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negroes, and this was a standing reproach to the reformers who insisted on granting this right in the South in opposition to the known wishes of the whites. It, therefore, seemed expedient to some, and to others abstractly just, to prevent political discrimination against the negro throughout the entire Union; and to achieve this end, the Fifteenth, and last, Amendment was passed by Congress in February, 1869, and declared ratified on March 30, 1870. Thus was ended the formal revolution wrought in our political system by the Civil War.1

In spite of the fact that no new amendment has been adopted since 1870, every session of Congress has produced a large crop of amendatory proposals, only a few of which are ever seriously considered. For example, in the Sixtieth Congress, there were brought forward in the House of Representatives amendment resolutions relative to prohibition, popular election of Supreme Court justices, uniform laws for marriage and divorce, the initiative and referendum, employers' liability, and many other matters, but none of them succeeded in securing the requisite number of votes. More than two-thirds of the states have now joined in proposing an amendment establishing popular election of Senators, but it remains to be seen whether Congress will act on the matter.

The only amendment proposal which has received the requisite two-thirds majority of both Houses, since the adoption of the Fifteenth Amendment, is the following resolution authorizing the levy of an income tax, passed by Congress, in July, 1909, at a special session:

"Resolved by the Senate and House of Representatives of the United States 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:

Article XVI. That Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration."


1 For the partisan aspects of this phase of our history, see below, chap. vi. This amendment is now before the state legislatures and up until the present time (March, 1910) has been ratified by only two states.

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The formal amendwt statutes, especially two forms of law

ted the reach of the actment, and can be statute, on the other tered or repealed at thority. Nevercontent, there is no tutes and the proviwe regard as constituthe fundamental organizaa. 2overnment, - legisy far the greater portion in the statutes. At a grand outlines, the mast take them into

uding all the executive If the authority conferred f the facts that some nes fpartments," qin, in writing, of e lepartments, upon dr respective offices." Ameviment is scarcely elaborates it in ting the electoral Iool. Senator Garland, Prebustury in its nature Whether the statute in Umistitut on would have at it is obviously e regarded f the nation resoring is not Subay char

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Again, the federal statute of 1866 regulating the election of Senators by the state legislatures and controlling their internal procedure in this matter may be regarded as constitutional in character in so far as it links itself organically with the provisions of the Constitution. A striking and curious illustration of the way in which the federal system has been in part altered by state action is the practice, adopted in some commonwealths, of requiring the legislature to choose for the United States Senate the nominee indicated by popular vote a practice undoubtedly contrary to the letter of the Constitution and to the intention of the framers.

The Custom of the Constitution

It is the fashion for English publicists to congratulate their American colleagues on the simplicity of the task of commenting on a written constitution as compared with the complicated task of unravelling from fluctuating party customs the mysteries of the English political system. "Whatever may be the advantages of a so-called 'unwritten' constitution," declares Professor Dicey, "its existence imposes special difficulties on teachers bound to expound its provisions. Any one will see that this is so who compares for a moment the position of writers such as Kent and Story, who commented on the Constitution of America, with the situation of any person who undertakes to comment on the constitutional law of England. When these distinguished jurists delivered, in the form of lectures, commentaries upon the Constitution of the United States, they knew precisely what was the proper subject of their teaching and what was the proper mode of dealing with it. The theme of their teaching was a definite assignable part of the law of their country; it was recorded in a given document to which all the world had access, namely, 'the Constitution of the United States established and ordained by the People of the United States.'"2

Now, as a matter of simple fact, any one who relied upon the commentaries of these distinguished jurists for a knowledge of the actual government of the United States would not penetrate beyond the outer boundaries of the subject. For example, Kent dismisses the topic of the Speaker of the House of Representatives with this sentence: "The House of Representatives

'See Readings, p. 21. The Law and Custom of the Constitution, chap. i.

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ent throws as much e observation that the First Lord of the Treasury

Surely no commentator ve out of account the entire a to party practices. ciation in our political system endments or by statutes,

rics in operating the maSo radical is this transformation Asem of 1789, and so completely emities of that system, that

cerit chapters to an examination xamples, however, will be given ways in which party practices

That the President is elected by of the states shall see fit. In lected at national party con

known to federal law; the d by the parties and bound The voters merely have the right alis nominated.

that the Senators are elected

In practice they are chosen y parties, or, in some commonpemination.

the Speaker is chosen by the ., is selected by a caucus

Speaker is the impartial

La act, he is the leader of the

hat revenue bills must anal "evenue bills origi A Howe, &though the

6. The Constitution says very little about legislative procedure, but the whole spirit and operation of Congress depend upon the rules, organization of committees, and agreements among the leaders of the majority party.

Closely related to the alterations introduced into the original system by party methods are the changes wrought in the presidential office by the exigencies of party leadership. This aspect of our constitutional evolution is regarded by some as an apparently fortuitous contingency dependent upon the personality of the President and the circumstances under which he carries on his administration, but by others it is considered as a permanent and salutary outcome of our political development. It would be interesting to know, at all events, the feelings that would be entertained by a member of the federal convention of 1787 if he could compare the deliberate and austere administration of Washington with that of Mr. Roosevelt, who was preeminently a party leader. Through his personal representative he participated in the gubernatorial campaign in New York in 1906; he aided Congressman Burton in his contest with Mr. Johnson for the mayoralty of Cleveland; he constantly engaged in multifarious party operations; and finally he was chiefly instrumental in selecting his own successor. Mr. Taft has likewise declared his belief in the duty of the President to act as party leader and assume party responsibilities.' It requires no far stretch of the imagination to believe that the original framers would regard the recent developments as entirely beyond their intentions. This is not meant to imply any criticism of Mr. Roosevelt or his policies, but it shows how the American people are actually not very much hampered by constitutional theories in the presence of the concrete interests and problems of our time.

Judicial Expansion of the Constitution

While there is a large and eminently respectable school of thinkers who maintain that the courts do not make law, it nevertheless remains a fact that the Supreme Court of the United State; has on several occasions expanded the written instrument under the guise of an interpretation. Indisputable evidence of this fact is offered by the reversals of opinion showing that

1 See below, chap. x.

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