which have come to prevail in the several states regarding constitutional changes and with the methods they have become accustomed to employ to effect them.'

We have, however, to remember that we are dealing with the organic law of a federal government as distinguished from that of a single state. It is, therefore, desirable to inquire into the experience of foreign countries which have had to face the problem of framing a federal constitution. Fortunately there are two such countries in which instructive models are available for our investigation, namely, Switzerland and the Commonwealth of Australia. Each of these had the advantage of being able to study American experience, both federal and state, with regard to the process of amendment.

Under the Swiss system, originally adopted in 1848 and modified in 1874 and again in 1891, amendments may be proposed either by the ordinary legislative process or by initiative petition of 50,000 voters in the form of general suggestions or of completed bills. General suggestions are elaborated by the Federal Assembly on its agreement thereto or after the question has first been submitted to the people. In the case of completed bills, the Federal Assembly may submit with them alternative proposals which it recommends. Total revision may be undertaken by the Federal Assembly at any time when both councils are in agreement; but in case of disagreement, or when 50,000 Swiss voters demand such revision, the question is submitted first to a popular vote and if a majority of the citizens who vote pronounce in the affirmative, a new Federal Assembly is elected for this purpose. Proposed changes when formulated are submitted to referendum vote and take effect when adopted

1 A test of opinion in Congress on this matter was recently afforded in connection with the admission of New Mexico and Arizona to statehood. By the joint resolution of Aug. 21, 1911, New Mexico was required, as a condition precedent to admission, to alter the amending clause of its proposed constitution (61st Cong., 3d sess., house doc. 1369, p. 38) so as to reduce the requirement for the vote of the legislature in proposing amendments from two-thirds to a majority of the members of each house and for ratification, to substitute a majority of those voting on the proposition in place of a majority constituting an affirmative vote equal to at least 40 per cent of the votes cast at the election and approval by at least half the counties of the state.

by the majority of Swiss citizens voting thereon and by a majority of the cantons.'

Next, let us consider the amending clause of the Australian constitution which went into effect in 1901. Though formally enacted by the Imperial Parliament, this important instrument was the result of the deliberations of two conventions of delegates from the separate colonies, of which the first met in 1891 and the second held its sessions over a period of three years, 1897 to 1899. The reports of the debates in these conventions are documents of exceptional importance for the study of our own constitutional problems, not only because we see in them a kindred people with similar traditions grappling afresh with the same questions, but also because American experience is constantly referred to and carefully weighed and analyzed.

The draft of the bill adopted by the 1891 convention 3 provided that any law for the alteration of the constitution must be passed by an absolute majority of both houses and be referred to conventions in the several states and for adoption, to be submitted to the Governor-General for the Queen's assent, required approval by the conventions of a majority of the states, subject to the condition that the people of these states were also a majority of the people of the commonwealth. The draft of this clause adopted by the second convention eight years later, which became the final form, shows two significant changes-one making the initiation of amendments easier, the other substituting a popular referendum for ratification by conventions.+ The requirement for proposal of amendments became an absolute majority in each house or, in case of disagreement, an absolute majority in one house given twice, the second time after

1 Swiss Federal Constitution, Arts. 118-123. A full account of the history of this procedure is given in Borgeaud's Adoption and amendment of constitutions in Europe and America (tr. by C. D. Hazen, N. Y., 1895) pp. 291-332.

2 Commonwealth of Australia Constitution Act, 63 & 64 Vict. ch. 12.

National Australasian Convention, Sydney, 1891, Official record of the proceedings and debates, p. clxxxviii; debated, pp. 428-434.

National Australasian Convention, Adelaide, 1897, Official report of the debates, pp. 1020-1030, 1204-1209; Australasian Federal Convention, Melbourne, 1898, Official record of the debates (third session), vol. 1, pp. 715–772.

25 three months' interval, plus submission on both occasions to the other house. Every such law is then to be submitted (after two but before six months) to the voters of every state, requiring for adoption the approval of the people in a majority of states and of a majority of the people voting over the whole Commonwealth.

It must be remembered, however, in endeavoring to adapt such a procedure to our own circumstances, that in Australia there exist two safeguards which are wanting here, namely responsible government and the power of disallowance which may be exercised by the British government in case of need.

