PROBLEMS OF CONSTITUTIONAL LAW 575 



the constitutional law of the present to be the fashioning of the clause 

 of amendment so as to correspond with these principles. 



If we examine the constitutions of the great states of the world, 

 and contemplate their history during the last twenty-five years, we 

 shall see at once how pressing this necessity is. 



Leaving out of account the British constitution as being, in the 

 ordinary conception, an unwritten instrument, and the Austro- 

 Hungarian Ausgleich as partaking more of the character of a treaty 

 than of a constitution, we shall find that the constitutions of three of 

 these states, viz., Spain, Italy, and Hungary, contain no provisions 

 at all for their own amendment; that all the rest, including Great 

 Britain and excepting France and Switzerland, use exclusively the 

 organs of their governments for making constitutional changes; 

 that France uses the personnel of her legislature, but under different 

 organization, for this purpose; that Switzerland accords her legis- 

 lature a power of initiating such changes, which in practice frequently 

 creates embarrassments to the prompt and certain action of the 

 popular will; and finally that all except Great Britain, France, 

 Switzerland, and perhaps Norway, require such majorities for action 

 as to make these provisions generally practically unworkable, except 

 in times of great excitement, the very moments, if any, when they 

 should not work. 



Let us take, for example, the provision of amendment in the 

 constitution of the United States as being the one in which the 

 majority of this audience is probably most interested, and as being 

 the provision made by that great state which more than any other 

 professes to develop through the methods of gradual and peaceable 

 reform rather than through the European and South American 

 methods of revolution and reaction. This constitution was framed 

 originally, without any warrant of existing law, by a general con- 

 vention of delegates selected by the legislatures of the different 

 states of the Confederation, except the legislature of Rhode Island, 

 and it was adopted originally, also without warrant of any existing 

 law, by conventions of delegates chosen by the people within these 

 several states. The general convention proposed, or more correctly 

 ordered, and that, too, without any warrant of existing law, that 

 the proposed constitution should go into operation when ratified 

 by conventions of the people in nine of the thirteen states of the 

 Confederation, and it actually went into operation when conven- 

 tions of the people in only eleven of these states had ratified it. 



I shall not enter upon any criticism or any scientific explanation 

 of these procedures. I will only say that to my mind they were 

 entirely extra-legal, and, therefore, revolutionary, but were necessary, 

 necessary because of the absence of any workable method of amend- 

 ment in the Articles of Confederation. 



