638
The Green Bag
would enlarge power and responsibility
in the executive and legislative depart
plan as superior: “Proposal of amend ments by the majority vote of both
ments of the federal Government, and
Houses in two successive Congresses;
would unquestionably tend to intro
submission of such proposals to the legis
duce new dignity into public life. A fourth reason for making the Con
latures of the several states or to con ventions in the several states or directly
stitution less diflicult of amendment is the position in which the federal judi
one or another of these modes of ratifi
ciary are placed, which is a position
never contemplated by our political
to the voters in each of the states. as cation may be proposed by Congress: and ratification of proposals by a major
theory. It was not intended that the judges should have an absolute veto, but only a suspensive one. The suspen sive veto, in Professor Smith’s opinion, provides all the check on overhasty
last preceding enumeration, a majtm't)‘ of the total population of all the states. fessor “The Burgess’ plan here suggestion outlined accepts that Prce an
legislation which is desirable. Just as the suspensive veto is overridden in the states, by the easy adoption of amend
amendment proposed by one Congress must be accepted by a second Congress
ity of the states. provided that the rati
fying states contain, according to the
ments to state constitutions, there should
with a newly elected House of Repre
be means of overriding it in the nation at large. To give the judiciary an abso lute veto is to compel them to exercise
sentatives before the proposal may be submitted to the states. In addition to
political as well as judicial functions, and
which seem conclusive, it may be noted that this longer period of consideration and discussion will probably produce proposals of superior precision. . . “The most important feature, how ever, of the plan here suggested is the
to stimulate the agitation for an elective judiciary and the judicial recall. Corning now to the means by which
the Constitution should be amended, Professor Smith discusses Professor Bur gess’ proposal, made twenty-one years
ago, that the following plan be adopted: “Proposal of amendments by two suc cessive Congresses, Senators and Repre sentatives acting in joint assembly and resolving by simple majority vote; sub mission ‘of proposals to the legislatures of the several states, these again acting
in joint assembly and resolving by simple majority vote;
assignment to
each state of the same weight in the count of votes as in a Presidential elec tion, and ratification of amendments by a simple majority of the state votes thus weighted."
Professor Smith finds this plan defec tive in so far as it fails to recognize the federal principle of equality of states. He therefore proposes the following
the arguments for such delay cited above,
proposal to lodge the final power of amendment, the truly sovereign power in our system, in a majority of states
containing lation of alla the majority states." of the total popu~ It will be observed that the adoption of Professor Smith's scheme, while it would increase the flexibility of the Con stitution, would by no means result in a
highly flexible Constitution. A con siderable period must elapse before an amendment can become effective, and
the assent of two successive Congresses would be required before amendments could be submitted to a popular vote. We would, therefore, still be living under a comparatively rigid Constitution. The
diflerence would be that it would not be of the abnormal rigidity now existing.
