Constitution changes that Constitution. An enactment of Congress
at variance with the written portion of the American
Constitution does not change the Constitution but remains at
variance with it. To uphold the written Constitution in such a
case and to insist on the priority of its terms over the acts
performed by representatives acting under it, early became the
self-imposed duty of the American courts. "But this, although,
as we may well think, a sound conclusion, was not a necessary
one; and it was long denied by able statesmen, judges, and
lawyers."[102-1] This function of the courts was for years a
unique feature of the United {103} States government. "The right
to deal thus with their legislatures had already been asserted
in the States, and once or twice it had really been exercised.
Had the question related to a conflict, between that [federal
written] Constitution and the enactment of a State, it would
have been a simpler matter. These two questions, under European
written constitutions, are regarded as different ones. It is
almost necessary to the working of a federal system that the
general government, and each of its departments, should be free
to disregard acts of any departments of the local states which
may be inconsistent with the federal constitution. And so in
Switzerland and Germany the federal courts thus treat local
enactments. But there is not under any written constitution in
Europe a country where a court deals in this way with the acts
of its coördinate legislature."[103-1]
Because the power to amend the written Constitution is not in
Congress, it has come about that courts see to it that the will
of the popular power so expressed shall not be ignored or
vitiated by those who are the servants of that popular power.
Because the power to amend the written portions of the British
Constitution is in Parliament, there can be no clash between the
wishes of Parliament and its Constitution. What Parliament
_does_ is the final test of what the Constitution _is_.
From the different powers of Parliament and Congress in regard
to their respective national Constitutions comes the ambiguity
of Pan-Angle usage of the word "unconstitutional."
In the British Isles "unconstitutional" referring {104} to
parliamentary action means that someone considers it not
consistent with established British political customs. Yet, if
the British Parliament enacts any legislation it must be
constitutional, because the legislation by its mere enactment is
proved not inconsistent with the views of the temporary majority
in Parliament. Various British kings have been elected by the
Witan and by Parliament; one king was beheaded by the same
popular authority; at various dates the duties of kingship have
been altered. All these acts were constitutional the day they
were voted. It was therefore correct to say in 1910 that the
British Constitution "can be torn up by the mere vote of a
temporary majority in the two houses of Parliament."[104-1]
Since 1911 it would be equally correct to say that such power is
now in one House--the House of Commons. It is evident that,
"This arrangement, while it makes for flexibility, may be a
source of grave danger in the hands of an unscrupulous
majority."[104-2]
That forces other than parliamentary majorities may come to
exercise more direct control over the British Constitution is
not impossible. In the excitement of discussing the place of the
House of Lords in the government of the British Isles, the party
leaders in 1910, after the death of Edward VII., held a
conference. Although they failed to find a consensus of opinion
on the best framework for the British Isles government, "The
significance of the Conference lies in the precedent it creates
for the alteration of the national {105} constitution by the
expedient of conference and compromise, instead of by the
steam-rolling of a party machine."[105-1] Concerning this same
conference another writer observes, "whether in itself it be a
development of our Constitution, as some people affirm, or an
encroachment on our Constitution, which is the complaint of
others, it has at any rate affected our Constitution very
materially, simply by its existence."[105-2] If such a
conference after deliberating were to lay its conclusions before
the people for ratification, it would be analogous to the
national constitutional conventions which since the early
American experiments have been familiar to the Pan-Angle world.
From this the British Isles might come to have a "written
constitution" in the same sense that the Constitutions of the
United States, Canada, and Australia are written.
For the present, the plan of parliamentary government control
which is the British Constitution while successful is, as the
above quotations evidence, hazy. And in the British Isles it is
fair to consider that "unconstitutional" means "unusual."[105-3]
With Americans the word "unconstitutional" never in popular
practice has the comprehensive and indefinite British meaning.
As Americans have no term in common use to denote the unwritten
part of their Constitution, so they have none at all with which
to refer to an infraction of it. The {106} expression has yet to
be coined for the American public to employ should the Electoral
College act as it did in Washington's day, viz. each elector
exercise his individual discretion in voting for a president, or
should a president be elected for a third term, whether or not
consecutive. In either of these instances the change could not
be unconstitutional in the American sense, though it would be
unconstitutional in the British sense. In the former case, the
procedure would be a return to what was once entirely usual in
the American practice, and called for by the one-time working
interpretation of the written Constitution. In the latter case,
it would be a change to what has never been forbidden by the
American written Constitution, but to what is now forbidden by
the un-written Constitution. In either of these cases, what
would the American courts decide? They would find no violation
of the written Constitution, but only of the present unwritten
or working Constitution. The American can console himself in his
ignorance by the oft-quoted remark: "The Supreme Court has the
last guess." The word "unconstitutional" refers to an enactment
in such conflict with the written Constitution and decisions
thereunder, that American courts will not consider it legal.
