convention proceeded for over a month to debate it with the most minute
care. Every day for five weeks, for five hours each day, the members
studied and debated with meticulous care every sentence of the proposed
Constitution. Time does not suffice even for the barest statement of the
many interesting questions which were thus discussed, but they nearly
ran the whole gamut of constitutional government. Many fanciful ideas
were suggested but with unvarying good sense they were rejected. Some of
the results were, under the circumstances, curious. For example,
although it was a convention of comparatively young men, and although
the convention could have taken into account the many successful young
men in public life in Europe--as, for example, William Pitt--they put a
disqualification upon age by providing that a Representative must be
twenty-five years of age, a Senator thirty years of age, and a President
thirty-five years of age. When it was suggested that young men could
learn by admission to public life, the sententious reply was made that,
while they could, they ought not to have their education at the public
expense.
The debates proceeded, however, in better temper, and almost the only
question that again gave rise to passionate argument was that of
slavery. The extreme Southern States declared that they would never
accept the new plan "except the right to import slaves be untouched."
This question was finally compromised by agreeing that the importation
of slaves should end after the year 1808. It however left the slave
population then existing in a state of bondage, and for this necessary
compromise the nation seventy-five years later was to pay dearly by one
of the most destructive civil wars in the annals of mankind.
August was now drawing to a close. The convention had been in session
for more than three months. Of its work the public knew nothing, and
this notwithstanding the acute interest which the American people, not
merely facing the peril of anarchy, but actually suffering from it, must
have taken in the convention. Its vital importance was not
under-estimated. While its builders, like all master builders, did
"build better than they knew," yet it cannot be said that they
under-estimated the importance of their labours. As one of their number,
Gouveneur Morris said: "The whole human race will be affected by the
proceedings of this convention." After it adjourned one of its greatest
participants, James Wilson, of Pennsylvania, said:
"After the lapse of six thousand years since the creation of the
world, America now presents the first instance of a people assembled
to say deliberately and calmly and to decide leisurely and peaceably
on the form of government by which they will bind themselves and
their posterity."
In the absence of any authentic information, the rumour spread through
the colonies that the convention was about to reconstitute a monarchy by
inviting the second son of George III, the Bishop of Osnaburg, to be
King of the United States; and these rumours became so persistent as to
evoke from the silent convention a semi-official denial. There is some
reason to believe that a minority of the convention did see in the
restoration of a constitutional monarchy the only solution of the
problem.
On September 8 the committee had finally considered and, after
modifications, approved the draft of the Committee on Detail, and a new
committee was thereupon appointed "to revise the style of and arrange
the articles that had been agreed to by the House." This committee was
one of exceptional strength. There were Dr. William Samuel Johnson, a
graduate of Oxford and a friend of his great namesake, Samuel Johnson;
Alexander Hamilton, Gouveneur Morris, a brilliant mind with an unusual
gift for lucid expression; James Madison, a true scholar in politics,
and Rufus King, an orator who, in the inflated language of the day, "was
ranked among the luminaries of the present age."
The convention then adjourned to await the final revision of the draft
by the Committee on Style.
On September 12 the committee reported. While it is not certain, it is
believed that its work was largely that of Gouveneur Morris.
September 13 the printed copies of the report of the Committee on Style
were ready, and three more days were spent by the convention in
carefully comparing each article and section of this final draft.
On September 15 the work of drafting the Constitution was regarded as
ended, and it was adopted and ordered to be engrossed for signing.
It may be interesting at this point to give the result of their labours
as measured in words, and if the framers of the Constitution deserve the
plaudits of posterity in no other respect they do in the remarkable
self-restraint which those results revealed.
The convention had been in session for 81 continuous days. Probably
they had consumed over 300 hours in debate. If their debates had been
fully reported, they would probably have filled at least fifty volumes,
and yet the net result of their labours consisted of about 4,000 words,
89 sentences, and about 140 distinct provisions. As the late Lord Bryce,
speaking in this age of unbridled expression, both oral and printed, so
well has said:
"The Constitution of the United States, including the amendments,
may be read aloud in twenty-three minutes. It is about half as long
as Saint Paul's Epistle to the Corinthians, and one-fourth as long
as the Irish Land Act of 1881. History knows few instruments which
in so few words lay down equally momentous rules on a vast range of
matters of the highest importance and complexity."
Even including the nineteen amendments, the Constitution, after one
hundred and thirty-five years of development, does not exceed 7,000
words. What admirable self-restraint! Possibly single opinions of the
Supreme Court could be cited which are as long as the whole document of
which they are interpreting a single phrase. This does not argue that
the Constitution is an obscure document, for it would be difficult to
cite any political document in the annals of mankind that was so simple
and lucid in expression. There is nothing Johnsonese about its style.
