The Constitution of the United States Part 4

III. The Political Philosophy of the Const.i.tution

In my last address I left Doctor Franklin predicting to the discouraged remnant of the const.i.tutional 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 Const.i.tution 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 Const.i.tution ratified without controversy. In the remaining ten the struggle was long and arduous, and nearly a year pa.s.sed before the requisite nine States gave their a.s.sent. Two of the States refused to become parts of the new nation, even after it began, and three years pa.s.sed before the thirteen States were re-united under the Const.i.tution.

It could not have been ratified had there not been an a.s.surance 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 Const.i.tution, with their perpetual guaranty of the fundamental rights of religion, freedom of speech and of the Press, the right of a.s.semblage, 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 Const.i.tution, 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 pa.s.sion or the temporary caprices of fleeting generations, speedily become a mere "sc.r.a.p 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 doc.u.ment, 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, pa.s.sed in recent years partly through the relaxing influence of the world war, mark a serious departure from the basic principles of the Const.i.tution.

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 Const.i.tution 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 Const.i.tution 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 Const.i.tution of 1787 is, in most of its essential principles, still the Const.i.tution of 1922. This surely marks it as a marvel in statecraft and can only be explained by the fact that the Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution is neither, on the one hand, a Gibraltar rock, which wholly resists the ceaseless washing of time or circ.u.mstance, 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 circ.u.mstance.

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 doc.u.ment 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 ma.s.ses 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 a.s.sertion of the equality of men and the absolute right of self-determination. The Declaration sought in its n.o.ble idealism to make the "world safe for democracy," but the Const.i.tution 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 Const.i.tution 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 subst.i.tute 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 Const.i.tution.

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 Const.i.tution, in which there is not a wasted word, is as cold and dry a doc.u.ment 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 st.u.r.dy adherence to the realities of life, it can be profitably commended to all nations which may attempt a similar task.

While the Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 pa.s.sed 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 Const.i.tution, which forbid the majority, or even the whole body of the House and Senate, to pa.s.s 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 Const.i.tution is an undemocratic doc.u.ment. The framers believed in representative government, to which they gave the name "Republicanism" as the ant.i.thesis 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.

The debates are full of utterances which explain this att.i.tude of mind. 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 Const.i.tution 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 att.i.tude 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 a.s.semble 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution clearly intended. The most notable ill.u.s.tration 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 Const.i.tution 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 Const.i.tution was adopted. The ideal of the earlier time was that so n.o.bly 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 const.i.tuents. 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 ma.s.ses 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 att.i.tude 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 att.i.tude has led, in many instances, to government by organized minorities, for, with the division of the ma.s.ses 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 Const.i.tution is its dual form of Government.

This did const.i.tute a unique contribution to the science of politics. This was early recognized by de Tocqueville, one of the most acute students of the Const.i.tution, 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 Const.i.tution 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 const.i.tuent 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 Const.i.tution, 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 Const.i.tution 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 antic.i.p.ate, and could not have antic.i.p.ated, 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 Const.i.tution 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 Const.i.tution, 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 Const.i.tution 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 ent.i.ties, and the central government a mere agent for certain specific purposes; but, in the development of the Const.i.tution, 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 Const.i.tution would long since have broken down. It is not too much to say that the success with which the framers of the Const.i.tution 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 const.i.tutional 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 cla.s.ses, 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 Const.i.tution 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 const.i.tutionalism. As to such reserved rights, guaranteed by Const.i.tutional limitations, and largely by the first ten amendments to the Const.i.tution, a man, by virtue of his inherent and G.o.d-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 Const.i.tution. 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 "mult.i.tudinous 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 compet.i.tion of man and man, the n.o.bility of labour, the right to work, free from the tyranny of state or cla.s.s, 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.