mine which of the two methods of ratification shall be fol lowed, without designating the majority necessary to do so. It must be confessed that the language of the constitution upon this most important subject is not clear, and that the practice of Congress has some appearance of repugnance to it; but happily we have a decision of the Court which declares that the procedure followed by the Congress is in conformity with the constitution.1

After the submission, the Congress leaves everything to the legislatures of the commonwealths until their ratifications, in sufficient number to make the proposition a valid part of the constitution, are in the hands of the Secretary of State of the United States. One question may be said to have been touched and a settlement indicated, in the practice, during this stage of the procedure, viz; that a commonwealth may always reconsider its refusal to ratify, but that ratification once voted cannot be withdrawn, neither after the sufficient number shall have ratified to make the proposition a part of the constitution, but before promulgation, nor before the sufficient number shall have been reached. I say this settlement of the question is only indicated, not fully fixed.2 It is certainly the only sound view of the subject. When the official report of ratification from any commonwealth is in the hands of the Secretary of State of the United States, all further power over the subject has passed from that commonwealth. It may with some reason be held that another point is implied in the precedents, vis; that no commonwealth may insert any change in the proposition of the Congress nor ratify conditionally. Certainly the insertion of any change would be an exceeding of the powers conferred by the constitution of the United States upon the legislatures of the commonwealths in regard to this subject. The con

1 Hollingsworth v. Virginia, U. S. Reports, 3 Dallas, 378.

2 Cooley, Principles of Constitutional Law, p. 203.

stitution confers upon them only ratifying powers; ie. it confers upon them no powers of initiation. It is not so certain, however, that the legislatures of the commonwealths can attach no conditions to their ratifications. For example,

I

if a legislature should ratify, and fix a certain date past which its ratification would not hold unless the legislatures of threefourths of the commonwealths should have ratified before or upon that date, it is not certain that this would not be valid as within the powers of the legislature. The constitution of the United States does not fix the date within which ratifications must be made. Congress has not done so, and certainly there are scientific objections to having a proposi tion so long undecided as to become obsolete. Nevertheless, I think the sound view of the subject, from the standpoint of political science, is that the legislatures should not be allowed to affix any conditions whatever to their ratifications. think also that the sound interpretation of the constitution of the United States must arrive at the same result. The only power which the legislatures have upon this subject is derived from an express grant in the constitution of the United States; and since that grant speaks only of ratification, it is the reasonable conclusion that if ratification, in any other than its primary and simplest form, is allowed at all, it must be by permission of the Congress, antecedently given ; because the attachment of any conditions to the ratification would be an exercise of the power of initiation, and the constitution vests the whole power of initiation upon this subject in the Congress.

I cannot sympathize with that unreserved commendation of the fifth article of the constitution of the United States indulged in by Mr. Justice Story1 and other commentators. When I reflect that, while our natural conditions and relations have been requiring a gradual strengthening and

1 Story, Commentaries on the Constitution of the United States, Vol. II, p. 574 ff., §§ 1826-1831.

extension of the powers of the central government, not a single step has been taken in this direction through the process of amendment prescribed in that article, except as the result of civil war, I am bound to conclude that the organization of the sovereign power within the constitution has failed to accomplish the purpose for which it was constructed. I am not of those who believe that we have done with war in the world yet. I believe that much of the civilization of the world is still to be wrought out through its apparently destructive agency. But I do say this: that when a state must have recourse to war to solve the internal questions of its own politics, this is indisputable evidence that the law of its organization within the constitution is imperfect; and when a state cannot so modify and amend its constitution from time to time as to express itself truthfully therein, but must writhe under the bonds of its constitution until it perishes or breaks them asunder, this is again indisputable evidence that the law of its organization within the constitution is imperfect and false. To my mind the error lies in the artificially excessive majorities required in the production of constitutional changes. According to the census of 1880, it was possible for less than 3,000,000 of people to successfully resist more than 45,000,000 in any attempt to amend the constitution under the present process. The argument in favor of these artificial majorities is that innovation is too strong an impulse in democratic states, and must be regulated; that the organic law should be changed only after patience, experience and deliberation shall have demonstrated the necessity of the change; and that too great fixedness of the law is better than too great fluctuation.1 This is all true enough; but, on the other hand, it is equally true that development is as much a law of state life as existence. Prohibit the former, and the latter is the existence of the

1 Story, Commentaries upon the Constitution of the United States, Vol. II, p. 575, § 1828.

body after the spirit has departed. When, in a democratic political society, the well-matured, long and deliberately formed will of the undoubted majority can be persistently and successfully thwarted, in the amendment of its organic law, by the will of the minority, there is just as much danger to the state from revolution and violence as there is from the caprice of the majority where the sovereignty of the bare majority is acknowledged. The safeguards against too radical change must not be exaggerated to the point of dethroning the real sovereign.

There is another way, a better way and a natural way of securing deliberation, maturity and clear consciousness of purpose without antagonizing the actual source of power in the democratic state, vis; by repetition of vote. If, for example, the Congress should, in joint session and by simple majority, resolve upon a proposition of amendment, and give notice of the same to the people in time for the voters to take the matter into consideration in the election of the members of the House of Representatives for the next succeeding Congress; and if the succeeding Congress should then repass the proposition in joint session and by like. majority; and if then it should be sent to the legislatures of the commonwealths for ratification by the houses thereof, acting in joint assembly and resolving by simple majority vote; and if then the vote of each legislature should have the same weight in the count as that of the respective commonwealth in the election of the President of the United States, and an absolute majority of all the votes to which all of the commonwealths were entitled should be made necessary and sufficient for ratification, why would not this be an organization of the sovereign, of the state within the constitution, which would be truthful to the conditions of our national democratic society and our federal system of government; which would secure all needful deliberation in procedure and maturity in resolution; which would permit changes when the nat

ural conditions and relations of our state and society demanded them; and which would give us an organization of the state convenient in practice and, at the same time, sufficiently distinct from the organization of the government to prevent confusion of thought in reference to the spheres and powers of the two organizations?

To reach such an organization of the state within the constitution legally would, of course, require the amendment of the provision of the constitution for amendment. This may be done legally in the manner prescribed for making any amendment, since no part of the constitution is withdrawn by the constitution from the process, except the equality of the commonwealths in the senatorial representation. The only question would be as to whether this exception must be connected with the new law of amendment. It seems to me that the letter of the constitution and the intentions of the framers would require this, unless the new law should be ratified by the legislature of every commonwealth. If this be not true, then a commonwealth might be deprived indirectly of its equal representation in the Senate without its own consent, while by the existing law it cannot in any manner be so deprived. From the standpoint of political science, on the other hand, I regard this legal power of the legislature of a single commonwealth to resist successfully the will of the sovereign as unnatural and erroneous. It furnishes the temptation for the powers back of the constitution to reappear in revolutionary organization and solve the question by power, which bids defiance to a solution according to law. There is a growing feeling among our jurists and publicists that, in the interpretation of the constitution, we are not to be strictly held by the intentions of the framers, especially since the whole fabric of our state has been so changed by the results of rebellion and civil war. They are beginning to feel, and rightly too, that present conditions, relations and requirements should be the chief consideration, and that