Social and industrial changes since 1787. Character of constitu tional changes. Ashley, Am. CHAPTER XVI CONSTITUTIONAL CHANGES SINCE 1787 198. Introduction. It is neither possible nor desirable that our Constitution or national government should remain unchanged during a century which has brought us a great expansion of territory, population, and national resources, and little less than a revolution in the means of transportation, methods of doing business, and in the national feeling of the people. As a matter of fact, during the debates of the Philadelphia Convention, one of the delegates went so far as to assert boldly that no one expected the Constitution they were then framing would be in use a century later. Yet so well did "the Fathers" do their work that to-day the Constitution of 1787, with only fifteen amendments, is still the foundation of our federal Union and of our national government. We must not suppose, however, that the Constitution is really the same now as then. Its form is almost identical with that of a hundred years ago, but its spirit has been modified greatly. In 1790 the people were much more attached to their state governments than to that of the Nation, and, in consequence, the national government was not allowed to do many things that we consider perfectly proper, although nominally Congress had almost as much power then as now. This simply means that many of the chief changes in the Constitution since 1787 have not been made by constitutional amendments added to that document, but by a more liberal construction of the powers granted to the national government in the original Constitution. How the powers of the national government have been enlarged, by a free interpretation of the Constitution and by usage, shall be explained briefly after examining the fifteen regular amendments. THE AMENDMENTS 199. The National Bill of Rights. — As we noticed in the last Reasons chapter, some of the States ratified the Constitution on condition that for its adoption. certain amendments be proposed which would protect the States and individuals from any possible invasion of their rights by the national government. The first Congress therefore passed, by the necessary Schouler, two-thirds vote of both houses, a number of amendments which, taken United together, formed a Bill of Rights. Ten of these were ratified by three States, I, fourths of the state legislatures, and proclaimed by the Secretary of State, Thomas Jefferson, to be a part of the Constitution, December 15, 1791. 113-115. The provisions of the first eight amendments, which are concerned Two with specific personal rights, may be classified under two heads: classes of provisions. (1) those that prohibit Congress from restricting individual rights; (2) those which protect individuals brought before or on trial in United States courts. The first two amendments make it impossible Ashley, Am for Congress to establish a state religion, or deny to any one religious Fed. State, liberty, freedom of speech and of the press, the right to petition the $$ 556–562. government, and to bear arms. The third and fourth prevent Congress from quartering soldiers in private homes without the consent of the owner, and from allowing national officers to search homes except by warrants that describe the property to be seized. The last four of the eight give accused persons the right to a speedy jury trial with every opportunity to prove their innocence. We should especially notice that no one of the eight attempts to prohibit the States from doing these things, for they are restrictions upon the national government only. 200. The Ninth, Tenth, and Eleventh Amendments. - Lest individual citizens should not be fully protected by these detailed provisions, the ninth amendment goes on to state that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." To prevent encroachments upon the rights of the States as well as upon those of the citizens, the tenth amendment declares that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." Thus the chief objection to the Constitution; namely, that it was a menace to General character. Suits against States. Presidential elections. McMaster, Period between 1804 and 1865. Restrictions upon the States, in the last three amend ments. the liberties of the citizens and the rights of the States, was so far re moved that the Anti-Federalists, who had sought to prevent its adoption, ceased to exist as a political party. The States were, however, very jealous of their rights, and when the Supreme Court decided in 1792 that a State might be sued in a United States court by a citizen of another State or by a foreigner, a resolution for an eleventh amendment was proposed, which denied to the national courts jurisdiction of such cases. This was carried through Congress without difficulty, and was ratified by three fourths of the States before 1798. 201. The Twelfth Amendment. It is quite remarkable that only one amendment has been necessary to correct defects in the organization or methods of the United States government. According to the original Constitution, the presidential electors were to name two candidates for President without specifying which should be President and which Vice President. Then, in case of a tie vote, the House of Representatives was to select the President, the delegation from each State having one vote. Election in the House became necessary in the third presidential election (1800), Thomas Jefferson and Aaron Burr having seventy-three votes each in the electoral college. Because of party strife, the House did not decide in favor of Jefferson until sixteen days before the inauguration. To avoid a repetition of this difficulty, a twelfth amendment was adopted in 1804, which made it necessary for the electors to name the office for which each candidate was selected, but, as formerly, each State was allowed to decide in what way its electors might be chosen. Whenever the electors failed to choose a President, the House of Representatives was to select that official from the three who had the largest number of votes, and in case no Vice President was chosen, the Senate was to select one from the two whose electoral votes were greatest. 