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Page:Harvard Law Review Volume 2.djvu/370

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violence ; its provisions may be moulded to new thoughts, new aspirations, and new needs, as peacefully as the simplest law on the statute book may be modified ; perhaps with as little discussion. Whoever desires proof of the excellence of this method of constitutional development needs but to note the fact that fifteen amendments to the federal constitution have been peacefully made under the agreed forms. The proof, it may be said, is imperfect, for the last four amendments were born of the civil war. This is true ; but let it be noted that the war was not inaugurated to obtain these amendments ; it was not b^gun by those who might have desired them. The government was moving peacefully on under the constitution, with full observance of all its compromises ; but those with whom the recognition of slavery was the most important of its provisions saw, or thought they saw, a clear indication of steadily advancing public sentiment that in time would come to demand that this recognition, and the attendant compromises, should be stricken from the instrument. It was to escape an inevitable reform, not, as yet, imminent, but clearly foreshadowed, that the war was begun ; and the four years of bloodshed only precipitated a purification of National and State constitutions, that would otherwise have come more slowly and peacefully, and as a necessary step in national progress.

In all that has now been said by way of comparing written with unwritten constitutions, it is assumed as a postulate that sovereignty is in the political society as a whole, — in the people organized into a State, — and that the constitution is an emanation of the popular will. This is the American theory of government ; but it is more than this : it is the only theory that is rightful. Any other is the offspring of despotic ideas, and, wherever we find it accepted, it is not difficult to trace it to the fact that the government, in its origin, has been a despotism, either of a single rule or of some privileged class or classes. If we would understand why the British parliament is sovereign, rather than the British people, we have only to note how parliamentary power grew up. At the outset we see a realm governed by a king, who made laws at his absolute discretion, and claimed to govern by right divine. Popular rights under this claim were ignored, and the king, for all practical purposes, was the State. When the privileged classes contested the king's assumptions, they claimed the right of legislation, not for the great body of the people, but for them-