5. Special effectiveness was given to the new powers conferred upon the national government by authorizing it to deal with individuals instead of thirteen distinct and separate states. Hence it was no longer possible for states to violate and disregard treaties made by the federal government, or to look upon federal laws as mere recommendations to be obeyed if desirable or neg lected altogether.

6. Of particular significance was the clause providing for future amendments. The Articles of Confederation had stipulated that no alteration should be made without the approval of Congress and ratification by the legislature of every state. The new Constitution bound every state to an amendment, in case it was approved by two-thirds of both houses of Congress and ratified by three-fourths of the states. Even this system, as events have proved, has required such extraordinary majorities as to make amendments by regular process well-nigh impossible. Radical as this departure may have seemed to the ardent champion of states' rights, it was not radical enough for Patrick Henry, for he declared in the Virginia convention called to ratify the Constitution that "Four of the smallest states, that do not collectively contain one-tenth part of the population of the United States, may obstruct the most salutary and necessary amendments.

A bare majority in these four small states may hinder the adoption of amendments; so that we may fairly say and justly conclude that one-twentieth part of the American people may prevent the removal of the most grievous inconveniences and oppression by refusing to accede to amendments. . . . Is this an easy mode of securing the public liberty? It is, sir, a most fearful situation when the most contemptible minority can prevent the alteration of the most oppressive government; for it may, in many respects, prove to be such." 1

The Ratification of the Constitution

It is evident from an examination of these departures from the Articles of Confederation that a revolution in our political system was contemplated by the framers of the Constitution. They were doubtless unaware of all the national implications

1 Elliot's Debates, Vol. III, pp. 48–50.

contained in the instrument which they drafted, but they knew very well that the state legislatures, which had been so negligent in paying their quotas under the Articles and which had been so jealous of their rights, would probably stick at ratifying such a national instrument of government. Accordingly they cast aside that clause in the Articles requiring amendments to be ratified by the legislatures of all the states; and advised that the new Constitution should be ratified by conventions in the several states composed of delegates chosen by the voters. They furthermore declared — and this is a fundamental matter · - that when the conventions of nine states had ratified the Constitution the new government should go into effect so far as those states were concerned. The chief reason for resorting to ratifications by conventions is laid down by Hamilton in the twenty-second number of The Federalist: "It has not a little contributed to the infirmities of the existing federal system that it never had a ratification by the people. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers; and has in some instances given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to the law of a state, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of the consent of the people. The streams of national power ought to flow immediately from that pure original fountain of all legitimate authority."

Of course, the convention did not resort to the revolutionary policy of transmitting the Constitution directly to the conventions of the several states. It merely laid the finished instrument before the confederate Congress with the suggestion that it should be submitted to "a convention of delegates chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification; and each convention assenting thereto and ratifying the same should give

notice thereof to the United States in Congress assembled.". The convention went on to suggest that when nine states had ratified the Constitution, the confederate Congress should extinguish itself by making provision for the elections necessary to put the new government into effect." "What they [the convention] actually did, stripped of all fiction and verbiage," says Professor Burgess, "was to assume constituent powers, ordain a Constitution of government and of liberty, and demand the plébiscite thereon, over the heads of all existing legally organized powers. Had Julius or Napoleon committed these acts, they would have been pronounced coups. d'état. Looked at from the side of the people exercising the plébiscite, we term the movement revolution. The convention clothed its acts and assumptions in more moderate language than I have used, and professed to follow a more legal course than I have indicated. The exact form of procedure was as follows. They placed in the body of the proposed Constitution itself a provision declaring that ratifications by conventions of the people in nine states (commonwealths) should be sufficient for the establishment of the Constitution between the states (commonwealths) so ratifying the same. They then sent the instrument entire to the Confederate Congress, with the direction, couched in terms of advice, that the Congress should pass it along, untouched, to the legislatures of the commonwealths, and that these should pass it along, also untouched, to conventions of the people in each commonwealth, and that when nine conventions should have approved, Congress should take steps to put the new government into operation and abdicate. Of course the mass of the people were not at all able to analyze the real character of this procedure. It is probable that many of the members of the convention itself did not fully comprehend just what they were doing. Not many of them had had sufficient education as publicists to be able to generalize the scientific import of their acts." 3

After the new Constitution was published and transmitted to the states, there began a determined fight over its ratification. A veritable flood of pamphlet literature descended upon the coun

1 For document illustrating process of ratification, Readings, p. 54. 2 Readings, p. 53.

3 Burgess, Political Science and Constitutional Law, Vol. I, p. 105

try, and a collection of these pamphlets by Hamilton, Madison, and Jay, brought together under the title of The Federalistthough clearly a piece of campaign literature has remained a permanent part of the contemporary sources on the Constitution and has been regarded by many lawyers as a commentary second in value only to the decisions of the Supreme Court. Within a year the champions of the new government found themselves victorious, for on June 21, 1788, the ninth state, New Hampshire, ratified the Constitution, and accordingly the new government might go into effect as between the agreeing states. Within a few weeks, the nationalist party in Virginia and New York succeeded in winning these two states, and in spite of the fact that North Carolina and Rhode Island had not yet ratified the Constitution, Congress determined to put the instrument into effect in accordance with the recommendations of the convention. Elections for the new government were held; the date March 4, 1789, was fixed for the formal establishment of the new system; Congress secured a quorum on April 6; and on April 30, Washington was inaugurated at the Federal Hall in Wall Street, New York.

CHAPTER IV

THE EVOLUTION OF THE FEDERAL CONSTITUTION

If we use the term "Constitution" in the narrow sense as including only the provisions of the written instrument itself, the history of its development would be brief; but such a restriction of the term would be sheer formalism, and a history based upon such an interpretation would be utterly misleading. For constitutional law, as Professor Dicey points out, includes all the fundamental rules which directly or indirectly affect the distribution and exercise of sovereign power; it includes among other things the laws which define the suffrage, regulate the prerogatives of the chief magistrate, prescribe the form of the legislature, and determine the structure and functions of the hierarchy of officials. A comparison, therefore, of the existing body of law and custom relative to such matters with that obtaining in the United States on the morning when Washington took the oath of office in Wall Street reveals most astonishing changes. Only eighteen new clauses, it is true, have been added by way of amendment to the written document, but Congress has filled up the bare outline by elaborate statutes; party operations have altered fundamentally the spirit and working of much of the machinery; official practice has set up new standards from time to time; and the Supreme Court, by generous canons of interpretation, has expanded, in ways undreamed of by the Fathers, the letter of the law. In fact, the customs of our Constitution form as large an element as they do in the English constitution. A correct appreciation of the evolutionary character of the federal system is, therefore, necessary for a true understanding of the genius of the American political institutions.

The Federal Amending Process

The most obvious changes in our Constitution are, of course, those that have been effected by the amendments, all of which are to be understood in connection with the historical circum