The Supreme Court Speaks
Many eminent lawyers were convinced that even should the Federal Supreme Court declare referenda on federal amendments in general invalid, such decision would not apply to the State of Ohio, whose voters had amended the State constitution especially providing for referenda after ratification of all federal constitutional amendments. It was held that a decision declaring a referendum in Ohio unconstitutional would apply to all other States, but that the reverse would not be true—a viewpoint that lent additional interest and significance to the Ohio case.
The Ohio Supreme Court had handed down its opinion on September 30, 1919, that a referendum on the ratification of the prohibition amendment was valid. Although an appeal was promptly taken to the Federal Supreme Court, the drys of the State recognized that there was no time to secure an opinion before the November election, and therefore proceeded to wage a campaign of preparation for the election contest. After they had lost by less than 500 votes, they called for a recount, and opinion among their forces seems to have been divided as to whether to expend the time and money necessary to secure a statewide recount, or to wait for the Federal Supreme Court decision, which they believed would declare the referendum void. It was not generally believed, however, that this appeal of the Ohio drys was going to bring the much anticipated Federal decision, because the election it was supposed to prevent had already taken place; and whatever damage the Ohio taxpayer who brought the suit might suffer, on account of an unnecessary election, had already been suffered and the decision could give him no redress.
When the petitions were filed for a referendum on ratification of the suffrage amendment, George S. Hawke of Cincinnati, the man who had taken similar action in behalf of the prohibition amendment, filed a motion in the Court of Common Pleas, Franklin County, to enjoin the Secretary of State from putting the question on the ballot. By agreement he secured prompt action in the minor courts so that the case had passed through to the Supreme Court in the record-breaking time of one month. On November 11, 1919, that court announced its opinion as upholding the Franklin County Courts in refusing to enjoin the Secretary of State. Mr. Hawke promptly appealed his case to the Supreme Court of the nation.
Although there were a bewildering number of cases much advertised as on their way to the Supreme Court, and although all the appeals from the referenda decisions of State Supreme Courts were supposed to be on the calendar of the Federal Court, the facts were that when the Supreme Court took recess on November 21, 1919, the only cases involving the referenda which were actually on the federal calendar were the two Hawke cases from Ohio. The one, prohibition, was regarded as mooted; the other, suffrage, as premature, since in the eyes of the law the suffrage amendment had not been ratified and might never be.
Meanwhile the presidents of the National American Woman Suffrage Association and the Ohio auxiliary of the Association held a conference with Mr. Hawke in Cleveland on December 9, 1919.
Mr. Hawke was a young attorney connected with a group of the Prohibition party wing of the prohibition movement which had never come into unison with the Anti-Saloon League, the organization that was in control of the main campaign in Ohio and the nation. He had attempted to enjoin the Secretary of State on the prohibition amendment case without the consent or knowledge of the Anti-Saloon League, as he had attempted to enjoin in the suffrage case without the consent or knowledge of any suffrage association. He had allowed the National Anti-Saloon League to join with him in the argument on the referendum of the prohibition ratification before the State Supreme Court, but he had done so through courtesy, not choice. When asked why, without consultation with the suffrage leaders of Ohio, he had challenged the anti-suffrage petitions, he replied that the prohibition case which he had appealed to the Federal Supreme Court was weak, since the election had taken place, and he wished to strengthen it. He was not, however, averse to taking the National American Woman Suffrage Association into partnership on his undertaking, and an agreement was made that this would be done provided the counsel of the Association so advised.
The Hon. Charles E. Hughes had been engaged as the Association's Counsel—and no more able constitutional lawyer had the country produced. Mr. Hughes, Mr. Wayne Wheeler, the chief counsel for the National Anti-Saloon League, and the Federal Department of Justice, all advised that the Hawke case stood small chance of bringing forth the much coveted decision, but that that decision would come soon on some one of the numerous and seemingly far more important cases. Mr. Hawke was, therefore, informed that the tentative agreement would not be carried out. Mr. Hawke had neither money of his own nor many supporters who could provide the costs of the appeal to the Supreme Court, but he had faith in his case and that most valuable of American traits—stick-to-it-ive-ness. He took the matter up with J. Frank Hanley, one time Governor of Indiana, and for some years a fearless advocate of prohibition. He too had not yielded the prestige of the Prohibition Party leadership to the Anti-Saloon League. A small group had established “The Flying Squadron Foundation” which played an independent part in the prohibition drama. Mr. Hanley was an able lawyer and to him Mr. Hawke—young, unknown—made his appeal. There was no money to reward him, perhaps none for printing unless it could be gathered from friends, an always difficult task made more difficult by the fact that all the nation knew that the decision must soon be forthcoming anyway from one of the many cases coming up from other States.
Yet Mr. Hawke persuaded Mr. Hanley to join him, and on February 7, 1920, their briefs were filed with the Court. On February 25, reply briefs were filed with Attorney-General Price of Ohio as Counsel, and on June 2, 1920, to the amazement of all the most interested lookers on, the Supreme Court selected the Hawke cases upon which to send to the waiting nation the great decision, long expected and crucial. That decision was that there could be no State referenda on federal amendments.
The entire question was involved in the single query, “What is a Legislature?” Is it the small legislative body elected by the people or may the legislative function be extended to the people themselves as the initiative and referendum act extended it. The briefs of the Kentucky Distillers and Warehouse Company, the Liquor Dealers of New Jersey and, later, the State of New Jersey, the State of Rhode Island, and the appeals from State Supreme Court decisions, now wet, now dry, had all expended much time and space on the referendum proposition. Charles E. Hughes, on behalf of the twenty-two States (Rhode Island, Delaware, North Carolina, Kentucky, Louisiana, Indiana, Alabama, Maine, Arkansas, Michigan, Florida, Oregon, Kansas, West Virginia, Nevada, Nebraska, Montana, North Dakota, South Carolina, Wyoming, Utah, and Arizona) which as amici curiae filed briefs on the Rhode Island case, summed up the whole matter in masterly fashion.
