« ForrigeFortsett »
The Union can only exercise such powers as are conferred; the state can always exercise all that are not given to the Union.
1-The Origin of the Constitution, Bryce, J., American Commonwealth, I, 19-31.
2-The Nature of the American State, Willoughby, W. W., The American Constitutional System, 12-32.
3-The Principles of the Fathers, Woodburn, J. A., The American Republic, 1–43.
4- The American Democracy, Abbott, L., The Rights of Man, 194-215.
THE DEVELOPMENT OF THE FEDERAL CONSTITU
10. WRITTEN AND UNWRITTEN CONSTITUTIONS.
Since the Constitution of the United States was adopted it has been subject to formal change by amendment on substantially three occasions only. The first ten amendments were adopted so soon after the Constitution itself that they may be considered a portion of the original instrument and, in any event, made no important change in its meaning. The three instances referred to are: first, the eleventh amendment adopted in 1798; second, the twelfth amendment adopted in 1804; and third, the thirteenth, fourteenth, and fifteenth amendments adopted in 1865, 1868 and 1870, which, inasmuch as they followed each other so closely and deal with the same subject, may be considered together. Moreover, one of these amendments, the twelfth, merely corrected a minor detail in the machinery of the government; and the last three were added as the result of the Civil War. That the Constitution has been subject to formal amendment so infrequently is one of the remarkable facts of its history and is due in the first place to its brevity-its containing merely a statement of the essential principies as distinguished from the minutia of government—and in the second place to its being a definite written instrument with a rather hard and clumsy provision for amendment, a "rigid constitution" as distinguished from an "unwritten" or "elastic constitution." In the following selection Mr. James Bryce discusses the significance of this last characteristic:
The stability of a constitution is an object to be much desired both 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 half-way. 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 so. 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 the 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. 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 politi