Every word is a word of plain speech, the ordinary meaning of which even
the man in the street knows. No tautology is to be found and no attempt
at ornate expression. It is a model of simplicity, and as it flows
through the reaches of history it will always excite the admiration of
those who love clarity and not rhetorical excesses. One can say of it as
Horace said of his favourite Spring:
_O, fons Bandusiae, splendidior vitro.
Dulce digne mero, non sine floribus_.
If I be asked why, if this be true, it has required many lengthy
opinions of the Supreme Court in the 256 volumes of its Reports to
interpret its meaning, the answer is that, as with the simple sayings of
the great Galilean, whose words have likewise been the subject of
unending commentary, the question is not one of clarity but of
adaptation of the meaning to the ever-changing conditions of human life.
Moreover, as with the sayings of the Master or the unequalled verse of
Shakespeare, questions of construction are more due to the commentators
than to the text itself.
On September 17 the convention met for the last time. The document was
engrossed and laid before the members for signature. Of the fifty-five
members who had attended, only thirty-nine remained. Of those, a number
were unwilling to sign as individuals. While the members had not been
unconscious of the magnitude of their labours, they were quite
insensible of the magnitude of their achievement. Few there were of the
convention who were enthusiastic about this result. Indeed, as the
document was ready for signature, it became a grave question whether the
remnant which remained had sufficient faith in their own work to
subscribe their names, and if they failed to do so its adoption by the
people would have been impossible. It was then that Doctor Franklin
rendered one of the last and greatest services of his life. With
ingratiating wit and with all the impressiveness that his distinguished
career inspired, Franklin thus spoke:
"I confess that there are several parts of this Constitution which I
do not at present approve, but I am not sure I shall never approve
them. For having lived long I have experienced many instances of
being obliged by better information or fuller consideration, to
change opinions even on important subjects, which I once thought
right, but found to be otherwise. It is therefore that the older I
grow, the more apt I am to doubt my own judgment and to pay more
respect to the judgment of others. Most men indeed as well as most
sects in religion think themselves in possession of all truth, and
that wherever others differ from them it is so far error. Steele, a
Protestant, in a dedication tells the Pope that the only difference
between our Churches in their opinions of the certainty of their
doctrines is, the Church of Rome is infallible and the Church of
England is never in the wrong. But though many private persons think
almost as highly of their own infallibility as of that of their
sect, few express it so naturally as a certain French lady, who in a
dispute with her sister, said: 'I don't know how it happens, sister,
but I meet with nobody but myself that's always in the right.'--_Il
n'y a que moi qui a toujours raison_.
"In these sentiments, sir, I agree to this Constitution with all
its faults, if they are such; because I think a general government
necessary for us, and there is no form of government but what may be
a blessing to the people, if well administered, and I believe
further that this is likely to be well administered for a course of
years, and can only end in despotism as other forms have done before
it, when the people shall become so corrupted as to need despotic
government, being incapable of any other. I doubt, too, whether any
other convention we can obtain may be able to make a better
Constitution. For when you assemble a number of men to have the
advantage of their joint wisdom you inevitably assemble with those
men all their prejudices, their passions, their errors of opinion,
their local interests, and their selfish views. From such an
assembly can a perfect production be expected? It therefore
astonishes me, sir, to find this system approaching so near to
perfection as it does.... Thus, I consent, sir, to this Constitution
because I expect no better, and because I am not sure that it is not
the best. The opinions I have had of its errors I sacrifice to the
public good, I have never whispered a syllable of them abroad.
Within these walls they were born and here they shall die. If every
one of us in returning to our constituents were to report the
objections he has had to it and endeavour to gain partisans in
support of them, we might prevent its being generally received, and
thereby lost all the salutary effects and great advantages resulting
naturally in our favour among foreign nations as well as among
ourselves from our real or apparent unanimity.
"On the whole, sir, I cannot help expressing a wish that every
member of the convention who may still have objections to it, would
with me, on this occasion doubt a little of his own
infallibility--and to make manifest our unanimity, put his name to
this instrument."
Truly this spirit of Doctor Franklin could be profitably invoked in this
day and generation, when nations are so intolerant of the ideas of other
nations.
As the members, moved by Franklin's humorous and yet moving appeal, came
forward to subscribe their names, Franklin drew the attention of some of
the members to the fact that on the back of the President's chair was
the half disk of a sun, and, with his love of metaphor, he said that
painters had often found it difficult to distinguish in their art a
rising from a setting sun. He then prophetically added:
"I have often and often in the course of the sessions and the
vicissitudes of my hopes and fears in its issues, looked at that
behind the President without being able to tell whether it was
rising or setting. But now at length I have the happiness to know
that it is a rising and not a setting sun."
