Civil Government in the United States Considered with Some Reference to Its Origins

by John Fiske

CHAPTER VII.

WRITTEN CONSTITUTIONS.

[Sidenote: In the American state there is a power above the legislature.] Toward the close of the preceding chapter[1] I spoke of three points especially characteristic of the American state, and I went on to mention two of them. The third point which I had in mind is so remarkable and important as to require a chapter all to itself. In the American state the legislature is not supreme, but has limits to its authority prescribed by a written document, known as the Constitution; and if the legislature happens to pass a law which violates the constitution, then whenever a specific case happens to arise in which this statute is involved, it can be brought before the courts, and the decision of the court, if adverse to the statute, annuls it and renders it of no effect. The importance of this feature of civil government in the United States can hardly be overrated. It marks a momentous advance in civilization, and it is especially interesting as being peculiarly American. Almost everything else in our fundamental institutions was brought by our forefathers in a more or less highly developed condition from England; but the development of the written constitution, with the consequent relation of the courts to the law-making power, has gone on entirely upon American soil.

[Footnote 1: See above, p. 172.]

[Sidenote: Germs of the idea of a written constitution.] [Sidenote: Our indebtedness to the Romans.] [Sidenote: Mediæval charters.] The germs of the written constitution existed a great while ago. Perhaps it would not be easy to say just when they began to exist. It was formerly supposed by such profound thinkers as Locke and such persuasive writers as Rousseau, that when the first men came together to live in civil society, they made a sort of contract with one another as to what laws they would have, what beliefs they would entertain, what customs they would sanction, and so forth. This theory of the Social Contract was once famous, and exerted a notable influence on political history, and it is still interesting in the same way that spinning-wheels and wooden frigates and powdered wigs are interesting; but we now know that men lived in civil society, with complicated laws and customs and creeds, for many thousand years before the notion had ever entered anybody's head that things could be regulated by contract. That notion we owe chiefly to the ancient Romans, and it took them several centuries to comprehend the idea and put it into practice. We owe them a debt of gratitude for it. The custom of regulating business and politics and the affairs of life generally by voluntary but binding agreements is something without which we moderns would not think life worth living. It was after the Roman world—that is to say, Christendom, for in the Middle Ages the two terms were synonymous—had become thoroughly familiar with the idea of contract, that the practice grew up of granting written charters to towns, or monasteries, or other corporate bodies. The charter of a mediaeval town was a kind of written contract by which the town obtained certain specified immunities or privileges from the sovereign or from a great feudal lord, in exchange for some specified service which often took the form of a money payment. It was common enough for a town to buy liberty for hard cash, just as a man might buy a farm. The word charter originally meant simply a paper or written document, and it was often applied to deeds for the transfer of real estate. In contracts of such importance papers or parchment documents were drawn up and carefully preserved as irrefragable evidences of the transaction. And so, in quite significant phrase the towns zealously guarded their charters as the "title-deeds of their liberties."

[Sidenote: The "Great Charter" (1215).] After a while the word charter was applied in England to a particular document which specified certain important concessions forcibly wrung by the people from a most unwilling sovereign. This document was called Magna Charta, or the "Great Charter," signed at Runnymede, June 15, 1215, by John, king of England. After the king had signed it and gone away to his room, he rolled in a mad fury on the floor, screaming curses, and gnawing sticks and straw in the impotence of his, wrath.[2] Perhaps it would be straining words to call a transaction in which the consent was so one-sided a "contract," but the idea of Magna Charta was derived from that of the town charters with which people were already familiar. Thus a charter came to mean "a grant made by the sovereign either to the whole people or to a portion of them, securing to them the enjoyment of certain rights." Now in legal usage a charter differs from a constitution in this, that the former is granted by the sovereign, while the latter is established by the people themselves: both are the fundamental law of the land.[3] a The distinction is admirably expressed, but in history it is not always easy to make it. Magna Charta was in form a grant by the sovereign, but it was really drawn up by the barons, who in a certain sense represented the English people; and established by the people after a long struggle which was only in its first stages in John's time. To some extent it partook of the nature of a written constitution.

[Footnote 2: Green, Hist. of the English People, vol. i. p. 248.]

[Footnote 3: Bouvier, Law Dictionary, 12th ed., vol. i. p. 259.]

