Mr. Gerry said: "The evils we experience flow from the excesses of
democracy. The people are the dupes of pretended patriots." Mr.
Randolph, the author of the Virginia plan, observed that the general
object of the Constitution was to provide a cure for the evils under
which the United States laboured; that in tracing these evils to their
origin every man had found it in the tribulation and follies of
democracy; that some check, therefore, was to be sought for against this
tendency of our Government.
Alexander Hamilton remarked, on June 18, that--
"the members most tenacious of republicanism were as loud as any in
declaiming against the evils of democracy."
He added:
"Give all the power to the many and they will oppress the few. Give
all the power to the few and they will oppress the many. Both ought,
therefore, to have the power that each may defend itself against the
other."
Perhaps the attitude of the members is thus best expressed by James
Madison, in the 10th of the Federalist papers:
"A pure democracy, by which I mean a State consisting of a small
number of citizens, who assemble and administer the government in
person, can admit of no cure for the mischiefs of faction. Such
democracies have ever been spectacles of turbulence and contention,
and have often been found incompatible with the personal security
and rights of property, and have generally been as short in their
lives as they have been violent in their deaths."
Undoubtedly, the framers of the Constitution in thus limiting popular
rule did not take sufficient account of the genius of an
English-speaking people. A few of their number recognized this.
Franklin, a self-made man, believed in democracy and doubted the
efficacy of the Constitution unless it was, like a pyramid, broad-based
upon the will of the people.
Colonel Mason, of Virginia, who was also of the Jeffersonian school of
political philosophy, said:
"Notwithstanding the oppression and injustice experienced among us
from democracy, the genius of the people is in favour of it, and the
genius of the people must be consulted."
In this they were true prophets, for the American people have refused to
limit democracy as narrowly and rigidly as the framers of the
Constitution clearly intended. The most notable illustration of this is
the selection of the President. It was never contemplated that the
people should directly select the President, but that a chosen body of
electors should, with careful deliberation, make this momentous choice.
While, in form, the system persists to this day, from the very beginning
the electors simply vote as the people who select them desire. It should
here be noted that Thomas Jefferson, the great Democrat and draftsman of
the Declaration of Independence, was not a member of the convention.
During its sessions he was in France. He was instrumental in securing
the first ten Amendments and the subsequent adaptation of the
Constitution to meet the democratic instincts of the American people is
largely due to his great leadership.
Moreover, the spirit of representative government has greatly changed
since the Constitution was adopted. The ideal of the earlier time was
that so nobly expressed by Edmund Burke in his address to the electors
of Bristol, for the framers believed that a representative held a
judicial position of the most sacred character, and that he should vote
as his judgment and conscience dictated without respect to the wishes of
his constituents. To-day, and notably in the last half century, the
contrary belief, due largely to Jefferson's political ideals, has so
influenced American politics that the representatives of the people,
either in the legislature or the executive departments of the
government, are considered by the masses as only the mouthpieces of the
people who select them, and to ignore their wishes is regarded as
virtually a betrayal of a trust and the negation of democracy.
For this change in attitude there has been much justification, for in my
country, as elsewhere, the people do not always select their best men as
representatives, and, with the imperfections of human nature, there has
been so much of ignorance and, at times, venality, that the instinct of
the people is to take the conduct of affairs into their own hands. On
the other hand, this change of attitude has led, in many instances, to
government by organized minorities, for, with the division of the masses
into political parties, it is easy for an organized minority to hold the
balance of power, and thus impress its will upon majorities. Time may
yet vindicate the theory of the framers that the limit of democracy is
the selection of true and tried representatives.
2.
_The second and most novel principle of the Constitution is its dual
form of Government._
This did constitute a unique contribution to the science of politics.
This was early recognized by de Tocqueville, one of the most acute
students of the Constitution, who said that it was based "upon a wholly,
novel theory, which may be considered a great discovery in modern
political science."
Previous to the Constitution it had not been thought possible to divide
sovereignty, or at least to have two different sovereignties moving as
planets in the same orbit. Therefore, all previous federated governments
had been based upon the plan that a league could only effect its will
through the constituent States and that the citizens in these States
owed no direct allegiance to the league, but only to the States of which
they were members. The Constitution, however, developed the idea of a
dual citizenship. While the people remained citizens of their respective
States in the sphere of government which was reserved to the States, yet
they directly became citizens of the central government, and, as such,
ceased to be citizens of the several States in the sphere of government
delegated to the central power; and this allegiance was enforced by the
direct action of the central government on the citizens as individuals.
