be susceptible of alteration in a legal manner. Sometimes no provision
has been made, when it was first established, for any change whatever.
There are instances of this among constitutions granted by a monarch to
his subjects—such seems to be to-day the case in Spain—but in cases of
this kind it might possibly be held that the grantor implicitly reserved
the power to vary his grant, as there may not have been expressed in the
document, and need not be, any bilateral obligation. As already
observed, the Constitution of the present Kingdom of Italy was
originally granted to the Kingdom of Sardinia by King Charles Albert in
1848; and it was for a long time held that the power to change it
resided in the Crown only. It was extended by a succession of popular
votes (1859 to 1871) to the rest of Italy, and some conceive that this
sanction makes at least its fundamental parts unchangeable. But the view
that it is alterable by legislation has prevailed, and it has in fact
been so altered in some points. The _Charte Constitutionnelle_ granted
by Louis XVIII, under which the government of France was carried on for
many years, was intended to create a sort of parliamentary government,
in the first instance by way of gift from the sovereign, but afterwards,
under Louis Philippe, by way of a compact, or kind of covenant between
monarch and people. The fact that it contained no provisions for
alteration, having apparently been designed to last for ever, worked
against it; and the discontents of France may have ripened the faster
because no constitutional method had been provided for appeasing them by
changes in the machinery of government. Nothing human is immortal; and
constitution-makers do well to remember that the less they presume on
the long life of their work the longer it is likely to live.
The Constitutions of Norway (created in 1814, but subsequently altered)
and of Greece (created in 1864) declare that amendments are to be
confined to matters not fundamental, but omit to specify the matters
falling under that description.
The existing Constitution of France is so far legally unalterable that
no proposition for abolishing the republican form of government can be
entertained. If it be asked, What is a republican form? one may answer
that if ever the question has to be answered, it will be not so much by
the _via iuris_ as by the _via facti_. So also the Constitution of the
United States is in one respect virtually, if not technically,
unchangeable. No State can without its own consent be deprived of its
equal representation in the Senate. As no State is ever likely to
consent to such a change, the change may be deemed legally unattainable;
and that any State against which it was attempted to enforce a reduction
of its representation effected by constitutional amendments to which it
had refused assent would be legally justified in considering itself out
of the Union. In accordance with this American precedent, the new
Constitution of Australia declares that no State can have its
proportionate representation in the Parliament, or the minimum number of
its representatives in the House of Representatives, reduced without the
approval of a majority of its electors voting on a constitutional
amendment[80].
-----
Footnote 80:
See Essay VIII, p. 524.
-----
Among the methods by which constitutions of the Rigid type make, as they
now almost invariably do, provision for their own amendment, four
deserve to be enumerated.
The first is to give the function to the Legislature, but under
conditions which oblige it to act in a special way, different from that
by which ordinary statutes are passed. There may, for instance, be
required a fixed quorum of members for the consideration of amendments.
Belgium fixes this quorum at two-thirds of each House, while also
requiring a two-thirds majority of each House for a change. Bavaria
requires a quorum of three-fourths of the members of each House; Rumania
one of two-thirds. Or again—and this is a very frequent provision, found
even when that last-mentioned is wanting—a specified minimum majority of
votes may be required to carry an amendment. Sometimes this majority is
three-fourths (as in Greece and Saxony, and in the German Empire for a
vote of the Federal Council): more frequently it is two-thirds, as in
the United States Congress, in the Mexican Chambers, in Norway, Belgium,
Rumania, Servia, Bulgaria. Another plan is to require a dissolution of
the Legislature, so that the amendments carried in one session may come
under the judgement of the electors at a general election, and be
thereafter passed, or rejected, by the newly chosen Legislature. This
arrangement, often combined with the two-thirds majority rule, prevails
in Holland, Norway, Rumania, Portugal, Iceland, Sweden (where the
amendment must have been passed in two ordinary successive sessions),
and several other States, including some of the republics of Spanish
America. It is in substance an appeal to the people as well as to their
representatives, and therefore adds a further guarantee against hasty
change. Finally, the two Houses of the Legislature may sit together as a
Constituent Assembly. Thus in France (Constitution of 1875) when each
Chamber has resolved that the Constitution shall be revised, the two are
for the moment fused, and proceed to debate and pass amendments. Haiti
(Constitution of 1899) has a similar plan, which, oddly enough, was not
borrowed from France, but is as old as 1843. Few will suspect France of
borrowing from Haiti.
