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