because it inspires a sense of security in the minds of the citizens,
encouraging order, industry and thrift, and because it enables
experience to be accumulated whereby the practical working of the
constitution may be improved. Political institutions are under all
circumstances difficult to work, and when they are frequently changed,
the nation does not learn how to work them properly. Experiment is the
soul of progress, but experiments must be allowed a certain measure of
time. The plant will not grow if men frequently uncover the roots to see
how they are striking. Constitutions embodied in one legal document and
unchangeable by the legislature, are intended to be, and would seem
likely to be, peculiarly durable. Being definite, they do not give that
opening to small deviations and perversions likely to arise from the
vagueness of a Flexible or ‘unwritten’ Constitution, or from the
probable discrepancies between the different laws and traditions of
which it consists. They may be battered down, but they cannot easily
(save by a method to be presently examined) be undermined. When an
attack is made upon them, whether by executive acts violating their
provisions, or by the passing of statutes inconsistent with those
provisions, such an attack can hardly escape observation. It is a plain
notice to the defenders of the constitution to rally and to stir up the
people by showing the mischief of an insidious change. The principles on
which the government rests, being set forth in a broad and simple form,
obtain a hold upon the mind of the community, which, if it has been
accustomed to give those principles a general approval, will be
unwilling to see them tampered with. Moreover the process prescribed for
amendment interposes various delays and formalities before a change can
be carried through, pending which the people can reconsider the issues
involved, and recede, if they think fit, from projects that may have at
first attracted them. Both in Switzerland and in the States of the
American Union it has repeatedly happened that constitutional amendments
prepared and approved by the legislature have been rejected by the
people, not merely because the mass of the people are often more
conservative than their representatives, or are less amenable to the
pressure of particular ‘interests’ or sections of opinion, but because
fuller discussion revealed objections whose weight had not been
appreciated when the proposal first appeared. In these respects the
Rigid Constitution has real elements of stability.
Nevertheless it may be really less stable than it appears, for there is
in its rigidity an element of danger.
It has already been noted that a constitution of the Flexible type finds
safety in the elasticity which enables it to be stretched to meet some
passing emergency, and then to resume its prior shape, and that it may
disarm revolution by meeting revolution halfway. This is just what the
Rigid Constitution cannot do. It is constructed, if I may borrow a
metaphor from mechanics, like an iron railway-bridge, built solidly to
resist the greatest amount of pressure by wind or water that is likely
to impinge upon it. If the materials are sound and the workmanship good,
the bridge resists with apparent ease, and perhaps without showing signs
of strain or displacement, up to the highest degree of pressure provided
for. But when that degree has been passed, it may break suddenly and
utterly to pieces, as the old Tay Bridge did under the storm of
December, 1879. The fact that it is very strong and all knit tightly
into one fabric, while enabling it to stand firm under small
oscillations or disturbances, may aggravate great ones. For just as the
whole bridge collapses together, so the Rigid Constitution, which has
arrested various proposed changes, may be overthrown by a popular
tempest which has gathered strength from the very fact that such changes
were not and under the actual conditions of politics could not be made
by way of amendment. When a party grows up clamouring for some reforms
which can be effected only by changing the constitution, or when a
question arises for dealing with which the constitution provides no
means, then, if the constitution cannot be amended in the legal way,
because the legally prescribed majority cannot be obtained, the
discontent that was debarred from any legal outlet may find vent in a
revolution or a civil war. The history of the Slavery question in the
United States illustrates this danger on so grand a scale that no other
illustration is needed. The Constitution of 1787, while recognizing the
existence of slavery, left sundry questions, and in particular that of
the extension of slavery into new territories and States, unsettled.
Thirty years later these matters became a cause of strife, and after
another thirty years this strife became so acute as to threaten the
peace of the country. Both parties claimed that the Constitution was on
their side. Had there been no Constitution embodied in an instrument
difficult of change, or had it been practicable to amend the
Constitution, so that the majority in Congress could have had, at an
earlier stage, a free hand in dealing with the question, it is
possible—though no one can say that it is certain—that the War of
Secession might have been averted. So much may at any rate be noted that
the Constitution, which was intended to hold the whole nation together,
failed to do. There might no doubt in any case have been armed strife,
as there was in England under its Flexible Constitution in 1641. But it
is at least equally probable that the slave-holding party, which saw its
hold on the government slipping away, hardened its heart because it held
that it was the true exponent of the Constitution, and because the
Constitution made compromise more difficult than it need have been in a
country possessing a fully sovereign legislature.
