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there should be a workable provision for its own amendment, and that in every perfect, or anything like perfect, constitution, this provision should constitute, for accomplishing this purpose, organs which shall be separate and distinct from, and supreme over, the organs of the government, which shall truly represent the reason and the will of the political society and the political power upon which the constitution rests, and which shall operate according to methods and majorities which will always register the well-considered purpose of that society and that power. I hold the first problem of the constitutional law of the present to be the fashioning of the clause of amendment so as to correspond with these principles.

If we examine the constitutions of the great states of the world and contemplate their history during the last twenty-five years, we shall see at once how pressing this necessity is.

Leaving out of account the Austro-Hungarian Ausgleich, as partaking more of the character of a treaty than of a constitution, we shall find that the constitutions of three of these states, viz. Spain, Italy and Hungary, contain no provisions at all for their own amendment; that all the rest, excepting France and Switzerland, use exclusively the organs of their governments for making constitutional changes; that France uses the personnel of her legislature, but under different organization, for this purpose; that Switzerland accords her legislature a power of initiating such changes, which in practice frequently creates embarrassments to the prompt and certain action of the popular will; and finally that all, except Great Britain, France, Switzerland and perhaps Norway, require such majorities for action as to make these provisions practically unworkable, except in times of great excitement — the very moments, if any, when they should not work.

Let us take, for example, the provision of amendment in the Constitution of the United States, as being the one in which the majority of this audience is probably most interested, and as being the provision made by that great state which more than any other professes to develop through the methods of gradual and peaceable reform rather than through the European and South American methods of revolution and reaction. This constitution was framed originally, without any warrant of existing law, by a general convention of delegates selected by the legislatures of the different States of the Confederation, except the legislature of Rhode Island; and it was adopted originally, also without warrant of any existing law, by conventions of delegates chosen by the people within these several States. The general convention proposed, or rather ordained, and that too without any warrant of existing law, that the proposed constitution should go into operation when ratified by conventions of the people in nine of the thirteen States of the Confederation, and it actually went into operation when conventions of the people in only eleven of these States had ratified it.

I shall not enter upon any criticism or any scientific explanation of these procedures. I will only say that to my mind they were entirely extra-legal, and therefore revolutionary, but were necessary because of the absence of any workable method of amendment in the Articles of Confederation.

Warned by this experience, the framers of the new constitution wrote a method of amendment into this instrument which they expected could be and would be effectively exercised.

It was exercised, first, to limit the powers of the central government in behalf of the individual, to perfect the realm of individual immunity against the powers of the central government. This was in the line of true progress. It was applied, in the second place, in behalf of the exemption of the States from the jurisdiction of the United States courts, which was the first result in constitutional law of the reaction of 1793 against the national movement of 1787. And it was employed, in the third place, to cure some of the defects in the election of the President and Vice-President. Then for more than sixty years, while the mightiest changes were being realized in the social, political, industrial, commercial and educational conditions of the country, not one trace of any of these changes found its way into the constitutional law of the nation.

We may say that during these years the main direction of the social, political and economic forces down beneath the constitution was, whether consciously recognized or not, towards limiting the powers of the States of the Union in behalf of the powers of the central government and the liberty of the individual. The

pressure of the movement was so strongly felt by a great portion of the people of the country, and so strongly resisted by another great portion, that it led to the appeal to arms of 1861. The method of amendment, intended for every exigency, had proved itself unequal to the emergency, and when employed again in the last three constitutional changes it simply registered the results of battle. In the main, what was then and thus accomplished was correct in substance; but the method which was necessitated showed again that nothing like the perfect principle and form of constitutional amendment had been reached.

And now, again, for thirty-five years mighty changes have been wrought in the structure of our political and civil society and in our commercial and industrial relations, and yet not one of them has been registered, by the process of amendment, in our constitutional law.

