The habit of

There would

and easy method would not only weaken the sense of security which the rigid Constitution now gives, but would increase the troubles of current politics by stimulating a majority in Congress to frequently submit amendments to the States. mending would turn into the habit of tinkering. be too little distinction between changes in the ordinary statute law, which require the agreement of majorities in the two Houses and the President, and changes in the more solemnly enacted fundamental law. And the rights of the States, upon which congressional legislation cannot now directly encroach, would be endangered. The French scheme, under which an absolute majority of the two Chambers, sitting together, can amend the Constitution; or even the Swiss scheme, under which a bare majority of the voting citizens, coupled with a majority of the Cantons, can ratify constitutional changes drafted by the Chambers, in pursuance of a previous popular vote for the revision of the Constitution,1 is considered by the Americans dangerously lax. The idea reigns that solidity and security are the most vital attributes of a fundamental law.

From this there has followed another interesting result. Since modifications or developments are often needed, and since they can rarely be made by amendment, some other way of making them must be found. The ingenuity of lawyers has discovered one method in interpretation, while the dexterity of politicians has invented a variety of devices whereby legislation may extend, or usage may modify, the express provisions of the apparently immovable and inflexible instrument.

1 See the Swiss Federal Constitution, Arts. 118-121.

CHAPTER XXXIII

THE INTERPRETATION OF THE CONSTITUTION

THE Constitution of England is contained in hundreds of volumes of statutes and reported cases; the Constitution of the United States (including the amendments) may be read through aloud in twenty-three minutes. It is about half as long as St. Paul's first Epistle to the Corinthians, and only one-fortieth part 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. The Convention of 1787 were well advised in making their draft short, because it was essential that the people should comprehend it, because fresh differences of view would have emerged the further they had gone into details, and because the more one specifies, the more one has to specify and to attempt the impossible task of providing beforehand for all contingencies. These sages were therefore content to lay down a few general rules and principles, leaving some details to be filled in by congressional legislation, and foreseeing that for others it would be necessary to trust to interpretation.

It is plain that the shorter a law is, the more general must its language be, and the greater therefore the need for interpretation. So too the greater the range of a law, and the more numerous and serious the cases which it governs, the more frequently will its meaning be canvassed. There have been statutes dealing with private law, such as the Lex Aquilia at Rome and the Statute of Frauds in England, on which many volumes of commentaries have been written, and thousands of juristic and judicial constructions placed. Much more then must we expect to find great public and constitutional enactments subjected to the closest scrutiny in order to discover every shade of meaning which their words can be made to bear. Probably no

writing except the New Testament, the Koran, the Pentateuch, and the Digest of the Emperor Justinian, has employed so much ingenuity and labour as the American Constitution, in sifting, weighing, comparing, illustrating, twisting, and torturing its text. It resembles theological writings in this, that both, while taken to be immutable guides, have to be adapted to a constantly changing world, the one to political conditions which vary from year to year and never return to their former state, the other to new phases of thought and emotion, new beliefs in the realms of physical and ethical philosophy. There must, therefore, be a development in constitutional formulas, just as there is in theological. It will come, it cannot be averted, for it comes in virtue of a law of nature: all that men can do is to shut their eyes to it, and conceal the reality of change under the continued use of time-honoured phrases, trying to persuade themselves that these phrases mean the same thing to their minds to-day as they meant generations or centuries ago. As a great living theologian says, "In a higher world it is otherwise; but here below to live is to change, and to be perfect is to have changed often."1

The Constitution of the United States is so concise and so general in its terms, that even had America been as slowly moving a country as China, many questions must have arisen on the interpretation of the fundamental law which would have modified its aspect. But America has been the most swiftly expanding of all countries. Hence the questions that have presented themselves have often related to matters which the framers of the Constitution could not have contemplated. Wiser than Justinian before them or Napoleon after them, they foresaw that their work would need to be elucidated by judicial commentary. But they were far from conjecturing the enormous strain to which some of their expressions would be subjected in the effort to apply them to new facts.

