The real difference in the two Constitutions must be sought in the amending power. To the amending of the unwritten portions of either there is no check on Parliament or on Congress, other than public {102} opinion. To the amending of the written portion of the British Constitution, there is likewise no check other than public opinion. Parliament amends the written and unwritten portions of the Constitution,—at the will of a majority of the House of Commons. Congress cannot so amend the written portions of the American Constitution; that is a prerogative of the voters alone. Therein lies the mystery of the alleged respective "flexity" and "rigidity" of the two. But the mystery is less, and the distinctions of flexity and rigidity grow of uncertain value when it is realized that both Constitutions are being constantly changed by the genius of our race. As in the case of our laws, our Constitutions are being steadily interpreted in accord with the will of the voters. That we do not change more suddenly is due to the conservative, yet discreet, action of our representatives, sanctioned by the voters.

An enactment of Parliament at variance with the British Constitution changes that Constitution. An enactment of Congress at variance with the written portion of the American Constitution does not change the Constitution but remains at variance with it. To uphold the written Constitution in such a case and to insist on the priority of its terms over the acts performed by representatives acting under it, early became the self-imposed duty of the American courts. "But this, although, as we may well think, a sound conclusion, was not a necessary one; and it was long denied by able statesmen, judges, and lawyers."[102-1] This function of the courts was for years a unique feature of the United {103} States government. "The right to deal thus with their legislatures had already been asserted in the States, and once or twice it had really been exercised. Had the question related to a conflict, between that [federal written] Constitution and the enactment of a State, it would have been a simpler matter. These two questions, under European written constitutions, are regarded as different ones. It is almost necessary to the working of a federal system that the general government, and each of its departments, should be free to disregard acts of any departments of the local states which may be inconsistent with the federal constitution. And so in Switzerland and Germany the federal courts thus treat local enactments. But there is not under any written constitution in Europe a country where a court deals in this way with the acts of its coördinate legislature."[103-1]

Because the power to amend the written Constitution is not in Congress, it has come about that courts see to it that the will of the popular power so expressed shall not be ignored or vitiated by those who are the servants of that popular power. Because the power to amend the written portions of the British Constitution is in Parliament, there can be no clash between the wishes of Parliament and its Constitution. What Parliament does is the final test of what the Constitution is.

From the different powers of Parliament and Congress in regard to their respective national Constitutions comes the ambiguity of Pan-Angle usage of the word "unconstitutional."

In the British Isles "unconstitutional" referring {104} to parliamentary action means that someone considers it not consistent with established British political customs. Yet, if the British Parliament enacts any legislation it must be constitutional, because the legislation by its mere enactment is proved not inconsistent with the views of the temporary majority in Parliament. Various British kings have been elected by the Witan and by Parliament; one king was beheaded by the same popular authority; at various dates the duties of kingship have been altered. All these acts were constitutional the day they were voted. It was therefore correct to say in 1910 that the British Constitution "can be torn up by the mere vote of a temporary majority in the two houses of Parliament."[104-1] Since 1911 it would be equally correct to say that such power is now in one House—the House of Commons. It is evident that, "This arrangement, while it makes for flexibility, may be a source of grave danger in the hands of an unscrupulous majority."[104-2]

That forces other than parliamentary majorities may come to exercise more direct control over the British Constitution is not impossible. In the excitement of discussing the place of the House of Lords in the government of the British Isles, the party leaders in 1910, after the death of Edward VII., held a conference. Although they failed to find a consensus of opinion on the best framework for the British Isles government, "The significance of the Conference lies in the precedent it creates for the alteration of the national {105} constitution by the expedient of conference and compromise, instead of by the steam-rolling of a party machine."[105-1] Concerning this same conference another writer observes, "whether in itself it be a development of our Constitution, as some people affirm, or an encroachment on our Constitution, which is the complaint of others, it has at any rate affected our Constitution very materially, simply by its existence."[105-2] If such a conference after deliberating were to lay its conclusions before the people for ratification, it would be analogous to the national constitutional conventions which since the early American experiments have been familiar to the Pan-Angle world. From this the British Isles might come to have a "written constitution" in the same sense that the Constitutions of the United States, Canada, and Australia are written.

For the present, the plan of parliamentary government control which is the British Constitution while successful is, as the above quotations evidence, hazy. And in the British Isles it is fair to consider that "unconstitutional" means "unusual."[105-3]

With Americans the word "unconstitutional" never in popular practice has the comprehensive and indefinite British meaning. As Americans have no term in common use to denote the unwritten part of their Constitution, so they have none at all with which to refer to an infraction of it. The {106} expression has yet to be coined for the American public to employ should the Electoral College act as it did in Washington's day, viz. each elector exercise his individual discretion in voting for a president, or should a president be elected for a third term, whether or not consecutive. In either of these instances the change could not be unconstitutional in the American sense, though it would be unconstitutional in the British sense. In the former case, the procedure would be a return to what was once entirely usual in the American practice, and called for by the one-time working interpretation of the written Constitution. In the latter case, it would be a change to what has never been forbidden by the American written Constitution, but to what is now forbidden by the un-written Constitution. In either of these cases, what would the American courts decide? They would find no violation of the written Constitution, but only of the present unwritten or working Constitution. The American can console himself in his ignorance by the oft-quoted remark: "The Supreme Court has the last guess." The word "unconstitutional" refers to an enactment in such conflict with the written Constitution and decisions thereunder, that American courts will not consider it legal. When legislation beyond the powers conferred by the written Constitution is attempted and a case, for whose decision it is necessary to decide the power of Congress so to enact, is brought to the courts, they will declare the attempted legislation void. The courts, and they alone, have this power. Hence the word "unconstitutional" in America means illegal.

{107}

In 1913 occurred a modification of the American unwritten or working Constitution which may or may not pass into a permanent change. George Washington and John Adams addressed Congress orally on public affairs. Thomas Jefferson, the third president, being a poor speaker, changed this part of the working Constitution by addressing Congress through written messages. This custom remained as a revision of the working Constitution until 1913. Of this tradition Wilson wrote in 1898: "Hence a sacred rule of constitutional action!"[107-1] In 1913 he, as president, reverted from this "sacred rule" to the oral custom of Washington, and the country's comment was largely commendatory. In this instance it is likely that the Supreme Court may not guess at all!