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put their wishes in the concrete form of a total of one hundred and twenty-four articles of amendment to be added to the Constitution.1
In The Federalist, Hamilton argued ably that such provisions were superfluous and even dangerous, because they contained various exceptions to power not actually granted, and would thus afford a colorable pretext to claim more than was granted. "For," he contended, "why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a right to prescribe proper regulations concerning it was intended to be vested in the national government."2 This very plausible argument was met with great cogency by Madison, introducing the proposed amendments in Congress in June, 1789; and the history of the Alien and Sedition laws later bore out the contentions he advanced. He admitted that the new government was limited to certain particular objects, but pointed out that even within the most narrowly circumscribed limits the government would have a discretionary power liable to abuse, and furthermore that this abuse was all the more probable in view of the express provision that Congress could make all laws necessary and proper for carrying into execution the powers expressly vested in the government of the United States. In support of this, Madison cited a single instance: "The General Government has a right to pass all laws which shall be necessary to collect its revenue; the means of enforcing the collection are within the direction of the legislature; may not general warrants [of arrest] be considered necessary for the purpose, as well as for some purposes which it was supposed, at the framing of their 1 Ames, Proposed Amendments to the Constitution of the United States, pp. 183 ff. 2 The Federalist, No. LXXXIV.
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, 1703; 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.
peace, safety, and independence of the several states and repug nant to the first principles of a Federal government"; and the Georgia house of representatives passed an act providing that any official who attempted the enforcement of the decision should be declared guilty of felony and suffer death without benefit of clergy by being hanged. The proposed amendment, which was sent to the states by Congress in 1794, received the requisite approval of three-fourths of the states, and went into force in 1798.
Little more than two years had elapsed after the ratification of the Eleventh Amendment before a more serious crisis, in the presidential election of 1800, demonstrated the imperative necessity of reconstructing the section of the Constitution dealing with the balloting of the electors for President. The original system, which was prepared without taking into account the rise of parties. and their effect on the framework of the government, provided that the presidential electors chosen in each state should cast their ballots for two persons, without designating which was to be President or Vice-President; and then added: "The person having the greatest number of votes shall be President, if such number be a majority of the whole number of electors appointed: and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then, from the five highest on the list, the said House shall in like manner choose the President," the representation from each state having one vote.
In the election of 1800, Jefferson and Burr received seventythree votes each, and the latter, willing to defeat what he knew to be the real wishes of his party, sought to secure his election to the presidency by gaining enough votes from the Federalists in the House of Representatives where the election had been thrown under the constitutional provision. Fortunately his design was frustrated; but the outcome of the contest, and the low intrigue which accompanied it, revealed the necessity of requiring the electors to designate the persons for whom they cast their ballots as President and Vice-President respectively.
1 Professor H. V. Ames, in his valuable collection, State Documents on Federal Relations, pp. 7 ff., gives this act and citations of authorities.
Accordingly an amendment to effect this reasonable change was introduced into the House of Representatives in February, 1802.1 The arguments advanced in favor of it were simple and direct: the suffrages given for the election of the agents of government ought to be an expression of public will; any provision liable to lead to the appointment of a person not originally intended by a majority of the electors defeats the first principles of the American system; and finally, what more serious calamity could be imagined than a continued division of the House of Representatives-in case the choice should fall there which might result in indefinite delay of a presidential election - by no means an impossible contingency. The arguments against the proposal were singularly weak: it was urged in favor of the smaller states that they would have a better chance of securing one or the other of the offices if the existing system was retained, because it threw contested elections into the House of Representatives where all states had an equal vote; and finally it would destroy the original design of having two of the ablest characters chosen without discrimination for the high office.3 Nevertheless, the proposal, which received the requisite majority in Congress and then went to the states in December, 1803, was promptly ratified and declared in force on September 25, 1804, as the Twelfth Amendment.
An eventful half century now passed before any further changes were made in the law of the Constitution. Vast territories stretching to the Pacific were acquired; nearly a score of states were added to the Union; the development of industries and the extension of railways began to work a marvellous transformation in the economic system of the country; state constitutions were remodelled over and over, showing at each successive decade an advance in democratic ideas of government; practices of every kind stretched beyond recognition many of the original terms of the written instrument; and yet no changes could be made in the formal rules of the document itself until, in the hot struggles of the Civil War, the whole political system was thrown into the melting pot.
In March, 1862, less than a year after the opening of the
1 Such an amendment had really been proposed earlier.
2 Annals of Congress, 8th Cong., 1st Sess., pp. 490 ff.
conflict between the states, Congress abolished slavery in the territories, the following month slaves were emancipated in the District of Columbia, and in September, 1862, shortly after the check administered to Lee at the battle of Antietam, Lincoln issued his proclamation announcing that the slaves in those states which had not returned to their allegiance by January 1, 1863, would be treated as free.
However, the Proclamation of Emancipation, which duly went into effect, might not of its own force have prevented the restoration of slavery by the Confederate States if they were brought back into the Union; and accordingly, in December, 1863, simultaneous resolutions were introduced into the House and Senate, providing for an amendment forever prohibiting slavery. In a speech delivered in the Senate in support of the amendment, Mr. Trumbull put the situation concisely: "In my judgment, the only effectual way of ridding the country of slavery, and so that it cannot be resuscitated, is by an amendment of the Constitution forever prohibiting it within the jurisdiction of the United States. This amendment adopted, not only does slavery cease, but it can never be reëstablished by state authority or in any other way than by amending the Constitution. Whereas, if slavery should now be abolished by act of Congress or proclamation of the President, assuming that either had the power to do it, there is nothing in the Constitution to prevent any state from reëstablishing it. . . . It is very generally conceded, I believe, by men of all political parties, that slavery is gone, that the value of slavery is destroyed by the rebellion. What objection then can there be on the part of any one in the present state of public feeling in the country, to giving the people an opportunity to pass on the question?" 1
It was apparent, however, to every one that pressure would have to be exercised on the conquered southern states in order to secure the requisite three-fourths for the adoption of the amendment. This was a ground for the objections urged by Mr. Pendleton in the House of Representatives against the passage of the resolution. "It is impossible," he declared, "that the amendment proposed should be ratified without a fraudulent I select the term advisedly - without a fraudulent use