HAWKE v. SMITH
The Ohio General Assembly ratified the Eighteenth Amendment in January 1919, and was one of the thirty-six states that did so. The Ohio Constitution, in a 1918 amendment, provided that amendments to the United States Constitution would be subject to a statewide referendum after ratification by the General Assembly. Consistent with this requirement, the Ohio Secretary of State, Harvey Smith, began to print and issue ballots for the referendum. George Hawke challenged the validity of amendment to the Ohio Constitution and sought to have Smith stop the issuing of ballots. He alleged that the Ohio amendment conflicted with Article Five of the United States Constitution, which specified that amendments would be ratified by state legislatures. The Court of Common Pleas of Franklin County ruled against him. This decision was upheld by the Court of Appeals of Franklin County and the Supreme Court of Ohio.
Did Ohio's 1918 amendment providing that amendments to the United States Constitution should be subject to a referendum conflict with Article Five of the United States Constitution?
Yes. In a unanimous decision, the Court reversed the Supreme Court of Ohio and ruled that Ohio's referendum provision conflicted with Article Five. In an opinion written by Justice William R. Day, the Court held that Article Five's ratification requirement was "limited to two methods, by action of the legislatures of three-fourths of the States, or conventions in a like number of States." The term "legislatures" in Article Five referred to a "representative body which made the laws of the people," which is precisely what the Ohio General Assembly was set to be in the Ohio Constitution. Though the Ohio Constitution did grant some legislative power to the people through referendums, the "ratification by a State of a constitution amendment is not an act of legislation within the proper sense," but instead an "expression of the assent of the State to a proposed amendment." Article Five specified that this assent could only be provided by a legislature or a convention, not a referendum. Therefore, Ohio's referendum requirement was unconstitutional.