The Spirit of American Government: A Study Of The Constitution: Its Origin, Influence And; Relation To DemocracySmith, J. Allen (James Allen)
History
The Spirit of American Government: A Study Of The Constitution: Its Origin, Influence And; Relation To Democracy
Smith, J. Allen (James Allen)
Constitutional history -- United States; United States -- Politics and government
One of the principal objections to the Articles of Confederation--that
they lacked a practical amending power--applies, then, with no less
force to the Constitution itself. In one respect the Constitution is
even more rigid than were the Articles of Confederation, since the
Congress of the Confederation was the court of last resort for passing
on the constitutionality of its own legislation. This gave to Congress
under the Confederation at least a limited power of virtually amending
the Articles of Confederation by the ordinary process of law-making--a
power possessed by the legislature in all countries where the system of
checks and balances is not recognized. Under the Constitution, however,
this power to amend the fundamental law can be exercised only to a very
limited extent by Congress, since the interpretation of the Constitution
by that body for the purposes of law-making is subject to revision at
the hands of the Federal Judiciary. The Constitution, then, more
effectually prevents changes desired by the majority than did the
Articles of Confederation, since the former guards against the
possibility of amendment under the guise of ordinary legislation while
the latter did not.
Another distinction must be borne in mind. The Articles of Confederation
made amendment difficult in order to prevent the general government from
encroaching on the rights of the several states. It was not so much a
disposition to make change impossible, or even difficult, as, by keeping
the general government within established bounds, to leave the several
states free to regulate their own affairs and change their institutions
from time to time to suit themselves.
This view finds support in the character of the early state
constitutions. These were shaped by the same revolutionary movement
which produced the Declaration of Independence, and were largely
influenced in their practical working by the "self-evident" truths
proclaimed in the latter. One of the axioms of political science
embodied in the Declaration of Independence was the right of the people
to alter or abolish the existing form of government. This principle,
however, was expressly recognized in but few of the earlier state
constitutions, which, as a rule, contained no provision for future
amendment. But such provision was not really necessary, inasmuch as the
power of the legislature was limited only by its responsibility to the
electorate. A mere majority of the qualified voters might demand and
secure the enactment of laws which would virtually amend the
constitution. From this time on, however, we see a strong tendency to
specify in the constitution itself the manner in which it could be
changed; and by the time that the framers of the Federal Constitution
met in Philadelphia in 1787 a majority of the state constitutions
contained provisions of this kind.
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