DEPARTMENT OF STATE

OFFICE OF THE SOLICITOR

MEMORANDUM

February 15, 1913
Ratification of the 16th Amendment to the Constitution
of the United States

The Secretary has referred to the Solicitor's Office for determination the question whether the notice of ratification by the several states of the proposed 16th amendment to the Constitution are in proper form, and if they are found to be in proper form, it is requested that this office prepare the necessary announcement to be made by the Secretary of State under Section 205 of the Revised Statutes.

The 61st Congress of the Unites States, at the first session thereof, passed the following resolution which was deposited in the Department of State July 31, 1909.

"Resolved by the Senate and House of Representative of the United States of America in Congress assembled (two-thirds of each house concurring therein), that the following article is proposed as an amendment to the Constitution of the United States, which, when ratified by the legislatures of three-fourths of the several States, shall be valid to all intents and purposes as a part of the Constitution."

On July 27, 1909, the following concurrent resolution was passed by Congress:

"Resolved by the Senate (The House of Representatives concurring), That the President of the United States be requested to transmit forthwith to the executives of the several States of the United States copies of the article of amendment proposed b y Congress to the State legislatures to amend the Constitution of the United States, passed July twelfth, nineteen hundred and nine, respecting the power of Congress to lay and collect taxes on income, to the end that the said States may proceed to act upon the said article of amendment: and that he request the executive of each state that may ratify said amendment to transmit to the Secretary of State a certified copy of such ratification."

On July 24, 1909, being the day before the above resolution was passed, the Secretary of State sent to the Governors of the several States certified copies of the joint resolution of Congress proposing the 16th amendment to the Constitution with the following letter of transmission:

"I have the honor to enclose a certified copy of a resolution of Congress, entitled "Joint Resolution Proposing an Amendment to the Constitution of the United States." with the request that you pass the same to be submitted to the Legislature of your State for such action as may be had, and that a certified copy of such action be communicated to the Secretary of State, as required by Section 205, Revised Statutes of the United States. (See overleaf.) (Note: Reference here is to R. S. Sec. 205 which is quoted infra.)

"An acknowledgment of the receipt of this communication is requested."

Section 205 of the Revised Statutes provides:

"Whenever official service is received at the Department of State that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published in the newspapers authorized to promulgate the laws, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the constitution of the United States."

The Department has received information from forty-two states with reference to the action taken by the legislatures of those states on the resolution of Congress proposing the 16th amendment to the Constitution. It appears from this information that four states (Connecticut, New Hampshire, Rhode Island, and Utah) have rejected the amendment. The remaining thirty-eight states have taken action purporting to ratify the amendment, the State of Arkansas being one of these states. Although the Governor of Arkansas had previously notified the Department that the legislature of that state had refused to ratify the amendment. Information was subsequently received indicating that the legislature had reconsidered this action and voted to ratify the proposed amendment.

In all cases in which the legislatures appear to have acted favorably upon the proposed amendment, either the Governor or some other state official has transmitted to the Department a certified copy of the resolution passed by the particular legislature, except in the case of Minnesota, in which case the secretary of the Governor merely informed the Department that the state legislature had ratified the proposed amendment and that the Governor had approved the ratification.

The following list shows the order in which the amendment was ratified by the legislatures of the various states, the date given being the date upon which the resolution was passed by the legislature, or if this information does not appear on the certified copy of the resolution on file in the Department, the date indicated is that upon which the resolution of the state legislature was approved by the Governor:

Alabama August 17, 1909 Approved Doesn't appear whether Governor signed
Kentucky February 6 or 9, 1910 Date passed by legislature Not signed by Governor - Legislature acted on resolution of Congress before it was transmitted to it by Governor
South Carolina February 19, 1910 Date passed by legislature Signed by Governor
Illinois March 1, 1910 Date passed by legislature Not signed by Governor
Mississippi March 7, 1910 Date passed by legislature Signed by Governor
Oklahoma March 14, 1910 Date signed by Governor
Maryland April 8, 1910 Approved Not signed by Governor
Georgia August 3, 1910 Approved Doesn't appear whether Governor signed
Texas August 17, 1910 Date signed by Governor
Ohio January 19, 1911 Adopted Doesn't appear whether signed by Governor - likely not
Idaho January 23, 1911 Date passed by Legislature Not signed by Governor
Oregon January 25, 1911 Date passed by Legislature Not signed by Governor
Washington January 25,1911 Date passed by Legislature Not signed by Governor
California January 31, 1911 Date passed by Legislature Doesn't appear Governor signed
Montana January 31, 1911 Date signed by Governor
Indiana February 6, 1911 Date signed by Governor
Nevada February 8, 1911 Approved Approved
North Carolina February 11, 1911 Date passed by Legislature Not signed by Governor
Nebraska February 11, 1911 Date signed by Governor
Kansas February 18, 1911 Date passed by legislature Signed by Governor
Colorado February 20, 1911 Date signed by Governor
North Dakota February 21, 1911 Date signed by Governor
Michigan February 23, 1911 Date passed by Legislature Not signed by Governor but is attested by Governor
Iowa February 27, 1911 Date signed by Governor
Missouri March 16, 1911 Date passed by Legislature Doesn't appear Governor signed
Maine March 31, 1911 Date passed by legislature Signed by Governor
Tennessee April 7, 1911 Date passed by legislature Signed by Governor
Arkansas April 22, 1911 Date passed by Legislature Governor vetoed June 1, 1912 - Governor informed Secretary of State Legislature had failed to pass resolution
Arkansas March 28, 1911 So first rejected and subsequently ratified
Wisconsin May 26, 1911 Date received by Secretary of State of Wisconsin Not signed by Governor
New York July 12, 1911 Date passed by legislature Signed by Governor
South Dakota February 3, 1912 Dated filed by Secretary of State Not signed by Governor - No date of adoption given
Arizona April 9, 1912 Not clear is date passed by Legislature or signed by Governor
Minnesota June 11, 1912 Date passed by legislature Signed by Governor - Secretary of Governor informs Department and no resolution of Legislature enclosed
Louisiana July 1, 1912 Date passed by legislature Signed by Governor
Delaware February 3, 1913 Date passed by legislature Not signed by Governor
Wyoming February 3, 1913 Doesn't appear whether date passed by Legislature or signed by Governor Signed by Governor
New Jersey February 5, 1913 Date signed by Governor
New Mexico February 5, 1913 Date signed by Governor

Ratification by Arkansas. Power of the Governor to Veto.

It will be observed from the above record that the Governor of the State of Arkansas vetoed the resolution passed by the legislature of that State. It is submitted, however, that this does not in any way invalidate the action of the legislature or nullify the effect of the resolution, as it is believed that the approval of the governor is not necessary and that he has not the power of veto in such cases. (See Solicitor's memorandum on this subject dated April 20, 1911.)

Power of a State to Ratify after having once Rejected the Proposed Amendment

It will also be observed that Arkansas Ratified the Proposed 16th Amendment after having previously rejecting it. It would appear that the Legislature of a State may act adversely any number of times and it still has the right to act favorably, and the ratification is as valid as if it had never acted adversely on the question. New Jersey ratified the 13th Amendment after having rejected it. In the case of the 14th Amendment, four States acted similarly (North Carolina, South Carolina, Georgia, and Virginia).

In all these cases the States which had taken action ratifying the various amendments before the Secretary's announcement was made were included by the Secretary in the list of States ratifying.

In the case of the 14th Amendment, all the States mentioned above except Virginia, which State ratified the Amendment after the Secretary's announcement was made, were included in the declaration of the Secretary of State. (See Solicitor's Memorandum on the subject of Kentucky's ratification of the 16th Amendment, dated March 21, 1912.)

Kentucky's Ratification

It is to be noted that the Kentucky Legislature passed a resolution ratifying the proposed 16th Amendment before a copy of the resolution of Congress was transmitted to that body by the governor, and that when the governor received the certified copy of the Joint Resolution of Congress from the Secretary of State and transmitted it to the Legislature, the latter refused to act on it. Inasmuch as there is no statute or other law or Congressional action which might properly be regarded as preventing the legislature's acting upon the resolution of Congress proposing an Amendment to the Constitution until a copy of the Resolution has been sent by the Secretary of State to the governor and until the latter officer has transmitted it to the legislature. It is believed that the legislature of Kentucky has validly ratified the proposed 16th Amendment. (See Solicitor's Memorandum on the subject of Kentucky's ratification of the 16th Amendment, dated March 21, 1912.)

Errors in Resolutions of State Legislatures in quoting the Proposed 16th Amendment

In the certified copies of the resolutions passed by legislators of the states ratifying the proposed 16th amendment, it appears that only four of those resolutions (those submitted by Arizona, North Dakota, Tennessee, and New Mexico) have quoted absolutely accurately and correctly the 16th amendment as proposed by Congress. The other thirty-three resolutions all contain errors either of punctuation, capitalization, or wording. Minnesota, it is to be remembered, did not transmit to the department a copy of the resolution passed by the legislature of that state. The resolutions passed by twenty-two states contain errors only of capitalization and punctuation, or both, while those of eleven states contain errors in the wording. The following is a list of the states indicating the errors made.