The last stage of our inquiry is to consider the modifications of article 5 that have been proposed. We have seen that the Articles of Confederation did not specify any special majority in Congress for the proposal of amendments and that the provision for a two-thirds vote was not formulated until a late stage in the proceedings of the Federal Convention when Madison and Hamilton presented their substitute clause; also, that the motion to make two-thirds of the states the number necessary and sufficient for ratification was lost by only one vote. After the adoption of the constitution, however, no suggestion for facilitating the amending process was presented to Congress until January, 1861, when an effort was made to submit the "Crittenden Compromise" to a direct vote of the people. Such a plebiscite would have been advisory only but it is interesting to note that such a proposal was made at this time of great stress when the machinery provided in the constitution proved unworkable. A similar proposition was also offered when the fifteenth amendment was under consideration.

The first actual proposal to establish an easier method of amendment was, however, contained in the original draft of the resolution for the abolition of slavery, as introduced by Senator Henderson of Missouri in January, 1864, a substitute for which ultimately became the thirteenth amendment. The clause, which was dropped in committee, provided that whenever a majority of the members elected to each house, or a convention called on the application of the legislatures of a majority of the several states, should propose amendments, these in either case

should be valid when ratified by the legislatures of or conventions in two-thirds of the several states, as Congress should direct. The next resolution for a new amending clause was introduced in 1873 by Mr. Porter of Virginia. It provided that Congress, whenever three-fifths of both houses deem it necessary, may propose amendments to the constitution, or may call a convention for proposing amendments and revising the constitution, and shall be required to call such a convention on the application of the legislatures of any number of states, embracing three-fifths of the enumerated population of the several states. Amendments proposed by either of these methods were to be valid when approved and ratified by a majority of the electors in the several states voting thereon, and qualified to vote for Representatives in Congress.'

2

Of later proposals three are of special interest. Professor J. W. Burgess in his Political Science and Comparative Constitutional Law (1893) suggested the following procedure for amendment of the Federal Constitution: proposal of amendments in two successive Congresses by the two houses in joint session and by simple majority vote; submission to the state legislatures for ratification by the houses thereof, also acting in joint assembly and resolving by simple majority vote; in counting the votes of the legislatures each state should have the same weight as is given to it in the electoral college and an absolute majority of all the votes to which all the states were entitled should be necessary and sufficient for ratification.

Professor Munroe Smith in his recent discussion of this subject 3 has pointed out that we have to consider not only what more workable method of amendment seems best adapted to our dual system of government but also what changes in the amending clause would probably stand the best chance of securing the assent of three-fourths of the states. He, therefore, suggests as objections to the Burgess plan that, on the one hand,

1 Ames, H. V. Proposed amendments to the constitution, pp. 292–293.

2 Vol. I, p. 152.

Shall we make our constitution flexible?" in North American Review, vol. 194, pp. 657-673 (Nov. 1911).

it would be felt that if weighted at all the votes of the states should be according to population and, on the other hand, that the smaller states would demand equality with the larger and would not approve the provision for a joint assembly of Congress, as this would destroy the influence of the equal representation of the states in the Senate. To meet these difficulties he would substitute as the provisions of a new amending clause

"proposal of amendments by the majority vote of both houses in two successive Congresses; submission of such proposals to the legislatures of the several states or to conventions in the several states or directly to the voters in each of the states, as one or another of these modes of ratification may be proposed by Congress; and ratification of proposals by a majority of the states, provided that the ratifying states contain, according to the last preceding enumeration, a majority of the total population of all the states."

This plan is better in every way than any previous proposal and would go a long way towards providing an efficient amending procedure. As, however, the proposal of constitutional amendments by repeated vote in two successive legislatures has been largely abandoned in the case of the state constitutions in favor of action by a single legislature or other methods, it does not seem necessary or desirable to introduce it at this date into the amending clause of the Federal Constitution without good and sufficient cause. The reason assigned in this case is that it would lead to proposals of superior precision being submitted for ratification. But it seems probable that this result could be attained more directly and effectively by the establishment of the proposed legislative drafting bureau for Congress. In cases of disagreement between the two houses of Congress on a matter of constitutional change it might well be provided that amendments could be proposed by majority vote of one house in two successive Congresses, as an alternative to proposal by majority vote of both houses in one Congress.

With regard to the ratification process it may be remarked that the object of this is to take the sense of the sovereign people on the amendments submitted. The interposition of representative bodies, either the ordinary legislatures or conventions