202. Later Amendments. For more than sixty years after the adoption of the Twelfth Amendment, there were no changes in the written Constitution of the United States. Yet silently but surely, through a liberal interpretation of the Constitution and the use of powers about which no one had thought at first, the national government gained in power and in prestige. This shows that the Constitution was undergoing a change, for the government of the United States derives its authority from the people through the Constitution. We can see how differently the people felt toward the Constitution in 1789 and in 1865 by noticing that the first eleven amendments restricted the power of the UNITED STATES GOVERNMENT in certain respects, while the Thirteenth, Fourteenth, and Fifteenth Amendments placed 100-110. certain limitations upon the STATES. One chief cause of the great war Willoughby, that was fought upon American soil during the years from 1861 to 1865 Am. Const'l was the institution of slavery an institution which was under the con- System, trol of the state governments, except in the territories, and which had been abolished in the North by the States long before 1861. When, therefore, the Southern Confederacy of slave States was beaten in the great struggle, the first thought of the North was to give the slaves freedom, the second to give them the rights of citizenship, and the third to grant them the right to vote. In doing these things, the Nation, through the national Constitution, told the States that thenceforth they must not countenance slavery, nor deny to any one the right of citizenship or suffrage because of his color. Bascom, J., in Annals Am. Acad., 27 (1906), 597-609. 203. The Thirteenth Amendment. — The first of the war amend- Slavery. ments, the Thirteenth Amendment of the Constitution, was passed by tion and two thirds of both houses of Congress early in 1865, and was ratified Burgess, by the necessary number of States within less than a year. It provided Reconstructhat neither slavery nor involuntary servitude, except as a punish- Cons't., ment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction." 204. The Fourteenth Amendment. 26-30. -A little later many members Citizenship. Cons't., of of Congress felt that some of the former slave States were trying to reestablish slavery by the passage of apprenticeship laws which restricted Tiedeman, the freedom of the negroes. To avoid the dangers that might arise Unwritten from such a possibility, an amendment was proposed making the blacks citizens,1 and providing that, if a State did not allow negro men to vote, the State's representation in the lower house of Congress should be correspondingly reduced. As the States which had belonged to the Southern Confederacy were obliged to accept this amendment before they were allowed to select senators and representatives, this amendment was ratified by the constitutional three fourths of the States and declared to be a part of the Constitution, July 28, 1868. state power. The restrictions placed upon the States by the first section of Two kinds Amendment XIV are very important and are of two kinds — the one of restricnegative, because no State is allowed to abridge the privileges and im- tions on munities of citizens of the United States; the other positive, inasmuch as no State may "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." In other words, the amendment System, not only prevents the States from interfering with the rights which 180-189. 1 The important provisions of the amendment regarding United States and state citizenship are explained in the next chapter, §§ 222–224. Willoughby, Suffrage. Boyle, J. E., The supplementary Constitution. Bryce, Am. Commonwealth, abr. ed., any citizen possesses by virtue of his United States citizenship (§ 223), but it says to the States, "If you take away from a citizen without due process of law any rights which he has because of his state citizenship, he will be protected in national courts." It is impossible to imagine such a restriction of state powers at the time the Constitution was adopted, and this shows clearly how much more united the people of the Nation were in 1868 than in 1787. 205. The Fifteenth Amendment became a part of the Constitution in 1870, five years after Lee had surrendered to Grant at Appomattox. Its real and avowed purpose was to grant the ballot to the freedmen, for it provided that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State, on account of race, color, or previous condition of servitude." A large number of people believed that the only way to protect the freedmen properly at the time the amendment was adopted was to grant them the privilege of voting, but many now feel that it was a mistake to place the ballot permanently in the hands of a large ignorant class. In consequence, Congress has not interfered even when some Southern States have discriminated directly against the negroes and the national courts have, as much as possible, left the States free to make such suffrage laws as they desire. THE UNWRITTEN CONSTITUTION 206. What the Unwritten Constitution is Like. As the written Constitution is brief and does not go into detail, it is supplemented in a great many respects by statutes and by customs which deal with important principles of government. These determine how extensive the powers conferred by the Constitution really are, and in what ways the work of the national government shall be carried on. It must 271-274. be perfectly evident that if Congress is permitted "to regulate commerce with foreign nations and among the Willoughby, several States," to cite but a single case, it makes a very great difference whether Congress may control foreign commerce by prohibiting all trade with other nations and may control all corporations which sell their goods in more than one State, or whether the only regulations it can make are formal and mechanical rules which simply measure the Am. Const'l System, 141-153. |