THE SIGNIFICANCE OF THE AMENDMENT FEATURE OF THE CONSTITUTION
All democratic constitutions are flexible and easy to amend. This
follows from the fact that in a government which the people really
control, a constitution is merely the means of securing the supremacy of
public opinion and not an instrument for thwarting it. Such a
constitution can not be regarded as a check upon the people themselves.
It is a device for securing to them that necessary control over their
agents and representatives, without which popular government exists only
in name. A government is democratic just in proportion as it responds to
the will of the people; and since one way of defeating the will of the
people is to make it difficult to alter the form of government, it
necessarily follows that any constitution which is democratic in spirit
must yield readily to changes in public opinion.
Monarchical and aristocratic constitutions on the other hand are always
extremely conservative. Inasmuch as they express the opinion and
guarantee the privileges of a dominant class, they are bulwarks erected
against popular change. The privileged classes of any society regard
stability as the chief political desideratum. They resist, and if
possible prevent, those legal and political readjustments which the
general progress of society makes necessary. Their interests are
furthered in proportion as the system is one which renders change
difficult.
With this distinction in mind let us examine the Constitution of the
United States. Was it the intention of the framers of this instrument
that it should be merely a check upon the governmental machinery with
the view of establishing popular control over it, or was it expected to
constitute a check upon the people themselves? That it was not intended
that the people should be given direct and complete control over the
general policy of the government is clear from the fact that the
Constitution was made so difficult to amend; for the right to control
the political machinery, implies of necessity the right to make such
changes in it from time to time, as are needed to make this control
effective. It is evident from the views expressed in the Convention that
one object of the Constitution was to secure stability by placing the
government beyond the direct influence of public opinion.
Madison, who has been called the "father of the Constitution," thought
it "ought to secure the permanent interests of the country against
innovation."[31] Hamilton said "all communities divide themselves into
the few and the many. The first are the rich and well born, the other
the mass of the people ... [the latter] are turbulent and changing; they
seldom judge or determine right." Therefore he advocated a permanent
senate which would be able to "check the imprudence of democracy."[32]
Gouverneur Morris observed that "the first branch [of the proposed
Federal Congress], originating from the people, will ever be subject to
_precipitancy_, _changeability_, and _excess_.... This can only be
checked by _ability_ and _virtue_ in the second branch ... [which] ought
to be composed of men of great and established property--_aristocracy_;
men who, from pride, will support consistency and permanency; and to
make them completely independent, they must be chosen _for life_, or
they will be a useless body. Such an aristocratic body will keep down
the turbulence of democracy."[33]
This dread of the consequences of popular government was shared to a
greater or less extent by nearly all the members of that Convention.
Their aim was to find a cure for what they conceived to be the evils of
an excess of democracy.
"Complaints," says Madison in _The Federalist_, "are everywhere heard
from our most considerate and virtuous citizens, equally the friends of
public and private faith, and of public and personal liberty, that our
governments are too unstable, that the public good is disregarded in the
conflicts of rival parties, and that measures are too often decided, not
according to the rules of justice and the rights of the minor party, but
by the superior force of an interested and overbearing majority."[34]
This criticism of the American government of the Revolutionary period
gives us the point of view of the framers of the Constitution. We should
remember, however, that the so-called majority rule to which Madison
attributed the evils of that time had nothing in common with majority
rule as that term is now understood. Under the laws then in force the
suffrage was greatly restricted, while the high property qualifications
required for office-holding had the effect in many cases of placing the
control of legislation in the hands of the wealthier part of the
community. But undemocratic as the system was, it was not sufficiently
undemocratic to suit the framers of the Constitution. It was no part of
their plan to establish a government which the people could control. In
fact, popular control was what they were seeking to avoid. One means of
accomplishing this was to make amendment difficult, and this accordingly
was done. We need not be surprised that no provision was made for its
original adoption, or subsequent amendment by direct popular vote.[35]
The fact that the people can not directly propose, or even ratify
changes in the fundamental law, is a substantial check upon democracy.