From this brief review, it seems entirely manifest that the method of amendment provided in the Constitution of the United States is ordinarily unworkable, and that the first problem of the constitutional law of the present in this country, as well as in almost all other countries, is the revision of the provision for constitutional amendment. Let us now scrutinize a little more closely the details of the provision in order to make its defects clear and definite. At the very first glance we discover that really four methods of amendment are legalized by the provision. The first method authorizes the initiation of an amendment by a constitutional convention of the United States, called by Congress on demand of the legislatures of two-thirds of the States of the Union, and ratification by conventions of the people in threefourths of the States. The second method authorizes the initiation of an amendment in the same manner and by the same body as the first and ratification by the legislatures of three-fourths of the States. The third method authorizes initiation of the amendment by a two-thirds vote in both houses of Congress and ratification by conventions of the people in three-fourths of the States. And the fourth method authorizes initiation of the amendment in the same manner and by the same body as the third and ratification by the legislatures of three-fourths of the States. Only one of these methods, however, has been employed, viz.

the last. Convenience has dictated this, and convenience is ordinarily stronger than principle in a country which moves so fast as ours.

Now it is evident that what makes these methods of amendment practically almost unworkable is the extraordinary majorities required both in the initiating and in the ratifying bodies. The idea was, of course, to make constitutional change conservative. This was indeed a laudable purpose; but such conservatism is a dangerous thing when it is mechanical and artificial, and it always becomes such when it permanently prevents the will of the undoubted permanent majority of the whole people in a democratic republic from realizing its well considered and well determined purposes in its organic law. There is a natural way to secure and preserve true conservatism, a way which does not contradict the fundamental principle of majority right, and that way should always be followed.

This matter of the majority is not, however, the sole element in the problem of a proper provision for constitutional amendment. There are several other points of great importance. One I have already adverted to, viz. the error in sound political science of using the governmental organs for the making of constitutional law. To illustrate this, let us consider the process of constitutional amendment in the German imperial constitution. According to the provision of amendment in that instrument, constitutional law can be made by a simple majority vote in the Reichstag sustained by forty-five of the fifty-eight voices in the Bundesrath, while the two bodies by simple majority vote in each make ordinary law. Now it is the impulse of the Reichstag to call every measure which it desires to see passed ordinary law, and it is the impulse of the minority in the Bundesrath to call every measure which it desires to defeat constitutional law, and the constitution provides no organ for determining a hermeneutical contest over this point, unless the Emperor's power of promulgating the laws covers the question. Some of the commentators upon that instrument contend that it does. Some say that in the exercise of his power of promulgating the laws the Emperor may look into the content of any measure, and that, if in his opinion the measure is one of constitutional law and has not received the proper majority in the Bundesrath for making constitutional change, he may refuse promulgation. But the Reichstag does not accept this doctrine. Moreover, it is the practice in the imperial legislature to allow the passage by that body of a law which is not authorized by any power at the time vested in that body by the constitution, provided the law has received in the Bundesrath the majority necessary to make a constitutional change. Such a law is not inserted in the text of the constitution as an amendment to that instrument, but is incorporated in the ordinary statutes; and the question at once arises, how such a law may be repealed, whether by the method for making or repealing ordinary law or by that necessary for making constitutional changes.

Under such a practice the whole question as to what is constitutional law and what is ordinary law becomes confused. From the point of view of written constitutions, constitutional law is the law provided in the constitution. From the point of view of unwritten constitutions, on the other hand, constitutional law is that part of the law which ought to be regarded as fundamental and organic. There is sufficient opportunity for difference of opinion in regard to the first kind of constitutional law, but in regard to the second there is no complete agreement on the part of any two minds. Of course the two kinds of constitutional law ought to agree exactly. What, from a true philosophical point of view, is fundamental and organic ought to be in the constitution, and, vice versa, every provision included in the constitution ought to be fundamental and organic. But in practice there is a wide difference, as to result, between the interpretation of a written instrument and the formation of individual or popular or legislative or executive opinion as to what part of the law ought to be regarded as fundamental and organic and what part as ordinary. In the first process there is some measure of certainty and continuity; in the second, on the other hand, there is very little. And when the two processes of determination are authorized in the same political system, they are bound to produce inextricable confusion. The root of the difficulty is to be found in making the governmental organs the organs for constitutional amendment. The personnel of the government, especially of the legislature, may be used for making constitutional

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