AMENDMENTS TO THE CONSTITUTION OF

THE UNITED STATES.

By DR. HERMAN V. AMES, Harvard University.

The Constitution of the United States provides for its own amendment, whenever two thirds of both Houses of Congress, or a convention called upon the application of two thirds of the State legislatures, shall propose amendments, which in either case shall be valid when ratified by the legislatures of, or conventions in, three fourths of the several States, as Congress may direct.

It is difficult to avoid the conclusion that it was the expectation of the members of the Federal Convention that a frequent use of the amending power would be made. The experience of the government under the articles of Confederation had produced the conviction that there was need of a system of amendment by which the Constitution could be made to conform to the requirements of future times. The framers doubtless thought that the plan adopted would secure the desired end, whenever the popular will would justify a change. Their expectation seemed to be realized by the subsequent treatment of the Constitution in the State conventions, and by its early amendment.

In making provision for a federal convention the framers of the Constitution doubtless had in mind the possibility of a future fundamental revision, and in addition wished to provide, when necessary, for a body having a direct mandate from the people to propose amendments. The fact that nearly two hundred constitutional conventions have been called to frame or revise the State constitutions renders it

all the more remarkable that this method of proposing amendments to the United States Constitution has never been put in operation. This may be accounted for in part by the fact that there has never been a time when a general revision of the Constitution has been widely desired. Although conventions for the proposal or ratification of amendments have never been assembled, yet occasions have occurred when their trial has been urged. Passing over the propositions for a second convention, which were made in the Federal Convention itself, and in the States at the time of their ratification of the Constitution, we find that the government had scarcely been established when Virginia and New York made application for a convention to draft amendments. In 1833 the legislature of Georgia petitioned Congress to call a convention to consider the proposal of amendments. Again, in the sessions of Congress just previous to the Rebellion, when there was a general desire that every means should be tried before resorting to a civil war, petitions from the legislatures of five States, besides eight propositions from members of Congress, were received, calling for a drafting convention. On the invitation of Virginia, commissioners from seventeen States assembled in a peace convention at Washington. The convention, as a result of its work, recommended to Congress a series of amendments to the Constitution.

Propositions for a convention were also offered in 1861, 1862, and again in 1866. Senator Ingalls, in 1876, in consequence of the disputed election, introduced a resolution making full provision for a convention to revise and amend the Constitution; and as recently as 1884 an attempt was made to create a commission to call a convention.

In like manner, notable attempts have been made to have conventions held within the States to ratify amendments proposed by Congress. Especially was this so in the case of the thirteenth and fifteenth amendments.

The other method of proposal by Congress and ratification by the State legislatures has been adopted in the case of all the amendments which now form a part of the Con

stitution. The preference for this form is doubtless due to its manifest advantage, inasmuch as the bodies called upon to act are always in existence and can be quickly assembled.

With this introduction I pass to a consideration of the subject proper of this paper, namely, the amendments proposed to the Constitution. Out of the mass of material in the records of Congress I have selected only those actually brought to the official notice of Congress, either by its members, the State legislatures, or the Presidents. It is my purpose here to treat these by periods, aiming to give the general characteristics of each period, it being impossible, in the allotted time, to speak of particular amendments, except by way of illustration.

Upward of thirteen hundred resolutions, containing over seventeen hundred propositions to amend the Constitution, have been offered in the National Legislature down to the close of the Fiftieth Congress, in March, 1889. These naturally fall into four distinct periods: the first period, embracing the years 1789-1803, and aiming at the perfection of details; the second period, including the years 1803-1860, and covering general alterations; the third period, comprising the years 1860-1870, and relating to slavery and reconstruction; and the fourth period, extending from 1870 to 1889, and proposing general emendations.

First Period, 1789-1803.-This period, which covers the early years of our history, is characterized by the passage of the first ten amendments, known as the Bill of Rights, in response to the spirit of dissatisfaction expressed by the series of one hundred and twenty-four amendments proposed by seven of the States at the time of their ratification of the Constitution, and the general demand of the country for further limitations upon the powers of the federal government.

The period is further marked by a number of amendments intended to correct minor defects which had become appar

1 Attempts were made to have the XIV. and the XV. amendments submitted to the State legislatures, chosen next after the submission of the amendments.

ent in the working of the Constitution. The provisions of some of these became crystallized in the eleventh and twelfth amendments.

Of the one hundred amendments which have been suggested affecting the status of the judiciary, only one has been discovered which would nullify the provisions of the eleventh amendment. Although the twelfth amendment remedied the fault discovered in the electoral system, yet the system itself has given rise to more dissatisfaction than any other feature of our Constitution, as is shown by the fact that more amendments have been proposed on this subject than upon any other.

Second Period, 1804-1860.-In this period, extending over a longer term of years than the other three together, were introduced upward of four hundred amendments, covering a wide field of subjects. Propositions contemplating changes in the election, term, removal, compensation, and duties of members of the legislative, executive, and judiciary departments were the most numerous.

This being the period of conflict between the broad and strict constructionists, it is characterized by many attempts to confirm or prohibit, by amendment, practices established by custom. Of this nature were the amendments granting appropriations for internal improvements, and prohibiting or authorizing the establishment of a national bank, introduced periodically during the years 1813 to 1832, as the congressional discussion or presidential message or veto suggested. A closer examination of the scattered propositions shows that they are indices of the political struggles of the time; thus it is evident that the trial of Judge Chase suggested the several propositions introduced during the years 1805 to 1809 in regard to the term and removal of judges. The resolutions proposing the apportionment of representatives and direct taxes to the free inhabitants, and prohibiting the importation of slaves, introduced previous to 1808, were called out by the approach of that year when the agreement prohibiting amendments on these questions would terminate. As a result of the War of