Thus has been developed one of the most intricately complex governmental
systems in the world.
At the time of the adoption of the Constitution this division of
jurisdiction was quite feasible, for, geographically, the various States
were widely separated, and the lack of economic contact made it easy for
each government to function without serious conflict. The framers,
however, did not sufficiently reckon with the mechanical changes in
society that were then beginning. They did not anticipate, and could not
have anticipated, the centripetal influences of steam and electricity
which have woven the American people into an indissoluble unit for
commercial and many other purposes. As a result many laws of the Federal
Government, in their incidences in this complex age, directly impinge
upon rights of the State governments, and _vice versa_, and the
practical application of the Constitution has required a very subtle
adaptation of a form of government which was enacted in a primitive age
to a form of government of a complex age.
Take, for example, the power over commerce. According to the
Constitution, the Federal Government had plenary power over foreign
commerce and commerce _between_ the States, but the power over commerce
_within_ a State was reserved to State governments. This presupposed the
power of Government to divide commerce into two water-tight
compartments, or, at least, to regard the two spheres of power as
parallel lines that would never meet; whereas with the coming of the
railroad, steamship and the telegraph commerce has become so unified
that the parallel lines have become lines of interlacing zigzags. To
adapt the commerce clause of the Constitution to these changed
conditions has required, in the highest degree, the constructive genius
of the Supreme Court of the United States, and, in a series of very
remarkable decisions, which are contained in 256 volumes of the official
reports, that great tribunal has tried to draw a line between
inter-State and domestic commerce as nearly to the original plans of the
framers as it was possible; but obviously there has been so much
adaptation to make this possible that if Washington, Franklin, Madison
and Hamilton could revisit the nation they created they would not
recognize their own handiwork.
For the same reason, the dual system of government has been profoundly
modified by the great elemental forces of our mechanical age, so that
the scales, which try to hold in nice equipoise the Federal Government
on the one hand and the States on the other, have been greatly
disturbed. Originally, the States were the powerful political entities,
and the central government a mere agent for certain specific purposes;
but, in the development of the Constitution, the nation has naturally
become of overshadowing importance, while the States have relatively
steadily diminished in power and prestige.
These inevitable tendencies in American politics are called
"centralization," and while for nearly a century a great political party
bitterly contested its steady progress, due to the centripetal
influences above indicated, yet the contest was long since abandoned as
a hopeless one, and the struggle to-day is rather to keep, so far as
possible, the inevitable tendency measurably in check.
Nevertheless, it would be erroneous to suggest that the dual system of
government is a failure. It still endures in providing a large measure
of authority to the States in their purely domestic concerns, and, in a
country that extends from the Atlantic to the Pacific, and from the
Lakes to the Gulf, whose northern border is not very far from the Arctic
Circle, and whose southern border is not many degrees from the Equator,
there are such differences in the habits, conventions, and ideals of the
people that without this dual form of government the Constitution would
long since have broken down. It is not too much to say that the success
with which the framers of the Constitution reconciled national supremacy
and efficiency with local self-government is one of the great
achievements in the history of mankind.
3.
_The third principle was the guaranty of individual liberty through
constitutional limitations._
This marked another great contribution of America to the science of
government. In all previous government building, the State was regarded
as a sovereign, which could grant to individuals or classes, out of its
plenary power, certain privileges or exemptions, which were called
"liberties." Thus the liberties which the barons wrung from King John at
Runnymede were virtually exemptions from the power of government. Our
fathers did not believe in the sovereignty of the State in the sense of
absolute power, nor did they believe in the sovereignty of the people in
that sense. The word "sovereignty" will not be found in the Constitution
or the Declaration of Independence. They believed that each individual,
as a responsible moral being, had certain "inalienable rights" which
neither the State nor the people could rightfully take from him.
This conception of individualism, enforced in courts of law against
executives and legislatures, was wholly new and is the distinguishing
characteristic of American constitutionalism. As to such reserved
rights, guaranteed by Constitutional limitations, and largely by the
first ten amendments to the Constitution, a man, by virtue of his
inherent and God-given dignity as a human soul, has rights, such as
freedom of the Press, liberty of speech, property rights, and religious
freedom, which even one hundred millions of people cannot rightfully
take from him, without amending the Constitution. The framers did not
believe that the oil of anointing that was supposed to sanctify the
monarch and give him infallibility had fallen upon the "multitudinous
tongue" of the people to give it either infallibility or omnipotence.