[Sidenote: The "Bill of Rights" (1689).] Let us now observe what happened early in 1689, after James II had fled from England. On January 28th parliament declared the throne vacant. Parliament then drew up the "Declaration of Rights," a document very similar in purport to the first eight amendments to our Federal Constitution, and on the 13th of February the two houses offered the crown to William and Mary on condition of their accepting this declaration of the "true, ancient, and indubitable rights of the people of this realm." The crown having been accepted on these terms, parliament in the following December enacted the famous "Bill of Rights," which simply put their previous declaration into the form of a declaratory statute. The Bill of Rights was not—even in form—a grant from a sovereign; it was an instrument framed by the representatives of the people, and without promising to respect it William and Mary could no more have mounted the throne than a president of the United States could be inducted into office if he were to refuse to take the prescribed oath of allegiance to the Federal Constitution. The Bill of Rights was therefore, strictly speaking, a piece of written constitution; it was a constitution as far as it went.

[Sidenote: Foreshadowing of the American idea by Sir Harry Vane (1656).] The seventeenth century, the age when the builders of American commonwealths were coming from England, was especially notable in England for two things. One was the rapid growth of modern commercial occupations and habits, the other was the temporary overthrow of monarchy, soon followed by the final subjection of the crown to parliament. Accordingly the sphere of contract and the sphere of popular sovereignty were enlarged in men's minds, and the notion of a written constitution first began to find expression. The "Instrument of Government" which in 1653 created the protectorate of Oliver Cromwell was substantially a written constitution, but it emanated from a questionable authority and was not ratified. It was drawn up by a council of army officers; and "it broke down because the first parliament summoned under it refused to acknowledge its binding force." [4] The dissolution of this parliament accordingly left Oliver absolute dictator. In 1656, when it seemed so necessary to decide what sort of government the dictatorship of Cromwell was to prepare the way for, Sir Harry Vane proposed that a national convention should be called for drawing up a written constitution.[5] The way in which he stated his case showed that he had in him a prophetic foreshadowing of the American idea as it was realized in 1787. But Vane's ideas were too far in advance of his age to be realized then in England. Older ideas, to which men were more accustomed, determined the course of events there, and it was left for Americans to create a government by means of a written constitution. And when American statesmen did so, they did it without any reference to Sir Harry Vane. His relation to the subject has been discovered only in later days, but I mention him here in illustration of the way in which great institutions grow. They take shape when they express the opinions and wishes of a multitude of persons; but it often happens that one or two men of remarkable foresight had thought of them long beforehand.

[Footnote 4: Gardiner, Constitutional Documents of the Puritan
Revolution, p. lx.]

[Footnote 5: See Hosmer's Young Sir Henry Vane, pp. 432-444,—one of the best books ever written for the reader who wishes to understand the state of mind among the English people in the crisis when they laid the foundations of the United States.]

[Sidenote: The Mayflower compact(1620).] In America the first attempts at written constitutions were in the fullest sense made by the people, and not through representatives but directly. In the Mayflower's cabin, before the Pilgrims had landed on Plymouth rock, they subscribed their names to a compact in which they agreed to constitute themselves into a "body politic," and to enact such laws as might be deemed best for the colony they were about to establish; and they promised "all due submission and obedience" to such laws. Such a compact is of course too vague to be called a constitution. Properly speaking, a written constitution is a document which defines the character and powers of the government to which its framers are willing to entrust themselves. Almost any kind of civil government might have been framed under the Mayflower compact, but the document is none the less interesting as an indication of the temper of the men who subscribed their names to it.

[Sidenote: The "Fundamental Orders of Connecticut" (1639).] The first written constitution known to history was that by which the republic of Connecticut was organized in 1639. At first the affairs of the Connecticut settlements had been directed by a commission appointed by the General Court of Massachusetts, but on the 14th of January, 1639, all the freemen of the three river towns—Windsor, Hartford, and Wethersfield—assembled at Hartford, and drew up a written constitution, consisting of eleven articles, in which the frame of government then and there adopted was distinctly described. This document, known as the "Fundamental Orders of Connecticut", created the government under which the people of Connecticut lived for nearly two centuries before they deemed it necessary to amend it. The charter granted to Connecticut by Charles II. in 1662 was simply a royal recognition of the government actually in operation since the adoption of the Fundamental Orders.

