law. It would be inconvenient, and pernaps injurious, if it could not be. But it is not necessary that this should be effected through the governmental organizations. That personnel may be specially organized for this purpose, as the French constitution provides, by uniting all the members of both legislative chambers in one national constitutional convention with constituent power. The body authorized to make constitutional law and constitutional law only being entirely distinct from the body authorized to make ordinary law and ordinary law only, even though composed of the same individual persons, there can be no possibility of confounding the two kinds of law.

Finally, there is a grave problem of constitutional law involved in the exception, to be found in some of the constitutions, of certain subjects from the general power of amendment. This occurs usually in the constitutions of those states which have the federal form of government, as in the constitutions of the United States and of the German Empire, where the existing relations of representation of the States of these Unions in the upper chamber of the legislature is excepted from the ordinary course of amendment and made subject to a still more impossible process. And strangely, and in an even more exaggerated form, this defect is to be found in the French constitution, where two subjects are excepted from any method of amendment whatsoever, viz. the form of the government and the disqualification of the descendants of former reigning houses for the presidency of the Republic. These exceptions to the power of the legal sovereign in amendment are rotten spots in any constitution, and if not rooted out they will spread until their mouldering influence will be felt throughout the entire system.

The practical and all-important question, however, is as to the way in which they can be eradicated, regularly and lawfully, and without recourse to revolutionary means. Take again for example the Constitution of the United States, which declares, in the article of amendment, that "no State, without its consent, shall be deprived of its equal suffrage in the Senate." This means, of course, that if the attempt should be made to reduce the representation of any State in the Senate in relation to that of the other States, by the process of constitutional amendment,

this can be effected only with the consent of the legislature of, or of the convention in, the State whose relative representation it is proposed to reduce, together with the consent of one or the other of these bodies in enough of the other States to make out a three-quarter majority of the whole number; and that if the attempt should be made to increase the relative representation of any State, this can be effected only with the consent of every other State of the Union, given through its legislature or con

vention.

There is thus, theoretically, a way provided for expunging from the Constitution this exception to the ordinary operation of the legal sovereign, the amending power; but practically it is utterly unworkable. If we are ever to rid ourselves of this obstacle we must find some other way than that which I have just outlined. But is there any other legal way? Can the amending clause itself be revised by the ordinary course of amendment so as to omit the exception in behalf of the equal representation of the States in the Senate? It certainly can be so revised as to anything and everything else. But I am quite persuaded that the framers of the constitution never intended to provide any means whereby this exception could be set aside. I am quite sure that they intentionally placed this obstacle in the way of the legal sovereign, as they organized it for ordinary action. I do not think that they realized the fact that they were sowing the seeds of revolution upon this subject by erecting an insurmountable barrier to regular constitutional progress concerning it. The great, natural, universal and irresistible principle of development was not then understood as now. Men really believed, at that stage in the growth of philosophic thought, that they could construct for all time institutions which would need no change or improvement.

There is, indeed, good ground in political philosophy for holding that the amending clause in a constitution may itself be revised by the general process provided therein. These grounds are that there cannot logically be two legal sovereigns within a constitution any more than there can be two original sovereigns behind the constitution, and that there cannot logically be any exceptions from the power of the legal sovereign any more than

there can be from the power of the original sovereign. Different methods of governmental action in regard to the same subject, and exceptions from the powers of the government, are all scientifically legitimate, but the exercise of sovereignty is an entirely different matter. One body and only one can possess it at any given time within a given state, and from its operation nothing whatsoever can logically be excepted. But when we shift from the legal to the political ground in respect to this subject are we not contemplating a revolutionary act? I think this must be acknowledged. It must be conceded that we are contemplating the same kind of a revolutionary act as that committed by the national constitutional convention of 1787 and the ratifying conventions within the States of the Confederation. If that was justifiable, this would be, and upon exactly the same ground, viz. that existing legality upon this subject does not comport with the social, political and economic conditions of a national democratic state, but contradicts them in an unendurable way and to an unendurable extent. Sound political theory demands that the amending power within the constitution, the legal sovereign, should be an organization faithfully representing the original sovereign behind the constitution; separate from and independent of the powers of the government, and supreme over these powers and over the liberty of the individual; subject to no limitations or exceptions; sufficiently facile in its action to meet all important exigencies and, when using the governmental organs at all in the making of constitutional law, using them in a ministerial but not in a discretionary capacity. And sound constitutional law demands the same things. Without them the system of constitutional government and constitutional liberty will not be able to stand in permanence. The invincible principle of development will force changes upon any and every constitutional system, as upon everything else in the universe; and if these changes cannot be made by amendment, by the legal sovereign, they will inevitably be made by the government or some part of the government in Europe by the legislature as a rule, and in the United States by judicial approval of legislative or executive acts. But whichsoever of these two methods be followed, it comes to the same thing, viz. gradual governmental usurpation against

