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try, and a collection of these pamphlets by Hamilton, Madison, and Jay, brought together under the title of The Federalist· though clearly a piece of campaign literature - has remained a permanent part of the contemporary sources on the Constitution and has been regarded by many lawyers as a commentary second in value only to the decisions of the Supreme Court. Within a year the champions of the new government found themselves victorious, for on June 21, 1788, the ninth state, New Hampshire, ratified the Constitution, and accordingly the new government might go into effect as between the agreeing states. Within a few weeks, the nationalist party in Virginia and New York succeeding in winning these two states, and in spite of the fact that North Carolina and Rhode Island had not yet ratified the Constitution, Congress determined to put the instrument into effect in accordance with the recommendations of the convention. Elections for the new government were held; the date March 4, 1789, was fixed for the formal establishment of the new system; Congress secured a quorum on April 6; and on April 30, Washington was inaugurated at the Federal Hall in Wall Street, New York.
THE EVOLUTION OF THE FEDERAL CONSTITUTION
If we use the term "Constitution" in the narrow sense as including only the provisions of the written instrument itself, the history of its development would be brief; but such a restriction of the term would be sheer formalism, and a history based upon such an interpretation would be utterly misleading. For constitutional law, as Professor Dicey points out, includes all the fundamental rules which directly or indirectly affect the distribution and exercise of sovereign power; it includes among other things the laws which define the suffrage, regulate the prerogatives of the chief magistrate, prescribe the form of the legislature, and determine the structure and functions of the hierarchy of officials. A comparison, therefore, of the existing body of law and custom relative to such matters with that obtaining in the United States on the morning when Washington took the oath of office in Wall Street reveals most astonishing changes. Only fifteen new clauses, it is true, have been added by way of amendment to the written document, but Congress has filled up the bare outline by elaborate statutes; party operations have altered fundamentally the spirit and working of much of the machinery; official practice has set up new standards from time to time; and the Supreme Court, by generous canons of interpretation, has expanded, in ways undreamed of by the Fathers, the letter of the law. In fact, the customs of our Constitution form as large an element as they do in the English constitution. A correct appreciation of the evolutionary character of the federal system is, therefore, necessary for a true understanding of the genius of the American political institutions.
The Federal Amending Process
The most obvious changes in our Constitution are, of course, those that have been effected by the amendments, all of which are to be understood in connection with the historical circum
stances that called them into existence. The system of amendment provided by the framers of the Constitution, while very simple in its nature, requires such extraordinary majorities both for initiation and ratification that, in practice, with the exception of the first eleven articles, no change has been made save under circumstances of a serious character.
There are, in reality, four possible ways of amending the Constitution, although in practice only one has been used. A proposition to amend may originate in Congress, on the approval of two-thirds of both houses, and may be ratified by the concurrence of the legislatures, or of conventions, as Congress may determine, in three-fourths of the states. On the other hand, Congress, on the application of the legislatures of two-thirds of the states, must call a national convention for the purpose of drafting amendments which may be ratified by conventions, or by legislatures in three-fourths of the states. The composition of the national and state conventions, the procedure to be followed 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 Congress 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 is 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, 1 Burgess, Political Science and Constitutional Law, Vol. I, p. 146. 2 See Readings, pp. 56 ff.
with his certificate specifying the states by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States."
The requirement of the approval of an exceptionally large number of states and the principle of allowing states equal weight, regardless of their population or wealth, has been the subject of much adverse criticism, from the protest of Patrick Henry, which we have noted, down to the objections of the most recent commentators. Professor Burgess makes an exceptionally powerful argument against the federal amending system: "When I reflect that, while our natural conditions and relations have been requiring a gradual strengthening and extension of the powers of the central government, not a single step has been taken in this direction through the process of amendment prescribed in that article, except as the result of civil war, I am bound to conclude that the organization of the sovereign power within the Constitution has failed to accomplish the purpose for which it was constructed. . . . When a state must have recourse to war to solve the internal questions of its own politics, this is indisputable evidence that the law of its organization within the constitution is imperfect; and when a state cannot so modify and amend its constitution from time to time as to express itself truthfully therein, but must writhe under the bonds of its constitution from time to time until it perishes or breaks them asunder, this is again indisputable evidence that the law of its organization within the constitution is imperfect and false. . . . When in a democratic political society, the well-matured, long, and deliberately formed will of the undoubted majority can be persistently and successfully thwarted, in the amendment of its organic law, by the will of the minority, there is just as much danger to the state from revolution and violence as there is from the caprice of the majority where the sovereignty of the bare majority is acknowledged." 1
The extraordinary majorities required for the initiation and ratification of amendments have resulted in making it practically impossible to amend the Constitution under ordinary circumstances, and it must be admitted that only the war power in the
1 Political Science and Constitutional Law, Vol. I, pp. 150 ff.
hands of the federal government secured the passage of the great clauses relating to slavery and civil rights. An observant scholar, Professor J. Allen Smith, has estimated that some twenty-two hundred 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 1870- the pending Sixteenth Amendment - has secured the requisite two-thirds majority in the House and Senate, and it is by no means certain that a sufficient number of ratifications will be obtained. Professor Smith also estimates that, on the basis of the last census, one forty-fourth of the population distributed so as 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 Congress.
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 standing armies.” 2 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
1 The Spirit of American Government, 1907, pp. 46 ff.
Quoted in Curtis, Constitutional History of the United States (1889), Vol. I, p. 669, note.