CHAPTER XXXII

THE AMENDMENT OF THE CONSTITUTION

THE men who sat in the Convention of 1787 were not sanguine enough, like some of the legislating sages of antiquity, or like such imperial codifiers as the Emperor Justinian, to suppose that their work could stand unaltered for all time to come. They provided (Art. v.) that "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 to all intents and purposes as part of this Constitution when ratified by the legislatures of three-fourths of the several States, or by conventions in threefourths thereof, as the one or the other mode may be prescribed by Congress."

There are therefore two methods of framing and proposing amendments.

(A) Congress may itself, by a two-thirds vote in each house, prepare and propose amendments.

(B) The legislatures of two-thirds of the States may require Congress to summon a Constitutional Convention. Congress shall thereupon do so, having no option to refuse; and the Convention when called shall draft and submit amendments. No provision is made as to the election and composition of the Convention, matters which would therefore appear to be left to the discretion of Congress.

There are also two methods of enacting amendments framed and proposed in either of the foregoing ways. It is left to Congress to prescribe one or other method as Congress may think fit.

(X) The legislatures of three-fourths of the States may ratify any amendments submitted to them.

(Y) Conventions may be called in the several States, and three-fourths of these conventions may ratify.

On all the occasions on which the amending power has been exercised, method A has been employed for proposing and method X for ratifying-i.e. no drafting conventions of the whole Union or ratifying conventions in the several States have ever been summoned. The preference of the action of Congress and the State legislatures may be ascribed to the fact that it has never been desired to remodel the whole Constitution, but only to make changes or additions on special points. Moreover, the procedure by National and State conventions might be slower, and would involve controversy over the method of electing those bodies. The consent of the President is not required to a constitutional amendment. A two-thirds majority in Congress can override his veto of a Bill, and at least that majority is needed to bring a constitutional amendment before the people.

There is only one provision of the Constitution which cannot be changed by this process. It is that which secures to each and every State equal representation in one branch of the legislature. "No State without its consent shall be deprived of its equal suffrage in the Senate" (Art. v.) It will be observed that this provision does not require unanimity on the part of the States to a change diminishing or extinguishing State representation in the Senate, but merely gives any particular State proposed to be affected an absolute veto on the proposal. If a State were to consent to surrender its rights, and threefourths of the whole number to concur, the resistance of the remaining fourth would not prevent the amendment from taking effect.

Following President Lincoln, the Americans speak of the Union as indestructible; and the expression, "An indestructible Union of indestructible States," has been used by the Supreme court in a famous case.2 But looking at the constitution simply as a legal document, one finds nothing in it to prevent the adoption of an amendment providing a method for dissolving the existing Federal tie, whereupon such method would be applied so as to form new unions, or permit each State to become an

1 The point was decided by the Supreme court in 1794 in the case of Hollingsworth v. State of Vermont (3 Dall. 378); and the Senate came to the same conclusion in 1865. See Jameson on Constitutional Conventions, § 560.

2 Texas v. White, see ante, p. 315.

absolutely sovereign and independent commonwealth. The power of the people of the United States appears competent to effect this, should it ever be desired, in a perfectly legal way, just as the British Parliament is legally competent to re-divide Great Britain into the sixteen or eighteen independent kingdoms which existed within the island in the eighth century.

The amendments made by the above process (A + X) to the Constitution have been in all fifteen in number. These have been made on four occasions, and fall into four groups, two of which consist of one amendment each. The first group, including ten amendments made immediately after the adoption of the Constitution, ought to be regarded as a supplement or postscript to it, rather than as changing it. They constitute what the Americans, following the English precedent, call a Bill of Rights, securing the individual citizen and the States against the encroachments of Federal power. The second and third groups, if a single amendment can be properly called a group (viz. amendments xi. and xii.) are corrections of minor defects which had disclosed themselves in the working of the Constitution." The fourth group is the only one which marked a political crisis and registered a political victory. It comprises three amendments (xiii. xiv. xv.) which forbid slavery, define citizenship, secure the suffrage of citizens against attempts by States to discriminate to the injury of particular classes, and extend Federal protection to those citizens who may suffer from the operation of certain kinds of unjust State laws. These three amendments are the outcome of the War of Secession, and were needed in order to confirm and secure for the future its results. The requisite majority of States was obtained under conditions altogether abnormal, some of the lately conquered States ratifying while actually controlled by the northern armies, others as the price which they were obliged to pay for the re-admission to Congress of their senators and representatives.3 The details belong to history all we need

:

1 These ten amendments were proposed by the first Congress, having been framed by it out of 103 amendments suggested by various States, and were ratified by all the States but three. They took effect in December 1791.

The eleventh amendment negatived a construction which the Supreme court had put upon its own judicial powers (see above, p. 232); the twelfth corrected a fault in the method of choosing the President.