A second plan is to create a special body for the work of revision. In
the United States, where a vast deal of constitution making and revising
goes on in the several States, such a body is called a Convention, and
is usually elected when it is desired to re-draft the whole
constitution, the ultimate approval of the draft being, however, almost
always reserved for the people[81]. In Servia and Bulgaria, after
amendments have been twice passed by the ordinary Legislature, a sort of
Special Assembly, similarly elected, but twice as large, called the
Great Skuptschina (in Servia) or Great Sobranje (in Bulgaria), receives
and finally decides on the proposed amendments.
-----
Footnote 81:
But the Constitution of Mississippi of 1890 was enacted by a
Convention only and never submitted to the people. See as to the
United States the author’s _American Commonwealth_, ch. xxxvii.
-----
The republics of Paraguay, Guatemala, Honduras, Nicaragua, and Salvador
also prescribe Conventions, preceded in each case by votes of the
Legislature, such votes usually requiring a two-thirds majority[82].
-----
Footnote 82:
On the whole subject of the modes of amending constitutions reference
may be made to the valuable book of my friend M. Charles Borgeaud,
Professor at Geneva, _Établissement et Revision des Constitutions_.
See also Dareste, _Les Constitutions Modernes_. I owe to these books,
and especially to the former, most of the facts here given regarding
the minor States.
-----
A third plan is to refer the new constitution, or the amendments
proposed (if the revision is partial), to a number of minor or local
authorities for approval. This course is an obviously suitable one in a
federation, and has accordingly been adopted by the United States, by
Mexico, by Colombia, by Switzerland, and by the new Australian
Commonwealth, in all of which the component States are consulted, the
United States requiring a three-fourths majority of States, Switzerland,
Australia, and Mexico a bare majority. (Switzerland and Australia also
require a majority of the citizens generally.) It is not, however,
invariable in federal countries, for the Argentine Confederation
entrusts amendment to a Convention, following on a three-fourths
majority vote of the Legislature, and Brazil (now a federal country)
leaves it to the Legislature alone, acting by a two-thirds majority in
three successive debates. Neither is such a plan necessarily confined to
a federation, for the existing Constitution of Massachusetts was (in
1780) submitted to the Towns (_i.e._ townships) of the State, acting as
communities, and enacted by the majority of them.
The fourth plan is to refer amendments to the direct vote of the people.
Originating in the New England States of America, where democracy
earliest prevailed, this method has spread to Switzerland and to
Australia, both of which require for alterations in the Fundamental
Instrument a majority of the electors voting as well as a majority of
the States. It prevails now not only in these two federations, but also
in the several States of the United States (with very rare exceptions).
A bare majority of votes is sufficient, except in Rhode Island, where
three-fifths are required, and in Indiana and Oregon, which require a
majority of all the qualified voters. The popular vote is also in use in
the several Cantons of Switzerland. It was repeatedly employed in France
during the first Revolution, and again (under the name of _plébiscite_)
by Louis Napoleon under the Second Empire.
These variations in the mode of amending are interesting enough to
deserve a few comments.
Broadly speaking, two methods of amendment are most in use: that which
gives the function to the Legislature, usually requiring something more
than a bare majority, and that which gives it to the People, _i.e._ the
qualified voters. The former of these methods often directs a
dissolution of the Legislature to precede the final vote on amendments,
and in this way secures for the people a means of delivering their
judgement on the questions at issue. The latter method is, however, a
more distinct and emphatic, because a more direct, recognition of
Popular Sovereignty; and it has the advantage of making the constitution
appear to be the work of the Nation as a whole, apart from faction,
whereas in the Legislature it may have been by a party vote that the
amendments have been carried. Thus it supplies the broadest and firmest
basis on which a Frame of Government can rest. The Convention system is
intermediate between the two others, and has struck no deep roots in the
Old World, while in the United States it has been virtually superseded
(as respects enactment) by that of the direct Popular Vote.
Geographically regarded, the method of revision by Legislature prevails
over Europe and over most of Spanish America (being in the latter region
sometimes combined with the Convention method). The Constitution which
has most influenced others in Europe and become a type for them in this
respect is that of Holland (1814), because it was the earliest one
established after the revolutionary period. On the other hand, the
United States (except the Federal Government) and the democratic
governments of the Swiss and Australian Federations are ruled by the
Popular method. The Constitution which has set the type of this method
is that of Massachusetts of 1780.
