The Spirit of America

by Henry Van Dyke

If you should ask me for the best evidence to support this statement, I should at once name the Constitution and the Supreme Court of the United States. Here is an original institution, created and established by the people at the very birth of the nation, peculiar in its character and functions, I believe, to America, and embodying in visible form the spirit of fair play.

The laws under which a man must live in America are of three kinds. There is first the common law, which prevails in all the States except Louisiana, which is still under the Napoleonic Code. The common law, inherited from England, is contained in the mass of decisions and precedents handed down by the duly established courts from generation to generation. It is supposed to cover the principles which are likely to arise in almost all cases. But when a new principle appears, the judge must decide it according to his conscience and create the legal right.

The second source of law is found in statutes of the United States enacted by Congress, in the constitutions of the different States, and in the statutes enacted by the State legislatures. Here we have definite rules and regulations, not arising out of differences or disputes between individuals, but framed on general principles, and intended to cover all cases that may arise under them.

The third source of law is the Constitution of the United States, which is supreme and sovereign over all other laws. It is the enactment of the whole people. Congress did not create it. It created Congress. No legislation, whether of a State or of the nation, can impair or contravene its authority. It can only be changed by the same power which made it,—the people of the United States, expressing their will, first through a two-thirds majority of the national House and Senate, and then directly through the vote of three-fourths of the forty-six States.

Any statute which conflicts with the Constitution is invalid. Any State constitution which fails to conform to it is, in so far forth, non-existent. Any judicial decision which contradicts it is of no binding force. Over all the complexities of legislation and the perplexities of politics in America stands this law above the laws, this ultimate guarantee of fair play.

The thing to be noted in the Constitution is this: brief as it is for the creative document of a great nation, it contains an ample Bill of Rights, protecting every man alike. The Constitution, as originally framed in 1787, had omitted to do this fully, though it prohibited the States from passing any law to impair the validity of contracts, from suspending the writ of habeas corpus in time of peace, and from other things contrary to the spirit of fair play. But it was evident at once that the Constitution would not be ratified by a sufficient number of the States unless it went much farther. Massachusetts voiced the Spirit of America in presenting a series of amendments covering the ground of equal dealing with all men in the matters most essential to individual freedom and security. In 1790 these amendments, numbered from I to X, were passed by Congress, and in 1791 they became part of the Constitution.

What do they do? They guarantee religious liberty, freedom of speech and of the press, and the right of popular assembly and petition. They protect every man, in time of peace, from criminal indictment except by a grand jury, from secret trial, from compulsion to testify against himself, from being tried again for an offence of which he has been once acquitted, and from the requisition of excessive bail and the infliction of cruel or unusual punishments. They guarantee to him the right to be tried by an impartial jury of his peers and neighbours in criminal cases and in all suits under common law when the amount in controversy exceeds twenty dollars in value. They protect his house from search except under legal and specific warrant, and his property from appropriation for public use without just compensation. They assure him that he shall not be deprived of life, liberty, or property without due process of law.

The remarkable thing about these provisions for fair play is not so much their nature as the place where they are put. In England there is a Bill of Rights, embodied in various enactments, which covers pretty much the same ground. But these, as Mr. James Bryce says, “are merely ordinary laws, which could be repealed by Parliament at any moment in exactly the same way as it can repeal a highway act or lower the duty on tobacco.” But in America they are placed upon a secure and lofty foundation, they are lifted above the passing storms of party politics. No State can touch them. No act of Congress can touch them. They belong to the law above laws.

Nor is this all. A supreme tribunal, coördinate with the national executive and legislature, independent and final in its action, is created by the Constitution itself to interpret and apply this supreme law. The nine judges who compose this court are chosen from the highest ranks of the legal profession, appointed by the President, and confirmed by the Senate. They hold office for life. Their court room is in the centre of the national Capitol, between the wings appropriated to the Senate and the House.

It is to that quiet chamber, so rich, so noble in its dignity and simplicity, so free from pomp and ostentation, so remote from turmoil and confusion, so filled with the tranquil glory of intelligence and conscience, so eloquent of confidence in the power of justice to vindicate itself,—it is to that room that I would take a foreigner who asked me why I believe that democracy in America has the promise of endurance. Those nine men, in their black judicial robes (the only officials of the nation who have from the beginning worn a uniform of office), are the symbols of the American conscience offering the ultimate guarantee of fair play. To them every case in law and equity arising under the Constitution, treaties and laws of the United States, every case of admiralty and marine jurisdiction, every case between citizens of different States, or between two States, every case in which the United States itself is a party, may be brought for final decision. For more than a hundred years this court has discharged its high functions without a suspicion of corruption or a shadow of reproach.