Two opposing tendencies are always at work in countries ruled by these
Constitutions, the one of which tends to strengthen, the other to weaken
them. The first is the growth of respect for the Constitution which
increasing age brings. The remark is often made that if husband and wife
do not positively dislike one another, and if their respective
characters do not change under ill-health or misfortune, every year
makes them like one another better. They may not have been warmly
attached at first, but the memories of past efforts and hardships, as
well as of past enjoyments, endear them more and more to one another,
and even if jars and bickerings should unhappily recur from time to
time, the strength of habit renders each necessary to the other, and
makes that final severance which, at moments of exasperation, they may
possibly have contemplated with equanimity, a severe blow when it
arrives. So a nation, though not contented with its Constitution, and
vexed by quarrels over parts of it, may grow fond of it simply because
it has lived with it, has obtained a measure of prosperity under it, has
perhaps been wont to flaunt its merits before other nations, and to
toast it at public festivities. The magic of self-love and
self-complacency turns even its meaner parts to gold, while imaginative
reverence for the past lends it a higher sanction. This is one way in
which Time may work. But Time also works against it, for Time, in
changing the social and material condition of a people, makes the old
political arrangements as they descend from one generation to another a
less adequate expression of their political needs. Nobody now discusses
the old problem of the Best Form of Government, because everybody now
admits that the chief merit of any form is to be found in its
suitability to the conditions and ideas of those among whom it prevails.
Now if the conditions of a country change, if the balance of power among
classes, the dominant ideas of reflective men, the distribution of
wealth, the sources whence wealth flows, the duties expected from the
administrative departments of government, all become different, while
the form and constitutionally-prescribed methods of government remain
unmodified, it is clear that flaws in the Constitution will be revealed
which were previously unseen, and problems will arise with which its
arrangements cannot cope. The remedy is of course to amend the
Constitution. But that is just what may be impossible, because the
requisite majority may be unattainable; and the opponents of amendment,
entrenched behind the ramparts of an elaborate procedure, may succeed in
averting changes which the safety of the community demands. The
provisions that were meant to give security may now be dangerous,
because they stand in the way of natural development.
Even where no strong party interest is involved it may be hard to pass
the amendments needed. The history of the United States again supplies a
case in point. Two defects in its Constitution are admitted by most
political thinkers. One is the absence of power to establish a uniform
law of marriage and divorce over the whole Union. The other is the
method of conducting the election of a President, a method which in 1876
brought the country to the verge of civil war, and may every four years
involve the gravest risks. Yet it has been found impossible to procure
any amendment on either point, because an enormous force of united
public opinion is needed to ensure the concurrence of two-thirds of both
Houses of Congress and three-fourths of the States. The first of these
two changes excites no sufficient interest among politicians to make
them care to deal with it. The second is neglected, because no one has a
clear view of what should be substituted, and neither party feels that
it has more to gain than has the other by grappling with the problem.
A historical comparison of the two types as regards the smoothness of
their working, and the consequent tendency of one or other to secure a
quiet life to the State, yields few profitable results, because the
circumstances of different nations are too dissimilar to enable close
parallels to be drawn, and because much depends upon the skill with
which the provisions of each particular instrument have been drawn and
upon the greater or less particularity of those provisions. The present
Constitution of France, for instance, is contained in two very short and
simple documents, which determine only the general structure of the
government, and are in size not one-twentieth of the Federal
Constitution of Switzerland. Hence it follows that a far freer play is
left to the legislature and executive in France than in Switzerland; and
that these two authorities have in the former State more power of
meeting any change in the conditions of the country, and also more power
of doing harm by hasty and unwise action, than is permitted in the
latter. As Adaptability is the characteristic merit and insecurity the
characteristic defect of a Flexible Constitution, so the drawback which
corresponds to the Durability of the Rigid is its smaller capacity for
meeting the changes and chances of economic, social and political
conditions. A provision strictly defining the structure of the
government may prevent the evolution of a needed organ. A prohibition
debarring the legislature from passing certain kinds of measures may
prove unfortunate when a measure of that kind would be the proper
remedy. Every security has its corresponding disadvantage.