As respects facility of change, it is interesting to note that the
Constitutions which are most quickly and easily altered are those of
Prussia, which prescribes no safeguard save that of two successive votes
separated by an interval of at least twenty-one days, and that of
France, which requires an absolute majority of each House for a proposal
to revise, and an absolute majority of the two Houses sitting together
for the carrying of any amendment. The omission of the French Chambers
in 1875 to submit to the people the constitution then framed, or to
provide for their sanction to any future amendments, was due to the
doubt which each party felt of the result of an appeal to the nation.
The Republicans, though able to prevent the establishment of a
monarchical constitution by the Legislature, were not quite sure that a
republican one would be carried if submitted to a popular vote. Thus it
has come about that France, which went further towards popular
sovereignty in 1793 than any great country has ever done, has lived
since 1875 under an instrument never ratified by the people, and which
was originally regarded as purely provisional.
The Constitution which it is most difficult to change is that of the
United States. It has in fact never been amended since 1809, except
thrice between 1865 and 1870, immediately after and in consequence of
the Civil War, and then under conditions entirely abnormal, because some
States were under military duress.
The tendency of recent years has been towards easier and swifter methods
than those which were in favour during the first half of the nineteenth
century: and in Germany lawyers and publicists are now disposed to
minimize the difference between constitutional changes and ordinary
statutes, partly perhaps because doctrines of popular sovereignty obtain
little sympathy from the school dominant in the new Empire. That Empire
itself presents quite peculiar phenomena. So far as the Reichstag or
Federal Assembly is concerned, the constitution can be altered by
ordinary legislation. But in the Federal Council a majority is required
large enough to enable either Prussia on the one hand or a combination
of the smaller States on the other to prevent any change. This is
because the component members of the Federation are not republics, as in
America, Switzerland, and Australia, but are (except the three Hanse
cities) monarchies, so that the Upper Federal House represents not the
people but the governments of the several German States.
It is evident that the greater or less stability of any given
constitution will (other things being equal) be determined by the
comparative difficulty or ease of carrying changes in one or other of
the above methods. As one at least of them, that of committing the
function of revision to a Constitutional Convention not followed by a
popular vote, seems to interpose no more, and possibly even less,
difficulty or delay than does the ordinary process of law-making by a
two-chambered legislature, it may be asked why a constitution changeable
in such a way should be called Rigid at all. Because inasmuch as the
method of changing it is different from that of passing ordinary
statutes, the people are led to realize the importance of the occasion,
and may be deterred, by the trouble and formalities involved in creating
the special body, from too lightly or frequently tampering with their
fundamental laws. It seems a more momentous step to create this
convention _ad hoc_ than to carry a measure through a legislature which
already exists, and is daily employed on legislative work. Experience
has, moreover, shown in the United States, the country in which this
method has been largely used for redrafting, or preparing amendments to,
the Constitutions of the several States[83], that a set of men can be
found for the work of a Convention better than those who form the
ordinary legislature of the State, and that their proceedings when
assembled excite more attention and evoke more discussion than do those
of a State Legislature, a body which now receives little respect, though
perhaps as much as it deserves. Nowadays, however, a draft constitution
prepared by a Convention is in an American State almost always submitted
to the people for their approval.
-----
Footnote 83:
No Constitutional Convention has ever been held for revising the
Federal Constitution of 1787-9, which was drafted by a Convention and
adopted by the thirteen States in succession.
-----
The French plan of using the two Houses sitting together as a
Constituent Convention has a certain interest for Englishmen, because
the suggestion has been made that disputes between their House of Lords
and House of Commons might be settled by a vote of both sitting
together, _i.e._ of the whole of the Great Council of the Nation[84] as
it sat in the thirteenth century before it had formed the habit of
debating and voting in two Houses. It still meets (but does not debate
or vote) as one body when the Sovereign, or a Commission representing
the Sovereign, is present, as happens at the beginning and at the end of
each session.
-----
Footnote 84:
This plan would have more chance of being favourably entertained were
the Upper House now, as it was in 1760, less than two hundred strong.
As it is now nearly as large as the House of Commons, with a majority
of about fourteen to one belonging to one political party, the party
which is in a permanent minority might feel that the chances are not
equal.
-----
To examine the distinctive qualities of Rigid Constitutions, as I must
now do, is virtually to traverse again the same path which was followed
in investigating those of the Flexible type, for the points in which the
latter were found deficient are those in which Rigid Constitutions
excel, while the merits of the Flexible indicate the faults of the
Rigid. The inquiry may, therefore, be brief.
The two distinctive merits claimed for these Constitutions are their
Definiteness and their Stability.
