There has recently been formed a society, with headquarters in Brooklyn, having for its object the securing of an amendment to the federal constitution. The society calls itself a "Committee on the Federal Constitution," and the amendment which they advocate is one providing easier modes of amendment than those prescribed in Article V. They propose to "carry on a campaign of education in favor of this measure through the daily and periodical press, book and pamphlet publication, letter and circular, pulpit and platform." Among the members of this committee are men of national reputation and of the highest rank in the intellectual world. When men of this character unite upon such an undertaking, the movement is entitled to at least respectful consideration. And this is not the first nor the only effort that has been made to accomplish the same object. During the recent period of unrest through which we have been passing, in which the courts, the Constitution, and our fundamental political institutions generally, have been subjected to the attacks of the muckrakers, a number of resolutions have been introduced in Congress proposing similar amendments. Such an amendment was introduced by Senator La Follette in 1912, and its adoption has been urged upon Congress by the legislature of Wisconsin. And even since the adop

'Reprinted from the Yale Law Journal of May, 1915, by permission of the author and of the Yale Law Journal Company.

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tion of the Sixteenth and Seventeenth Amendments in the single year 1913, these "gateway" amendments are being proposed.

The theory, of course, upon which this radical change in our fundamental law is being urged is that the Constitution does not now express the real will of the people, and that it is practically unamendable in the modes now provided. As stated in the published platform of the Brooklyn committee, "the people of the United States have not control over their fundamental law at the present time, save in a minor degree. The consequence is, our institutions do not reflect the popular will, but in reality other forces over which we have only a measure of control. Our community life, therefore, is not what it would be had we the power to shape it in our own way." We propose in this paper briefly to inquire whether this contention is true. The satisfactory solution of the problem will require some examination of the history of proposed amendments to the Constitution.

When the Constitution was submitted to the states in 1787, its framers did not regard their work as final but contemplated that amendments would be made from time to time. Accordingly they provided in Article V a mode, or rather two modes, of amendment. Their expectation that amendments would be proposed in the future. has been amply realized. While the Constitution was still before the people

for adoption, numerous proposals for amendments were made by the conventions of seven of the ratifying states and in the first session of Congress in 1789 nearly two hundred such proposals were introduced. Since that time resolutions proposing amendments have been introduced in one or more of the sessions of practically every Congress to the present time. During the first century of the Constitution, that is, up to the close of the fiftieth Congress in March, 1889, over sixteen hundred such resolutions were introduced in the two houses of Congress. The number of amendments proposed in the several congresses presents a wide range of variation. Thus, in the case of one Congress at least (the thirtyfourth) it appears that not a singie resolution to amend was introduced, while in the sessions of the thirty-ninth Congress, during the troubled years 1865-1867, nearly two hundred such proposals were made. In the fifty-second Congress seventy-three amend ments were proposed, and in more recent times, during the second session of the sixty-second Congress (December 4, 1911-August 26, 1912) five amendments were proposed in the Senate and twenty-eight in the House, a total of thirty-three. And during the first session of the sixty-third Congress (April 7, 1913-December 1, 1913) twelve amendments were proposed in the Senate and forty in the House, or fifty-two in all. Of the forty amendments proposed in the House, six were proposed by a single representative, Mr. Hobson of Alabama.

With Congress composed of about 525 members, every one of whom

is at liberty to introduce proposals to amend the Constitution, it is not surprising that several such proposals are made at every session of Congress. It is estimated that about 30,000 bills are introduced during each session, and the wonder is not that proposals to amend the Constitution have been so numerous, but rather that they have been so few.

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Of the hundreds of amendments that have been introduced in the two houses of Congress, only twenty-one have re-` ceived the required two-thirds vote of both houses and been submitted to the states, and of the twenty-one only, seventeen have been adopted. Twelve amendments were proposed by the first Congress in 1789, and of these ten were adopted by 1791 as the first ten amendments. Then followed the Eleventh (1798), Twelfth (1804), Thirteenth (1865), Fourteenth (1868), Fifteenth (1870), Sixteenth (1913), and Seventeenth (1913) Amendments. Of the rejected amendments two were proposed by the first Congress. of these, relating to the apportionment of representatives, failed of adoption by the ratification of only one state. The other related to the compensation of members. An amendment proposed in 1810 provided that if any citizen of the United States should accept any title of nobility from any foreign power, or, without the consent of Congress, accept any present or office from any foreign power, he should cease to be a citizen of the United States and be incapable of holding any office thereunder. This amendment likewise came within one ratification of adoption, and was for some years actually supposed

to be a part of the Constitution. In 1861, there was proposed by Mr. Corwin of Ohio an amendment prohibiting an amendment abolishing slavery. This amendment was referred to with approval by President Lincoln in his first inaugural address and was submitted to the states. It was ratified by the legislatures of Ohio and Maryland and by a convention in Illinois, as the Thirteenth Amendment, but was then lost sight of in the confusion of war. The Thirteenth Amendment afterwards adopted was of precisely opposite import.

From the foregoing summary it appears that the Constitution has been amended only eight times since its adoption in 1789. The first ten amendThe first ten amendments, which were all adopted at one time and immediately after the Constitution went into effect, may be regarded as practically a part of the origginal Constitution. From the adoption of the Twelfth Amendment in 1804 until 1913, a period of 109 years, covering substantially the entire history of the United States as a nation, there were but three amendments, and these were adopted only as a result of civil war and practically by force of arms. Moreover, for nearly forty years after the adoption of the war amendments, no proposed amendment had succeeded even in passing both houses of Congress.

