Many amendments to the Constitution have been at various times suggested to Congress by presidents, or brought forward in Congress by members, but very few of these have ever obtained the requisite two-thirds vote of both houses. In 1789, however, and again in 1807, amendments were passed by Congress and submitted to the states for which the requisite majority of three-fourths of the states was not obtained; and in February and March 1861 an amendment forbidding the Constitution to be ever so amended as to authorize Congress to interfere with the “domestic institutions,” including slavery, of any state, was passed in both houses, but never submitted to the states, because war broke out immediately afterwards. It would doubtless, had peace been preserved, have failed to obtain the acceptance of three-fourths of the states, and its effect could only have been to require those who might thereafter propose to amend the Constitution so as to deal with slavery, to propose also the repeal of this particular amendment itself.8
The moral of these facts is not far to seek. Although it has long been the habit of the Americans to talk of their Constitution with almost superstitious reverence, there have often been times when leading statesmen, perhaps even political parties, would have materially altered it if they could have done so. There have, moreover, been some alterations suggested in it, which the impartial good sense of the wise would have approved, but which have never been submitted to the states, because it was known they could not be carried by the requisite majority.9 If, therefore, comparatively little use has been made of the provisions for amendment, this has been due, not solely to the excellence of the original instrument, but also the difficulties which surround the process of change. Alterations, though seldom large alterations, have been needed, to cure admitted faults or to supply dangerous omissions, but the process has been so difficult that it has been successfully applied only in three kinds of cases: (a) matters of minor consequence involving no party interests (amendments XI, XII, and XVI), b in the course of a revolutionary movement which had dislocated the Union itself (amendments XIII, XIV, XV), and c matters in which there existed a general sentiment common to both parties desiring alteration (amendments I to X and amendment XVII).
The passing of the two amendments of 1913 may suggest that the Constitution is more likely to undergo change in the near future than had seemed probable twenty years ago. Still it is worth while to enquire why the regular procedure for amendment had therefore proved in practice so hard to apply.
Partly, of course, owing to the inherent disputatiousness and perversity (what the Americans call “cussedness”) of bodies of men. It is difficult to get two-thirds of two assemblies (the houses of Congress) and three-fourths of forty-eight commonwealths, each of which acts by two assemblies, for the state legislatures are all double-chambered, to agree to the same practical proposition. Except under the pressure of urgent troubles, such as were those which procured the acceptance of the Constitution itself in 1788, few persons or bodies will consent to forego objections of detail, perhaps in themselves reasonable, for the mere sake of agreeing to what others have accepted. They want to have what seems to themselves the very best, instead of a second best suggested by someone else. Now, bodies enjoying so much legal independence as do the legislatures of the states, far from being disposed to defer to Congress or to one another, are more jealous, more suspicious, more vain and opinionated, than so many individuals. Rarely will anything but an active party spirit, seeking either a common party object or individual gain to flow from party success, make them work together.
If an amendment comes to the legislatures recommended by the general voice of their party, they will be quick to adopt it. But in that case it will encounter the hostility of the opposite party, and parties are in many states pretty evenly balanced. It is seldom that a two-thirds majority in either house of Congress can be secured on a party issue; and of course such majorities in both houses, and a three-fourths majority of state legislatures on a party issue, are still less probable. Now, in a country pervaded by the spirit of party, most questions either are at starting, or soon become, controversial.10 A change in the Constitution, however useful its ultimate consequences, is likely to be for the moment deemed more advantageous to one party than to the other, and this is enough to make the other party oppose it. Indeed, the mere fact that a proposal comes from one side, rouses the suspicion of the other. There is always that dilemma of which England has so often felt the evil consequences. If a measure of reform is immediately pressing, it becomes matter of party contention, it excites temper and passion. If it is not pressing, neither party, having other and nearer aims, cares to take it up and push it through. In America, a party amendment to the Constitution can very seldom be carried. Most nonparty amendments fall into the category of those things which, because they are everybody’s business, are the business of nobody.
It is evident when one considers the nature of a rigid or supreme constitution, that some method of altering it so as to make it conform to altered facts and ideas is indispensable. A European critic may remark that the American method has failed to answer the expectations formed of it. The belief, he will say, of its authors was that while nothing less than a pretty general agreement would justify alteration, that agreement would exist when obvious omissions preventing its smooth working were discovered. But this has not come to pass. There have been long and fierce controversies over the construction of several points in the Constitution, over the right of Congress to spend money on internal improvements, to charter a national bank, to impose a protective tariff, above all, over the treatment of slavery in the Territories. But the method of amendment was not applied to any of these questions, because no general agreement could be reached upon them, or indeed upon any but secondary matters. So the struggle over the interpretation of a document which it was found impossible to amend, passed from the law courts to the battlefield. Americans reply to such criticisms by observing that the power of amending the Constitution is one which cannot prudently be employed to conclude current political controversies, that if it were so used no constitution could be either rigid or reasonably permanent, that some latitude of construction is desirable, and that in the above-mentioned cases amendments excluding absolutely one or other of the constructions contended for would either have tied down the legislature too tightly or have hastened a probably inevitable conflict. And they now (1914) add that the ease and speed with which the Seventeenth Amendment was passed that when there exists a widespread popular wish for any particular change, it can be promptly gratified.
Ought the process of change to be made easier, say by requiring only a bare majority in Congress, and a two-thirds majority of states? American statesmen think not. A swift and easy method would not only weaken the sense of security which the rigid Constitution now gives, but would increase the troubles of current politics by stimulating a majority in Congress to frequently submit amendments to the states. The habit of mending would turn into the habit of tinkering. There would be too little distinction between changes in the ordinary statute law, which require the agreement of majorities in the two houses and the president, and changes in the more solemnly enacted fundamental law. And the rights of the states, upon which congressional legislation cannot now directly encroach, would be endangered. The French scheme, under which an absolute majority of the two chambers, sitting together, can amend the constitution; or even the Swiss scheme, under which a bare majority of the voting citizens, coupled with a majority of the cantons, can ratify constitutional changes drafted by the chambers, in pursuance of a previous popular vote for the revision of the constitution,11 is considered by the Americans dangerously lax. The idea reigns that solidity and security are the most vital attributes of a fundamental law.
From this there has followed another interesting result. Since modifications or developments are often needed, and since they can rarely be made by amendment, some other way of making them must be found. The ingenuity of lawyers has discovered one method in interpretation, while the