Time has verified the genial doctor's prediction. The career of the new
nation thus formed has hitherto been a rising and not a setting sun. He
had in his sixty years of conspicuously useful citizenship--and perhaps
no nation ever had a more untiring and unselfish servant--done more than
any American to develop the American Commonwealth, but like Moses, he
was destined to see the promised land only from afar, for the new
Government had hardly been inaugurated, before Franklin died, as full of
years as honours. Prophetic as was his vision, he could never have
anticipated the reality of to-day, for this nation, thus deliberately
formed in the light of reason and without blood or passion, is to-day,
by common consent, one of the greatest and, I trust I may add, one of
the noblest republics of all time.
_III. The Political Philosophy of the Constitution_
In my last address I left Doctor Franklin predicting to the discouraged
remnant of the constitutional convention that the nation then formed
would be a "rising sun" in the constellation of the nations. The sun,
however, was destined to rise through a bank of dark and murky clouds,
for the Constitution could not take effect until it was ratified by nine
of the thirteen States; and when it was submitted to the people, who
selected State conventions for the purpose of ratifying or rejecting the
proposed plan of government, a bitter controversy at once ensued between
two political parties, then in process of formation, one called the
Constitution ratified without controversy. In the remaining ten the
struggle was long and arduous, and nearly a year passed before the
requisite nine States gave their assent. Two of the States refused to
become parts of the new nation, even after it began, and three years
passed before the thirteen States were re-united under the Constitution.
It could not have been ratified had there not been an assurance that
there would be immediate amendments to provide a Bill of Rights to
safeguard the individual. Thus came into existence the first ten
amendments to the Constitution, with their perpetual guaranty of the
fundamental rights of religion, freedom of speech and of the Press, the
right of assemblage, the immunity from unreasonable searches and
seizures, the right of trial by jury, and similar guarantees of
fundamental individual rights.
Distrustful as the American people were of the new Constitution, they
yet had the political sagacity to prefer its imperfections, whatever
they imagined them to be, to the mad spirit of innovation; and in order
that the great instrument should not, through the excesses of party
passion or the temporary caprices of fleeting generations, speedily
become a mere "scrap of paper" they very wisely provided that no
amendment should, in the future, be made unless it was proposed by at
least two-thirds of the Senate and the House of Representatives and
ratified by three-fourths of the States through their legislatures or
through special conventions. This was only one of many striking
negations of the principle of majority rule. As a result of this
provision, if we count the first ten amendments as virtually part of the
original document, only nine amendments have been adopted in 185 years,
and of these, excepting the amendments which ended slavery as the result
of the Civil War, only the last three, passed in recent years partly
through the relaxing influence of the world war, mark a serious
departure from the basic principles of the Constitution.
This stability is the more remarkable when we recall the profound and
revolutionary change that has taken place in the social life of man
since the Constitution was adopted. It was framed at the very end of the
pastoral-agricultural age of humanity. The industrial revolution, which
has more profoundly affected man in the last century and a half than all
the changes which had theretofore taken place in the life of man since
the cave-dweller, was only then beginning. Measured in terms of
mechanical power, men when the Constitution was formed were Lilliputians
as compared with the Brobdingnagians of our day, when man outflies the
eagle, outswims the fish, and by his conquest and utilization of the
invisible forces of nature has become the superman; and yet the
Constitution of 1787 is, in most of its essential principles, still the
Constitution of 1922. This surely marks it as a marvel in statecraft
and can only be explained by the fact that the Constitution was
developed by a people who, as "children brave and free of the great
mother-tongue," had a real genius for self-government and its essential
element, the spirit of self-restraint.
While it is true that the _text_ of the instrument has suffered almost
as little change as the Nicene Creed, yet it would be manifest error to
suggest that in its development by practical application the
Constitution has not undergone great changes.
The first and greatest of all its expounders, Chief Justice Marshall,
said, in one of his greatest opinions, that the Constitution was--
"intended to endure for ages to come, and consequently to be
_adapted_ to the various crises of human affairs. To have prescribed
the means by which government should in all future times execute
its powers would have been to change entirely the character of the
instrument and to give it the properties of a legal code. It would
have been an unwise attempt to provide by immutable rules for
exigencies which, if foreseen at all, must have been foreseen dimly,
and can best be provided for as they occur."
In this great purpose of enumerating rather than defining the powers of
government its framers were supremely wise. While it was marvellously
sagacious in what it provided, it was wise to the point of inspiration
in what it left unprovided.