But in addition to this, another check was provided in the extraordinary
majority necessary to amend the Constitution. That it requires a
two-thirds majority of both houses of Congress, or an application from
the legislature in two-thirds of the states to merely set the machinery
for constitutional amendment in motion, and that it requires for
ratification of amendments proposed, the assent of legislatures or
conventions in three-fourths of the states, ought to give one some idea
of the extreme difficulty of changing our Constitution.
Patrick Henry clearly saw that this lack of adequate provision for
amendment was destructive of democracy. In the Virginia convention held
to ratify the Constitution he said:
"To encourage us to adopt it, they tell us that there is a plain, easy
way of getting amendments. When I come to contemplate this part, I
suppose that I am mad, or that my countrymen are so. The way to
amendment is, in my conception, shut ..." After quoting Article V (the
amendment feature of the Constitution), he continues:
"Hence it appears that three-fourths of the states must ultimately agree
to any amendments that may be necessary. Let us consider the consequence
of this.... Let us suppose--for the case is supposable, possible and
probable--that you happen to deal those powers to unworthy hands; will
they relinquish powers already in their possession, or agree to
amendments? Two-thirds of Congress, or of the state legislatures, are
necessary even to propose amendments. If one-third of these be unworthy
men, they may prevent the application for amendments; but what is
destructive and mischievous, is, that three-fourths of the state
legislatures, or of the state conventions, must concur in the amendments
when proposed! In such numerous bodies, there must necessarily be some
designing, bad men. To suppose that so large a number as three-fourths
of the states will concur, is to suppose that they will possess genius,
intelligence, and integrity, approaching to miraculous.... For four of
the smallest states, that do not collectively contain one-tenth part of
the population of the United States, may obstruct the most salutary and
necessary amendments. Nay, in these four states, six-tenths of the
people may reject these amendments.... A bare majority in these four
small states may hinder the adoption of amendments; so that we may
fairly and justly conclude that one-twentieth part of the American
people may prevent the removal of the most grievous inconveniences and
oppression, by refusing to accede to amendments.... Is this an easy mode
of securing the public liberty? It is, sir, a most fearful situation,
when the most contemptible minority can prevent the alteration of the
most oppressive government; for it may, in many respects, prove to be
such."[36]
That such a small minority of the people should have the power under our
constitutional arrangements to prevent reform, can hardly be reconciled
with the general belief that in this country the majority rules. Yet
small as was this minority when the Constitution was adopted, it is much
smaller now than it was then. In 1900 one forty-fourth of the population
distributed so as to constitute a majority in the twelve smallest states
could defeat any proposed amendment. As a matter of fact it is
impossible to secure amendments to the Constitution, unless the
sentiment in favor of change amounts almost to a revolution. Only at
critical times in our history have constitutional amendments been
adopted. During sixty-one years from 1804 to 1865, and since 1870, no
amendments have been made. The fifteen amendments were all adopted,
either during the turbulent period of American politics which
immediately followed the ratification of the Constitution, or during
the reconstruction period after the Civil War. That it is not possible
in ordinary times to change the Constitution is evident from the fact
that of some twenty-two hundred propositions for amendment only fifteen
have been adopted, and these during the periods above mentioned.[37]
"The argument in favor of these artificial majorities," says Professor
Burgess, "is that innovation is too strong an impulse in democratic
states, and must be regulated; that the organic law should be changed
only after patience, experience and deliberation shall have demonstrated
the necessity of the change; and that too great fixedness of the law is
better than too great fluctuation. This is all true enough; but, on the
other hand, it is equally true that development is as much a law of
state life as existence. Prohibit the former, and the latter is the
existence of the body after the spirit has departed. 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. The
safeguards against too radical change must not be exaggerated to the
point of dethroning the real sovereign."[38]
What Professor Burgess seems to overlook is the fact that the framers of
the Constitution deliberately intended to dethrone the numerical
majority. The restrictions which they placed upon the exercise of the
amending power were not only not inconsistent with the form of
government which they established, but as a matter of fact absolutely
necessary to ensure its preservation, since without such a limitation of
the power to amend, the majority could easily overcome all other checks
upon its authority.