XIII. THE INTERPRETATION OF RIGID CONSTITUTIONS.
A well-drawn Rigid Constitution will confine itself to essentials, and
leave many details to be filled in subsequently by ordinary legislation
and by usage. But (as already observed) even the best-drawn instrument
is sure to have omitted some things which ought to have been expressly
provided for, to have imposed restrictions which will prove inconvenient
in practice, to contain provisions which turn out to be susceptible of
different interpretations when cases occur raising a point to which the
words of those provisions do not seem to be directly addressed. When any
of these things happen, the authorities, legislative and executive, who
have to work the Constitution find themselves in a difficulty. Steps
seem called for which the Constitution either does not give power to do,
or forbids to be done, or leaves in such doubt as to raise scruples and
controversies. The authorities, or the nation itself, have then three
alternative courses open to them. The first is to submit to the
restrictions which the Constitution imposes, and abandon a contemplated
course of action, though the public interest demands it. This is
disagreeable, but if the case is not urgent, may be the best course,
though it tends to the disparagement of the Constitution itself. The
second course is to amend the Constitution: and it is obviously the
proper one, if it be possible. But it may be practically impossible,
because the procedure for passing an amendment may be too slow, the need
for action being urgent, or because the majority that can be secured for
amendment, even if large, may be smaller than the Constitution
prescribes. The only remaining expedient is that which is
euphemistically called Extensive Interpretation, but may really amount
to Evasion. Evasion, pernicious as it is, may give a slighter shock to
public confidence than open violation, as some have argued that
equivocation leaves a man’s conscience less impaired for future use than
does the telling of a downright falsehood. Cases occur in which the
Executive or the Legislature profess to be acting under the
Constitution, when in reality they are stretching it, or twisting it,
_i.e._ are putting a forced construction upon its terms, and affecting
to treat that as being lawful under its terms which the natural sense of
the terms does not justify. The question follows whether such an evasion
will be held legal, _i.e._ whether acts done in virtue of such a forced
construction as aforesaid will be deemed constitutional, and will bind
the citizens as being legally done. This will evidently depend on a
matter we have not yet considered, but one of profound importance, viz.
the authority in whom is lodged the right of interpreting a Rigid
Constitution.
On this point there is a remarkable diversity of theory and practice
between countries which follow the English and countries which follow
the Roman law. The English attribute the right to the Judiciary. As a
constitutional instrument is a law, distinguished from other laws only
by its higher rank, principle suggests that it should, like other laws,
be interpreted by the legal tribunals, the last word resting, as in
other matters, with the final Court of Appeal. This principle of
referring to the Courts all questions of legal interpretation may be
said to be inherent in the English Common Law, and holds the field in
all countries whose systems are built upon the foundation of that Common
Law. In particular, it holds good in the United Kingdom and in the
United States. As the British Parliament can alter any part of the
British Constitution at pleasure, the principle is of secondary
political importance in England, for when any really grave question
arises on the construction of a constitutional law it is dealt with by
legislation. However, the action of the Courts in construing the
existing law is watched with the keenest interest when questions arise
which the Legislature refuses to deal with, such, for instance, as those
that affect the doctrine and discipline of the Established Church. So in
the seventeenth century, when constitutional questions were at issue
between the King and the House of Commons, which it was impossible to
settle by statute, because the king would have refused consent to bills
passed by the Commons, the power of the Judges to declare the rules of
the ancient Constitution was of great significance. In the United
States, where Congress cannot alter the Constitution, the function of
the Judiciary to interpret the will of the people as set forth in the
Constitution has attained its highest development. The framers of that
Constitution perhaps scarcely realized what the effect of their
arrangements would be. More than ten years passed before any case raised
the point; and when the Supreme Court declared that an Act of Congress
might be invalid because in excess of the power granted by the
Constitution, some surprise and more anger were expressed. The reasoning
on which the Court proceeded was, however, plainly sound, and the right
was therefore soon admitted. Canada and Australia have followed the
English doctrine, so the Bench has a weighty function under the
constitutions of both those Federations.
On the European Continent a different view prevails, and the Legislature
is held to be the judge of its own powers under the Constitution, so
that no Court of law may question the authority of a statute passed in
due form. Such is the rule in Switzerland. There, as in most parts of
the European Continent, the separation of the Judiciary from the other
two powers has been less complete than in England, and the deference to
what Englishmen and Americans call the Rule of Law less profound. The
control over governmental action which the right of interpretation
implies seems to the Swiss too great, and too political in its nature,
to be fit for a legal tribunal. It is therefore vested in the National
Assembly, which when a question is raised as to the constitutionality of
a Federal Statute or Executive Act, or as to the transgression of the
Federal Constitution by a Cantonal Statute, is recognized as the
authority competent to decide. The same doctrine seems to prevail in the
German Empire, though the point is there not quite free from doubt, and
also in the Austrian Monarchy, in France, and in Belgium. In the Orange
Free State, living under Roman-Dutch law, the Bench, basing itself on
American precedents, claimed the right of authoritative interpretation,
but the Legislature hesitated to admit it.
American lawyers conceive that the strength and value of a Rigid
Constitution are greatly reduced when the Legislature becomes the judge
of its own powers, entitled after passing a statute which really
transgresses the Constitution to declare that the Constitution has in
fact not been transgressed. The Swiss, however, deem the disadvantages
of the American method still more serious, for they hold that it gives
the last word to the judges, persons not chosen for or fitted for such a
function, and they declare that in point of fact public opinion and the
traditions of their government prevent the power vested in their
National Assembly from being abused. And it must be added that the
Americans have so far felt the difficulty which the Swiss dwell on, that
the Supreme Court has refused to pronounce upon the action of Congress
in ‘purely political cases,’ _i.e._ cases where the arguments used to
prove or disprove the conformity to the Constitution of the action taken
by Congress are of a political nature.