They believed in individualism. They were animated by a sleepless
jealousy of governmental power. They believed that the greater such
power, the greater the danger of its abuse. They felt that the
individual could generally best work out his own salvation, and that his
constant prayer to Government was that of Diogenes to Alexander: "Keep
out of my sunlight." The worth and dignity of the human soul, the free
competition of man and man, the nobility of labour, the right to work,
free from the tyranny of state or class, this was their gospel.
Socialism was to them abhorrent.
This theory of government gave a new dignity to manhood. It said to the
State: "There is a limit to your power. Thus far and no further, and
here shall thy proud waves be stayed."
4.
_Closely allied to this doctrine of limited governmental powers, even by
a majority, is the fourth principle of an independent judiciary_.
It is the balance wheel of the Constitution, and to function it must be
beyond the possibility of attack and destruction. My country was founded
upon the rock of property rights and the sanctity of contracts. Both the
nation and the several States are forbidden to impair the obligation of
contracts, or take away life, liberty, or property "without due process
of law." The guarantee is as old as Magna Charta; for "due process of
law" is but a paraphrase of "the law of the land," without which no
freeman could be deprived of his liberties or possessions.
"Due process of law" means that there are certain fundamental principles
of liberty, not defined or even enumerated in the Constitution, but
having their sanction in the free and enlightened conscience of just
men, and that no man can be deprived of life, liberty, or property,
except in conformity with these fundamental decencies of liberty. To
protect these even against the will of a majority, however large, the
judiciary was given unprecedented powers. It threw about the individual
the solemn circle of the law. It made the judiciary the final conscience
of the nation. Your nation cherishes the same primal verities of
liberty, but with you, the people in Parliament, is the final judge. We,
however, are not content that a majority of the Legislature shall
override inviolable individual rights, about which the judiciary is
empowered to throw the solemn circle of the law.
This august power has won the admiration of the world, and by many is
regarded as a novel contribution to the science of government. The idea,
however, was not wholly novel. As previously shown, four Chief Justices
of England had declared that an Act of Parliament, if against common
right and reason, could be treated as null and void; while in France the
power of the judiciary to refuse efficacy to a law, unless sanctioned by
the judiciary, had been the cause of a long struggle for at least three
centuries between the French monarch and the courts of France. However,
in England the doctrine of the common law yielded to the later doctrine
of the omnipotence of Parliament, while in France the revisory power of
the judiciary was terminated by the French Revolution.
The United States, however, embodied it in its form of government and
thus made the judiciary, and especially the Supreme Court, the balance
wheel of the Constitution. Without such power the Constitution could
never have lasted, for neither executive officers nor legislatures are
good judges of the extent of their own powers.
Nothing more strikingly shows the spirit of unity which the Constitution
brought into being than the unbroken success with which the Supreme
Court has discharged this difficult and most delicate duty. The
President is the Commander-in-Chief of the Army and the Navy and can
call them to his aid. The legislature has almost unlimited power through
its control of the public purse. The States have their power reinforced
by armed forces, and some of them are as great in population and
resources as many of the nations of Europe. The Supreme Court, however,
has only one officer to execute its decrees, called the United States
Marshal; and yet, without sword or purse, and with only a high sheriff
to enforce its mandates, when the Supreme Court says to a President or
to a Congress or to the authorities of a great--and, in some respects,
sovereign--State that they must do this or must refrain from doing that,
the mandate is at once obeyed. Here, indeed, is the American ideal of "a
government of laws and not of men" most strikingly realized; and if the
American Constitution, as formulated and developed, had done nothing
else than to establish in this manner the supremacy of law, even as
against the overwhelming sentiment of the people, it would have
justified the well-known encomium of Mr. Gladstone.
It must be added, however, that in one respect this function of the
judiciary has had an unfortunate effect in lessening rather than
developing in the people the sense of constitutional morality. In your
country the power of Parliament is omnipotent, and yet in its
legislation it voluntarily observes these great fundamental decencies
of liberty which in the American Constitution are protected by formal
guarantees. This can only be true because either your representatives in
Parliament have a deep sense of constitutional morality, or that the
constituencies which select them have so much sense of constitutional
justice that their representatives dare not disregard these fundamental
decencies of liberty.
In the United States, however, the confidence that the Supreme Court
will itself protect these guaranties of liberty has led to a diminution
of the sense of constitutional morality, both in the people and their
representatives. It abates the vigilance which is said to be ever the
price of liberty.
