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There are. I [D, DE ANDE ways & amorcling the Onestitutkun. About – parere any one has how wed propostice to anted may orgzate in Congress, or the approvdi of two-thints of xoxt bass and may de riided by thE OVVER rence of the lensutures or of ceretxes & Orges PAY determine in three-fourths of the states On the che dev Congress, on the application of the keysaturs of two-zhink of the states, must call a national convention for the purpose of drafting amendments which may be ratined by conventies, or by legislatures in three-fourths of the states. The compositio of the national and state conventions, the procedure to be tol lowed by the state legislatures in passing upon amendments, and numerous other questions are left unsettled by the brief article in the Constitution, but it is to be presumed that Congress may make such reasonable elaborations as it may see fit.

On the occasions in which the federal Constitution has been amended, Congress has been very brief in its provisions. A proposition for an amendment is submitted by a resolution in the following form: "Resolved by the Senate and the House of Representatives of the United States of America in Congressi assembled, two-thirds of both houses concurring, That the following article be proposed to the legislatures of the several states as an amendment to the Constitution of the United States which when ratified by three-fourths of the said legislatures shall be valid as part of the said Constitution." The states are then left to their own devices in approving or rejecting the proposal, Congress merely directing that "Whenever official notice in received at the Department of State that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published in the newspapers authorized to promulgate laws, Burgess, Political Science and Constitutional Law, Vol. I, p. 146. See Readings, pp. 56 f.

CHAPTER IV

ed

THE EVOLUTION OF THE FEDERAL CONSTIT

If we use the term "Constitution" in the n including only the provisions of the written ins the history of its development would be briet; 1 striction of the term would be sheer formalism: based upon such an interpretation would be utt For constitutional law, as Professor Dicey poi all the fundamental rules which directly or inc distribution and exercise of sovereign power; other things the laws which define the sun. prerogatives of the chief magistrate, prescrit e legislature, and determine the structure ar hierarchy of officials. A comparison, there body of law and custom relative to such taining in the United States on the morurs took the oath of office in Wall Street reve changes. Only fifteen new clauses, it is tr by way of amendment to the written do has filled up the bare outline by elaborate tions have altered fundamentally the spirits of the machinery; official practice has at time to time; and the Supreme Court interpretation, has expanded, in ways Fathers, the letter of the law. In fact. stitution form as large an element as s stitution. A correct appreciation o. of the federal system is, therefore, o standing of the genius of the Ame

The Federal Am

The most obvious changes in our

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hangs of the federal government secured the passage of the clauses relating to slavery and civil rights. An observant Professor J. Allen Smith, has estimated that some ty-two ha dred amendments, including popular election of Senators, direct election of the President, and legislative control over the judiciary, have been proposed since the formation of the Constitution, and have met defeat.1 Only one since 1975 the pending Sixteenth Amendment has secured the reqisite two-thirds majority in the House and Senate, and it is by no nas certain that a sufficient number of ratifications will be o'tained. Professor Smith also estimates that, on the basis of the last census, one forty-fourth of the population distributed so is to constitute a majority in the twelve smallest states could prevent the ratification of a proposed amendment, even after it had got the requisite two-thirds vote in both Houses of Con

The Adoption of Amendments I-XV to the Constitution The first ten articles of amendment to the Constitution were adopted so closely after the ratification of the original instrument that they may be deemed almost a part of it. During the struggles which occurred in many states over the acceptance of the new plan of government, it was manifest that a great deal of the opposition to it was based on the absence of any provisions expressly Safeguarding individual rights against the action of the federal government. Jefferson, who was in Paris at the time the convention finished its work, wrote to a friend in Virginia that he wished four states would withhold ratification until a declaration of rights could be annexed, stipulating "freedom of religion, freedom of the press, freedom of commerce against monopolies, trial by jury in all cases, no suspensions of habeas corpus, no st.rding armies." Most of the state constitutions had provided such limitations on their governments, and there was evidently a desire on the part of many, who otherwise approved the Constitution, to see the ancient doctrines on private rights embodied in it. Seven of the ratifying state conventions even

The Spirit of American Government, 1907, pp. 46 fĩ.

Quoted in Curtis, Constitutional History of the United States (1889), Vol. I, p. 609, note.

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that such provisions cause they contained y granted, and would ... more than was granted. at things shall not be done ...y, for instance, should it be a not be restrained, when no is may be imposed? I will so would confer a regulating od furnish, to men disposed 5 Cairing that power. They reason that the Constitution

& eurity oi providing against I was not given, and that the the liberty of the press afforded a t to prescribe proper regulations conested in the national government."? et was met with great cogency he, roposed amendments in Congress ry the Alien and Sedition laws toas he advanced. He admitted that ted to certain particular objects, Ahin the most narrowly circumscribed have a discretionary power liable ne that this abuse was all the more probess provision that Congress could make

per for carrying into execution the e goveta tent of the United States. cated a stigle instance: The General rws which shall be necessary of charting the collection are dark, my dệt quietal warrants pose, as well as for

constitutions, the state governments had in view? If there was any reason for restraining the state governments from exercising this power, there is like reason for restraining the federal government." He then went on to state that it was his conviction that such a measure would rally large numbers to the cause of Federalism, and that, on principles of amity and moderation, the great rights of mankind secured under the Constitution ought to be expressly declared. After a delay of two months, the House passed seventeen amendments, which were reduced to twelve in the Senate, slightly modified at a joint conference committee, and submitted to the states, by two-thirds vote on September 25, 1789, with an accompanying resolution to the effect that it had been done to extend the ground of public confidence in the government and best insure the beneficent ends of its institution. Two of the amendments dealing with apportionment and payment of members of Congress failed to receive the approval of the requisite number of states, but the other ten were ratified by eleven commonwealths, Virginia being the last to add her sanction, December 15, 1791.

The Eleventh Amendment, providing that the judicial power of the United States shall not extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state, was the direct outgrowth of a judicial decision rendered by the Supreme Court in the case of Chisholm v. Georgia in 1793. That case involved the question as to whether a state could be sued by a private citizen; and the champions of states' rights stoutly held that the Supreme Court could not try an action by a citizen against a "sovereign state." The Court, however, held that it possessed such jurisdiction, directed the service of papers on the governor and attorney-general of Georgia, and ordered that, unless the state appeared in due form, judgment should be entered by default.

This decision instantly aroused the indignation of the advocates of states' rights. The decision of the Court was reached on February 18, 1793; and two days later Senator Sedgwick, of Massachusetts, introduced into Congress the proposed amendment. The Massachusetts legislature soon afterward declared the power exercised by the Supreme Court "dangerous to the

1 Annals of Congress, Vol. I, pp. 440 ff.