Alabama Error of punctuation
Kentucky Errors of punctuation and capitalization
South Carolina Error of capitalization
Illinois Error of capitalization - "remuneration" instead of "enumeration"
Mississippi "The" omitted before "Congress" - errors of punctuation and capitalization "of" instead of "or" before "enumeration"
Oklahoma Error of capitalization - "from" used instead of "without regard to" before "any"
Maryland Error of punctuation
Georgia "Levy" used instead of "lay" - errors in punctuation - "sources" instead of "source" - "income" instead of "incomes"
Texas Error of punctuation
Ohio Error of capitalization
Idaho Error of capitalization - "of" instead of "or" before "enumeration"
Oregon Error of capitalization
Washington Errors of capitalization and punctuation - "income" instead of "incomes"
California “The” omitted before “Congress” - “any” before “census” and “or” before “enumeration” omitted - errors of punctuation and capitalization.
Montana Errors of capitalization
Indiana Error of capitalization
Nevada Errors of punctuation and capitalization
North Carolina Errors of punctuation and capitalization
Nebraska Error of capitalization
Kansas Error of capitalization
Colorado Error of punctuation
North Dakota No errors
Michigan Error of capitalization
Iowa Error of capitalization
Missouri Error of capitalization - "levy" instead of "lay"
Maine Errors of punctuation and capitalization
Tennessee No errors
Arkansas "The" before "Congress" omitted - "the" before "power" inserted - Errors of punctuation and capitalization
Wisconsin Errors of capitalization
New York Errors of punctuation and capitalization
South Dakota "The" before "Congress" omitted - Errors of punctuation and capitalization
Arizona No errors
Minnesota Resolution of the State Legislature not filed with the Department
Louisiana Error of punctuation
Delaware "Article XVI" omitted - Errors of punctuation
Wyoming Errors of punctuation and capitalization
New Jersey Error of capitalization
New Mexico No errors

A careful examination of the resolutions of the various states on file in the Department, ratifying the 15th Amendment to the Constitution shows that there are many errors of punctuation and capitalization and some, although not substantial, errors of wording, in quoting the article proposed by Congress as shown in the following list.

Article XV

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have the power to enforce this article by appropriate legislation.

New Jersey Capital letters omitted.Capital letters omitted
Minnesota Several errors of capitalization and punctuation
Georgia The word "or" is written in after the word "race" but is marked out with pencil.
Ohio Errors of punctuation
Kansas Errors of capitalization; Section 2 - Wording entirely wrong as follows: "The Congress, by appropriate legislation may enforce the provisions of this article." Kansas ratified as above in February 1869, but in January of 1870, appears to have ratified - again, copying the amendment correctly.
Rhode Island The word "rights" is used instead of the word "right", and there are errors of capitalization. These errors appear in one copy filed in the Department, but there is a second copy which is entirely correct.
Mississippi Errors of punctuation
Missouri Errors of capitalization
Vermont Errors of capitalization
Florida Errors of capitalization and punctuation
Connecticut Errors of punctuation, commas, omitted.
Indiana The word "the" is inserted before the word "citizens"
New York The word "the" is inserted before the word "citizens"
Pennsylvania Errors of punctuation, commas, omitted
South Carolina Errors of punctuation, commas, omitted
Wisconsin Capital letter omitted and the word “the” inserted
Michigan Errors of capitalization and punctuation
Illinois Errors of punctuation, commas, omitted
Louisiana The word "by" is omitted before the word "any" in the original, but is inserted in pencil - errors of capitalization
West Virginia Errors of capitalization
Nevada Errors of capitalization
North Carolina Error of punctuation; comma inserted after the word "state"

In the resolutions of the state legislatures on file in the Department ratifying the 14th Amendment to the Constitution, there are many errors of punctuation, capitalization, and wording, some of the errors in wording being substantial errors, as will appear from the following list.