this can be effected only with the consent of the legislature of, or of the convention in, the State whose relative representation it is proposed to reduce, together with the consent of one or the other of these bodies in enough of the other States to make out a three-quarter majority of the whole number; and that if the attempt should be made to increase the relative representation of any State, this can be effected only with the consent of every other State of the Union, given through its legislature or con

vention.

There is thus, theoretically, a way provided for expunging from the Constitution this exception to the ordinary operation of the legal sovereign, the amending power; but practically it is utterly unworkable. If we are ever to rid ourselves of this obstacle we must find some other way than that which I have just outlined. But is there any other legal way? Can the amending clause itself be revised by the ordinary course of amendment so as to omit the exception in behalf of the equal representation of the States in the Senate? It certainly can be so revised as to anything and everything else. But I am quite persuaded that the framers of the constitution never intended to provide any means whereby this exception could be set aside. I am quite sure that they intentionally placed this obstacle in the way of the legal sovereign, as they organized it for ordinary action. I do not think that they realized the fact that they were sowing the seeds of revolution upon this subject by erecting an insurmountable barrier to regular constitutional progress concerning it. The great, natural, universal and irresistible principle of development was not then understood as now. Men really believed, at that stage in the growth of philosophic thought, that they could construct for all time institutions which would need no change or improvement.

There is, indeed, good ground in political philosophy for holding that the amending clause in a constitution may itself be revised by the general process provided therein. These grounds are that there cannot logically be two legal sovereigns within a constitution any more than there can be two original sovereigns behind the constitution, and that there cannot logically be any exceptions from the power of the legal sovereign any more than

there can be from the power of the original sovereign. Different methods of governmental action in regard to the same subject, and exceptions from the powers of the government, are all scientifically legitimate, but the exercise of sovereignty is an entirely different matter. One body and only one can possess it at any given time within a given state, and from its operation nothing whatsoever can logically be excepted. But when we shift from the legal to the political ground in respect to this subject are we not contemplating a revolutionary act? I think this must be acknowledged. It must be conceded that we are contemplating the same kind of a revolutionary act as that committed by the national constitutional convention of 1787 and the ratifying conventions within the States of the Confederation. If that was justifiable, this would be, and upon exactly the same ground, viz. that existing legality upon this subject does not comport with the social, political and economic conditions of a national democratic state, but contradicts them in an unendurable way and to an unendurable extent. Sound political theory demands that the amending power within the constitution, the legal sovereign, should be an organization faithfully representing the original sovereign behind the constitution; separate from and independent of the powers of the government, and supreme over these powers and over the liberty of the individual; subject to no limitations or exceptions; sufficiently facile in its action to meet all important exigencies and, when using the governmental organs at all in the making of constitutional law, using them in a ministerial but not in a discretionary capacity. And sound constitutional law demands the same things. Without them the system of constitutional government and constitutional liberty will not be able to stand in permanence. The invincible principle of development will force changes upon any and every constitutional system, as upon everything else in the universe; and if these changes. cannot be made by amendment, by the legal sovereign, they will inevitably be made by the government or some part of the government in Europe by the legislature as a rule, and in the United States by judicial approval of legislative or executive acts. But whichsoever of these two methods be followed, it comes to the same thing, viz. gradual governmental usurpation against