acter of proposed amendments, although such restrictions were more common in some of the earlier instruments, as in the Delaware constitution of 1776, the Arkansas constitution of 1836,204 and the Mississippi constitution of 1868. Where, for example, a constitution expressly specified that its bill of rights should not be subject to amendment, such a restriction while unwise in policy, would properly be subject to enforcement by the courts. "There can be no doubt that any amendment proposed in violation of these provisions would be declared by the courts to be void, for neither would the legislature have the power to propose nor the people to adopt them. To decide otherwise would be to hold that the legislature can constitutionally do an act expressly forbidden by the constitution; and that the people by an unauthorized vote, a vote recommended in violation of the constitution. can enact a valid con

stitutional amendment." 205 It may be that the constitutional difficulty might in certain cases have been evaded by first abrogating the restriction by an amendment, and then adopting the desired change. But, as has been suggested, the state constitutions now in force contain practically no such restrictions, and amendments are therefore subject to judicial control, as tested by the state constitutions, with respect to their method of enactment only and not with respect to their content and substance.

206

204 State v. Cox, 8 Ark., 436 (1848), overruled by Eason v. State, II Ark., 482 (1851). See a discussion of these cases in Jameson, Constitutional Conventions, 4th ed., 581-586.

205 Jameson, Constitutional Conventions, 4th ed., 581.

200 See dictum in Louisiana Ry. and Navigation Co. v. Madere, 50 So., 609 (Louisiana, 1909). Judge Jameson suggests (Constitutional Conventions, 4th ed., 429-430) that where legislative details have been inserted into a constitution, the courts might treat this as an infringement upon the regular legislative functions and hold such provisions invalid because not fundamental in character. Judge Jame

Constitutional Amendments and Ordinary Legislation

It may be said therefore that in their method of enactment amendments are subject to judicial control as tested by the specific provisions of the state constitutions, and that in their content they are subject to a similar control as tested by the federal constitution. Ordinary statutes, on the other hand, while subject to the same control in their content, as tested by the federal constitution, are subject to state constitutional provisions both as to the method of their enactment and as to their content. 208 Amendments are,

207

son expressed his view against any such position because "it would be in effect to permit our judiciary to annul the charters under which they act, under the pretext of striking from them provisions not properly fundamental," and Oberholtzer (Referendum in America, pp. 89-90) takes the same view. The position suggested by Judge Jameson, if assumed, would vest in the courts arbitrary and unregulated discretion to control the substance of both constitutions and statutes, for under it a constitutional provision might be declared invalid as not truly fundamental in character, and laws might be annuled because in the opinion of the court they contained provisions which should properly be inserted into the constitution. Such a doctrine has no chance of being accepted; it has nothing to be said in its favor, and the power of the courts has already been pushed as far as it is apt to be pushed at present. In this connection it is interesting to note that the Missouri court in the recent case of State ex rel. Johnson v. Chicago, Burlington, and Quincy Railroad Company, 195 Mo., 228 (1905), actually discussed the question as to whether a validly adopted state constitutional amendment might not be held invalid as in violation of the state constitution. The court however held the amendment invalid on specious federal grounds. In People v. Sours, 31 Colo., 371, 391-394, the point was raised that a constitutional amendment must be an alteration of some existing provision of the constitution and must not add entirely new matter to the constitution. The court properly declined to limit in this manner the legislative power to propose amendments.

207 It may be well to suggest that as to method of enactment ordinary laws are subject to many more restrictions than are constitutional amendments, as, with reference to title, reading, passage, etc. There are more pitfalls to be avoided in passing a law which

therefore, not subject to judicial control to as great an extent as statutes. In fact most of the state statutes which are declared invalid by state courts are declared to be so because repugnant to state constitutional restrictions which do not apply at all to amendments—that is, upon restrictions as to the content of legislation, as tested by state constitutional provisions, or upon the specific restrictions as to the methods of ordinary legislation.

The amending process is a process of superior state legislation. If a law is declared invalid by the state court, as in violation of the state constitution, the people may, if they are sufficiently interested, overrule the court by placing the substance of the invalidated law in the state constitution, either by an amendment or in connection with a general revision of the constitution.209 A tendency to overrule judicial decisions by constitutional alterations has been apparent in recent years. Thus in 1899 the supreme court of Colorado, upon arguments that are at least questionable, held invalid as in violation of the constitution of that state a legislative act limiting a day's labor in mines and smelters to eight hours. In 1902 a constitutional amendment was adopted by the people of Colorado fixing eight hours as a working day in mines.210 Montana in 1904 and Oklahoma in 1907 introduced into their constitucourts will uphold than in enacting a valid constitutional amendment, that is, in matter of form.