Article XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of Electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or Elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Connecticut Errors of punctuation and capitalization - "and" for "any" after "pay" - Section 4
New Hampshire Errors of punctuation and capitalization - "the" for "a" after "of" and before "state" - Section 2; "of" inserted between "but" and "all" - Section 4
Tennessee Errors of punctuation and capitalization
New Jersey Errors of punctuation and capitalization
Oregon Errors of punctuation and capitalization
Vermont Errors of punctuation and capitalization - "that" for "the" - Section 5
New York Errors of punctuation and capitalization - "or" for "and" between "executive" and "judicial" - Section 2; "or" for "and" between "President" and "Vice President" - Section 3
Ohio Errors of punctuation and capitalization; "or" for "and" between "President" and "Vice President" - Section 3
Illinois Errors of punctuation and capitalization
West Virginia Errors of punctuation and capitalization - "for" for "of" between "elector" and "President" - Section 3; "rebellion or" inserted between "in" and "insurrection"; "or bounties" omitted after "pensions" - Section 4
Kansas Errors of punctuation and capitalization
Maine Errors of punctuation and capitalization
Nevada Errors of punctuation and capitalization - "being" inserted between "and" and "citizens" - Section 2; "or" instead of "and" between "obligations" and "claims" - Section 4; "The" omitted before "Congress" - Section 5
Missouri Errors of punctuation and capitalization
Indiana Errors of punctuation and capitalization; "or" for "nor" between "States" and "any" - Section 4; "claim" for "claims" between "any" and "for" - Section 4
Minnesota Errors of punctuation and capitalization
Rhode Island Errors of punctuation and capitalization - "or" for "and" between "executive" and "judicial" - Section 2; "to" for "or" between "assume" and "pay" - Section 4
Wisconsin Errors of punctuation and capitalization - "numbers" for "number" between "jurisdiction" and "counting" - Section 2; "whenever" for "when" between "but" and "the" - Section 2; "the choice of" omitted between "for" and "electors" - Section 2; "of" for "for" between "electors" and "president" - Section 2; "of the United States" omitted between "Vice President" and "Representative" - Section 2; "or for United States" inserted before "Representative" - Section 2; "the" omitted before "executive" - Section 2; "or" for "and" between "Executive" and "Judicial" - Section 2; "of a state" omitted after "Judicial Officers" - Section 2; "to" for "in" between "reduced" and "the" - Section 2: Section 2 is erroneously quoted "Representatives shall be apportioned among the several States according to their respective number, counting the whole number of persons in each State, excluding Indians not taxed. But whenever the right to vote at any election for Electors of President and Vice-President, or for Unites States Representatives in Congress, Executive or Judicial officers, or members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States or in any way abridged except for participation in rebellion or other crimes the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State"; "Or" for "and" between "President" and "Vice-President" - Section 3; "or as an officer of the United States omitted between "Congress" and "or" - Section 3; "vote of two thirds" changed to "a two thirds vote"; "the" inserted between "for" and "payment"; "the: inserted after "suppressing" - Section 4; "that" for "the" - Section 5
Pennsylvania Errors in punctuation and capitalization; "laws" for "law" where the word first appears in Section 1; "law" for "laws" last word - Section 1; "or" for "nor" between "states" and "any" where the word first appears in Section 4
Michigan Errors in punctuation - "or" for "and" between "President" and "Vice-President" - Section 3
Massachusetts Errors in punctuation and capitalization - "the members of" omitted before "the legislature" - Section 2; "therein" omitted between "representation" and "shall" - Section 2; "such" for "male" before "citizens" where the latter word last appears in Section 2; "or" for "and" between "President" and "Vice-President" - Section 3
Nebraska Errors in punctuation and capitalization - "any" inserted before "electors" - Section 2; "or" for "and" between "President" and "Vice-President" - Section 3
Iowa Errors in punctuation and capitalization - "abridge" for "abridged" after "way" - Section 2
Arkansas Errors in punctuation and capitalization - "or" for "and" between "President" and "Vice-President" - Section 3. "or under any state" omitted after "United States" - Section 3; In a second copy of the resolution, the proposed amendment is copied correctly so far as the wording is concerned, but there are errors in punctuation and capitalization. In Section 2 there is a period after "numbers" and "counting" is commenced with a capital letter
Florida Errors in punctuation and capitalization - "First" is substituted for "Article 1"; "Second" is substituted for "Article 2"; "Third" is substituted for "Article 3"; "Fourth" is substituted for :Article 4"; "Fifth" is substituted for "Article 5"; "of" omitted before "the state" in first sentence - Section 3; "or" for "and" between "President" and "Vice-President" - Section 3; "and" for "or" between "aid" and "comfort" - Section 3
North Carolina Errors in punctuation and capitalization; "the" omitted before "Executive" - Section 2; "and" for "or" between "aid" and "comfort" - Section 3
Louisiana Errors in punctuation and capitalization - "be as" for bear after "shall" - Section 2
South Carolina Errors in punctuation and capitalization - "the members of" omitted before "the legislature" - Section 2; "therein" omitted after "representation" - Section 2; "such" for "male" before "citizens" where the latter word last appears in Section 2; "or" for "and" between "President" and "Vice-President" - Section 3; "the" inserted before "payment" - Section 4
Alabama Errors in punctuation and capitalization - "Legislatures" for "Legislature" - Section 2
Georgia Errors in punctuation and capitalization - "Section 1st for Section 1"; "Section 2nd for Section 2"; "Section 3rd for Section 3"; "Section 4th for Section 4"; "Section 5th for Section 5"; "the" inserted before "citizens" where the latter word appears in Section 1, but crossed out by pencil; "rendered" for "reduced" - Section 2, but crossed through with pencil and "reduced" inserted in pencil; "and" for "or" between "aid" and "comfort" - Section 3; In a second copy of the resolution on file in the Department "the" is not inserted before "citizens" as above indicated; there is no error in the word "reduced" in this second copy - Section 2; nor in the word "or" between "aid" and "comfort". In a third copy of the resolution filed in the Department, the Sections are correctly indicated
Virginia Errors in punctuation and capitalization - "and" for "or" between "aid" and "comfort" - Section 3; "and" for "or" between "insurrection" and "rebellion" - Section 4; "or" for "and" between "obligations" and "claims" - Section 4
Mississippi Errors in punctuation and capitalization; "way" omitted before "abridged" but inserted in blue pencil - Section 2; "crimes" for "crime" - Section 2; "for" instead of "of" after "elector" - Section 3, but inserted in blue pencil; "to" instead of "shall" before "have engaged" - Section 3, but inserted in blue pencil; "held: omitted before "illegal" - Section 4, but inserted in blue pencil
Texas Errors in punctuation and capitalization - "or under any state" omitted - Section 3