Laws are passed which transgress the limitations of the Constitution
without adequate discussion as to their unconstitutional character, for
the reason that the determination of this fact is erroneously supposed
to be the exclusive function of the judiciary.
The judiciary, contrary to the common supposition, has no plenary power
to nullify unconstitutional laws. It can only do so when there is an
irreconcilable and indubitable repugnancy between a law and the
Constitution; but obviously laws can be passed from motives that are
anti-constitutional, and there is a wide sphere of political discretion
in which many acts can be done which, while politically
anti-constitutional, are not juridically unconstitutional. For this
reason, the undue dependence upon the judiciary to nullify every law
which either in form, necessary operation, or motive transgresses the
Constitution has so far lessened the vigilance of the people to protect
their own Constitution as to lead to its serious impairment.
5.
_The fifth fundamental principle was a system of governmental checks and
balances_.
The founders of the Republic were not enamoured of power. As they viewed
human history, the worst evils of government were due to excessive
concentration of power, which like Othello's jealousy "makes the meat it
feeds on."
This system of checks and balances again illustrates that the
Constitution is the great negation of unrestrained democracy. The
framers believed that a people was best governed that was least
governed. Therefore, their purpose was not so much to promote efficiency
in legislation as to put a brake upon precipitate action.
Time does not suffice to state the intricate system of checks and
balances whereby the legislature acts as a check upon the executive and
the executive upon the legislature, and the Supreme Court upon both.
When the Republic was small, and its public affairs were few, this
system of checks and balances worked admirably, but to-day, when the
nation is one of the greatest in the world, and its public affairs are
of the most important and complicated character, and often require
speedy action, it may be questioned whether the system is not now an
undue brake upon governmental efficiency, and does _not_ require some
modification to ensure efficiency. Indeed, it is a serious question with
many thoughtful Americans whether the growth of the United States has
not put an excessive strain upon its governmental machinery.
This system was in part due to the confident belief of the framers of
the Constitution in the Montesquieu doctrine of the division of
government into three independent departments--legislative, executive
and judicial; but experience has shown how difficult it is to apply this
doctrine in its literal rigidity. One result of the doctrine was the
mistaken attempt to keep the legislative and the executive as far apart
as possible. The Cabinet system of parliamentary government was not
adopted. While the President can appear before Congress and express his
views, his Cabinet is without such right. In practice, the gulf is
bridged by constant contact between the Cabinet and the committees of
Congress, but this does not wholly secure speedy and efficient
co-operation between the two departments. As I speak, a movement is in
progress, with the sanction of President Harding, to permit members of
his Cabinet to appear in Congress and thus defend directly and in person
the policies of the Executive.
This separation of the two departments, which causes so much friction,
has been emphasized by one feature of the Constitution which again marks
its distrust of democracy, namely the fixed tenure of office. The
Constitution did not intend that public officials should rise or fall
with the fleeting caprices of a constituency. It preferred to give the
President and the members of Congress a fixed term of office, and,
however unpopular they might become temporarily, they should have the
right and the opportunity to proceed even with unpopular policies, and
thus challenge the final verdict of the people.
If a parliamentary form of government, immediately responsive to
current opinion as registered in elections, is the great desideratum,
then the fixed tenure of offices is the vulnerable Achilles-heel of our
form of government. In other countries the Executive cannot survive a
vote of want of confidence by the legislature. In America, the
President, who is merely the Executive of the legislative will,
continues for his prescribed term, though he may have wholly lost the
confidence of the representatives of the people in Congress. While this
makes for stability in administration and keeps the ship of state on an
even keel, yet it also leads to the fatalism of our democracy, and often
the "native hue" of its resolution is thus "sicklied o'er with the pale
cast of thought." Take a striking instance. I am confident that after
the sinking of the _Lusitania_, the United States would have entered the
world war, if President Wilson's tenure of power had then depended upon
a vote of confidence.
6.
_The sixth fundamental principle is the joint power of the Senate and
the Executive over the foreign relations of the Government_.
I need not dwell at length upon this unique feature of our
constitutional system, for since the Versailles Treaty, the world has
become well acquainted with our peculiar system under which treaties are
made and war is declared or terminated. Nothing, excepting the principle
of local rule, was of deeper concern to the framers of the Constitution.
When it was framed, it was the accepted principle of all other nations
that the control of the foreign relations of the Government was the
exclusive prerogative of the Executive. In your country the only
limitation upon that power was the control of Parliament over the purse
of the nation, and some of the great struggles in your history related
to the attempt of the Crown to exact money to carry on the wars without
a Parliament grant.