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of the power to admit new states or a fraudulent use of the military power of the federal government in the seceded states. There are thirty-five states. Twenty-seven are necessary to ratify this amendment. There are nineteen free states. Suppose you get them all, where do you get the others?. . . Will the gentlemen call on the southern states to furnish the requisite number? If these states are to vote in their present condition, it would be a broad farce, if it were not a wicked fraud." Curiously enough, it was even urged against the measure that "neither three-fourths of the states, nor all the states save one, can abolish slavery in that dissenting state, because it lies within the domain reserved entirely to each state for itself and upon it the other states cannot enter."

So great was the opposition to the resolution that it failed at first to secure the requisite two-thirds in the House of Representatives; but Lincoln in his message of December 6, 1864, after his reëlection, warned Congress that it was only a question of time until slavery would have to go. Speaking of the election, he said, "It is the voice of the people now for the first time heard upon the question. In a great national crisis like ours, unanimity of action among those seeking a common end is very desirable. Yet no approach to such unanimity is attainable unless some deference is paid to the will of the majority simply because it is the will of the majority." This appeal was successful, and after a long and exciting debate the amendment was passed at the opening of 1865. It was then sent out to the states and ratified by twenty-seven of them, among which were Nevada, which had been admitted for the purpose, and several southern states, acting under the pressure of the federal military authority. The Thirteenth Amendment, thus carried through, was declared in force by the Secretary of State on December 18, 1865.

The radical Republicans, headed by the indomitable Thaddeus Stevens, were not content with abolishing slavery; they were determined also to give to the newly emancipated negroes all the civil rights which the whites enjoyed, to impose disabilities on certain secessionists, and to secure the validity of the federal


1 Congressional Globe, p. 2993; see below, chap. x, for Dana's account of the method employed by Lincoln in securing the adoption of the Thirteenth Amendment.

'Richardson, Messages and Papers of the President, Vol. VI, p. 252.

war debt. By the Civil Rights Act of April, 1866, they sought to remove all the incidents of slavery and secure for negroes equality before the law; but realizing that a mere act could be repealed at any time by a subsequent Congress, they decided to place the principles of civil liberty high above the reach of party factions by securely establishing them in the Constitution itself. Accordingly in April, 1866, Stevens introduced the proposed Fourteenth Amendment into the House with a lengthy speech in advocacy. He said he could hardly believe that any one would question the justice of the first section prohibiting the states from abridging the privileges and immunities of citizens and depriving them of life, liberty, or property without due process of law; the second section, designed to reduce the number of representatives apportioned to any southern state excluding negroes from the vote, he regarded as the best means of forcing enfranchisement on the South; and as for the third and fourth sections, he declared only a "rebel" would object to them.2 When it was contended by the opposition that the proposed amendment would sap the foundations of the government, destroy the fundamental principles of the federal system, and consolidate everything into one imperial despotism, the majority frankly admitted that it was their intention to place certain great doctrines of private rights under the sure protection of the central government. In June, 1866, they submitted the amendment to the approval of the states. By refusing to readmit certain southern states until they had accepted this radical alteration in our political system, the requisite number of ratifications was at length secured; and the Fourteenth Amendment was promulgated by the Secretary of State in July, 1868.

This indirect method of securing the vote to the negroes through the threat to reduce the representation of any state excluding them from the suffrage, it was feared, would not be effective enough in practice; and the Republicans accordingly decided to complete the work of reconstruction by expressly forbidding any commonwealth to deprive any citizen of the right to vote on account of race, color, or previous condition of servitude. Some of the northern states still denied the franchise to

1 See Readings, p. 393, for the Amendment.


Congressional Globe, 39th Cong., 1st Sess., pp. 2459 ff.

3 Ibid., p. 2538.

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." 2

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.

Statutory Elaboration of the Constitution

It would be a mistake, of course, to confuse the formal amendments, which we have just considered, with statutes, especially in the matter of the sanction which each of the two forms of law has behind it. The former are placed beyond the reach of the legislature by an extraordinary process of enactment, and can be abrogated only by a similar process. A statute, on the other hand, is made by Congress, and may be altered or repealed at any time by the same body without further authority. Nevertheless, when viewed from the standpoint of content, there is no real intrinsic difference between many statutes and the provisions of the Constitution itself; and, if we regard as constitutional all that body of law relative to the fundamental organization of the three branches of the federal government, legislative, executive, and judicial, then by far the greater portion of our constitutional law is to be found in the statutes. At all events, whoever would trace, even in grand outlines, the evolution of our constitutional system must take them into


Such, for instance, are the laws organizing all the executive departments which have grown out of the authority conferred by the barest mention in the Constitution of the facts that some appointments may be made by the "heads of departments," and that the President "may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." To take another example, the Twelfth Amendment is scarcely more important than the statute of 1887, which elaborates it in great detail by providing the modes of counting the electoral votes and determining controversies. Indeed, Senator Garland, at the time, declared such a statute amendatory in its nature and beyond the power of Congress. Whether the statute in question is one which the framers of the Constitution would have deemed within the letter of the written document it is obviously impossible to determine; it may quite properly be regarded as an amendment which the general acceptance of the nation ⚫ allows to stand in force as a mere statute. Such reasoning is not without justification, and finely illustrates the shadowy character of the distinctions between constitutional and statute law.

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.'"

19 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

1 1 See Readings, p. 21. The Law and Custom of the Constitution, chap. i.

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