Hawke v. Smith, 253 U.S. 221; 40 S. Ct. 495; 64 L. Ed. 871 (1920)

Hawke v. Smith, 253 U.S. 221; 40 S. Ct. 495; 64 L. Ed. 871 (1920)

Facts—Hawke, a citizen of Ohio, sought to enjoin the secretary of state of Ohio from spending public money in preparing and printing ballots for a popular referendum on the ratification that the General Assembly had made of the proposed Eighteenth Amendment to the federal Constitution. The petition was sustained, and this judgment was affirmed by the Court of Appeals and Supreme Court of Ohio.

Question—Is the provision of the Ohio Constitution, extending the referendum to the ratification by the General Assembly of proposed amendments to the federal Constitution, in conflict with Article V of the Constitution of the United States?


ReasonsJ. Day (9–0). Article V of the federal Constitution says that “The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments 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 . . . when ratified by the legislatures of three-fourths of the several states, or by conventions in three- fourths thereof. ” Article V is for the purpose of establishing an orderly manner in which changes in the Constitution can be accomplished. Ratification by a state of a constitutional amendment is not an act of legislation in the proper sense of the word. It is but an expression of the assent of the state to a proposed amendment. 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 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 states and its people alike assent. The method of ratification is left to the choice of Congress. The determination of ratification is the exercise of a national power specifically granted by the Constitution. The language of Article V is plain. It is not the function of courts or legislative bodies, national or state, to alter methods that the Constitution has fixed.

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