In the light of these facts it is not surprising that many thoughtful men deemed the Constitution practically unamendable under normal conditions. Thus, Professor Charles A. Beard ("American Government and Politics," p. 62) says: "The extraordinary ma

jorities required for the initiation and ratification of amendments have resulted in making it practically impossible to amend the Constitution under ordinary circumstances, and it must be admitted that only the war power in the hands of the federal government secured the passage of the great clauses relating to slavery and civil rights." So also, President Wilson about thirty years ago ("Congressional Government," p. 242) wrote: "It would seem that no impulse short of the impulse of self-preservation, no force less than the force of revolution, can nowadays be expected to move the cumbrous machinery of amendment erected in Article V. That must be a tremendous movement which can sway two-thirds of each house of Congress and the people of three-fourths of the states."

These expressions are fairly representative of the opinion of students of constitutional history a few years ago. But in 1895 came the "Income Tax Case" in which the Supreme Court held that the income tax law of 1894 was unconstitutional. No decision since the "Legal Tender Cases" has attracted such general attention, and probably none since the "Dred Scott Case" has been so widely condemned. It is the one case which every soap-box orator, fulminating against the courts and the Constitution, can certainly name, though probably very few even of the more intelligent citizens could now state exactly what was decided in that famous case. The decision may have been incorrect; certainly competent critics have thought that in it a low water mark was reached in the history of the Supreme Court. At any rate it

took hold of the popular imagination. About this time the trusts were rising into prominence. Enormous fortunes were being quickly made by a favored few and attracting the envious attention of the unfortunate and discontented. And if incomes were practically untaxable by the federal government, the rich would escape their just share of taxation. With the poor the income tax is popular, for it does not affect them. Consequently the imposition of such a tax, since it would fall exclusively upon the rich or well-to-do, appealed strongly to the great mass of the population, who were willing enough to impose a tax which they would not be called upon to pay. A respectable sentiment was therefore developed in favor of an amendment to the Constitution to authorize the imposition of an income tax, and before the close of the year in which the decision was rendered (1895), resolutions were introduced in both houses of Congress to authorize the laying of an income tax without apportionment. From time to time other resolutions to the same end were offered, and in July, 1909, the Sixteenth Amendment, as we now have it, was passed by both houses of Congress and submitted to the states. On February 25, 1913, Secretary of State Knox certified that it had been ratified by the required number of states and was a part of the Constitution. The amendment was thus adopted within about three and one-half years after it was proposed by Congress, and so for the first time in fortythree years the Constitution was amended, and for the first time in over

a century it was amended except as a result of civil war.

It is not the purpose of this paper to discuss the merits of the Sixteenth Amendment. On this point opinions may differ. The supreme significance of the amendment is that its adoption proved that the Constitution could be peaceably amended if the people really so desired. Forty years before, the overwhelming sentiment of the country was against slavery, and even without the war, it seems certain that slavery would sooner or later have been abolished either by an amendment to the federal Constitution or by the individual action of the slaveholding states. So also, when the sentiment of the country was again aroused, this time in favor of the income tax, the necessary amendment was adopted with reasonable promptness. It would seem that three and one-half years is a sufficiently short time in which to make a change in our fundamental law. But scarcely had the country recovered from its surprise at learning that the Constitution was not in fact unamendable, when it was called on to witness an even more rapid change. The Seventeenth Amendment, providing for the election of Senators by the people, passed the Senate on June 12, 1911, and the House on May 13, 1912, on which day it was submitted by Congress to the states. It received the ratification of the last necessary state on May 9, 1913, and on May 31, Secretary Bryan certified that it had become a part of the Constitution. Thus the Seventeenth Amendment was ratified in four days less than one year from the day on which it was

proposed, and in less than four years two independent and unrelated amendments were added to the Constitution.

Now that it has been so convincingly shown that the Constitution can be peaceably amended in the constitutional mode, we may from a somewhat different point of view re-examine the earlier history of proposed amendments to ascertain why amendments have so generally failed in the past. Time and again the fact that about 2,000 amendments had been proposed, with only fifteen adoptions, has been urged to prove that the Constitution is practically unamendable. However, upon a study of these proposals, it is found that they relate to a comparatively small number of different subjects. Slavery alone, and the questions arising out of its abolition, have been the subject of more than 500 of the amendments proposed. More than this number have been proposed relating to the executive, especially in connection with the length of the presidential term and the question of re-eligibility. Probably 100 proposals were made that Senators should be elected by direct vote of the people before this proposition was finally embodied in the Seventeenth Amendment. Thus it appears that, while hundreds of amendments have been proposed, many of them are simple repetitions, and as a matter of fact, the number of independent propositions of consequence has been small.

Again, when we consider the character of the amendments proposed, we find that they frequently do not represent any real and permanent public sentiment, but embody merely the notion of some individual congressman

or a temporary popular emotion that passes with the exciting cause. Many of the amendments proposed are of the most trivial character or relate to matters of detail far better left to legislation. Such are provisions fixing the salary of the President, or defining the jurisdiction of the inferior federal courts. More than once it has been proposed to amend the preamble so as to include some recognition of God. What are we to think also of a proposition made by a representative to change the name of the United States to "America"? More serious perhaps is Representative Victor Berger's proposal to abolish the Senate. The character of the amendments proposed is naturally largely determined by the trend of public sentiment at the time, and often popular fads find expression in resolutions to amend the Constitution. Of late there has been a disposition to make the impeachment of judges easier, and even to introduce into the federal system the recall of judicial decisions, or the referendum. Before these innovations have been given an adequate trial by the states, it is proposed to adopt them for the national government. Most of the proposed

amendments die in the committees to which they are referred. Very few have sufficient merit to come to a vote.

As just suggested, the proposals to amend the Constitution reflect in their nature the temper of the times. At ` certain periods, owing to political or economic conditions, the Constitution attracts to an unusual degree the attention of the people, and amendments are proposed to meet the supposed needs of the day. The most conspicuous in