designed to meet new situations. A provision is not apt to be .removed unless it occasions difficulties which seem to make such removal necessary.

In all of our newer state constitutions there are numerous detailed provisions (a) relating to the organization and operation of government, (b) placing limitations upon government, (c) granting powers, or (d) expressly legislating as to particular matters; the present tendency is to increase rather than to reduce the number of such detailed provisions. This tendency has been very much criticised on the ground that constitutions should contain only fundamental provisions subject to infrequent changes.

But we should not be confused by the fact that the state instrument of government is called a "constitution." In politics generalizations are dangerous and are usually untrue. A state constitution is an instrument, a means to an end, and is of no importance for its own sake alone. It may be true that the national constitution should be primarily an instrument embodying fundamental provisions and defining the respective powers of the state and national governments. Yet this is not because the instrument is called a constitution; it is because the successful operation of a federal system requires some fairly permanent demarcation of national and state powers. There is no inherent reason why an instrument of state or national government should contain only provisions of fundamental law. A constitution must be judged not by its name, but by the function which it has to perform.

The newer state constitutions are to a large extent not fundamental law in any proper sense, but this does not necessarily condemn them, unless we make the mistake of confusing the name with the substance. The important questions in order to determine the value of present state constitutions are: (1) what does the state constitution now do and (2) how well does it perform its present function? With respect to the first question perhaps enough has already been said. The state constitution now serves two purposes, that of organizing and determining the powers of government (whether by limitation, grant or command), and that of serving as an organ of popular will

through the embodiment of legislation into the constitution) itself. In its accomplishment of both these purposes the newer state constitution far exceeds the limits of what may properly be called fundamental law.

Has the state constitution performed its new functions with as much efficiency as might have been expected from the regular organs of government? The newer constitutions have organized in detail departments and organs of government and have themselves introduced new legislation. On the whole it can hardly be said that their activities in these fields have been less satisfactory than those of the legislatures. However, it must be said that legislative action is more adaptable. Under our present constitutions it is true in general that an error of legislation is easier to correct than is a constitutional error, yet this difference is not an inherent one. This paper does not seek to defend all that has gone into state constitutions, but it does suggest a possibility that there may be error in sweeping and positive condemnation of the newer tendencies with respect to these instruments. The new rôle of the state constitution is no less important than the old. It is proper to put into these constitutions not only provisions regarding the framework of government and limitations upon legislative power, but also provisions which will leave to the legislature a free hand to do what it is desired that it should do, and matters ordinarily legislative in character but of such importance that it is desired to have them somewhat more difficult of change.

State constitutions are made up of provisions of varying importance, and those of less importance and permanence demand frequent change. A provision adopted to meet a defect apparent at one time becomes under different circumstances a bar to progress and should be promptly removed. If a state constitution is to continue to perform the wider function which it now

'This function of a constitution may be said to be relatively less important with the introduction of the initiative and referendum upon ordinary legislation. As has already been suggested, grants of power and legislation in constitutions are in part fundamental law properly so called, in so far as they accomplish purposes which because of judicial decisions or for other reasons could only be accomplished by constitutional change.

217 performs, the amending process must conform to the needs of the wider function. In many cases, as in Illinois in 1870, the function of the constitution has been enlarged, but without a proper adaptation of the amending process. If detailed provisions, now of a somewhat advanced character, are put into a constitution in such form as to be practically unchangeable, such provisions fail of their purpose and become a bar rather than an aid to progress. With state constitutions filled with provisions not permanent in character, the instrument which does not take this fact into consideration and make provision for such change is defective.

3. Constitutional Amendment and the Sphere of

Legislative Action.

