PROBLEMS OF CONSTITUTIONAL LAW 581 



the government and the liberty of the individual, subject to no 

 limitations or exceptions sufficiently facile in its action to meet all 

 important exigencies, and when using the governmental organs at 

 all in the making of constitutional law, using them in a ministerial 

 but not in a discretionary capacity. And sound constitutional law 

 demands the same things. Without them the system of constitu- 

 tional government and constitutional liberty will not be able to 

 stand in permanence. The invincible principle of development 

 will force changes upon any and every constitutional system, as 

 upon everything else in the universe, and if these changes cannot 

 be made by amendment, by the legal sovereign, they will inevitably be 

 made by the government or some part of the government, in Europe 

 by the legislature as a rule, and in the United States by judicial 

 approval of legislative or executive acts. But, by whichsoever 

 of these two methods, it comes to the same thing, viz., gradual 

 governmental usurpation against the limitations of the constitution, 

 the ultimate destruction of the constitutional system. 



These are the considerations which lead me to hold that the first 

 great problem, logically, of the constitutional law of the present 

 is the construction of a proper provision for amendment which shall 

 have the qualities which I have just outlined. Not a single great 

 state in the world had such a provision in its constitution, and not 

 a single one has anything approaching it, except, as I have said, 

 France and Switzerland. Of these two, Switzerland has come 

 nearest to it in the provision which allows an amendment to be 

 proposed by fifty thousand Swiss voters and to be ratified and 

 adopted by a majority of the Swiss voters, provided this national 

 majority includes a majority of the voters in a majority of the can- 

 tons, and using the governmental organs at one or two points only 

 and then only in a ministerial way. The great defect here is that 

 throughout the whole process there is no place nor opportunity 

 for any sufficient discussion of the project, and that is fatal to any 

 sound development in human affairs. 



The second great problem of the constitutional law of the present 

 is, in my judgment, the proper construction of the upper legislative 

 chamber. 



With the exception of the princely power itself this is the oldest 

 among national political institutions. The lower legislative chamber 

 in the states of the present is a modern institution, based upon 

 manhood suffrage, or very nearly that, and upon representation 

 according to numbers; but the Senates are, in most cases, relics of 

 medievalism, based upon a variety of sources as to tenure, and 

 with little pretense of a distribution of the representation according 

 to modern principles. These defects are to be found even in the 

 Senates of some states which have been founded since the close of 