This feature of the Constitution, which nominally provides for
amendment, but really makes it an impossibility, is perhaps the best
proof we could have that the Constitution as framed and adopted
represented the views of a minority who intended by this means to
perpetuate their influence. But, we are told, this can not be the case
since the states were free to accept or reject it. Let us not forget,
however, that at no stage of the proceedings was the matter referred
directly to the people. Bryce says: "Had the decision been left to what
is now called 'the voice of the people,' that is, to the mass of the
citizens all over the country, voting at the polls, the voice of the
people would probably have pronounced against the Constitution."[39]
Moreover, "the Convention met," as he observes, "at the most fortunate
moment in American History [for securing the adoption of such a
constitution].... Had it been attempted four years earlier or four years
later at both of which times the waves of democracy were running high,
it must have failed."[40] But even under these favoring conditions it
was no easy task to get the states to adopt it. The advocates of the
Constitution employed every argument and influence that could contribute
to the desired result. They appealed with telling effect to the dread of
European aggression. This induced many who had little sympathy with the
proposed plan of government, to acquiesce in its adoption, believing
that some sort of a strong government was necessary for purposes of
defence. It was also boldly charged that money was employed to overcome
opposition where other means of persuasion failed.[41]
Our natural inclination is to disbelieve anything that reflects on the
political methods employed by the founders of our government.
Nevertheless, the widespread belief that the politicians and public men
of that time were less corrupt than those of to-day is, as Professor
McMaster says, a pure delusion. "A very little study of long-forgotten
politics will suffice to show that in filibustering and gerrymandering,
in stealing governorships and legislatures, in using force at the polls,
in colonizing and in distributing patronage to whom patronage is due, in
all the frauds and tricks that go to make up the worst form of practical
politics, the men who founded our state and national governments were
always our equals, and often our masters."[42] Of one thing we may be
reasonably certain--the Constitution as adopted did not represent the
political views of a majority of the American people--probably not even
a majority of those entitled to vote. Universal suffrage, we must
remember, did not then exist, and both property and religious
qualifications limited the right to hold public office. This of itself
is evidence that those who then controlled politics did not believe in
the right of the majority to rule. And when we take account of the
further fact that this was a time of political reaction, when the
government of the country was largely in the hands of those who despised
or feared democracy, we can easily see that the natural effects of a
restricted suffrage may have been intensified by those methods of
"practical politics" which not infrequently defeat the will of the
majority even to-day under universal suffrage. That it was the intention
of the framers of the Constitution to bring about, if possible, the
adoption of a form of government of which the majority of the people did
not approve, is clearly established by the record of their proceedings.
Hamilton, referring to the plan of government which he had proposed,
said: "I confess that this plan, and that from Virginia [the one
submitted by Randolph and of which the Constitution as finally adopted
was a modification], are very remote from the idea of the people.
Perhaps the Jersey plan is nearest their expectation. But the people are
gradually ripening in their opinions of government--they begin to be
tired of an excess of democracy...."[43]
"The Federal government was not by intention a democratic government. In
plan and structure it had been meant to check the sweep and power of
popular majorities. The Senate, it was believed, would be a stronghold
of conservatism, if not of aristocracy and wealth. The President, it was
expected, would be the choice of representative men acting in the
electoral college, and not of the people. The Federal judiciary was
looked to, with its virtually permanent membership, to hold the entire
structure of national politics in nice balance against all disturbing
influences, whether of popular impulse or of official overbearance. Only
in the House of Representatives were the people to be accorded an
immediate audience and a direct means of making their will effective in
affairs. The government had, in fact, been originated and organized upon
the initiative and primarily in the interest of the mercantile and
wealthy classes. Originally conceived as an effort to accommodate
commercial disputes between the States, it had been urged to adoption by
a minority, under the concerted and aggressive leadership of able men
representing a ruling class. The Federalists not only had on their side
the power of convincing argument, but also the pressure of a strong and
intelligent class, possessed of unity and informed by a conscious
solidarity of material interests."[44]
The Constitution would certainly have been rejected, notwithstanding the
influences that were arrayed in favor of its adoption, but for the
belief that it would shortly be amended so as to remove some of its more
objectionable features. In the large and influential states of
Massachusetts, New York, and Virginia it was ratified by very small
majorities,[45] though each of these states accompanied its acceptance
of the Constitution with various recommendations for amendment. As a
result of these suggestions from the states ratifying it, the first
Congress in 1789 framed and submitted the first ten amendments. The
eleventh amendment was the outgrowth of the Supreme Court decision in
the case of Chisholm v. The State of Georgia. In this case the court
held, contrary to the interpretation given to the Constitution by
Hamilton when defending it in _The Federalist_,[46] that a private
plaintiff could sue a state in the Federal Court. This decision aroused
a storm of indignation, and Congress in 1794 proposed the Eleventh
Amendment, which counteracted the effect of this decision. The Twelfth
Amendment, proposed by Congress in 1803, merely changed the method of
electing the President to meet the requirements of the party system
which had then come into existence.