I must not venture on any general account of the interpretation of the Constitution, nor attempt to set forth the rules of construction laid down by judges and commentators, for this is a vast matter and a matter for law books. All that this chapter has to do is to indicate, very generally, in what way and with what results the Constitution has been expanded, developed, modified, by interpretation; and with that view there are three points that chiefly need discussion: (1) the authorities entitled to interpret the Constitution, (2) the main principles followed in 1 Newman, Essay on Development, p. 39.

determining whether or no the Constitution has granted certain powers, (3) the checks on possible abuses of the interpreting power.

L. To whom does it belong to interpret the Constitution? Any question arising in a legal proceeding as to the meaning and application of this fundamental law will evidently be settled by the courts of law. Every court is equally bound to pronounce and competent to pronounce on such questions, a State court no less than a Federal court; but as all the more important questions are carried by appeal to the supreme Federal court, it is practically that court whose opinion determines them.

Where the Federal courts have declared the meaning of a law, every one ought to accept and guide himself by their deliverance. But there are always questions of construction which have not been settled by the courts, some because they have not happened to arise in a law-suit, others because they are such as cannot arise in a law-suit. As regards such points, every authority, Federal or State, as well as every citizen, must be guided by the best view he or they can form of the true intent and meaning of the Constitution, taking, of course, the risk that this view may turn out to be wrong.

There are also points of construction on which every court, following a well-established practice, will refuse to decide, because they are deemed to be of "a purely political nature," a vague description, but one which could be made more specific only by an enumeration of the cases which have settled the practice. These points are accordingly left to the discretion of the executive and legislative powers, each of which forms its view as to the matters falling within its sphere, and in acting on that view is entitled to the obedience of the citizens and of the States also.2

It is therefore an error to suppose that the judiciary is the only interpreter of the Constitution, for a large field is left open to the other authorities of the government, whose views need not coincide, so that a dispute between those authorities, although turning on the meaning of the Constitution, may be incapable of being settled by any legal proceeding. This causes no great confusion, because the decision, whether of the political or the judicial authority, is conclusive so far as regards the particular controversy or matter passed upon.

The above is the doctrine now generally accepted in America.

1 See Chapter XXIV. ante.

2 Assuming, of course, that the matter is one which comes within the range of Federal competence.

But at one time the Presidents claimed the much wider right of being, except in questions of pure private law, generally and prima facie entitled to interpret the Constitution for themselves, and to act on their own interpretation, even when it ran counter to that delivered by the Supreme court. Thus Jefferson denounced the doctrine laid down in the famous judgment of ChiefJustice Marshall in the case of Marbury v. Madison,1 thus Jackson insisted that the Supreme court was mistaken in holding that Congress had power to charter the United States bank, and that he, knowing better than the court did what the Constitution meant to permit, was entitled to attack the bank as an illegal institution, and to veto a bill proposing to re-charter it.2 Majorities in Congress have more than once claimed for themselves the same independence. But of late years both the execu tive and the legislature have practically receded from the position which the language formerly used seemed to assert; while, on the other hand, the judiciary, by their tendency during the whole course of their history to support every exercise of power which they did not deem plainly unconstitutional, have left a wide field to those authorities. If the latter have not used this freedom to stretch the Constitution even more than they have done, it is not solely the courts of law, but also public opinion and their own professional associations (most presidents, ministers, and congressional leaders having been lawyers) that have checked them. II. The Constitution has been expanded by construction in two ways. Powers have been exercised, sometimes by the President, more often by the legislature, in passing statutes, and the question has arisen whether the powers so exercised were rightfully exercised, i.e. were really contained in the Constitution. When the question was resolved in the affirmative by the court,

1 As the court dismissed upon another point in the case the proceedings against Mr. Secretary Madison, the question whether Marshall was right did not arise in a practical form.

2 There was, however, nothing unconstitutional in the course which Jackson actually took in withdrawing the deposits from the United States Bank and in vetoing the bill for a re-charter. It is still generally admitted that a President has the right in considering a measure coming to him from Congress to form his own judgment, not only as to its expediency but as to its conformability to the Constitution. Judge Cooley observes to me: "If Jackson sincerely believed that the Constitution had been violated in the first and second charter, he was certainly not bound, when a third was proposed, to surrender his opinion in obedience to precedent. The question of approving a new charter was political; and he was entirely within the line of duty in refusing it for any reasons which, to his own mind, seemed sufficient."