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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.