XI. THE DEFINITENESS OF RIGID CONSTITUTIONS.
We have seen that the distinctive mark of these Rigid Constitutions is
their superiority to ordinary statutes. They are not the work of the
ordinary legislature, and therefore cannot be changed by it. They are
embodied in one written document, or possibly in a few documents, so
that their provisions are ascertainable without doubt by a reference to
the documentary terms. This feature is a legitimate consequence of the
importance which belongs to a law placed above all other laws. That
which is to be the sheet-anchor of the State, giving permanent shape to
its political scheme, cannot be left unwritten, and cannot be left to be
gathered from a comparison of a considerable number of documents which
may be confused or inconsistent. Whether it spring from the agreement of
the citizens or from the free gift of a monarch, it must be embodied if
possible in one, if not, at any rate in only a few solemn instruments.
That which is to be a fundamental law, limiting the power of the
legislature, must be set forth in specific and unmistakable terms—else
how shall it be known when the legislature is infringing upon or
violating it? A Flexible Constitution, which the legislature can modify
or destroy at its pleasure, though it might conceivably be embodied in
one document only, is in fact almost always to be collected from at
least several documents, and is often, like the Flexible Constitution of
England, scattered through a multitude of statutes and collections of
precedents. But the benefits expected from a Rigid Constitution would be
lost were its provisions left in similar confusion.
It is not, however, to be supposed that the citizen of a country
controlled by a Rigid Constitution who desires to understand the full
scope and nature of his government will find all that he needs in the
document itself. No law ever was so written as to anticipate and cover
all the cases that can possibly arise under it[85]. There will always be
omissions, some left intentionally, because the points not specifically
covered were deemed fitter for the legislature to deal with
subsequently, some, again, because the framers of the constitution could
not agree, or knew that the enacting authority would not agree,
regarding them. Other omissions, unnoticed at the time, will be
disclosed by the course of events, for questions are sure to arise which
the imagination or foresight of those who prepared the constitution
never contemplated. There will also be expressions whose meaning is
obscure, and whose application to unforeseen cases will be found
doubtful when those cases have to be dealt with. Here let us distinguish
three classes of omissions or obscurities:—
-----
Footnote 85:
‘Neque leges neque senatus consulta ita scribi possunt, ut omnes casus
qui quandoque inciderint comprehendantur.’—Iulianus in _Digest_ i. 3,
10.
-----
The first class includes matters, passed over in silence by the written
constitution, which cannot be deemed to have been left to be settled
either by the legislature or by any other organ of government, because
they are too large or grave, as for instance matters by dealing with
which the legislature would disturb the balance of the constitution and
encroach on the province of the Executive, or the Judiciary, or (in a
Federal Government) of the component States. Matters belonging to this
class can only be dealt with by an amendment of the constitution itself.
The second class includes gaps or omissions relating to matters not
palpably outside the competence of the legislature as defined by the
constitution. Here the proper course will be for the legislature to
regulate such matters by statute, or else to leave them to be settled by
the action of the several organs of government each acting within its
own sphere. These organs may by such action create a body of usage
which, when well settled, will practically supplement the defects of the
constitution, as statutes will do in like manner, so far as they are
passed to cover the omitted cases.
The third class consists not of omissions but of matters which are
referred to by the constitution, but in terms whose meaning is doubtful.
Here the question is what interpretation is to be given to its words by
the authority entitled to interpret, that authority being in some
countries the legislature, in others the judicial tribunals. To the
subject of Interpretation I shall presently return. Meantime, it must be
noted that both Legislation and Usage in filling up the vacant spaces in
the constitution, and Interpretation in explaining its application to a
series of new cases as they arise upon points not expressly covered by
its words, expand and develop a constitution, and may make it after a
long interval of time different from what it seemed to be to those who
watched its infancy. The statutes, usages, and explanations aforesaid
will in fact come to form a sort of fringe to the constitution cohering
with it, and possessing practically the same legal authority as its
express words have. And it thus may happen that (as in the United
States) a large mass of parasitic law grows up round the document or
documents which contain the Constitution. Nevertheless there will still
remain a distinction between this parasitic law and usage and the
provisions of the constitution itself. The latter stand unchangeable,
save by constitutional amendment. Statutes, on the other hand, can be
changed by the legislature; usage may take a new direction; the
decisions given interpreting the constitution may be recalled or varied
by the authority that pronounced them. All these are in fact Flexible
parasites growing upon a Rigid stem. Thus it will be seen that the
apparent definiteness and simplicity of Documentary Constitutions may in
any given case be largely qualified by the growth of a mass of
quasi-constitutional matter which has to be known before the practical
working of the constitution can be understood.
XII. THE STABILITY OF RIGID CONSTITUTIONS.