When legislation beyond the powers conferred by the written
Constitution is attempted and a case, for whose decision it is
necessary to decide the power of Congress so to enact, is
brought to the courts, they will declare the attempted
legislation void. The courts, and they alone, have this power.
Hence the word "unconstitutional" in America means _illegal_.
{107}
In 1913 occurred a modification of the American unwritten or
working Constitution which may or may not pass into a permanent
change. George Washington and John Adams addressed Congress
orally on public affairs. Thomas Jefferson, the third president,
being a poor speaker, changed this part of the working
Constitution by addressing Congress through written messages.
This custom remained as a revision of the working Constitution
until 1913. Of this tradition Wilson wrote in 1898: "Hence a
sacred rule of constitutional action!"[107-1] In 1913 he, as
president, reverted from this "sacred rule" to the oral custom
of Washington, and the country's comment was largely
commendatory. In this instance it is likely that the Supreme
Court may not guess at all!
Illustrative of the British significance of "unconstitutional"
is quoted the following, written in 1910: "It is an undoubted
rule of the English constitution that the king shall not refuse
his assent to a bill which has passed both Houses of Parliament,
but it is certainly not a law. Should the king veto such a bill
his action would be unconstitutional, but not illegal."[107-2] A
corresponding American example might be furnished by the action
of an American president in issuing an order, without being
authorized thereto by Congress, temporarily repealing part of a
tariff bill. Such an act being outside of the scope of a
president's authority would, if reviewed by a court as part of
the _ratio decidendi_ of a case, be held unconstitutional and
therefore illegal.
{108}
These British and American usages of "constitution" and
"unconstitutional" are reflected in the five other Pan-Angle
nations. It consequently behoves one to use either of these
words with careful attention to the meaning desired. But of each
of the seven nations it may be said: that it is governed under a
constitution; that some part of its constitution is written; and
that through its constitution, however amendable, ultimate
control of all questions is in the voters.
Immediate legislative control of these seven nations is in
legislatures composed of representatives who act on behalf of
the voters, and subject to restrictions, if any, by the voters
only. Until 1911, one nation, the British Isles afforded an
exception to this as its legislative power was shared by persons
who owed their position to their birth. This instance of
presentation in a national legislature which was composed
otherwise of elected representatives expired before 1911. Since
that date the House of Lords exists not as a part of the
legislature but as a consultative body subservient to the will
of the House of Commons. To-day the legislatures of the
Pan-Angle nations are in all cases representative and the
representatives, however elected or appointed act on behalf of
the voters.[108-1] Those that are considered appointed are {109}
in reality chosen by a method of indirect election. For example,
in Canada and in New Zealand the representatives who form the
upper houses are chosen by the majority in the lower houses at
the time of their election. The fact that these "legislators
may, in the Canadian case, hold office for life does not affect
the fact that they are elected, but concerns only their terms of
office. In New Zealand the terms of office of some members of
the upper house is for life, whereas more recent members have
been chosen for a period of years. In the United States,
according to the provisions of the Federal Constitution, the
members of the upper house were formerly chosen by the state
legislatures. They are now, by the provisions of the
Constitution, elected directly.[109-1] In Australia the upper
house members are chosen by the voters organized in voting
districts larger than those electing representatives. This last
is the method toward which the choice of upper house members
seems in Pan-Angle nations to be approaching. The discontent in
New Zealand and {110} Canada at their present methods and the
recent change in America indicate this trend. This tendency
emphasizes the insistence of the voters that representatives are
responsible only to the voters.
That such representatives are subject to restrictions, if any,
by the voters only, is a statement qualified solely by the
technical exception that some of the Britannic nations act under
Constitutions enacted for them by another nation, viz. the
British Isles. This exception is more true in theory than in
reality. If in some of the Britannic nations, such as New
Zealand and Newfoundland, there have been no ratifications of
their respective frameworks of government, nevertheless the
whole spirit of the people in these countries, as well as in
Canada, where a like state of affairs exists, and in Australia
and South Africa where ratifications have occurred on what is in
each case substantially their present Constitution, makes
evident the tendency of each one of these nations to regard its
Constitution as its own act.[110-1] Consequently, it is fair to
say that acting under authority of the voters, representatives
carry out the national will in each of the seven Pan-Angle
nations.
