PROBLEMS OF CONSTITUTIONAL LAW 579 



the members of both legislative Chambers in one national constitu- 

 tional convention with constituent power. The body authorized 

 to make constitutional law and constitutional law only being en- 

 tirely distinct from the body authorized to make ordinary law and 

 ordinary law only, even though composed of the same individual 

 persons, there can be no possibility of confounding the two kinds of 

 law in any system. 



Finally, there is a grave problem of constitutional law involved 

 in the exception, to be found in some of the constitutions, of certain 

 subjects from the general power of amendment. This occurs 

 usually in the constitutions of those states which have the federal 

 form of government, as in the constitutions of the United States and 

 of the German Empire, where the existing relations of representation 

 of the States of these Unions in the upper chamber of the legislature 

 is excepted from the ordinary course of amendment and made subject 

 to a still more impossible process, and strangely, and in an even 

 more exaggerated form, this defect is to be found in the French 

 constitution, where two subjects are excepted from any method of 

 amendment whatsoever, viz., the form of the government and the 

 disqualification of the descendants of former reigning houses for the 

 presidency of the republic. These exceptions to the power of 

 the legal sovereign in amendment are rotten spots in any constitu- 

 tion, and if not rooted out will spread and spread until their mold- 

 ering influence will be felt throughout the entire system. 



The practical and all-important question, however, is as to the 

 way in which they can be eradicated, regularly and lawfully, and 

 without recourse to revolutionary means. Take for example again 

 the constitution of the United States, which declares, in the article 

 of amendment, that " no state, without its consent, shall be deprived 

 of its equal suffrage in the Senate." This means, of course, that 

 if the attempt should be made to reduce the representation of any 

 state in the Senate in relation to that of the other states, by the 

 process of constitutional amendment, and that is the only way, 

 of course, in which it can be lawfully done, this can be effected 

 only with the consent of the legislature of, or of the convention in, 

 the state whose relative representation it is proposed to reduce, 

 together with the consent of one or the other of these bodies in 

 enough of the other states to make out a three-quarters majority 

 of the whole number; and that if the attempt should be made to 

 increase the relative representation of any state, this can be effected 

 only with the consent of every other state of the Union, given 

 through its legislature or convention. 



There is thus, theoretically, a way provided for expunging from 

 the constitution this exception to the ordinary operation of the 

 legal sovereign, the amending power, but practically it is utterly 



