CHAPTER VI.

THE POWER TO AMEND THE CONSTITUTION.—THE FIRST TEN AMENDMENTS-1789-91.--LIMITATIONS ON POWER TO AMEND.

ONE of the most important subjects that can engage the attention of the statesmen and people of this country is the extent and scope of the power to amend the Constitution of the United States. Very little aid on this subject can be derived from the mode in which the constitution of a state may be amended; for the Constitution of the United States contains in itself a positive text, which at once prescribes the mode in which it may be amended, and limits the power of amend

ment.

In considering this text, however-Article V. of the Constitution-it is necessary also to consider the force and operation of the Ninth and Tenth Amendments, because they may have some bearing upon the original article which embraces the amending

power.

The public bodies which are to be the agents for amending the Constitution are those which are authorized to propose amendments, and those which are authorized to adopt them and make them a part of the instrument.

The first of these are the two houses of Congress, acting by a two-thirds vote of each, or a convention of all the states, called by the Congress on the application of the legislatures of two thirds of the several states. The ratifying bodies in either case are the legislatures of three fourths of the several states, or conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress. Thus it appears that two thirds of both houses of Congress may propose amendments, or the legislatures of two thirds of the several states may apply to have a convention of all the states called for the proposing of amendments, in which case the Congress must make the

call; and it further appears that the amendments, when proposed by either form of action, may be ratified by the legislatures of three fourths of the states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be directed by the Congress when the amendments are proposed. So that there may be one fourth of the several states that must submit to the will of three fourths thereof, if the three fourths ratify any amendment that has been constitutionally proposed, although the one fourth may not accede to it. This is a great and farreaching power, but it is carefully defined and regulated; and the question arises, What, if any, are its limitations? What is to secure the constitutional minority of the states from an exercise of power by the constitutional majority that will prostrate their state sovereignties and destroy their autonomy?

It will be observed that the amending power is not a power to be exercised by a majority of the people of the United States, acting as a mass of individuals, or as a collective people. It is to be exercised by three fourths of the states, a constitutional majority of the members of the Union fixed for this special purpose. It may thus happen that a proposed amendment would be ratified by a less number than a majority of the people of all the states, because of the mode of ratification and the fixed constitutional number of the state legislatures or state conventions which would have the power to ratify it.

All this shows, on the one hand, how careful the framers of the Constitution were, in shaping the amending power, to preserve the state sovereignties; and, on the other hand, how far their system removes the amending power from the action of the people of the United States regarded as a nation.

No one can read the ten amendments of the Constitution which were prepared by the First Congress in 1789, and were ratified by the states in 1789-91, without perceiving how necessary they were to supplement the instrument that came from the Convention of 1787, and was adopted in 1787-88. In the first volume of this work I have explained the jealousy that was felt by the people of many of the states against the establishment of such a government as the one proposed, without express safeguards to protect the rights of states and of individuals. That this jealousy was a reasonable one is apparent from the preamble of the

resolution by which the First Congress proposed twelve articles of amendment to the consideration of the state legislatures.'

The preamble recited that "the conventions of a number of the states had, at the time of ratifying the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declarative and restrictive clauses should be added; and that extending the ground of public confidence in the government would best insure the beneficent ends of its institution." This explains the reasons which actuated the First Congress in proposing amendments, and furnishes the key to the whole proceeding.

It is not necessary to notice here the various amendments that were asked for by the states when they communicated to Congress their several ratifications of the Constitution. They embraced many subjects, and some of them proposed modifications of the framework of the government. It was for the Congress, in the exercise of its authority, to shape the amendments for the consideration of the state legislatures, to make a judicious selection of the matters to which they were to relate. When we look into those which were proposed and adopted, we can see that they were really needed to secure public confidence in the new government. Hamilton was not often wrong in his views of the Constitution as it came from the hands of its founders, and in the reasons which he assigned in The Federalist (No. 84) why any further Bill of Rights than the Constitution itself was not necessary, he was theoretically right. A Bill of Rights was necessary, however, in the sense that what is in the highest degree expedient is necessary. Such an addition would relate, not to the framework of the government, but to the rights of individuals or of the people, and the rights of states; and although these rights might be said to be exposed to no danger from the exercise of the powers which the Constitution was to vest in the new government, it was, nevertheless, considered important that some express security should be extended to them. For example, the Constitution had not expressly or by implication authorized the Congress to make a law respecting an establishment of religion, or prohibit

1 Although twelve amendments were proposed, ten only were ratified by the requisite number of states.

ing the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances. It might be said that powers of legislation which were not enumerated in the Constitution would never be exercised. But this was not enough to satisfy those who looked at the whole mass of powers which were plainly granted in the Constitution, and saw in them a government which was to have the force of a majority of the people of the states and of the states also, and which was to possess an unlimited power of taxation. Minorities, they said, must be protected; majorities can protect themselves. We have since had abundant reason to be convinced of the soundness of this reasoning. We have had a civil war, in the prosecution of which powers were exercised that had to be judicially brought to the test of one or more of the ten amendments which were incorporated into the Constitution immediately after its ratification.

In answering those who desired provisions in the nature of a Bill of Rights, Hamilton pointed out that the Constitution contained a number of such provisions. He instanced those which limited the effect of judgment in cases of impeachment; the suspension of the habeas corpus only when the public safety required it in cases of rebellion or invasion; the prohibitions against bills of attainder, and ex post facto laws, and titles of nobility; trial by jury in all cases of crime; the definition of treason, and the nature of the proof required for conviction; and the limitation of an attainder of treason so as not to work corruption of blood or forfeiture except during the life of the person attainted. Important as these were-and their importance was adverted to by Hamilton with his usual perspicacity--they did not constitute that full and sufficient Bill of Rights which was demanded by a large number of the states. They did not secure the rights of persons as they were provided for in eight of the amendments, and, above all, they did not reach the very important declarations contained in the ninth and tenth.

In justice to Hamilton, it should be observed that he wrote and published the eighty-fourth number of The Federalist principally for the purpose of encountering those who insisted that the Constitution should be amended before it was put into operation. Every one can concur in this great man's general definition of

bills of rights: that "they are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince." But to his conclusion one cannot so readily assent. “It is evident, therefore," he said, "that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything, they have no need of particular reservations."

The Constitution proposed by the Convention of 1787 was undoubtedly founded on the power of the people of the states. It was equally true that it was to be executed by their immediate representatives and servants, that the people surrendered nothing and retained everything. Still, they might have need of particular reservations, and of that need they were to judge.

The Constitution proposed the establishment of a great government; and although this government was to be a creation proceeding from the people of the several states, and was not like the situation of a prince who claims powers and prerogatives that he does not hold of the people, yet it was not the less necessary to make particular reservations, lest the inference might be drawn that what was not prohibited might be presumed to have been granted. The analogy, therefore, between the situation of a prince such as Hamilton referred to and the proposed new government of the United States, did not fully illustrate the question respecting express reservations of particular rights. A bill of rights, whether sufficiently contained already in the Constitution. or needing additions, was not to be a stipulation between a king and his subjects. It was not to be a compact between prince and people, like Magna Charta and its subsequent confirmatory charters, or the Petition of Rights assented to by Charles I., or the Bill of Rights first presented to the Prince of Orange in 1688, and afterwards put into the form of an Act of Parliament. Although these monumental charters of English liberty might furnish, and did furnish, exemplars and illustrations of the rights that were to be secured, and although texts of the utmost value might be drawn from them, which would in all future time be looked to for the intent with which language was used, yet a Bill of Rights