[Sidenote: Germinal development of the colonial charter toward the modern state constitution.] In those colonies which had charters these documents served, to a certain extent, the purposes of a written constitution. They limited the legislative powers of the colonial assemblies. The question sometimes came up as to whether some statute made by the assembly was not in excess of the powers conferred by the charter. This question usually arose in connection with some particular law case, and thus came before the courts for settlement,—first before the courts of the colony; afterwards it might sometimes be carried on appeal before the Privy Council in England. If the court decided that the statute was in transgression of the charter, the statute was thereby annulled.[6] The colonial legislature, therefore, was not a supreme body, even within the colony; its authority was restricted by the terms of the charter. Thus the Americans, for more than a century before the Revolution, were familiarized with the idea of a legislature as a representative body acting within certain limits prescribed by a written document. They had no knowledge or experience of a supreme legislative body, such as the House of Commons has become since the founders of American states left England. At the time of the Revolution, when the several states framed new governments, they simply put a written constitution into the position of supremacy formerly occupied by the charter. Instead of a document expressed in terms of a royal grant, they adopted a document expressed in terms of a popular edict. To this the legislature must conform; and people were already somewhat familiar with the method of testing the constitutionality of a law by getting the matter brought before the courts. The mental habit thus generated was probably more important than any other single circumstance in enabling our Federal Union to be formed. Without it, indeed, it would have been impossible to form a durable union.

[Footnote 6: Bryce, American Commonwealth, vol. i. pp. 243, 415.]

[Sidenote: Abnormal development of the state constitution, encroaching upon the province of the legislature.] [Sidenote: The Swiss "Referendum" 196] Before pursuing this subject, we may observe that American state constitutions have altered very much in character since the first part of the present century. The earlier constitutions were confined to a general outline of the organization of the government. They did not undertake to make the laws, but to prescribe the conditions under which laws might be made and executed. Recent state constitutions enter more and more boldly upon the general work of legislation. For example, in some states they specify what kinds of property shall be exempt from seizure for debt, they make regulations as to railroad freight-charges, they prescribe sundry details of practice in the courts, or they forbid the sale of intoxicating liquors. Until recently such subjects would have been left to the legislatures, no one would have thought of putting them into a constitution. The motive in so doing is a wish to put certain laws into such a shape that it will be difficult to repeal them. What a legislature sees fit to enact this year it may see fit to repeal next year. But amending a state constitution is a slow and cumbrous process. An amendment may be originated in the legislature, where it must secure more than a mere majority—perhaps a three fifths or two thirds vote—in order to pass; in some states it must be adopted by two successive legislatures, perhaps by two thirds of one and three fourths of the next; in some states not more than one amendment can be brought before the same legislature; in some it is provided that amendments must not be submitted to the people oftener than once in five years; and so on. After the amendment has at length made its way through the legislature, it must be ratified by a vote of the people at the next general election. Another way to get a constitution amended is to call a convention for that purpose. In order to call a convention, it is usually necessary to obtain a two thirds vote in the legislature; but in some states the legislature is required at stated intervals to submit to the people the question of holding such a convention, as in New Hampshire every seven years; in Iowa, every ten years; in Michigan, every sixteen years; in New York, Ohio, Maryland, and Virginia, every twenty years.[7] A convention is a representative body elected by the people to meet at some specified time and place for some specified purpose, and its existence ends with the accomplishment of that purpose. It is in this occasional character that the convention differs from an ordinary legislative assembly. With such elaborate checks against hasty action, it is to be presumed that if a law can be once embodied in a state constitution, it will be likely to have some permanence. Moreover, a direct vote by the people gives a weightier sanction to a law than a vote in the legislature. There is also, no doubt, a disposition to distrust legislatures and in some measure do their work for them by direct popular enactment. For such reasons some recent state constitutions have come almost to resemble bodies of statutes. Mr. Woodrow Wilson suggestively compares this kind of popular legislation with the Swiss practice known as the Referendum; in most of the Swiss cantons an important act of the legislature does not acquire the force of law until it has been referred to the people and voted on by them. "The objections to the, referendum," says Mr. Wilson, "are, of course, that it assumes a discriminating judgment and a fullness of information on the part of the people touching questions of public policy which they do not often possess, and that it lowers the sense of responsibility on the part of legislators." [8] Another serious objection to our recent practice is that it tends to confuse the very valuable distinction between a constitution and a body of statutes, to necessitate a frequent revision of constitutions, and to increase the cumbrousness of law-making. It would, however, be premature at the present time to pronounce confidently upon a practice of such recent origin. It is clear that its tendency is extremely democratic, and that it implies a high standard of general intelligence and independence among the people. If the evils of the practice are found to outweigh its benefits, it will doubtless fall into disfavour.

[Footnote 7: See Henry Hitchcock's admirable monograph, American
State Constitutions, p. 19.]

[Footnote 8: Wilson. The State, p. 490.]

QUESTIONS ON THE TEXT. What is to be said with regard to the following topics?

