CHAPTER XII.

THE AMENDMENTS TO THE CONSTITUTION.

Amendments adopted. - The Constitution provides a simple, easy, and peaceful method of modifying its own provisions,1 in order that needed reforms may be accepted and violent changes forestalled. Fifteen amendments have already been made. The most of these have for their object to give new rights, or further protection to rights before existing. The eleventh amendment merely imposes a restriction upon the federal judicial power, so as to exclude from it all cognizance of suits against States brought by citizens of other States, or citizens or subjects of foreign states; and the twelfth introduces a change in the mode of making choice of President and Vice-President. The first ten amendments and the last three naturally range themselves in two classes, each of which, by its subject-matter and purpose, is distinctly referable to a particular period in the constitutional history of the country. One class. consists of those which impose limitations on the powers of the several departments of the federal government, with a view more completely to protect the liberties of the people and the reserved rights of the States; and the other is confined in the main to taking from the States the power to oppress particular classes of the people, to discriminate unjustly between classes, and to take away such rights as are fundamental. The first ten belong to the one class, and the last three to the other.

1 Const., Art. V.

The First Ten Amendments. - The ten amendments the purpose of which was to establish guaranties against an abuse of the powers which had been granted to the general government, were adopted in pursuance of recommendations by state conventions when giving assent to the Constitution.1 They all sprung from a distrust of power remote from the people, -a distrust which the colonial experience had inculcated, and which the events leading to the Revolution had intensified. The central government, in exchanging the Articles of Confederation for the Constitution, was receiving an immense accession of power, and it was possible to abuse this power to the oppression of the citizen, and to the destruction of rights in the States which had never been surrendered. Up to that time the States were the special objects of the regard and affection of their people respectively. They had enjoyed liberty and a large measure of prosperity under state laws, they held their property and protected themselves in their domestic relations under the same laws, and when oppression had come and grown until it seemed intolerable, its source was to be traced to a distant authority, which overruled or displaced the local laws and took away the protection they would have given. Jealousy of centralization was therefore a strong, if not a paramount sentiment, and it found expression in these amendments, in which it is declared that certain enumerated liberties of the people shall not be taken away or abridged; that the enumeration in the Constitution of certain rights should not be construed to deny or disparage others retained by the people; and that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, were reserved to the States respectively or to the people.

1 They were ratified by a sufficient number of the States to secure their adoption before December 15, 1791.

The Last Three Amendments. -In the lapse of ninety years, a stage in political history is reached in which the fears and anxieties of the people took a new direction. In rapid succession one State after another in one third of the Union had rejected and thrown off the federal authority, and it had only been restored through a war prosecuted on both sides with great bitterness and with enormous destruction of life and property. The temporary displacement of federal power had been accomplished by the action of the States in their corporate capacity, and the admirable system of self-government had naturally and most effectively co-operated in the action. Wide divergencies in sentiment regarding matters of internal policy, ripening into great estrangement of feeling between the sections, had led to the disruption, and when the exhausting war was over the same divergence in sentiment and a like estrangement in feeling still prevailed, and were now found to centre on the policy to be adopted for restoring and strengthening the shattered fabric of government. The sentiment of national unity had encountered on the field of arms the sentiment of devotion to State and section, and, though the struggle was over, the causes to some extent remained, and might possibly produce like fruit in the future. It had been found in vain that the federal authorities held, and the federal courts decided, that under the Constitution a State had no right to withdraw from the Union; it was undeniable that for a time certain of the States had succeeded in severing their relations and setting up a new government; and though the federal authority had demonstrated that it had, under the Constitution, ample power for self-defence and protection, it was deemed wise and prudent to require the States to surrender the institution that was the immediate occasion of the civil war, as well as the power to deal unjustly and partially with classes of the people against whom there might

be jealousies, prejudices, or antipathies, growing out of the struggle through which the country had passed, or out of some of the antecedent or concomitant circumstances. While, therefore, the first amendments were for the purpose of keeping the central power within due limits, at a time when the tendency to centralization was alarming to many persons, the last were adopted to impose new restraints on state sovereignty, at a time when state powers had nearly succeeded in destroying the national sovereignty.1

Justice of the Amendments. Of these amendments it may be safely affirmed that the first ten took from the Union no power it ought ever to have exercised, and that the last three required of the States the surrender of no power which any free government should ever employ.2 If the thirteenth, fourteenth, and fifteenth amendments are subject to any just criticism, it must concern not what the States are required to surrender so much as the incidental expansion of federal legislative and judicial power.

How adopted. It is a valuable tribute to the general excellency of the Constitution that no convention for its revision has ever been convened, nor indeed ever very seriously proposed except at a time immediately before the civil war, and when a settlement of existing controversies in that mode seemed to most people, an impossibility. All the amendments originated in Congress, were proposed by Congress to the States, and by the States were ratified. The questions which their proposal raised

1 These amendments were declared adopted as follows: the thirteenth, Dec. 18, 1865; the fourteenth, July 28, 1868; and the fifteenth, March 30, 1870.

2 Those who claim that emancipated slaves should be paid for have generally agreed that the United States, and not the States, should make the payment.

were in the main political, but there were two questions of law of no little importance and nicety. Neither of these, however, received authoritative settlement, because in the end such a settlement became unnecessary. These ques

tions were the following: —

1. The Constitution' requires for the adoption of any proposed amendment that it shall be ratified by the legislatures or conventions of three fourths of the States. At the time when amendments were first proposed some of the States had not been restored to their normal and constitutional relations to the Union, and had not been admitted to representation in Congress. Until they should be, it was by no means certain that the assent of three fourths of all the States could be obtained to any amendment, and the question was made whether States not then holding their constitutional relations to the others in the Union were to be counted at all. Fortunately, in the delay that occurred while ratification was in progress, enough of the States were admitted to representation in Congress, and joined in the ratification, to render the question unimportant.

2. Two States after giving their consent to the fourteenth amendment, afterwards, but before three fourths of all had ratified, through their legislatures declared the consent withdrawn.2 It was scarcely pretended that this could have been done if the proper majority of the States had previously ratified; but it was insisted that it might be done at any time before the amendment had become incorporated in the Constitution. This question also was rendered immaterial, and in the same way with the other. 1 Const., Art. V.

2 The two States were Ohio and New Jersey. New York declared her consent to the fifteenth amendment withdrawn under like circumstances. Oregon made a like declaration in respect to the fourteenth amendment, some time after the proclamation of the Secretary of State announcing its ratification.