208 The state constitutions are filled with restrictions upon the character of legislation which may be passed by legislatures, as with respect to special legislation, etc. The amending process is now almost entirely free from such restrictions.

209 Some of the matter in this and several succeeding paragraphs is taken from an article published by the present writer in the Political Science Quarterly, xxiv, 193.

210 In re Morgan, 26 Colo., 415. See also Freund's Police Power, sec. 155.

tions provisions limiting a day's labor in mines to eight hours. A series of decisions by the New York Court of Appeals, beginning in 1901, held unconstitutional state statutes regulating hours and conditions of labor on state and municipal public works.211 An amendment to the constitution of New York, adopted in 1905, provides that the legislature shall have power to "regulate and fix the wages or salaries, the hours of work or labor, and make provision for the protection, welfare and safety of persons employed" by the state or any civil division thereof, or on public contracts. California in 1902, Montana in 1904, and Oklahoma in 1907 adopted constitutional provisions establishing an eight-hour day upon state and municipal public works. California, after three unsuccessful attempts of its legislature to enact a primary election law which would meet judicial approval, in 1899 adopted a constitutional amendment upon this subect in order to overcome difficulties raised by the court.' Michigan in 1902 by constitutional amendment authorized its legislature to provide by law for indeterminate sentences, thus overcoming a decision of the supreme court of that state declaring such a law unconstitutional.218 New Hampshire in 1903 adopted a constitutional amendment specifically authorizing the taxation of franchises and inheritances, in order to overcome decisions of the supreme court of that state declaring such

" 212

211 People v. Coler, 166 N. Y., 1; People v. Orange County Road Construction Company, 175 N. Y., 84; People v. Grout, 179 N. Y., 417. See also Cleveland v. Construction Company, 67 Ohio St., 197 (1902).

212 E. C. Meyer, Nominating Systems, pp. 196, 354. Marsh v. Hanley, 111 Cal., 368; Spier v. Baker, 120 Cal., 370; Britton v Board, 129 Cal., 337.

213 People v. Cummings, 88 Mich., 249; In re Campbell, 138 Mich., 597; In re Manaca, 146 Mich., 697.

taxes unconstitutional.214 This development will probably go further than it has yet gone, and we may reasonably expect provisions to be introduced into state constitutions regarding employers' liability, hours of labor, payment of wages, and other matters affecting social and industrial relations, where such provisions may be thought necessary to overcome judicial decisions of the states or may be thought desirable as measures of precaution against decisions which the courts might otherwise render. The narrow and illiberal attitude of the courts in interpreting constitutional provisions has done something, and if continued will probably do more, toward turning our constitutions "from fundamental frames of government into statutory codes." 215

214 State v. United States and Canada Express Company, 60 N. H., 219; Curry v. Spencer, 61 N. H., 624. Journal of the New Hampshire Constitutional Convention of 1902, p. 596.

215 Learned Hand in Harvard Law Review, vol. xxi, p. 500. That this fact is coming to be appreciated may be seen from a quotation from a recent article in a popular magazine: "However, just now the people are finding a way around the legislative veto of the courts. The voters are taking two methods of circumventing the legislative veto of the courts: First, by amending their state constitutions, or making new constitutions, and, second, by direct legislation or the modification of it known as the initiative and referendum. State courts are elective and therefore are afraid of majorities. They cannot declare constitutional amendments unconstitutional, and they handle laws adopted by a direct vote of the people with great care.” William Allen White in American Magazine, vol. 67 (1909), p. 412. Attention should be called to the fact that the discussion above relates simply to cases in which laws have been declared unconstitutional where their repugnance to the constitution is not clearly apparent. Many cases of course arise in which specific restrictions imposed by one constitution are later deemed unwise and are removed either by amendment or constitutional revision, but such cases are not in point here. The above discussion relates only to state cases, but a good illustration of the same condition is presented by the federal income tax situation. An income tax law, not clearly unconstitutional and perhaps almost clearly constitutional, was held invalid by the federal Supreme Court, and now an attempt is being made to overrule that