3 The thirteenth amendment was proposed by Congress in February 1865, ratified and declared in force December 1865; the fourteenth was proposed by Congress June 1866, ratified and declared in force July 1868; the fifteenth was proposed by Congress February 1869, ratified and declared in force March 1870.

here note is that these deep-reaching, but under the circumstances perhaps unavoidable, changes were carried through not by the free will of the peoples of three-fourths of the States, but under the pressure of a majority which had triumphed in a great war, and used its command of the military strength and Federal government of the Union to effect purposes deemed indispensable to the reconstruction of the Federal system.1

Many amendments to the Constitution have been at various times suggested to Congress by Presidents, or brought forward in Congress by members, but very few of these have ever obtained the requisite two-thirds vote of both Houses. In 1789, however, and again in 1807, amendments were passed by Congress and submitted to the States for which the requisite majority of three-fourths of the States was not obtained; and in February and March 1861 an amendment forbidding the Constitution to be ever so amended as to authorize Congress to interfere with the "domestic institutions," including slavery, of any State, was passed in both Houses, but never submitted to the States, because war broke out immediately afterwards. It would doubtless, had peace been preserved, have failed to obtain the acceptance of three-fourths of the States, and its effect could only have been to require those who might thereafter propose to

The fourteenth amendment had given the States a strong motive for enfranchising the negroes by cutting down the representation in Congress of any State which excluded male inhabitants (being citizens of the United States) from the suffrage; the fifteenth went further and forbade "race, colour, or previous condition of servitude," to be made a ground of exclusion. The grounds for this bold step were succinctly set forth by Senator Willey (of West Virginia) when he said that the suffrage was the only sure guarantee the negro could have in many parts of the country for the enjoyment of his civil rights; that it would be a safer shield than law, and that it was required by the demands of justice, the principles of human liberty, and the spirit of Christian civilization.

The effect of these three amendments was elaborately considered by the Supreme court (in 1872) in the so-called Slaughter-house Cases (16 Wall. 82), the effect of which is thus stated by Mr. Justice Miller: "With the exception of the specific provisions in the three amendments for the protection of the personal rights of the citizens and people of the United States, and the necessary restrictions upon the power of the States for that purpose, with the additions to the power of the general government to enforce those provisions, no substantial change has been made in the relations of the State governments to the Federal government."-Address delivered before the University of Michigan, June

1887.

1 But though military coercion influenced the adoption of the thirteenth amendment, while political coercion bore a large part in securing the adoption of the others, it must be remembered that some changes in the Constitution were an absolutely necessary corollary to the war which had just ended.

amend the Constitution so as to deal with slavery, to propose also the repeal of this particular amendment itself.1

The moral of these facts is not far to seek. Although it has long been the habit of the Americans to talk of their Constitution with almost superstitious reverence, there have often been times when leading statesmen, perhaps even political parties, would have materially altered it if they could have done so. There have, moreover, been some alterations suggested in it, which the impartial good sense of the wise would have approved, but which have never been submitted to the States, because it was known they could not be carried by the requisite majority. If, therefore, comparatively little use has been made of the provisions for amendment, this has been due, not solely to the excellence of the original instrument, but also to the difficulties which surround the process of change. Alterations, though perhaps not large alterations, have been needed, to cure admitted faults or to supply dangerous omissions, but the process has been so difficult that it has never been successfully applied, except either to matters of minor consequence involving no party interests (Amendments xi. and xii.), or in the course of a revolutionary

1 The Greek republics of antiquity sometimes placed some particular law under a special sanction by denouncing the penalty of death on any one who should propose to repeal it. In such cases, the man who intended to repeal the law so sanctioned of course began by proposing the repeal of the law which imposed the penalty. So it would have been in this case: so it must always be. No sovereign body can limit its own powers. The British Parliament seems to have attempted to bind itself by providing in the Act of Union with Ireland (39 and 40 George III., c. 67) that the maintenance of the Protestant Episcopal Church as an Established Church in Ireland should be "deemed an essential and fundamental part of the Union." That Church was, however, disestablished in 1869 with as much ease as though this provision had never existed.

2 In the Forty-ninth Congress (1884-86) no fewer than forty-seven propositions were introduced for the amendment of the Constitution, some of them of a sweeping, several of a rather complex, nature. (Some of these covered the same ground, so the total number of alterations proposed was less than forty-seven.) None seems to have been voted on by Congress; and only five or six even deserved serious consideration. One at least, that enabling the President to veto items in an appropriation bill, would, in the opinion of most judicious statesmen, have effected a great improvement. I find among them the following proposals: To prohibit the sale of alcoholic liquors, to forbid polygamy, to confer the suffrage on women, to vest the election of the President directly in the people, to elect representatives for three instead of two years, to choose senators by popular election, to empower Congress to limit the hours of labour, to empower Congress to pass uniform laws regarding marriage and divorce, to enable the people to elect certain Federal officers, to forbid Congress to pass any local private or special enactment, to forbid Congress to direct the payment of claims legally barred by lapse of time, to forbid the States to hire out the labour of prisoners.