CHAPTER IV

THE SIGNIFICANCE OF THE AMENDMENT FEATURE OF THE CONSt.i.tUTION

All democratic const.i.tutions are flexible and easy to amend. This follows from the fact that in a government which the people really control, a const.i.tution is merely the means of securing the supremacy of public opinion and not an instrument for thwarting it. Such a const.i.tution 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 const.i.tution which is democratic in spirit must yield readily to changes in public opinion.

Monarchical and aristocratic const.i.tutions on the other hand are always extremely conservative. Inasmuch as they express the opinion and guarantee the privileges of a dominant cla.s.s, they are bulwarks erected against popular change. The privileged cla.s.ses 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 Const.i.tution 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 const.i.tute 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 Const.i.tution 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 Const.i.tution was to secure stability by placing the government beyond the direct influence of public opinion.

Madison, who has been called the "father of the Const.i.tution," 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 ma.s.s 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 Const.i.tution. 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 Const.i.tution. 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 Const.i.tution. 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 const.i.tutional amendment in motion, and that it requires for ratification of amendments proposed, the a.s.sent of legislatures or conventions in three-fourths of the states, ought to give one some idea of the extreme difficulty of changing our Const.i.tution.

Patrick Henry clearly saw that this lack of adequate provision for amendment was destructive of democracy. In the Virginia convention held to ratify the Const.i.tution 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 Const.i.tution), 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 const.i.tutional 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 Const.i.tution was adopted, it is much smaller now than it was then. In 1900 one forty-fourth of the population distributed so as to const.i.tute 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 Const.i.tution, unless the sentiment in favor of change amounts almost to a revolution. Only at critical times in our history have const.i.tutional 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 Const.i.tution, or during the reconstruction period after the Civil War. That it is not possible in ordinary times to change the Const.i.tution 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 Const.i.tution 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 Const.i.tution, which nominally provides for amendment, but really makes it an impossibility, is perhaps the best proof we could have that the Const.i.tution 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 ma.s.s of the citizens all over the country, voting at the polls, the voice of the people would probably have p.r.o.nounced against the Const.i.tution."[39]

Moreover, "the Convention met," as he observes, "at the most fortunate moment in American History [for securing the adoption of such a const.i.tution].... 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 Const.i.tution 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 Const.i.tution as adopted did not represent the political views of a majority of the American people--probably not even a majority of those ent.i.tled 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 Const.i.tution 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 Const.i.tution 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 cla.s.ses. 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 cla.s.s. The Federalists not only had on their side the power of convincing argument, but also the pressure of a strong and intelligent cla.s.s, possessed of unity and informed by a conscious solidarity of material interests."[44]

The Const.i.tution 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 Ma.s.sachusetts, New York, and Virginia it was ratified by very small majorities,[45] though each of these states accompanied its acceptance of the Const.i.tution 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 Const.i.tution 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 Const.i.tution, 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 Const.i.tution, 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 Const.i.tution 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 Const.i.tution 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 const.i.tutional 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 const.i.tutional barriers erected by our forefathers to stay the progress of democracy. Among the political reforms contemplated by this numerous cla.s.s 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 Const.i.tution 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 pa.s.sed 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 Const.i.tution 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 a.s.sembly, 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 circ.u.mstances is practically impossible.

And when we remember that any proposed amendment to the Const.i.tution must twice run the gauntlet of representative a.s.semblies, 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 princ.i.p.al objections to the Articles of Confederation--that they lacked a practical amending power--applies, then, with no less force to the Const.i.tution itself. In one respect the Const.i.tution is even more rigid than were the Articles of Confederation, since the Congress of the Confederation was the court of last resort for pa.s.sing on the const.i.tutionality 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 Const.i.tution, however, this power to amend the fundamental law can be exercised only to a very limited extent by Congress, since the interpretation of the Const.i.tution by that body for the purposes of law-making is subject to revision at the hands of the Federal Judiciary. The Const.i.tution, 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 inst.i.tutions from time to time to suit themselves.

This view finds support in the character of the early state const.i.tutions. 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 const.i.tutions, 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 const.i.tution. From this time on, however, we see a strong tendency to specify in the const.i.tution itself the manner in which it could be changed; and by the time that the framers of the Federal Const.i.tution met in Philadelphia in 1787 a majority of the state const.i.tutions contained provisions of this kind.

According to the Maryland const.i.tution of 1776 it was necessary that an amendment should "pa.s.s the General a.s.sembly, and be published at least three months before a new election" and confirmed by the General a.s.sembly in the first session after such election.[51] The South Carolina const.i.tution 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 const.i.tution of Delaware, 1776, required that const.i.tutional amendments should be a.s.sented 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 const.i.tution or not.

Five other state const.i.tutions made provision for the adoption of amendments by conventions. The Pennsylvania const.i.tution 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 pa.s.s 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 const.i.tution." They also had power to call a convention for amending the const.i.tution. "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 const.i.tution of 1776 was copied in the Vermont const.i.tution of 1777. The const.i.tution of Georgia, 1777, contained the following: "No alteration shall be made in this const.i.tution without pet.i.tions from a majority of the counties, and the pet.i.tion from each county to be signed by a majority of the voters in each county within this state; at which time the a.s.sembly shall order a convention to be called for that purpose, specifying the alterations to be made, according to the pet.i.tions preferred to the a.s.sembly by the majority of the counties as aforesaid." The Ma.s.sachusetts const.i.tution 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 const.i.tution of 1784 contained a similar provision.

We see, then, that several of the early state const.i.tutions expressly gave, either directly to a majority of the qualified voters, or to their representatives, the right to amend; and even in Ma.s.sachusetts, New Hampshire, and Delaware, whose const.i.tutions 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 const.i.tutions in force in 1787 shows clearly the reactionary character of the Federal Const.i.tution. 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 const.i.tution in expressly limiting the power of the majority, but it provided what no state const.i.tution had done--the means by which its limitations on the power of the majority could be enforced.

A comparison of this feature of our Const.i.tution with the method of amendment in other countries is interesting and instructive. In England no distinction is made between const.i.tutional 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 Const.i.tution 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 a.s.sembly for that purpose. An absolute majority of the members composing the National a.s.sembly is required to change the Const.i.tution.

Amendments to the Federal Const.i.tution 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 pa.s.sed by both houses, it must be submitted to the qualified voters in each state. But if either house by an absolute majority pa.s.ses a proposed amendment which is rejected by the other house, and pa.s.ses 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 Const.i.tution ought to be amended must be submitted to a popular vote whenever demanded by either house of the Federal a.s.sembly 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 Const.i.tution of Australia.

These const.i.tutions show the general tendency at the present time to make the majority supreme. In the countries which have been most influenced by democratic ideas const.i.tutional barriers against change have largely or wholly disappeared. A const.i.tution 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. Const.i.tutions 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. Const.i.tutional 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 a.s.sembly, is the final interpreter of the const.i.tution and may enact laws which virtually amend it. To make such provisions really effective the const.i.tution 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 cla.s.s. Our Const.i.tution, however, provides a subst.i.tute 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 const.i.tutional status of the judiciary will be discussed in the following chapter.

CHAPTER V

THE FEDERAL JUDICIARY

No part of our Const.i.tution has received less adverse criticism than that which relates to the powers and tenure of the judiciary.

Const.i.tutional writers have almost without exception given it their unqualified approval, claiming that its wisdom is established beyond question by the political experience of the English-speaking race. To express a doubt as to the soundness of this view is to take issue with what appears to be the settled and mature judgment of the American people.