THE PRESENT PROBLEMS OF CONSTITUTIONAL LAW 



BY JOHN WILLIAM BURGESS 



[John William Burgess, Professor of Political Science and Constitutional Law 

 since 1876, and Dean of the Faculty of Political Science since 1890, Columbia 

 University, b. Conersville, Giles County, Tenn., August 26 1844; A.B. Am- 

 herst, 1867; Ph.D., LL.D.; Po^t-graduate of Universities of Gottingen, Leipzig, 

 and Berlin. Professor of History and Political Economy, Knox College, 

 Illinois, 1869-70; Professor of History and Political Science, Amherst 

 College, 1873-76. Member of American Historical Association; American 

 Economic Association. Author of Political Science and Constitutional Law; 

 The Middle Period of American History; The Civil War and the Constitution; 

 Reconstruction and the Constitution. Co-editor of Political Science Quarterly.] 



TEN years ago one was accustomed to hear the proposition confi- 

 dently advanced and stoutly maintained that the period of develop- 

 ment of constitutional law had closed, and that the civilized world 

 was in the period of administrative development. I knew then 

 that this proposition, if not an error, was at least an exaggeration, 

 and everybody knows it now. If the devotees of administrative 

 law and theory had been content to say that constitutional law had 

 reached a much fuller development than administrative law, and that 

 its unsolved problems, though highly important, were fewer in num- 

 ber than those of administrative law, no fault could have been found, 

 or could now be found, with the contention. But the events of 

 the last six years especially have shown most conclusively that the 

 work of the constitution-makers is far from completion, and that we 

 have entered, or are about to enter, upon a new period of consti- 

 tutional development. Facing this situation, let us, in the short 

 hour allowed to this paper, discuss a few of the more important 

 problems which await solution or a new solution. 



All questions of constitutional law, as of political science, may be 

 classified under three grand divisions, viz., sovereignty, government, 

 and liberty. 



I will not enter upon a philosophical treatment of the term and 

 concept " sovereignty." I will only say that in every constitution 

 there should be a workable provision for its own amendment, and 

 that in every perfect, or anything like perfect constitution, this pro- 

 vision should constitute organs for accomplishing this purpose 

 which shall be separate and distinct from, and supreme over, the 

 organs of the government, which shall truly represent the reason and 

 the will of the political society and the political power upon which 

 the constitution rests, and which shall operate according to methods 

 and majorities which will always register the well-considered pur- 

 pose of that society and that power. I hold the first problem of 



