PROBLEMS OF CONSTITUTIONAL LAW 577 



the initiation of an amendment by a constitutional convention of 

 the United States, called by Congress on demand of the legislatures 

 of two thirds of the states of the Union, and ratification by con- 

 ventions of the people in three fourths of the states. The second 

 method authorizes the initiation of an amendment in the same 

 manner and by the same body as the first, and ratification by the 

 legislatures of three fourths of the states. The third method au- 

 thorizes initiation of the amendment by a two-thirds vote in both 

 houses of Congress and ratification by conventions of the people in 

 three fourths of the states. And the fourth . method authorizes 

 initiation of the amendment in the same manner and by the same 

 body as the third, and ratification by the legislatures of three fourths 

 of the states. Only one of these methods, however, has been em- 

 ployed, viz., the last. Convenience has dictated this, and conven- 

 ience is ordinarily stronger than principle in a country which moves 

 so fast as ours does. 



Now it is evident that what makes these methods of amendment 

 almost practically unworkable is the extraordinary majorities' re- 

 quired both in the initiating and in the ratifying bodies. The idea 

 was, of course, to make constitutional change conservative, a laud- 

 able purpose indeed, but a dangerous thing when that conservatism 

 is mechanical and artificial, and it always becomes such when it 

 permanently prevents the will of the undoubted permanent majority 

 of the whole people in a democratic republic from realizing its well- 

 considered and well-determined purposes in its organic law. There 

 is a natural way to secure and preserve true conservatism, a way 

 which does not contradict the fundamental principle of majority 

 right, and that way should always be followed. 



This matter of the majority is not, however, the sole element in 

 the problem of a proper provision for constitutional amendment. 

 There are several other points of great importance. One I have 

 already adverted to, viz., the error in sound political science of using 

 the governmental organs for the making of constitutional law. To 

 illustrate this let us consider the process of constitutional amend- 

 ment in the German imperial constitution. According to the pro- 

 vision of amendment in that instrument, constitutional law can be 

 made by a simple majority, vote in the Reichstag sustained by forty- 

 five of the fifty-eight voices in the Bundesrath, while the two bodies 

 by simple majority vote in each make ordinary law. Now it is 

 the impulse of the Reichstag to call every measure which it desires to 

 see passed ordinary law, and it is the impulse of the minority in 

 the Bundesrath to call every measure which it desires to defeat 

 constitutional law, and the constitution provides no organ for deter- 

 mining a hermeneutical contest over this point, unless the Emperor's 

 power of promulgating the laws covers the question. Some of the 



