An amendment of another character was presented in 1871. It provided that the fourteenth amendment should not be construed as prohibiting the States from making and enforcing laws for the separate education of the white and the colored races. The fourteenth amendment has not been held by the courts as prohibiting the separate education of the two races, so long as equal provisions for their education are made.2

173. RELIGION.

Since the adoption of the first amendment, there has been no amendment suggested on the subject of religion until recent years.3

Included in several of the amendments on education, were clauses setting forth that no sectarian use should be made of public school funds, and in several cases distinctly guaranteeing religious liberty. President Grant, in connection with his recommendation of public schools, in his message of 1875 further advised forbidding the teaching in such schools of any particular religious tenets and prohibiting the granting of any school funds and school taxes for the benefit of any religious sect. He also suggested an amendment declaring "the church and state forever separate and distinct, but each free within their proper spheres, and that all church property shall bear its own proportion of taxation." In the House immediate action was taken in accordance with the President's recommendation. Mr. Blaine introduced a resolution that embodied a part of the changes suggested by the President. This amendment provided that "no State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof," and it prohibited the appropriation of public school money by any State to sectarian schools. In Mr. Stewart's amendment of 1871 there had been a provision similar to this last clause. The "Blaine amendment," after slight

6

App., No. 1339. Also prohibited the intermarriage of the races. See ante, par. 102. No. 1514 forbade separation (see previous page).

2 Cases cited in Cooley, Principles of Constitutional Law, p. 242, note 3. The constitu tions of West Virginia, North Carolina, Tennessee, Missouri, Texas, Georgia, and Alabama provide that white and colored children shall be taught in separate schools, Hitchcock, American State Constitutions, p. 26.

3 See Stevens, Sources of the Constitution of the United States, pp. 214, note 1. 218; Elliot's Deb., v, p. 131.

4 First proposed by Mr. Burdett in 1870, App., No. 1329.

modifications, passed the House August 4, 1876, by a vote of 180 to 7. When the amendment was presented to the Senate, Senators Frelinghuysen, Sargent, and Christiancy immedi ately proposed substitutes.' The Committee on the Judiciary reported the amendment in more explicit terms, and it received 28 votes. The negative votes were, however, 16, and it thus failed for the lack of a two-thirds vote.2

Five other amendments dealing with this subject have since been introduced, three in the House at this same session of Congress. One of these, presented by Mr. O'Brien of Maryland, in addition to provisions similar to those in the Blaine amendment, contained a clause modeled after a provision in the Maryland constitution, excluding ministers and preachers of the gospel of any denomination from holding any office under the United States, and in addition forbade the requirement of any religious test as a qualification for any office in any State or under the United States. Mr. Edmunds, in 1878,

attempted to revive the subject in the Senate."

The amendment submitted by Senator Blair, in 1888, in addition to the provision previously considered, stipulated that no State should maintain an establishment of religion, and forbade appropriation for sectarian schools.

The provisions of the State constitutions are in almost all instances adequate on this subject, and no amendment is likely to be secured."

App., No. 1401.

The Republican platform of 1876 recommended an amendment "forbidding the appli cation of any public funds or property for the benefit of any schools or institutions under sectarian control." In 1880 it recommended an amendment to prohibit the legislature of a State making any law respecting the establishment of religion and appropriating public funds to the support of sectarian schools.

3 App., Nos. 1410. 1413, 1428, 1459, 1514.

4 The following States in their constitutions also excluded clergymen from holding office: Maryland, constitution of 1867, art. 3, sec. 11; also in the constitution of New York of 1821, art. 7, sec. 4; North Carolina constitution of 1776, art, 31; constitution of South Carolina of 1790, art. 1, sec. 23, and constitution of 1865, sec. 30; Delaware, art. 7, sec. 8 (while he continues to exercise pastoral functions); Kentucky, art. 2, sec. 27; Tennessee, art. 9, sec. 1. Active clergy are also excluded from House of Commons. May, Parl. Practice, p. 30.

"App., No. 1410.

App., No. 1459. The article was not to be construed to prohibit the reading of the Bible in any school or institution.

7 App., No. 1727. Ante, par. 172.

8 At least twenty-three States have constitutional barriers to sectarian appropriations. Many petitions to "put God in the Constitution" have been received, but no formal resolution to amend to that effect has been found during the first century. In the Fiftyfourth Congress such an amendment has been introduced.

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.

3

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.5

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. App. No. 1401.

4 App. No. 1477.

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." i

1 App., No. 1108.

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.'

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.

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

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.

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