to the
Constitution of the United States was adopted on the third day of
December, 1917. The amendment prohibits the manufacture, sale or
Page 253 U. S. 225
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. The
several states were given concurrent power to enforce the amendment
by appropriate legislation. The resolution provided that the
amendment should be inoperative unless ratified as an amendment of
the Constitution by the legislatures of the several states, as
provide in the Constitution, within seven years from the date of
the submission thereof to the states. The Senate and House of
Representatives of the state of Ohio adopted a resolution ratifying
the proposed amendment by the General Assembly of the state of
Ohio, and ordered that certified copies of the joint resolution of
ratification be forwarded by the Governor to the Secretary of State
at Washington and to the presiding officer of each House of
Congress. This resolution was adopted on January 7, 1919; on
January 27, 1919, the Governor of Ohio complied with the
resolution. On January 29, 1919, the Secretary of the United States
proclaimed the ratification of the amendment, naming thirty-six
states as having ratified the same, among them the State of
The question for our consideration is whether the provision of
the Ohio Constitution, adopted at the general election, November,
1918, extending the referendum to the ratification by the General
Assembly of proposed amendments to the federal Constitution is in
conflict with Article V of the Constitution of the United States.
The amendment of 1918 provides:
"The people also reserve to themselves the legislative power of
the referendum on the action of the General Assembly ratifying any
proposed amendment to the Constitution of the United States."
Article V of the federal Constitution provides:
"The Congress, whenever two-thirds of both houses shall deem it
necessary, shall propose amendments
Page 253 U. S. 226
to this Constitution, or, on the application of the legislatures
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
of ratification may be proposed by the Congress, provided that no
amendment which may be made prior to the year one thousand eight
hundred and eight shall in any manner affect the first and fourth
clauses in the ninth section of the first article, and that no
state, without its consent, shall be deprived of its equal suffrage
in the Senate."
The Constitution of the United States was ordained by the
people, and, when duly ratified, it became the Constitution of the
people of the United States. McCulloch v.
4 Wheat. 316, 17 U. S. 402
The states surrendered to the general government the powers
specifically conferred upon the nation, and the Constitution and
the laws of the United States are the supreme law of the land.
The framers of the Constitution realized that it might, in the
progress of time and the development of new conditions, require
changes, and they intended to provide an orderly manner in which
these could be accomplished; to that end, they adopted the fifth
This article makes provision for the proposal of amendments
either by two-thirds of both houses of Congress or on application
of the legislatures of two-thirds of the states, thus securing
deliberation and consideration before any change can be proposed.
The proposed change can only become effective by the ratification
of the legislatures of three-fourths of the states or by
conventions in a like number of states. The method of ratification
is left to the choice of Congress. Both methods of ratification, by
legislatures or conventions, call for
Page 253 U. S. 227
action by deliberative assemblages representative of the people,
which it was assumed would voice the will of the people.
The Fifth Article is a grant of authority by the people to
Congress. The determination of the method of ratification is the
exercise of a national power specifically granted by the
Constitution; that power is conferred upon Congress, and is limited
to two methods, by action of the legislatures of three-fourths of
the states, or conventions in a like number of states.
18 How. 331, 59 U. S. 348
The framers of the Constitution might have adopted a different
method. Ratification might have been left to a vote of the people,
or to some authority of government other than that selected. The
language of the article is plain, and admits of no doubt in its
interpretation. It is not the function of courts or legislative
bodies, national or state, to alter the method which the
Constitution has fixed.
All of the amendments to the Constitution have been submitted
with a requirement for legislative ratification; by this method all
of them have been adopted.
The only question really for determination is what did the
framers of the Constitution mean in requiring ratification by
"legislatures"? That was not a term of uncertain meaning when
incorporated into the Constitution. What it meant when adopted it
still means for the purpose of interpretation. A legislature was
then the representative body which made the laws of the people. The
term is often used in the Constitution with this evident meaning.
