174. SUMMARY OF AMENDMENTS ON THE POWERS OF THE

GOVERNMENT.

With the exception of the subject of personal relations, the number of amendments proposing a change in the provisions of the Constitution affecting the powers of the Government has been comparatively small. Only about three hundred in all have been presented. With the exception of the early years, the larger number of the proposed amendments have contemplated an extension of the power conferred upon Congress rather than the placing of restrictions upon its actions. Of these, three have received the indorsement of the House of Representatives. The provisions of the one passed in 1865, prohibiting the payment of the Confederate debt,' were later incorporated into the fourteenth amendment. Of the other two, passed respectively in 1876 and 1878, the one prohibited the appropriation of any money or property to any religious sect, the other forbade the payment of claims to disloyal persons. Both failed to receive the approval of the Senate. The wisdom of the members of the Convention of 1787 in defining the powers of the Government in broad and general terms has become more and more evident as time has elapsed, for, owing to this fact, it has been possible to readily adapt the Constitution to the changed conditions and circumstances of advancing years. The doctrine of implied powers has been accepted to such an extent that in the most important cases where amendments have been sought, the same results have been secured without their adoption."

3

To a much smaller degree has it been possible to secure any change by these unwritten amendments of the provisions of the Constitution prescribing the form of the government, for here the Constitution admits of less freedom of interpretation, being very much more explicit in its terms.

175. PROPOSITION TO CHANGE THE NAME OF THE COUNTRY.

One interesting proposition-which it has been impossible to classify elsewhere-to change the name of our country has been introduced. This singular amendment was presented by

App. No. 1057.

2 App. No. 1139.

3 App. No. 1401.

4 App. No. 1477.

5 Post, par. 188. Tiedman, The Unwritten Constitution of the United States, pp. 42-44; Story, II, p. 165; McMaster, in Shaler's, United States, II, p. 500.

Mr. Anderson of Missouri, in 1866. He proposed, in case the Constitution was again to be opened for amendment, that our country should hereafter "be known and styled America," inasmuch as its present name was "not sufficiently comprehensive and significant to indicate the real unity and destiny of the American people as the eventual, paramount power of this hemisphere." 1

CHAPTER VI.

PROCEDURE AS TO CONSTITUTIONAL AMENDMENTS.

176. METHOD OF AMENDMENT.

The Constitution of the United States, in Article v, provides for its own amendment whenever two thirds of the Houses of Congress, or a convention called upon the application of twothirds of the State legislatures, shall propose amendments, which in either case shall be valid when ratified by the leg. islatures of or conventions in three-fourths of the several States, as Congress may direct.1

Thus it appears that amendments may be proposed in one of two ways-either by Congress or a convention called by Congress in response to the request of the necessary number of the State legislatures. Also discretionary power is given to Congress to choose one of the two methods of ratification permissible, namely, either by the legislatures of States or by conventions in the several States. The amount of discretion allowed in this clause plainly indicates the expectation of the framers of the Constitution, that the amending machinery would be frequently put into operation. It is therefore remarkable that only one of the methods of proposing amendments has been used, and that it has always been accompanied by one method of ratification.3

177. GENERAL CONVENTIONS.

4

In making provision for a Federal convention, the framers. of the Constitution doubtless had in mind the possibility of a future fundamental revision, and in addition wished to provide when necessary for a body having a direct mandate from the people to propose amendments. The fact that nearly two

1 Of the two exceptions enumerated in the article one is obsolete; the other, in regard to equal representation of a State in the Senate, has as much force to-day as ever. See Hamilton's remarks in the Federal Convention, Elliot, v, 530.

3 With the exception of the proposed thirteenth amendment in 1861, which was ratified by a convention in Illinois in 1862. See post, par. 179.

4 The first provision agreed to for securing amendments provided only for a convention, on application of the legislatures of two-thirds of the States, August 6, 1787. Elliot, v.

381.

See advantages of a convention referred to by Nicholas in the Virginia convention, ibid., III, 101-102.