That executive or administrative control is in charge of elected
persons is true without exception {111} in these seven nations.
The methods of choosing who shall so administer, may be
designated respectively as the British and the American. Under
both plans the executive is chosen by indirect popular election.
The British system produces a prime minister elected by a
majority of the more popular (in the British Isles the sole)
chamber of the legislature. This prime minister associates about
himself certain other men from the same chamber to carry on the
government for a certain time, which may be a shorter and
therefore an uncertain time. In the American system the people
elect representatives, called the electors, to carry out the
election of a president. This forlorn novelty, the Electoral
College, shows the futility among Pan-Angles of new-fangled
institutions. In all other ideas, the framers of the American
Constitution of 1787 followed the evolved and known usages of
the race. "It was only when they came to construct the machinery
for the election of the President that they left the field of
American experience and English example and devised an
arrangement which was so original that it was destined to break
down almost as soon as it was put in operation."[111-1] The true
election is no longer by the electors, but by the people of each
state using their allotted number of electors as so many counts
in favour of one candidate.[111-2] The president associates
about himself a group of men chosen from the nation at large.
These men act as {112} secretaries to administer departments in
behalf of the president, and have no seat in the legislative
branch of the government. These two systems are the types used
as models throughout the Pan-Angle self-governing areas.
In the two plans we have popular election with virtual
similarity. This is remarked in the following comment on the
choice, in 1841, of a British national executive: "But the
Reform Act of 1832 introduced a new order of things. In 1835 the
result of a general election was for the first time the direct
cause of a change of ministry, and in 1841 a House of Commons
was elected, for the express purpose of bringing a particular
statesman into power. The electorate voted for Sir Robert Peel,
and it would have been as impossible for the house then elected
to deny him their support as it would be for the college of
electors in the United States to exercise their private judgment
in the selection of a president."[112-1] The results of
parliamentary general elections in the British Isles are
announced on newspaper bulletin boards in terms of votes for the
leaders of the opposing parties, just as in America the state
vote is credited directly to the presidential candidates.
Adherence to either the American or British type of executive
does not connote a corresponding similarity in other
governmental respects. Australia has a British style executive
in connection with an American style legislature. Moreover,
Australia's written Constitution has been left unfixed in
certain matters, so that, if after trial the British system of
executive is found wanting, and some modification {113} shall
seem better, a change may be made without the need of
constitutional amendment.[113-1]
While representatives are elected to carry out the executive
will of the voters under both the British and the American
systems, the methods of discharging that duty present
differences. These may be summed up in the statement that the
British executives take the form of a responsible cabinet; and
the American executives, both federal and state, take the form
of a cabinet which is not in the same sense responsible. An
explanation lies in the race's experience with executives.
The Teuton executive was in the form of an elected king who
carried out the wishes of the majority which elected him. He
could be and was deposed at the will of his constituents. In
short, he was a spokesman. As the nationality of the British
Isles crystallized, this spokesman assumed his powers were not
subject to recall by his {114} fellow-citizens; considered his
office hereditary; and undertook to extend his functions in his
own right, not by right of being the spokesman of a majority to
whom he was responsible.
At the time of the American Revolution the executive office in
the British Isles was held in a way quite unlike the Teuton
ideal, and local self-government had, owing to economic changes,
sunk to a low level. The king and a few of the landed gentry
controlled Parliament and the election of a large proportion of
its members.[114-1] When, therefore, the Americans framed their
system of government, they had before them an executive example
on which they wished to improve. They accordingly created a king
who could not initiate or prevent legislation; who was
automatically recalled every four years; and who, in common with
all other citizens, held no title that could be inherited. Most
of the state governments, affected by the same ideas, have gone
further. They have even taken from the executive the appointment
of judges, making them also elective, though a few states and
the national government continue the system of appointing the
judiciary through the executive. Further checks to the
president's power were devised in making his appointments to the
executive and judicial services as well as his negotiations of
treaties subject to confirmation by the Senate. Thus the
American president is a modified eighteenth-century British
king.