Article I, § 2, prescribes the qualifications of electors of
Congressmen as those "requisite for electors of the most numerous
branch of the state legislature." Article I, § 3, provided that
Senators shall be chosen in each state by the legislature thereof,
and this was the method of choosing senators until the adoption of
the Seventeenth Amendment, which made
Page 253 U. S. 228
provision for the election of Senators by vote of the people,
the electors to have the qualifications requisite for electors of
the most numerous branch of the state legislature. That Congress
and the states understood that this election by the people was
entirely distinct from legislative action is shown by the provision
of the amendment giving the legislature of any state the power to
authorize the executive to make temporary appointments until the
people shall fill the vacancies by election. It was never
suggested, so far as we are aware, that the purpose of making the
office of senator elective by the people could be accomplished by a
referendum vote. The necessity of the amendment to accomplish the
purpose of popular election is shown in the adoption of the
amendment. In Article IV, the United States is required to protect
every state against domestic violence upon application of the
legislature, or of the executive when the legislature cannot be
convened. Article VI requires the members of the several
legislatures to be bound by oath or affirmation to support the
Constitution of the United States. By Article I, § 8, Congress is
given exclusive jurisdiction over all places purchased by the
consent of the legislature of the state in which the same shall be.
Article IV, § 3, provides that no new states shall be carved out of
old states without the consent of the legislatures of the states
There can be no question that the framers of the Constitution
clearly understood and carefully used the terms in which that
instrument referred to the action of the legislatures of the
states. When they intended that direct action by the people should
be had, they were no less accurate in the use of apt phraseology to
carry out such purpose. The members of the House of Representatives
were required to be chosen by the people of the several states.
Article I, § 2.
The Constitution of Ohio, in its present form, although
Page 253 U. S. 229
making provision for a referendum, vests the legislative power
primarily in a General Assembly, consisting of a Senate and House
of Representatives. Article II, § 1, provides:
"The legislative power of the state shall be vested in a General
Assembly consisting of a Senate and House of Representatives, but
the people reserve to themselves the power to propose to the
General Assembly laws and amendments to the Constitution, and to
adopt or reject the same at the polls on a referendum vote as
The argument to support the power of the state to require the
approval by the people of the state of the ratification of
amendments to the federal Constitution through the medium of a
referendum rests upon the proposition that the federal Constitution
requires ratification by the legislative action of the states
through the medium provided at the time of the proposed approval of
an amendment. This argument is fallacious in this -- 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.
At an early day, this Court settled that the submission of a
constitutional amendment did not require the action of the
President. The question arose over the adoption of the Eleventh
Amendment. Hollingsworth v.
3 Dall. 378. In that case, it was
contended that the amendment had not been proposed in the manner
provided in the Constitution, as an inspection of the original roll
showed that it had never been submitted to the President for his
approval in accordance with Article I, § 7, of the Constitution.
The Attorney General answered that the case of amendments is a
substantive act, unconnected with the ordinary business of
legislation, and not within the policy or terms of the Constitution
Page 253 U. S. 230
the President with a qualified negative on the acts and
resolutions of Congress. In a footnote to this argument of the
Attorney General, Justice Chase said:
"There can, surely, be no necessity to answer that argument. The
negative of the President applies only to the ordinary cases of
legislation. He has nothing to do with the proposition or adoption
of amendments to the Constitution."
The Court, by a unanimous judgment, held that the amendment was
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
by the state derives its authority from the federal Constitution,
to which the state and its people have alike assented.
This view of the amendment is confirmed in the history of its
adoption found in 2 Watson on the Constitution, 1301 et
Any other view might lead to endless confusion in the
manner of ratification of federal amendments. The choice of means
of ratification was wisely withheld from conflicting action in the
But, it is said, this view runs counter to the decision of this
Court in Davis v. Hildebrant, 241 U.
. But that case is inapposite. It dealt with
Article I § 4, of the Constitution, which provides that the times,
places, and manners of holding elections for Senators and
Representatives in each state shall be determined by the respective
legislatures thereof, but that Congress may at any time make or
alter such regulations, except as to the place for choosing
Senators. As shown in the opinion in that case, Congress had itself
recognized the referendum as part of the legislative authority of
the state for the purpose stated. It was held, affirming the
judgment of the Supreme Court of Ohio, that the referendum
provision of the state constitution, when applied to a law
redistricting the state with a
Page 253 U. S. 231
view to representation in Congress, was not unconstitutional.
Article I, § 4, plainly gives authority to the state to legislate
within the limitations therein named. Such legislative action is
entirely different from the requirement of the Constitution as to
the expression of assent or dissent to a proposed amendment to the
Constitution. In such expression, no legislative action is
authorized or required.
It follows that the court erred in holding that the state had
authority to require the submission of the ratification to a
referendum under the state constitution, and its judgment is
reversed and the cause remanded for further proceedings not
inconsistent with this opinion.