These first twelve amendments were all adopted during the infancy of the
Constitution, and while it was still regarded as an experiment. But
though they had the effect of quieting public opinion and allaying the
fears of the people concerning the new form of government, they made no
important changes in the Constitution, leaving all its main features as
originally adopted. The same may be said of the last three amendments,
which were the result of the Civil War. They were proposed and ratified,
as Bryce says, "under conditions altogether abnormal, some of the lately
conquered states ratifying while actually controlled by the Northern
armies, others as the price which they were obliged to pay for the
readmission to Congress of their senators and representatives."[47]
These amendments were really carried through, not by the free choice of
three-fourths of the states, as the Constitution requires, "but under
the pressure of a majority which had triumphed in a great war,"[48] and
used military and political coercion to accomplish what otherwise could
not have been brought about. Nothing could have been farther from the
intention of the victorious Northern states at that time than any
important change in the form or character of the government which they
had waged a gigantic civil war to defend and enforce. Slavery, it is
true, was abolished to remove forever the bone of contention between the
North and the South. But the Constitution survived the Civil War,
unchanged in all its essential features, and more firmly established
than ever.
That the plan of government originally established has undergone no
important modification by constitutional amendment can not be ascribed
to the fact that important changes have not been suggested. With the
growth of more liberal views concerning government many attempts have
been made to remove the constitutional barriers erected by our
forefathers to stay the progress of democracy. Among the political
reforms contemplated by this numerous class of proposed amendments may
be mentioned a shorter term for United States senators and election by
popular vote; direct election of the President and the abolition of his
veto power; a shorter term for Federal judges and their removal by the
President on the joint address of both houses of Congress. The aim of
all these proposed amendments has been the same, viz., to make the
Constitution accord better with the democratic spirit of the time. It is
interesting to observe, however, that with the single exception of the
proposed election of United States senators by popular vote, not one of
these had the support of either house of Congress, much less the
two-thirds majority in both, or a majority in the legislatures of
two-thirds of the states, as required to authorize their submission for
ratification or rejection. Even this measure, which has passed the House
of Representatives several times by an overwhelming vote, has been
entirely ignored by the Senate.
No proposal, then, to make any important change in the Constitution has
ever obtained the preliminary two-thirds majority, to say nothing of
the majority in three-fourths of the states, necessary for its adoption.
That the majority required to propose an amendment is almost prohibitive
of change, is shown by the record of popular elections and the journals
of representative bodies. From the presidential election year of 1828,
the first for which we have a record of the popular vote, down to 1900,
the largest majority ever received by any candidate for the Presidency
was that of Andrew Jackson in 1828, when he had less than 56 per cent.
of the popular vote.[49] Nine elections since Jackson's time resulted in
the choice of a President by less than a popular majority. No candidate
in any presidential election from 1876 to 1900 inclusive has carried
two-thirds of the states.[50]
It is still more difficult for any important reform measure to secure a
two-thirds majority in a representative assembly, as the proceedings of
Congress and our state legislatures abundantly prove. This is true for
the reason that a wealthy minority can exert an influence over such
bodies out of all proportion to its numerical strength at the polls.
