Constitutional Amendment and the Federation

Extract

An amending procedure is integral to a scheme of free and responsible government. Liberal constitutions are not formed on the naive assumption that they are immune from obsolescence. Their architects, unlike the Emperor Justinian, are never confident that their legal handiwork can endure for all time. They accept the necessity for change as self-evident and provide the means for achieving it.

In a liberal federation, however, the devising of a satisfactory procedure for amendment is rarely easy and seldom gives satisfaction, mainly because in such a state constitutional rigidity no less than flexibility has a raison d'être. The communities associated in the federation want a measure of security, a guarantee that their individual identity and integrity will never be lightly sacrificed in the process of change. This was illustrated long ago in the most influential federal union in history. The men who deliberated at Philadelphia in 1787 agreed that amendments must be sanctioned by a special majority in Congress and ratified by three-fourths of the states. They were confident that they had thus made change difficult, but not difficult enough to prevent it when necessary. Actually, for many reasons, it proved more difficult than they could have envisaged. Since the first ten amendments were little more than supplements to an unfinished document, there remain only twelve effected in 170 years, and of these three were obtained under very abnormal circumstances when the South was under the heel of the North. Important as some of them have been, most of the crucial adjustments and changes in the federation have been achieved in other ways, by judicial interpretation, usages, conventions, and a network of agreements.