After America had become independent and had {115} framed its
federal government, the British Isles electorate gradually
reasserted its power, and took back into the keeping of its
elected representatives the control of executive affairs.[115-1]
That return to earlier ideas has produced a spokesman who is
elected for five years but may be, and usually is, recalled
before the expiration of this term,--by the shifting opinion of
the voters manifested in the votes of their representatives in
Parliament. This spokesman is no longer called a king but a
prime minister. "The imperial sovereignty which is exercised in
the name of the King actually resides in the British Prime
Minister, a gentleman who holds his office at the pleasure of
the majority of the British House of Commons."[115-2] He and his
associates, chosen from the members of Parliament, constitute a
ministry, of which a portion is called the cabinet. It is this
cabinet, this managing committee, that both executes the laws of
the British Isles and takes charge of the legislation desired,
supposedly, by a majority of the British voters. As the voters
elect the members of Parliament and the latter elect the
ministry, and as the ministry cannot continue in office in the
face of an opposing majority in Parliament, this cabinet
executive control is called a "responsible government," _i.e._
responsible directly to the people.
{116}
In re-attaining the ideal of the Teuton spokesman, America has
made slight progress in theory, however much the American
president has stood ready to take such position and however much
he may have tried, despite the conservative form of constitution
he works under, to perform the duties of such an office.
Consequently, the American executive stands apart from the
legislative power as the British executive stands near, and is
part of, the legislative power. To the American executive and
his cabinet, chosen not from Congress but from the country at
large, is the explicit duty of administering, not of making,
laws, except in so far as the veto power gives the president
some share in checking legislation. But the instinct of the race
still calls on the president, as though he were the spokesman of
his nation, to assist the other representatives in making as
well as executing the laws. Signs are not wanting that this same
insistence of the voters may bring the American executive back
to the executive-legislative functions of the race's early
spokesmen. At present the president can interpret the manner in
which laws shall be administered, but if his interpretation
conflicts with the wishes of Congress, it can pass new
enactments not susceptible to such interpretation. Hence,
practically the president can influence legislation only by his
personal force working on Congress, or by his use of the
patronage to induce congressmen to take action in accord with
his opinion of the national will. There results a possibility of
the use of patronage disastrous to the administrative efficiency
of the nation. To meet this disastrous use of the patronage,
American {117} public opinion has demanded the "merit system" of
appointment of all administrative officials of less station than
those political agents who must be in sympathy with the
political ideas from time to time in the ascendant, as expressed
by political parties. Recognizing this need for efficiency in
administrative subordinates, American presidents find it
difficult to utilize the merit system of appointment and at the
same time forward desired legislation. The personal power of the
president backed by popular opinion is, however, still a force
to be reckoned with by Congress. Through this power he is able
to carry out in part at least the demand made by these political
descendants of the Teutons that their spokesman, and all other
representatives, shall carry out the legislation the voters
require.
Although Alexander Hamilton was unable to obtain a realization
of his desires to see the cabinet officers entitled to seats in
Congress, the president is called on by the written Constitution
to report to Congress on "the state of the Union, and recommend
to their consideration such measures as he shall judge necessary
and expedient."[117-1] In reality he does more, and in
accordance with the working Constitution actually furthers the
legislative programme called for by his party's majority. He
may, if the instincts of American public opinion demand it,
easily evolve into a responsible spokesman with other
administrative officers about him, much after the similitude of
a British responsible cabinet ministry. How this may occur by
change in either the working or the written Constitution, {118}
or both, it is unnecessary here to elaborate. Enough to show
that this present difference in the American and British
executives is a result of historical conditions working in both
branches of the race.
The representatives who carry out the political will of a
Pan-Angle nation are called in America the Administration and in
the other six nations the Government. This diversity of
terminology may produce misunderstanding, as in the case of
"constitution"--the more so as "government" has another meaning
common to all Pan-Angles, viz. control of peoples.[118-1] A
proverbial Irishman landed in America is asked with which party
he sympathizes, and retorts that he is "against the Government."
He means probably that he is opposed to the ministry of the day
in the British Isles--in short, sympathizes with some Opposition
ideas. The American hearer, unaccustomed to the word in this
specialized sense, may be astonished at what seems an outburst
of anarchy. Later our Irishman, become an American, would reply
to the same question about his politics, that he was, or was
not, in favour of the Administration. But whichever term is
used, Administration or Government, it refers alike to those
elected representatives who, by the use of their own discretion,
or following the instruction of their voters, or by a
combination {119} of both methods, conduct the executive
business of their nation.
Because the seven Pan-Angle nations are similar in their forms
of government they are in a position to establish a common
government. All take for granted the same theories and
practically the same procedures. Because these theories and
procedures work successfully as they are applied to the
government of each nation, Pan-Angles will be predisposed to
believe that they will work when applied to a government of the
whole race.
[94-1] _Ency. Brit._, vol. vii. p. 15.
[95-1] Quoted in Woodrow Wilson, _Mere Literature_, Boston,
1900, p. 105.