I. A power above the legislature:—

a. The constitution. b. The relation of the courts to laws that violate the constitution. c. The importance of this relation. d. The American origin of the written constitution.

2. The germs of the idea of a written constitution:—

a. The theory of a "social contract." b. The objection to this theory. c. Roman origin of the idea of contract.

3. Mediæval charters:—

a. The charter of a town. b. The word charter. c. Magna Charta. d. The difference between a charter and a constitution. e. The form of Magna Charta as contrasted with its essential nature.

4. Documents somewhat resembling written constitutions:—

a. The Declaration of Rights. b. The Bill of Rights.

5. The foreshadowing of the American idea of written constitutions:—

a. Two conditions especially notable in England in the seventeenth
century.
b. The influence of these conditions on popular views of government.
c. The "Instrument of Government."
d. Sir Harry Vane's proposition.
e. Why allude to Vane's scheme when nothing came of it?

6. Early suggestions of written constitutions in America:—

a. The compact on the Mayflower. b. Wherein the compact fell short of a written constitution. c. The "Fundamental Orders of Connecticut."

7. The development of the colonial charter into a written constitution:—

a. The limitation of the powers of colonial assemblies.
b. The decision of questions relating to the transgression of a charter
by a colonial legislature.
c. The colonial assembly as contrasted with the House of
Commons.
d. The difference between the written constitution and the
charter for which it was substituted.
e. The readiness of the people to adopt written constitutions.

8. The extensive development of the written constitution in some states:—

a. The simplicity of the earlier constitutions. b. Illustrations of the legislative tendencies of later constitutions. c. The motive for such extension of a constitution. d. The difficulty of amending a constitution. e. The legislative method of amendment. f. The convention method of amendment. g. The presumed advantage of embodying laws in the constitution. h. A comparison with the Swiss Referendum. i. Objections to the Swiss Referendum. j. Other objections to the practice of putting laws into the constitution.

SUGGESTIVE QUESTIONS AND DIRECTIONS.

1. Do you belong to any society that has a constitution? Has the society rules apart from the constitution? Which may be changed the more readily? Why not put all the rules into the constitution?

2. Read the constitution of your state in part or in full. Give some account of its principal divisions, of the topics it deals with, and its magnitude or fullness. Are there any amendments? If so, mention two or three, and give the reasons for their adoption. Is there any declaration of rights in it? If so, what are some of the rights declared, and whose are they said to be?

3. Where is the original of your state constitution kept? What sort of looking document do you suppose it to be? Where would you look for a copy of it? If a question arises in any court about the interpretation of the constitution, must the original be produced to settle the wording of the document?

4. Has any effort been made in your state to put into the constitution matters that have previously been subjects of legislative action? If so, give an account of the effort, and the public attitude towards it.

5. Which is preferable,—a constitution that commands the approval of the people as a whole or that which has the support of a dominant political party only?

6. Suppose it is your personal conviction that a law is unconstitutional, may you disregard it? What consequences might ensue from such disregard?

7. May people honestly and amicably differ about the interpretation of the constitution or of a law, in a particular case? If important interests are dependent on the interpretation, how can the true one be found out? Does a lawyer's opinion settle the interpretation? What value has such an opinion? Where must people go for authoritative and final interpretations of the laws? Can they get such interpretations by simply asking for them?

8. The constitution of New Hampshire provides that when the governor cannot discharge the duties of his office, the president of the senate shall assume them. During the severe sickness of a governor recently, the president of the senate hesitated to act in his stead; it was not clear that the situation was grave enough to warrant such a course. Accordingly the attorney-general of the state brought an action against the president of the senate for not doing his duty; the court considered the situation, decided against the president of the senate, and ordered him to become acting governor. Why was this suit necessary? Was it conducted in a hostile spirit? Wherein did the decision help the state? Wherein did it help the defendant? Wherein may it possibly prove helpful in the future history of the state?

9. Mention particular things that the governor, the legislature, and the judiciary of your state have done or may do. Then find the section or clause or wording in your state constitution that gives authority for each of these things. For example, read the particular part that authorizes your legislature:—

a. To incorporate a city. b. To compel children to attend school. c. To buy uniforms for a regiment of soldiers. d. To establish a death penalty. e. To send a committee abroad to study a system of waterworks.

10. Trace the authority of a school-teacher, a policeman, a selectman, a mayor, or of any public officer, back to some part of your constitution.

11. Mention any parts of your constitution that seem general and somewhat indefinite, and that admit, therefore, of much freedom in interpretation.

12. Show how the people are, in one aspect, subordinate to the constitution; in another, superior to it.