CHAPTER IV

THE SIGNIFICANCE OF THE AMENDMENT FEATURE OF THE CONSTITUTION

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

Monarchical and aristocratic constitutions on the other hand are always extremely conservative. Inasmuch as they express the opinion and guarantee the privileges of a dominant class, they are

bulwarks erected against popular change. The privileged classes 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 Constitution 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 constitute 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 Constitution 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 Constitution was to secure stability by placing the government beyond the direct influence of public opinion.

Madison, who has been called the "father of the Constitution," thought it "ought to secure the permanent interests of the country against inno

vation."1 Hamilton said "all communities divide themselves into the few and the many. The first are the rich and well born, the other the mass 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 democGouverneur Morris observed that "the racy."2 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.

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 lib1 Elliot's Debates, Vol. I, p. 450. 2Ibid., pp. 421-422.

Ibid., p. 475.

erty, 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."

This criticism of the American government of the Revolutionary period gives us the point of view of the framers of the Constitution. 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 Constitution. 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.2

1 No. 10.

"In Massachusetts and New Hampshire the constitutions

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 Constitution. 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 constitutional amendment in motion, and that it requires for ratification of amendments proposed, the assent of legislatures or conventions in three-fourths of the states, ought to give one some idea of the extreme difficulty of changing our Constitution.

Patrick Henry clearly saw that this lack of adequate provision for amendment was destructive of democracy. In the Virginia convention held to ratify the Constitution 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

framed during the Revolutionary period were submitted to popular vote. The Virginia Constitution of 1776 contained the declaration "that, when any government shall have been found inadequate or contrary to these purposes [the purposes enumerated in the Bill of Rights], a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal." The Revolutionary constitution of Pennsylvania contained a similar declaration. Poore, Charters and Constitutions.