In substance a clear line of demarcation no longer exists between state constitutions and state statutes, because of the practice of embodying legislative details in the constitution. This weakening of the distinction in substance between state constitutions and state statutes has been accompanied by (and has in part been responsible for) a weakening of the distinctions in form of enactment between statutes and state constitutional amendments. In 1776 and for some time thereafter a relatively slight difference existed between the forms of constitutional and statutory enactment. The distinction became much clearer in later years, and towards the middle of the nineteenth century we have a well-defined notion that state constitutions should not be easily subject to change. More recently the development has been in the opposite direction and, during the past fifteen years more especially, the distinction has weakened very greatly. Since the first quarter of the nineteenth century the really fundamental distinction between statutes and constitutional amendments has been that amendments were required to be voted on by the people, while statutes were infrequently submitted to a popular referendum. But the Delaware constitution of 1897 does not require proposed amendments to be submitted to a popular vote. The distinction in form of enactment between constitutions and statutes is, however, disappearing, largely because of the increased popular participation in legislation

through the referendum. Seventeen states now have the initiative and referendum,' for ordinary legislation. Six states,2 in providing for the popular initiative, have made it applicable to laws but not to constitutional amendments, and thus permit a less degree of popular participation in the amendment of their

constitutions than in the enactment of laws. But where the referendum exists both laws and amendments are subject to the same form of popular referendum.

Of the eleven states which permit a popular initiation of both laws and amendments, five 3 require a larger petition for the proposal of amendments than for the proposal of laws; otherwise the process of amendment on initiative petition is equally as simple as that of legislation. In Oregon, Missouri, Arkansas, Colorado, California and Nevada, both amendments and statutes may be proposed by the same number of initiative petitioners, and adopted by the same number of popular votes. In these states a measure may be called either a constitutional amendment or a law, at the discretion of those who propose it. If called a law it is subject to all of the state constitutional limitations; if called an amendment it supersedes any conflicting provisions of the state constitution.

It may be said that in about half of the states constitutions are easily amendable, and that in a large and growing group of states the processes of amendment and of ordinary legislation are tending to become substantially the same. Both in content and in form of enactment the distinctions between the two types of law is tending to disappear. In other states, however, as has already been suggested, provisions have come into constitutions which require easy change, but the state amending process has not yet adapted itself to the new situation.

If the state constitution is to play the larger rôle now played

From this number should be subtracted Utah and Idaho, whose constitutions provide for the initiative and referendum, but in such a manner that legislation is necessary to carry these institutions into operation. Such legislation has not been enacted. A similar initiative and referendum amendment was defeated in Texas in November, 1914.

2 South Dakota, Utah, Montana, Maine, Washington, Idaho.

Oklahoma, Arizona, Nebraska, Michigan, Ohio.

by our newer constitutions, it will contain provisions of varying importance and permanence. This suggests the desirability of a different and easier amending process for the less permanent provisions. Several constitutions have, in fact, already made such a distinction, some by making important provisions more difficult of change, others by making easier the alteration of less important provisions. Alabama provides that the basis of representation shall not be changed by constitutional amendment. The Michigan constitution of 1908 provided that the amending process should not be changed by an amendment initiated by popular petition. The amending clause of the New Mexico constitution may be changed only through the medium of a constitutional convention. Certain of the sections of the New Mexico constitution dealing with the elective franchise and with education cannot be changed unless the amendment be "proposed by vote of three-fourths of the members elected to each house and be ratified by a vote of the people of this state in an election in which at least three-fourths of the electors voting in the whole state and at least two-thirds of those voting in each county in the state shall vote for such amendment; " other parts of the constitution are much easier to amend, and these limitations were introduced for the protection of the Spanish population. Virginia in 1902 made important provisions of its constitution regarding a corporation commission alterable by legislative act after a certain date in the future, and a similar provision was made by the Oklahoma constitution of 1907.

It would be out of the question to lay down in a constitution any general principle that less fundamental and less permanent provisions should be altered by one method and more fundamental and more permanent provisions by another. What is properly fundamental and permanent is a matter of opinion, and such a provision would form the basis for an endless mass of litigation. The principle of the separation of powers has been regarded as one of the most fundamental, yet it can hardly be so regarded now, in view of the trend of governmental reform. The bill of rights also is losing something of its permanence, and inroads are being made upon the doctrines of eminent domain and due process. The general framework of