281

hundred constitutional conventions have been called to frame or revise the State constitutions,' renders it all the more remarkable that this method of proposing amendments to the Constitution of the United States has never been put in operation. This may be accounted for in part by the fact that there has never been a time when a general revision of the Constitution has been widely desired. Although conventions for the proposal or ratification of amendments have never been assembled, yet occasions have arisen when their trial has been urged. Passing over the propositions for a second convention, which were made in the Federal Convention itself, and in the States at the time of their ratification of the Constitution, we find that the Government had scarcely been established when Virginia and New York made application for a convention to draft amendments. In the winter of 1832-33, the legislature of South Carolina passed resolutions declaring it "expedient that a convention of the States be called as early as practicable to consider and determine such questions of disputed powers as have arisen between the States of this Confederacy and the General Government." This seems to have led to the legislatures of Georgia and Alabama passing resolutions in conformity to Article V, petitioning Congress to call a Federal convention to consider the proposal of amendments. The legislature of Delaware, on the other hand, in reply to the resolutions of South Carolina, declared that the Constitution does not recognize any such tribunal or political assemblage as a convention of the States, but has provided for modes of amendment, if amendment be necessary, in the fifth article; "any other mode, therefore, must be repugnant to its provisions;" that any such convention "must be a convention of the people," "and not a convention of the States;" and "that it is not expedient for Congress to call a convention for proposing amendments at this time."

6

Jameson, Constitutional Convention, p. 550. Tiedman, Unwritten Constitution, p. 42. 2 Article by E. P. Smith in Jameson's Essays, p. 46.

3 App., Nos. 125, 126.

4 Senate Journal, Twenty-second Congress, second session, p. 83.

5 App., Nos. 612a, 613–625.

6. That such a convention of the States, if assembled, could have no such power as that set forth by the resolutions of South Carolina."

* Senate Journal, Twenty-second Congress, second session, pp. 157-158. For Resolves of Massachusetts in disapproval to Resolves of South Carolina, see Resolves of Massachusetts, Vol. XIX, pp. 401-402; for report and reply of Massachusetts legislature disapproving of the Georgia resolutions, see ibid., pp. 411-423.

3

Again. in the sessions of Congress just previous to the rebellion, when there was a general desire that every means should be tried before resorting to a civil war, petitions from the legislatures of six States,' besides nine propositions from members of Congress, were received calling for a drafting convention. On the invitation of Virginia, a peace convention was also held, at which commissioners from twenty-one States were present.3 As a result of its work, the convention recommended to Congress a series of amendments to the Constitution. In this same session of Congress, Mr. Florence of Pennsylvania offered the following singular amendment: "The reserved power of the people in three-fourths of the States to call and form a national convention to alter, amend, or abolish this Constitution, according to its provisions, shall never be questioned, notwithstanding the direction in Article v of the Constitution."5

Propositions for a convention were also offered at three different times during the period of the civil war, and again in 1866.6 Of those presented during the course of the war, the first was introduced by Mr. Vallandigham, in 1861, the other two by Senator Davis of Kentucky, who proposed such a convention of the States for the purpose of bringing about the restoration of peace and the Union."

Virginia, Kentucky, New Jersey, Ohio, Illinois, and Indiana. The convention in Missouri also approved of a similar course. Stephen, War between the States, II, p. 364. 2 App., Nos. 812, 834, 835, 873, 895, 900, 908, 911, 931a, 941, 954, 970, 970a, 940a.

3 App., No. 873. See ante, pars. 106, 107. Chittenden, Debates and Proceedings of the Peace Convention; McPherson, History of the Rebellion, pp. 67-70. Twenty-two States appointed commissioners, but several did not attend. Foster, Commentary on Constitution, I, p. 173.

4 App., Nos. 917.

5 App., No. 892.

6 App., Nos. 972, 976, 1039a, 1115. The latter by Senator Lane of Kansas, for the Committee on the Judiciary to inquire into the expediency of calling a convention. The framers of the Confederate constitution, evidently profiting by the experience of the past, determined to make it easier to assemble a convention to amend. Provision was made that upon the demand of any three States legally assembled in their several conventions, the congress shall summon a convention of all the States to take into consideration such amendments as the said States shall concur in suggesting at the time when the said demand is made; the same to be submitted to the States for ratification, if agreed on by said convention, voting by States. Article V, of Confederate constitution. McPherson, History of the Rebellion, p. 99.

7 App., No. 976, submitted in 1862, called for a convention to meet in Louisville, Ky., on the first Monday in April, 1863, to take into consideration the condition of the United States and the proper means for the restoration of the Union. Each State to send as many delegates as it is entitled to Senators and Representatives in Congress. App., No. 1039a (1864), called for a convention for a similar purpose, and for the vindication of the Constitution, and the construction of additional and adequate guaranties of the rights and liberties of the people. He presented a series of propositions as the basis of a lasting settlement of all difficulties. See ante, par. 103.