The chief points of argument for the right of referendum on federal amendments were:
1. The Initiative and Referendum was unknown when the constitution was written, but it is the establishment of an enlarged Legislature created by the “will of the people.”
2. In the words of Attorney General Price of Ohio:
“The voters of the States have the power to abolish their General Assemblies and to take into their own hands all matters of legislation. Such authority as the Legislatures have to ratify amendments to the Federal Constitution is not mandatory but permissive.”
The State of Ohio did take from the Legislature some of its authority and vest it with the people when it established the Initiative and Referendum.
The chief points in the argument against the right of referendum on federal amendments were:
1. The Federal Constitution is the supreme law of the land and supersedes all State constitutions and State statutory laws in authority.
2. The Federal Constitution clearly indicates the method of its own amendment and this provides that an amendment must first be submitted by a two-thirds vote of the two houses of Congress and then must be ratified by the Legislatures of three-fourths of the States.
3. A vast amount of evidence has been gathered to show that the Federal Constitution clearly indicated the elected body known as Legislatures when it said Legislatures. The discussion which resulted in the adoption of the Federal Constitution made that point quite clear.
4. While the States have full authority to change their own constitution and laws in any manner they choose without consulting the Federal Government, they have no power to change the meaning of the Federal Constitution and since the Federal Constitution has never been amended so as to give authority to any State to choose a different method of ratification of a Federal Amendment than that prescribed by the constitution itself, the interpretation of the meaning of the word Legislature today is precisely the same as that in existence when the Constitution was written.
5. In the opinion rendered by the U. S. District Court of New Jersey is the following:
“In Article V two methods are authorized for the ratification of amendments, one by convention and the other by Legislatures. If the method by convention had been chosen, would the ratifying action by the convention have been subject to a referendum vote by the people? Manifestly not, if the express language of the Constitution is conclusive. And if not, where is the warrant for holding that ratification by the Legislatures requires such a referendum vote?”
6. To those who hold that the Initiative and Referendum laws may be held as having control over the Federal Constitution, the question is directed as to whether the people of any State could initiate a Federal Amendment. By common consent it is agreed that this was not within the intent of the law. If one part of the law fails in application to federal matters, how can the other be held to be applicable? “The Federal Constitution, and not the constitutions of the several States, controls the method by which the U. S. Constitution may be amended.”
The decision was announced in glaring headlines from ocean to ocean, and followed by editorial comment by all the leading newspapers of the country. Mr. Hanley's own paper, The National Enquirer (Indianapolis), said:
“The Supreme Court of the United States has spoken, and its words were double-charged; charged with life and death, life for the two great amendments to the Federal Constitution—the Eighteenth, the prohibition amendment, and the Nineteenth, the woman suffrage amendment—and death to every State referendum endeavor—legislative or constitutional—having for its purpose the change of the method of amendment of the Constitution or the placing of a limitation upon the ratifying power of a State Legislature.
“In the judgment it has rendered in the two cases of George S. Hawke vs. Harvey C. Smith, Secretary of State of Ohio, it has written ‘Finis’ upon the grave of the hopes of the wet interests so far as they were based upon State referendums of legislative ratification of either of these amendments.
“The decision is of vast importance, not only because of its conclusiveness as to these amendments, but as to all future amendments which may be submitted, and because of its reiteration of the supremacy of the National Covenant....
“The decision blasts the most substantial hope the wet interests had. The cases were defended by a great array of able counsel especially employed by the liquor interests, and the litigation contested with stubborn determination and by the exercise of every resource and skill of learning and experience they possessed....
“Eminent counsel had advised that no decision could be had on the merits of the cases for lack of jurisdictional facts. The law officers of the Government, when invited to appear and assist in the presentation of the cases, had declined to do so because of what, in their judgment, was lack of jurisdiction.
“All in all, it is a signal victory for Mr. Hawke, the plaintiff in error; for counsel; for the causes whose fate was so intimately involved; for the American people, and for their unborn posterity.”
At last the threatened referenda on the suffrage amendment were no longer legally possible. Maine had not filed petitions, as its own State Court had declared them illegal. The petition in Massachusetts was thrown out because of insufficiency in number of names. Missouri let the time limit for filing petitions pass and it is uncertain whether they were ever circulated. In Texas the primary law had been declared constitutional by the Supreme Court, as had been the presidential suffrage law in Nebraska. With ratification completed, the referenda filed on presidential suffrage in Ohio and Maine became futile, and even aside from ratification, the Supreme Court of the nation would without doubt declare referenda on presidential suffrage unconstitutional, as the authority for it was likewise drawn from the federal Constitution. One by one, the legal attacks fell away from the amendments like barnacles from a ship in fresh water. The opponents sent forth more publicity, in which they angrily warned the nation that should another State ratify and the women be thereby allowed to vote in the coming election, the entire presidential election would have to be thrown out, since they were still prepared to invalidate the amendment. As the method for so doing was not clearly revealed, the threats, although widely published, were accepted as expressions of temper on the part of supporters of a fast losing cause.
The decision of the Supreme Court did more than clear the suffrage field of legal entanglements, it pointed to the door of the thirty-sixth State and toward this door suffragists turned with hurrying feet.