The American Commonwealth. Viscount James Bryce
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not have if they stood alone, and by which their working is materially modified. These rules are sometimes embodied in statutes passed by Congress and repealable by Congress. Sometimes they remain in the stage of a mere convention or understanding which has no legal authority, but which everybody knows and accepts. Whatever their form, they must not conflict with the letter of the Constitution, for if they do conflict with it, they will be deemed invalid whenever a question involving them comes before a court of law.
It may be observed that of these three modes of change, the first is the most obvious, direct, and effective, but also the most difficult to apply, because it needs an agreement of many independent bodies which is rarely attainable. The second mode is less potent in its working, because an interpretation put on a provision may be recalled or modified by the same authority, viz., the courts of law (and especially the Supreme Federal Court), which has delivered it. But while a particular interpretation stands, it is as strong as the Constitution itself, being indeed incorporated therewith, and therefore stronger than anything which does not issue from the same ultimate source of power, the will of the people. The weakest, though the easiest and most frequent method, is the third. For, legislation and custom are altogether subordinate to the Constitution, and can take effect only where the letter of the Constitution is silent, and where no authorized interpretation has extended the letter to an unspecified case. But they work readily, quickly, freely; and the developments to be ascribed to them are therefore as much larger in quantity than those due to the two other methods as they are inferior in weight and permanence.
We shall perceive after examining these three sources of change not only that the Constitution as it now stands owes much to them, but that they are likely to modify it still further as time goes on. We shall find that, rigid as it is, it suffers constant qualification and deflection, and that while its words continue in the main the same, it has come to mean something different to the men of 1910 from what it meant to those of 1810, when it had been at work for more than twenty years, or even to those of 1860, when the fires of protracted controversy might be thought to have thrown a glare of light into every corner of its darkest chambers.
The Amendment of the Constitution
The men who sat in the Convention of 1787 were not sanguine enough, like some of the legislating sages of antiquity, or like such imperial codifiers as the emperor Justinian, to suppose that their work could stand unaltered for all time to come. They provided (art. V) that “Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes as part of this Constitution when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode may be prescribed by Congress.”
There are therefore two methods of framing and proposing amendments.
(A) Congress may itself, by a two-thirds vote in each house, prepare and propose amendments.
(B) The legislatures of two-thirds of the states may require Congress to summon a Constitutional Convention. Congress shall thereupon do so, having no option to refuse; and the convention when called shall draft and submit amendments. No provision is made as to the election and composition of the convention, matters which would therefore appear to be left to the discretion of Congress.
There are also two methods of enacting amendments framed and proposed in either of the foregoing ways. It is left to Congress to prescribe one or other method as Congress may think fit.
(X) The legislatures of three-fourths of the states may ratify any amendments submitted to them.
(Y) Conventions may be called in the several states, and three-fourths of these conventions may ratify.1
On all the occasions on which the amending power has been exercised, method A has been employed for proposing and method X for ratifying, i.e., no drafting conventions of the whole Union or ratifying conventions in the several states have ever been summoned. The preference of the action of Congress and the state legislatures may be ascribed to the fact that it has never been desired to remodel the whole Constitution, but only to make changes or additions on special points. Moreover, the procedure by national and state conventions might be slower, and would involve controversy over the method of electing those bodies. The consent of the president is not required to a constitutional amendment.2 A two-thirds majority in Congress can override his veto of a bill, and at least that majority is needed to bring a constitutional amendment before the people.
There is only one provision of the Constitution which cannot be changed by this process. It is that which secures to each and every state equal representation in one branch of the legislature. “No State without its consent shall be deprived of its equal suffrage in the Senate” (art. V). It will be observed that this provision does not require unanimity on the part of the states to a change diminishing or extinguishing state representation in the Senate, but merely gives any particular state proposed to be affected an absolute veto on the proposal. If a state were to consent to surrender its rights, and three-fourths of the whole number to concur, the resistance of the remaining fourth would not prevent the amendment from taking effect.
Following President Lincoln, the Americans speak of the Union as indestructible; and the expression, “An indestructible Union of indestructible States,” has been used by the Supreme Court in a famous case.3 But looking at the Constitution simply as a legal document, one finds nothing in it to prevent the adoption of an amendment providing a method for dissolving the existing federal tie, whereupon such method would be applied so as to form new unions, or permit each state to become an absolutely sovereign and independent commonwealth. The power of the people of the United States appears competent to effect this, should it ever be desired, in a perfectly legal way, just as the British Parliament is legally competent to redivide Great Britain into the sixteen or eighteen independent kingdoms which existed within the island in the eighth century.
The amendments made by the above process (A + X) to the Constitution have been in all seventeen in number. These have been made on five occasions, and fall into five groups, two of which consist of one amendment each. The first group, including ten amendments made immediately after the adoption of the Constitution, ought to be regarded as a supplement or postscript to it, rather than as changing it. They constitute what the Americans, following the English precedent, call a Bill of Rights, securing the individual citizen and the states against the encroachments of federal power.4 The second and third groups, if a single amendment can be properly called a group (viz., amendments XI and XII), are corrections of minor defects which had disclosed themselves in the working of the Constitution.5 The fourth group marked a political crisis and registered a political victory. It comprises three amendments (XIII, XIV, XV) which forbid slavery, define citizenship, secure the suffrage of citizens against attempts by states to discriminate to the injury of particular classes, and extend federal protection to those citizens who may suffer from the operation of certain kinds of unjust state laws. These three amendments are the outcome of the War of Secession, and were needed in order to confirm and secure for the future its results. The requisite majority of states was obtained 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.6 The details belong to history. All we need here note is that these deep-reaching, but under the circumstances perhaps unavoidable, changes were carried through not by the free will of the peoples of three-fourths of the states, but under the pressure of a majority which had triumphed in a great war, and used its command of the national government and military strength of the Union to effect purposs deemed indispensable to the reconstruction of the federal system.7
The two amendments of 1913 may be called a fifth group, for though they relate to quite different matters,