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The Green Bag

necessary to understand them thor oughly and to estimate their conse quences. There were too many amend ments, and the oﬁicial sheets of informa

tion tended rather to confuse than to

clarify the mind and judgment of the electorate."

Is Our Constitution too Rigid? HAT the Constitution of the United States should be more easily amendable is the conviction of Monroe Smith, Professor of Roman

Law

and

Comparative

Jurispru

dence in Columbia University.1 Al though the constitutional amendment,

for example, empowering Congress to tax incomes, has been ratiﬁed by thirty four states, containing seventy-three per cent of the population of the forty

beyond that point there is danger of its being broken, for even the boldest inter

pretation can hardly change the Consti tution to meet many of the new demands, and the doctrine of private rights which has been read into the Constitution im pedes “the satisfactory solution of many industrial problems by the state legisla tures." On this point, that it may be im possible to bend the Constitution with out breaking it, there is likely to be a difference of opinion. It will be argued

six states, a small minority is still able to frustrate the will of the greater part of the nation. Professor Smith con

by some that the Supreme Court, though

siders this an extraordinary situation, paralleled in no other constitutional

it may feel constrained for a time to resist bold innovations, must eventu

country in the world. There are several grounds for his belief that the Constitution should be more easily amendable. In the ﬁrst place, in the absence of ﬁnal amend ment of the Constitution, a process of

"change by the establishment with gen eral consent of new governmental cus tom" has developed. Instances of such amendment of custom or by interpreta tions are so obvious that they do not need

to be cited. This kind of amendment has been made necessary “by the practical

impossibility of formal constitutional amendment." But there are limits beyond which this sort of development cannot go. Up to a certain point the Constitution will be bent by the economic

and social process which it now checks; ' "Shall We Make our Constitution Flexible?" By Munroe Smith. North American Review, v. 194. p. 657 (Nov.).

ally succumb to the pressure of public

opinion and allow them, and that this will be equally true, whether some new

exercise of governmental activity is involved or a new phase of the doctrine of the inviolability of private property.

It might further be argued that there is no reason why judges should be deemed to sympathize with the interests of one class in the community more than an other, that they do not constitute a class which solidiﬁes with any one social or

economic group, and that it is nothing but the doctrine of judicial precedent which impedes their ready response to the popular will; we shall soon get away, it may be contended from this standpoint, from the notion of the bind

ing authority of precedent. With such considerations Professor Smith does not deal. A second ground for the need of a