Hence even a bare majority can seldom be obtained for any measure which
interferes with or restricts the privileges of organized wealth. A
two-thirds majority under such circumstances is practically impossible.
And when we remember that any proposed amendment to the Constitution
must twice run the gauntlet of representative assemblies, receiving
first a two-thirds majority in both houses of Congress and later a
majority in both houses of the legislature or in conventions in
three-fourths of the states, we readily see that this provision
effectually precludes the possibility of any important amendment.
One of the principal objections to the Articles of Confederation--that
they lacked a practical amending power--applies, then, with no less
force to the Constitution itself. In one respect the Constitution is
even more rigid than were the Articles of Confederation, since the
Congress of the Confederation was the court of last resort for passing
on the constitutionality of its own legislation. This gave to Congress
under the Confederation at least a limited power of virtually amending
the Articles of Confederation by the ordinary process of law-making--a
power possessed by the legislature in all countries where the system of
checks and balances is not recognized. Under the Constitution, however,
this power to amend the fundamental law can be exercised only to a very
limited extent by Congress, since the interpretation of the Constitution
by that body for the purposes of law-making is subject to revision at
the hands of the Federal Judiciary. The Constitution, then, more
effectually prevents changes desired by the majority than did the
Articles of Confederation, since the former guards against the
possibility of amendment under the guise of ordinary legislation while
the latter did not.
Another distinction must be borne in mind. The Articles of Confederation
made amendment difficult in order to prevent the general government from
encroaching on the rights of the several states. It was not so much a
disposition to make change impossible, or even difficult, as, by keeping
the general government within established bounds, to leave the several
states free to regulate their own affairs and change their institutions
from time to time to suit themselves.
This view finds support in the character of the early state
constitutions. These were shaped by the same revolutionary movement
which produced the Declaration of Independence, and were largely
influenced in their practical working by the "self-evident" truths
proclaimed in the latter. One of the axioms of political science
embodied in the Declaration of Independence was the right of the people
to alter or abolish the existing form of government. This principle,
however, was expressly recognized in but few of the earlier state
constitutions, which, as a rule, contained no provision for future
amendment. But such provision was not really necessary, inasmuch as the
power of the legislature was limited only by its responsibility to the
electorate. A mere majority of the qualified voters might demand and
secure the enactment of laws which would virtually amend the
constitution. From this time on, however, we see a strong tendency to
specify in the constitution itself the manner in which it could be
changed; and by the time that the framers of the Federal Constitution
met in Philadelphia in 1787 a majority of the state constitutions
contained provisions of this kind.
According to the Maryland constitution of 1776 it was necessary that an
amendment should "pass the General Assembly, and be published at least
three months before a new election" and confirmed by the General
Assembly in the first session after such election.[51] The South
Carolina constitution of 1778 permitted "a majority of the members of
the senate and house of representatives" to adopt amendments after
having given ninety days' notice of such intention. The constitution of
Delaware, 1776, required that constitutional amendments should be
assented to by five-sevenths of the lower house and seven-ninths of the
upper. This check on amendment was largely inoperative, however, for the
reason above mentioned, viz., that the legislature was supreme, and
could enact by majority vote such laws as it saw fit, whether they were
in harmony with the constitution or not.
Five other state constitutions made provision for the adoption of
amendments by conventions. The Pennsylvania constitution of 1776
provided for the election every seventh year by the freemen of the state
of a "Council of Censors" to hold office during one year from the date
of their election. This body had the power "to pass public censures, to
order impeachments, and to recommend to the legislature the repealing
such laws as appear to them to have been enacted contrary to the
principles of the constitution." They also had power to call a
convention for amending the constitution. "But ... the amendments
proposed ... shall be promulgated at least six months before the day
appointed for the election of such convention, for the previous
consideration of the people, that they may have an opportunity of
instructing their delegates on the subject." This provision of the
Pennsylvania constitution of 1776 was copied in the Vermont constitution
of 1777. The constitution of Georgia, 1777, contained the following: "No
alteration shall be made in this constitution without petitions from a
majority of the counties, and the petition from each county to be signed
by a majority of the voters in each county within this state; at which
time the assembly shall order a convention to be called for that
purpose, specifying the alterations to be made, according to the
petitions preferred to the assembly by the majority of the counties as
aforesaid." The Massachusetts constitution of 1780 provided that the
question of amendment should be submitted to the qualified voters of the
state, and if two-thirds of those voting favored amendment, it was the
duty of the legislature to order the election of delegates to meet in
convention for that purpose. The New Hampshire constitution of 1784
contained a similar provision.
