I.
WHAT IS A CONSTITUTION?
During the early days of the second French Republic a customer entered a bookseller’s and asked: “Have you a copy of the French Constitution?” “We do not,” the bookseller politely replied, “deal in periodical literature.”
Now, to any student of history such a story is a sure indication of the time of which it is told. He need not inquire to know that the time was one of revolution, change, and unsettlement. He also knows the mind of the people of that time, for insecure conditions beget a nervous, restless fear. And these things are significant. They reveal a quality of constitution-making that is not always, or easily, remembered. For whatever changes may proceed in legislation—however many and rapid they be—as long as the Constitution, written or unwritten, remains intact, the State at least is stable and its foundations are secure.
Plainly, therefore, nothing should be written into a Constitution that is of a temporary, experimental, or questionable nature, or which should fall to the lot of ordinary law-making and the changing convenience of practice. A Constitution is that which is permanent, as far as anything in this world may be permanent. Even to amend it, or add to it, requires in all countries (except England, where the Constitution has not taken a written form) a procedure quite different from that of ordinary legislation. To change it, or recast it, requires a revolution. Such a revolution may not be accompanied by bloodshedding, or it may, but it is certainly accompanied by insecurity and unsettlement.
It should, therefore, be the business of constitution-makers to prescribe only what to them is fundamental and irrefutable; to lay down the secure foundations of their State; and to leave all other matters to the experience of the nation, without seeking to shackle that experience by provisions that time may not commend. Otherwise, a convulsion may be necessary to get done what ordinary legislation could have accomplished without affecting the stability of the State.
This, then, is the first definition of a Constitution, that it contains the Fundamental Law of a State, and only the Fundamental Law. In England there is no such thing as a Fundamental Law. It is claimed by English constitutional lawyers that this is because Parliament is sovereign; but the historical truth is that in England Parliament exercises a sovereignty in fact which the King is supposed to exercise in theory; and any attempt to make the theory square with the fact by the writing of a Fundamental Law would lead, perhaps, to a surprising situation.
Yet in England certain fundamental rights are recognised, with which Parliament would not lightly tamper; and these amount in effect to a Fundamental Law, holding a higher rank than ordinary laws. In practically all other countries such rights are set forth in a document, different from all other legal documents, inasmuch as unless these other documents observe the conditions required in the first, and do not conflict with its provisions, they are null and void. In both sets of documents the laws of the realm are to be found; but the two sets of laws are of different sorts. One is fundamental and permanent; the other is by contrast casual and changeable.
This, then, is the second definition of a Constitution, not only that it contains the fundamental law of a State, but that it prescribes the manner in which all other laws must be made, and put limits and restrictions on all other law-making. In the American phrase, it is a “Frame of Government.”
In English the words Constitution and Legislation do not carry on their face the relation of one to the other, and the distinction between them. In Irish the case is different. In Irish the word for Legislation is Reacht, and the word for Constitution is Bunreacht—fixed and foundation legislation. But even the distinction so simply carried on the face of these words does not complete the relation of one to the other. For that relation is precise; and consists in the fact that all laws comprising the Reacht must be built upon the foundation of the Bunreacht, and must be contained within the fixed limits of the Bunreacht. The moment they attempt to build elsewhere, or go outside those limits, that moment they cease to be binding on any citizen; and all citizens may claim the protection of the courts of law against them.