Other Notes--The Constitution

NOTES

Constitutional Amendments

The Constitution provides for its own amendment, but the process is so difficult that little short of a great national upheaval can bring about an amendment. At first, however, when nobody was satisfied with the Constitution, the case was different. Seven of the states on ratifying it proposed amendments, in the aggregate over a hundred, many being mere repetitions. These were duly considered by the House, which boiled them down to seventeen, and the Senate reduced this number to twelve. These were sent to the states, which ratified ten of them. These first ten amendments were added to the Constitution before the close of 1791. They are practically a bill of rights, and their adoption was a concession to the Anti-federalists. The Eleventh Amendment was adopted in 1798 and the Twelfth in 1804. After this, the Constitution was not amended for sixty-one years, the last three concerning negro slavery and citizenship, following the Civil War.

Within the first hundred years more than eighteen hundred proposed amendments were introduced in Congress. Aside from the fifteen that were adopted, four others passed both houses, but failed of ratification by the requisite number of states. (Ames, "Proposed Amendments," p. 300) The difficulty of amending the Constitution has been partially met by its elasticity, by a method of interpretation by which it meets the needs of to-day almost as well as those of the time when it was adopted. This is clearly shown by our method of electing a President. But we are yet without a remedy for the obvious unfairness in counting the minority vote of any state for nothing in a presidential election.

Defects in the Constitution

A century of experience has taught us that there are some serious defects in the Constitution which cannot be corrected by mere custom, but the machinery of amendment is so difficult to manipulate that we suffer them to remain. One of the most serious defects is that foreigners dwelling within the bounds of a state are subject to the jurisdiction of that state, as its own citizens, while the state has no foreign relations whatever. The most conspicuous example in history was the case of McLeod, a Canadian who was tried in 1841 in New York for destroying the Caroline. England was demanding his release of the United States; but the United States had no power to command New York to give him up, and New York had no relations with England. War was averted only by the acquittal of the prisoner. Another example is found in the massacre of a number of Italians in New Orleans in 1891. This defect, which arises from our dual system, could be remedied by an amendment authorizing the national government to take any case of a foreigner, requiring international correspondence, out of the hands of any state. Another defect is found in the clause that requires a majority, instead of a plurality, of the electoral college, to elect a President and a Vice President, and in case of its failure to elect, a majority of the states (each state having one vote) to elect in the House. Were there three instead of two great political parties, both the college and the House might fail to elect, and serious trouble might be the result. If a plurality could elect, a failure would be almost impossible. There are also minor changes that doubtless a majority of the people, giving him a longer term without eligibility for reelection, giving him power to veto items in appropriation bills, the election of United States senators by popular vote, giving Congress the control of divorce laws, and the like. But many years will probably pass before such changes are made.

My notes

This and the preceding pages are from "A HISTORY OF THE UNITED STATES", by Henry William Elson, pub. New York, THE MACMILLAN COMPANY, 1904. Chapter XVI, pg. 327-340. Transcribed by Kathy Leigh.

Today, the first ten amendments to the Constitution are known as the Bill of Rights. In 1791 when the Constitution was ratified, the Bill of Rights only protected individuals from the federal government but not from the state governments. It was not until the Thirteenth, Fourteenth, and Fifteenth amendments were enacted that the federal government was able to protect individuals from the state governments. This was basically accomplished when the fourteenth amendment was enacted. Incorporation, which means that the state governments must observe and protect individual liberties the same as the federal government, did not begin until the twentieth century, most of which were not incorporated until the 1960's. As of today, four of the amendments are still not incorporated against the states. These are the Second Amendment, the right to keep and bear arms; the Fifth Amendment, which is the right to a grand jury indictment; the Sixth Amendment, which is the requirement of twelve jurors on a criminal jury; and the Seventh Amendment, which is the right to a civil jury.

"The Supreme Court has held various state procedures adequate to protect the values inherent in those constitutional rights. All the rest of the fundamental freedoms in the Bill of Rights have been incorporated and may not be infringed by the federal government or by the states."--from "In Our Defense-The Bill of Rights in Action", by Ellen Alderman and Caroline Kennedy.

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