Returning to the question of legislative action alleged to transgress
the Constitution, it is plain that if the Legislature be, as in
Switzerland, the arbiter of its own powers, so that the validity of its
acts cannot be questioned in a court of law, there is no further
difficulty. But where that validity can be challenged, as in the United
States, it might be supposed that every unconstitutional statute will be
held null, and that thus any such stretching or twisting of the
Constitution as has been referred to will be arrested. But experience
has shown that where public opinion sets strongly in favour of the line
of conduct which the Legislature has followed in stretching the
Constitution, the Courts are themselves affected by that opinion, and go
as far as their legal conscience and the general sense of the legal
profession permits—possibly sometimes even a little farther—in holding
valid what the Legislature has done. This occurs most frequently where
new problems of an administrative kind present themselves. The Courts
recognize, in fact, that ‘principle of development’ which is potent in
politics as well as in theology. Human affairs being what they are,
there must be a loophole for expansion or extension in some part of
every scheme of government; and if the Constitution is Rigid,
Flexibility must be supplied from the minds of the Judges. Instances of
this kind have occurred in the United States, as when some twenty years
ago the Supreme Court recognized a power in a State Legislature to deal
with railway companies not consistent with the opinions formerly
enounced by the Court, though they disclaimed the intention of
overruling those opinions[86].
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Footnote 86:
A still more remarkable instance has been furnished, while these pages
are passing through the press (June, 1901), by the decisions of the
Supreme Court of the United States in the group of cases which arose
out of questions relating to the applicability of the Federal
Constitution to the island of Puerto Rico, recently ceded by Spain to
the United States. The Court had to deal with a constitutional
question raising large issues of national policy regarding the
application of the Federal Constitution to territories acquired by
conquest and treaty: and its judgements in these cases (given in every
case by majorities only) have expanded the Constitution, _i.e._ have
declared it to have a meaning which may well be its true meaning, but
which was not previously ascertained, and certainly by many lawyers
not admitted, to be its true meaning.
-----
Does not a danger lurk in this? May not a majority in the Legislature,
if and when they have secured the concurrence, honest or dishonest, of
the Judiciary, practically disregard the Constitution? May not the
Executive conspire with them to manipulate places on the highest Court
of Appeal, so as to procure from it such declarations of the meaning of
the Constitution as the conspiring parties desire? May not the
Constitution thus be slowly nibbled away? Certainly. Such things may
happen. It is only public opinion and established tradition that will
avail to prevent them. But it is upon public opinion, moulded by
tradition, that all free governments must in the last resort rely.
XIV. DEMOCRACIES AND RIGID CONSTITUTIONS.
The mention of traditions, that is to say of the mental and moral habits
of judgement which a nation has formed, and which guide its political
life, as the habits of each one of us guide his individual life,
suggests an inquiry as to the effect of Documentary Constitutions on the
ideas and habits of those who live under them. I will not venture on
broad generalizations, because it is hard to know how much should be
assigned to the racial tendencies of a nation, how much to the
circumstances of its history, how much to its institutions. But the
cases of Switzerland and the United States seem to show that the
tendency of these instruments is to foster a conservative temper. The
nation feels a sense of repose in the settled and permanent form which
it has given to its government. It is not alarmed by the struggles of
party in the legislature, because aware that that body cannot disturb
the fundamental institutions. Accordingly it will often, contracting a
dislike to change, negative the amendments which the legislature submits
to it. This happens in Switzerland, as already observed; and the people
of the United States, though liable to sudden and violent waves of
political opinion, show so little disposition to innovate that Congress
has not proposed any amendments to the State Legislatures since
1870[87]. I may be reminded that the Constitutions of the several States
of the Union are frequently recast or amended in detail. This is true,
but the cause lies not so much in a restless changefulness as in the low
opinion entertained of the State Legislatures. The distrust felt for
these bodies induces the people to take a large part of what is really
ordinary legislation out of their hands, and to enact themselves, in the
form of a Constitution, the laws they wish. State Constitutions now
contain many regulations on matters of detail, and have thus, in most
States, ceased to be considered fundamental instruments of government.
To revise or amend them has become merely a convenient method of direct
popular legislation, similar to the Swiss Popular Initiative and
Referendum. But the fundamental parts of these instruments are but
slightly changed.
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Footnote 87:
Something must, however, be allowed for the provisions which require
large majorities for any amendment of the Constitution.
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