We see, then, that several of the early state constitutions expressly
gave, either directly to a majority of the qualified voters, or to their
representatives, the right to amend; and even in Massachusetts, New
Hampshire, and Delaware, whose constitutions expressly limited the power
of the majority, the limitation was not effective, since the majority
could push through under the guise of ordinary legislation, measures
which virtually amounted to an exercise of the amending power. Such
limitations on the power of the majority did not become effective until
a judiciary not directly responsible to the people, acquired the right
to declare acts of the legislature null and void.
An examination of these features of the various state constitutions in
force in 1787 shows clearly the reactionary character of the Federal
Constitution. It repudiated entirely the doctrine then expressly
recognized in some of the states and virtually in all, that a majority
of the qualified voters could amend the fundamental law. And not only
did it go farther than any state constitution in expressly limiting the
power of the majority, but it provided what no state constitution had
done--the means by which its limitations on the power of the majority
could be enforced.
A comparison of this feature of our Constitution with the method of
amendment in other countries is interesting and instructive. In England
no distinction is made between constitutional amendments and other
legislation. And since the Crown has lost the veto power and the House
of Commons established its right to override the opposition of the House
of Lords, the most radical changes may be made without even the checks
which impede ordinary legislation in the United States.
In France amendment of the Constitution is almost as easy as in England,
though a distinction is made between this and ordinary legislation. When
both the Senate and Chamber of Deputies decide by an absolute majority
in each that amendment is necessary, they meet in joint session as a
National Assembly for that purpose. An absolute majority of the members
composing the National Assembly is required to change the Constitution.
Amendments to the Federal Constitution of Australia may be proposed by
an absolute majority of both Houses of Parliament. Not less than two nor
more than six months after the proposed amendment has been passed by
both houses, it must be submitted to the qualified voters in each
state. But if either house by an absolute majority passes a proposed
amendment which is rejected by the other house, and passes it again by
an absolute majority after an interval of three months, the
Governor-General may submit the proposed amendment to the qualified
voters. A proposed amendment is adopted if it is approved by a majority
of all those voting and also by a majority in a majority of the states.
In Switzerland the question whether the Federal Constitution ought to be
amended must be submitted to a popular vote whenever demanded by either
house of the Federal Assembly or by fifty thousand voters (about
one-fifteenth of the voting population). A proposed amendment is adopted
if it receives a majority of all the votes cast and at the same time a
majority in a majority of the Cantons, a provision copied, as we have
seen, in the Federal Constitution of Australia.
These constitutions show the general tendency at the present time to
make the majority supreme. In the countries which have been most
influenced by democratic ideas constitutional barriers against change
have largely or wholly disappeared. A constitution is in no proper sense
the embodiment of the will of the people unless it recognizes the right
of the majority to amend. Checks which prevent legal and political
readjustment are a survival from monarchy and aristocracy and are not
found in any full-fledged democracy. Constitutions which are really
democratic contain only such checks upon the people, if indeed they can
be called checks, as are calculated to insure the deliberate expression
of the popular will. Constitutional provisions designed to obstruct
amendment are not only an anomaly in popular government, but they are in
the very nature of the case inoperative. This follows from the fact that
the law-making body, whether it be the people themselves or a
representative assembly, is the final interpreter of the constitution
and may enact laws which virtually amend it. To make such provisions
really effective the constitution must vest the power to prevent
legislation in some branch of government not directly responsible to the
people. Usually this is a King or hereditary class. Our Constitution,
however, provides a substitute for these in its general system of checks
and especially in the independence of our national judiciary, which in
addition to the exercise of ordinary judicial functions is also
practically a branch of the legislature. The constitutional status of
the judiciary will be discussed in the following chapter.