Nothing is more admirable than the self-restraint of men who, venturing
upon an untried experiment, and after debating for four months upon the
principles of government, were content to embody their conclusions in
not more than four thousand words. To this we owe the elasticity of the
instrument. Its vitality is due to the fact that, by usage, judicial
interpretation, and, when necessary, formal amendment, it can be thus
adapted to the ever-accelerating changes of the most progressive age in
history, and that a people have administered the Constitution who, in
the process of such adaptation, have generally shown the same spirit of
conservative self-restraint as did the men who framed it.
The Constitution is neither, on the one hand, a Gibraltar rock, which
wholly resists the ceaseless washing of time or circumstance, nor is it,
on the other hand, a sandy beach, which is slowly destroyed by the
erosion of the waves. It is rather to be likened to a floating dock,
which, while firmly attached to its moorings, and not therefore the
caprice of the waves, yet rises and falls with the tide of time and
circumstance.
While in its practical adaptation to this complex age the men who framed
it, if they could "revisit the glimpses of the moon," would as little
recognize their own handiwork as their own nation, yet they would still
be able to find in successful operation the essential principles which
they embodied in the document more than a century ago.
Its success is also due to the fact that its framers were little
influenced by the spirit of doctrinarianism. They were not empiricists,
but very practical men. This is the more remarkable because they worked
in a period of an emotional fermentation of human thought. The
long-repressed intellect of man had broken into a violent eruption like
that of a seemingly extinct volcano.
From the middle of the eighteenth century until the end of the French
Revolution the masses everywhere were influenced by the emotional, and
at times hysterical, abstractions of the French encyclopedists; and that
these had influenced thought in the American colonies is readily shown
in the preamble of the Declaration of Independence, with its
unqualified assertion of the equality of men and the absolute right of
self-determination. The Declaration sought in its noble idealism to make
the "world safe for democracy," but the Constitution attempted the
greater task of making democracy safe for the world by inducing a people
to impose upon themselves salutary restraints upon majority rule.
Fortunately, the framers of the Constitution had learned a rude and
terrible lesson in the anarchy that had followed the War of
Independence. They were not so much concerned about the rights of man as
about his duties, and their great purpose was to substitute for the
visionary idealism of a rampant individualism the authority of law. Of
the hysteria of that time, which was about to culminate in the French
Revolution, there is no trace in the Constitution.
They were less concerned about Rousseau's social contract than to
restore law and order. Hard realities and not generous and impossible
abstractions interested them. They had suffered grievously for more than
ten years from misrule and had a distaste for mere phrase-making, of
which they had had a satiety, for the Constitution, in which there is
not a wasted word, is as cold and dry a document as a problem in
mathematics or a manual of parliamentary law. Its mandates have the
simplicity and directness of the Ten Commandments, and, like the
Decalogue, it consists more of what shall not be done than what shall be
done. In this freedom from empiricism and sturdy adherence to the
realities of life, it can be profitably commended to all nations which
may attempt a similar task.
While the Constitution apparently only deals with the practical and
essential details of government, yet underlying these simply but
wonderfully phrased delegations of power is a broad and accurate
political philosophy, which goes far to state the "law and the
prophets" of free government.
These essential principles of the Constitution may be briefly summarized
as follows:
1.
_The first is representative government_.
Nothing is more striking in the debates of the convention than the
distrust of its members, with few exceptions, of what they called
"democracy." By this term they meant the power of the people to
legislate directly and without the intervention of chosen
representatives. They believed that the utmost concession that could be
safely made to democracy was the power to select suitable men to
legislate for the common good, and nothing is more striking in the
Constitution than the care with which they sought to remove the powers
of legislation from the _direct_ action of the people. Nowhere in the
instrument is there a suggestion of the initiative or referendum.
Even an amendment to the Constitution could not be directly proposed by
the people in the exercise of their residual power or adopted by them.
As previously said, it could only be proposed by two-thirds of the House
and the Senate, and then could only become effective, if ratified by
three-fourths of the States, acting, not by a popular vote, but through
their chosen representatives either in their legislatures or special
conventions. Thus they denied the power of a majority to alter even the
form of government. Moreover, they gave to the President the power to
nullify laws passed by a majority of the House and Senate by his simple
veto, and yet, fearful of an unqualified power of the President in this
respect, they provided that the veto itself should be vetoed, if
two-thirds of the Senate and House concurred in such action. Moreover,
the great limitations of the Constitution, which forbid the majority, or
even the whole body of the House and Senate, to pass laws either for
want of authority or because they impair fundamental rights of
individuals, are as emphatic a negation of an absolute democracy as can
be found in any form of government.
Measured by present-day conventions of democracy, the Constitution is an
undemocratic document. The framers believed in representative
government, to which they gave the name "Republicanism" as the
antithesis to "democracy." The members of the Senate were to be selected
by State legislatures, and the President himself was, as originally
planned, to be selected by an electoral college similar to the College
of Cardinals.