1879; Florida, 1885; Georgia, 1877; Idaho, 1889; Louisiana, 1898; Maine, 1819; Maryland, 1867; Missouri, 1875; Michigan, 1908; North Carolina, 1875; Oregon, 1906; South Dakota, 1889; Texas, 1875; Utah, 1895; Washington, 1889; West Virginia, 1872. The restrictions upon the legislative proposal of amendments in Colorado, Kansas, and Montana are so slight as to make it proper to class the constitutions of these states here rather than among those difficult of amendment. South Carolina may also be classed with this group in so far as respects the proposal and popular vote upon amendments.)

(6) Those which, in addition to the legislative power of proposal, permit the popular initiation of constitutional amendments. (Oregon, 1902; Oklahoma, 1907; Michigan, 1908; Missouri, 1908.)

As has already been suggested the tendency is toward the easy amending process represented by the fifth type, and the development in quite recent years has been to make amendment still easier by giving the power of initiating amendments to the people. The group of states whose constitutions are least flexible is that of subdivision (c) of the fourth type; but where, in addition to the requirement of a majority of all votes at an election, there are other restrictions upon the amending process, the alteration of a constitution often becomes practically impossible. This is true of Tennessee, where we have a combination of limitations-not only is a majority of all votes required to be cast for an amendment, but also amendments may only be proposed once in six years and the action of two successive legislatures is required for such proposal. So, but to a less extent than in Tennessee, the amending procedure of Illinois and Indiana is burdened by restrictions to such an extent as to be practically unworkable.

The requirement of proposal by two successive legis

latures, while it defeats many projects which would otherwise go to the people, cannot be said to interpose a serious obstacle in the way of constitutional alteration. Nor in fact, even in the cases of Vermont, Tennessee, New Jersey, Pennsylvania, and Illinois, do the restrictions upon the proposal of amendments interpose insuperable barriers. But when these provisions are combined with the requirement of a popular vote which is ordinarily impossible to obtain except upon questions of the greatest importance, as is done in Tennessee, the amending process becomes almost useless.24 Even where the restrictions are not so stringent, but where two legislative actions are required and the legislative proposal of amendments restricted, the amending process is so slow and cumbersome as to prevent a ready adjustment of the fundamental law to changing conditions. Almost all of our state constitutions are full of detailed provisions adopted to meet evils or defects apparent at the time when such constitutions were adopted. These provisions, under different circumstances, often prove a bar to progress and require prompt removal. Of course it is possible to argue that detailed provisions devised to meet temporary needs are out of place in the constitution, and should not

24 In most of these states the difficulty of amendment by the legislative process is not balanced by ease of alteration through the assembling of a convention. In Illinois, Minnesota, Nebraska, Ohio, and Wyoming, a convention may not be called except after the affirmative vote of a majority of those voting at a general election. In Tennessee the question may be submitted at a special election, but must receive a majority of the votes cast at the election when it is submitted. In Oklahoma a convention may be called if a majority of those voting upon the measure should approve the legislative act providing for a convention; in Oklahoma, therefore, it should not be difficult to assemble a convention, if there were any strong sentiment in favor of such action, and the same is true of Tennessee, where the question could perhaps be carried without difficulty if submitted at a special election.

be put there at all; but the fact is that the constitutions do contain such provisions, and that the present tendency is to increase rather than to reduce their number. As long as constitutions are filled with legislative details, many of which must necessarily be subject to frequent change, the instrument which does not take this fact into consideration and make provision for such change is defective.

The hindrances to constitutional change which have been devised are of two kinds: (1) those which make any change difficult; (2) those which make an actual change fairly easy, but which provide a method of change requiring a long time for its operation. The provisions requiring a popular vote larger than that of a majority of those voting upon the measure, belong to the first class; those requiring two legislative actions and permitting the proposal of amendments only at long intervals, belong to the second class. Simply the requirement of a long time to obtain an amendment forms, however, an important check upon constitutional change. Where the action of two legislatures is required to propose an amendment the time required is a very long one, as legislative sessions are now biennial in all but a few of the states; the plan of permitting proposal by one legislature reduces the time required for constitutional alteration by more than one half. In South Carolina and Mississippi a second legislative action is required after popular approval; in South Carolina where legislative sessions are annual this is apt not to produce a long delay, although the legislature has two years within which to act. Regular legislative sessions in Mississippi are quadrennial and here the amending process is particularly slow; two amendments proposed by the legislature in March, 1900, were voted upon by the people in November, 1900, and were inserted into the constitution by legislative action

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in January, 1904.25 The plan of proposal by a single legislature with adoption by subsequent vote of the people ordinarily permits an amendment to be made in two years less time than where two legislative actions are required; in most of the states the process of amendment even with proposal by a single legislature requires for its operation a period of nearly two years. The popular initiative as employed in Oregon reduces the time required for the adoption of an amendment to less than six months; initiative petitions must be presented at least four months before the election, and the measure proposed by petition becomes a part of the constitution upon its adoption by the people at such election.

Mr. Bryce in his interesting discussion of flexible and rigid constitutions 27 classes as flexible those constitutions which may be altered in the same manner as ordinary legislation; and as rigid those which may not be changed by the regular legislative processes, but for the alteration of which some different and usually more cumbersome machinery has been devised; he therefore classes as rigid the constitutions of the states of the United States. Mr.

25 Mississippi laws, 1904, pp. 223, 225. A Mississippi proposed amendment of 1908 would have permitted action by the legislature upon amendments at the biennial special sessions, and would have reduced the time required for adoption by two years, but this proposal was not submitted to a vote of the people, because not advertised in accordance with constitutional requirements; amendments may be inserted into the constitution at an extraordinary session of the legislature, if such a session is convened by the governor with power to take such action. 26 That is, if an amendment is proposed at a regular biennial session in the early spring of an odd year and is submitted at the regular election in November of the succeeding even year. An amendment to the Maine constitution adopted in 1908 requires that amendments be submitted in the September following their proposal, and thus reduces the time required for the adoption of an amendment to less than one year. 27 Studies in History and Jurisprudence, 124-213.

Bryce's classification has been very properly criticized by Mr. A. Lawrence Lowell on the ground that in many countries where a distinction is made between the functions of constitution-making and ordinary legislation, such distinction is so slight as to be of little value. "From countries which can change their fundamental constitution by the ordinary process of legislation we pass by almost imperceptible degrees to those where the constitutional and law-making powers are in substantially different hands." 28

We may use the terms rigid and flexible here in their more commonly accepted sense, and refer to constitutions as flexible when they may be easily changed, and as rigid when they are difficult to change. It is of course true that constitutions alterable by the regular legislative processes will be easier to change than others, and should therefore be classed as flexible; but of constitutions not alterable by the ordinary legislative processes (and here we must class all constitutions of states in the United States except in so far as several of the states have adopted the initiative and referendum), some may be changed with ease and others may be altered only with great difficulty. The constitutions of Delaware, Oregon, California, and Louisiana, for example, are flexible in the sense in which that term is here used, while the constitutions of Tennessee, Illinois, and Indiana are rigid.2

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28 Lowell, Government of England, i, 3. For example, the Delaware (1776) and South Carolina (1778) amending provisions made a very slight distinction between constitutional alteration and ordinary legislation; and the Delaware constitution of 1897 makes less of a distinction than do the constitutions now in force in other states. For a discussion of the cases in which, through the introduction of the initiative and referendum, similar methods are being employed for constitution-making and for ordinary legislation, see p. 250.

29 Most of the constitutions of the New England and Middle Western States are rigid. See papers by J. A. Fairlie and Allen Johnson in