At the time the 14th Amendment was adopted, there were thirty-seven states in the union, therefore twenty-eight were necessary to make up the required three-fourths necessary to ratify an Amendment to the Constitution. The first thirty states above mentioned were all included in the declaration of the Secretary of State announcing the adoption of the 14th Amendment. The three latter States were not included in that declaration.

It will be observed that there were many substantial errors of wording in the resolutions of the state legislatures upon which the Secretary of State acted in issuing his declaration announcing the adoption and the ratification by the states of the 14th Amendment to the Constitution. As, by announcing the ratification of the 14th Amendment the Executive Branch of the Government ruled that these errors were immaterial to the adoption of the amendment, and further as this amendment has been repeatedly before the courts, and has by them been enforced, it is clear that the procedure in ratifying that amendment constitutes on this point a precedent which may be properly followed in proclaiming the adoption of the present amendment, that is to say, that the Secretary of State may disregard the errors contained in the certified copies of the resolutions of the legislatures acting affirmatively on the proposed amendment.

It should, moreover, be observed that it seems clearly to have been the intention of the legislature in each and every case to accept and ratify the 16th Amendment as proposed by Congress. Again, the incorporation of the terms of the proposed amendment in the ratifying resolution seems in every case merely to have been by way of recitation. In no case has any legislature signified in any way its deliberate intention to change the wording of the proposed amendment. The errors appear to have been merely typographical and incident to an attempt to make an accurate quotation.

Furthermore, under the provisions of the Constitution a legislature is not authorized to alter in any way the amendment proposed by Congress, the function of the legislature consists merely in the right to approve or disapprove the proposed amendment. It, therefore, seems a necessary presumption, in the absence of an express stipulation to the contrary, that a legislature did not intend to do something that it had not the power to do, but rather that it intended to do something that it had the power to do, namely, where its action has been affirmative, to ratify the amendment proposed by Congress. Moreover, it could not be presumed that a mere change of wording probably inadvertent, the legislature had intended to reject the amendment as proposed by Congress where all parts of the resolution other than those merely reciting the proposed amendment had set forth an affirmative action by the legislature. For these reasons it is believed that the Secretary of State should in the present instance include in his declaration announcing the adoption of the 16th amendment to the Constitution the states referred to notwithstanding it appears errors exist in the certified copies of the Resolution passed by the legislatures of those States ratifying such amendment.

It is recommended, therefore, that the Secretary issue his declaration announcing the adoption of the 16th Amendment to the Constitution.

PDK/JBB/JHP

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