PROBLEMS OF CONSTITUTIONAL LAW 587 



states nor anything like sovereign states; that in one of them, 

 Switzerland, the most of them were once something like petty 

 sovereignties under the Eidgenossenschaft and the Confederation 

 of 1815-1848, but were deprived of that quality by the Swiss nation 

 in 1848; and that in the other one, the United States, thirteen of 

 them possessed something which they called sovereignty under the 

 Articles of Confederation of 1781-1789, but were deprived of that 

 quality by the national popular movement of 1787, culminating in 

 the establishment of the national constitution instead of the quasi- 

 international confederation, and that by the trial of arms of 1861-1865 

 the claim to sovereignty by any commonwealth of this Union was 

 put forever to rest. 



According to modern views, principles, and conditions, no rule 

 of distribution of legislative seats in either chamber except that of 

 population can rightfully prevail in a national democratic republic, 

 no matter whether the governmental system be centralized or federal. 

 Some concessions can, of course, be made to administrative con- 

 venience, but they must never amount to the permanent investment 

 of a minority of the people with a majority of the voices in either 

 branch of the law-making body, especially where this minority, 

 and also the majority, are sectional in their composition and not 

 general. Even if we accept the doctrine of minority representation, 

 it would not justify the practice of sectional overweight, which we 

 are considering. 



As I have indicated in another connection, it will not be easy to 

 deal with this problem in the United States and the German Empire. 

 In the other states with federal governments this defect may be cured 

 by the ordinary course of amendment, but in the United States and 

 the German Empire this subject is excepted from the ordinary course 

 of amendment and placed under the protection of a procedure which 

 can, in all probability, never be applied so as to effect any change. 

 Nevertheless, the question will have to be met, and the problem will 

 have to be solved here as well as elsewhere. It may not be done, it 

 probably cannot be done with exact legality, but we have the prece- 

 dent in American constitutional history for a convention of the United 

 States acting with conventions of the people in nine thirteenths of the 

 commonwealths to disregard the prescripts of the existing law in the 

 amendment or revision of the organic law. We can bring such bodies 

 together by means and through forms already provided in the 

 constitution, and we can go back to the principle, as in 1787, that 

 they are the sovereign behind the constitution and are not, therefore, 

 bound by the exceptions from the legal power of amendment pro- 

 vided in the constitution. You may call this revolutionary. I 

 think we shall have to concede the point, but it would be a revolution 

 standing on the border-line between original sovereign action and 



