Factors in the development of the constitution:
How the Constitution has Developed.—But the constitution today is not what it was a hundred and twenty-odd years ago. Were that the case, it would be sadly out of touch with the needs of the nation. To be satisfactory a constitution must be capable of steady expansion and development; it must be able to keep step with political, social, and economic progress. This the constitution of the United States has been able to do through various agencies of development, usage, judicial interpretation, and amendment. Established for thirteen states containing four million people it has been expanded to cover the needs of nearly four times as many states and more than twenty-five times as many people. Framed in days of stage coaches and sailing ships, hand-industry and primitive methods of agriculture, it has carried through into the days of airships and tractors, giant factories and miracles of industry. It is endowed with dynamic qualities.
1. Usage.
Let us look a little more closely at these agencies of development. Usage is one of them. Alongside the written document there have grown up many practices which have practically the strength of written provisions. Take the method of electing the President, for example. Indirect election is provided in the constitution; by usage the election has become direct. The constitution provides that the President shall make appointments with the “advice and consent” of the Senate; but as a matter of usage its advice is never asked and its consent, in some cases, is never refused (see p. [298]). The constitution says not a word about the Cabinet, but by usage a Cabinet system has grown up in the United States as in England. Nor does it say a word about political parties, nevertheless usage has given them a large part in government. These illustrations could be multiplied. Why does no President seek a third term? Why does a President usually consult individual representatives before making local appointments? Why are non-residents in a congressional district practically never elected to represent it? Usage answers these and many other questions.
2. Interpretation.
The constitution has also been modified by decisions of the courts. The courts cannot change a single word in the constitution; they merely interpret its meaning. Their function is jus dicere, non dare (to interpret the law, not to make it), as the saying goes. But the fact remains that changes in the meaning of words are equivalent for all practical purposes to changes in the words themselves. The Supreme Court, in a long series of decisions, has greatly expanded the powers of the national government by the interpretation of words and clauses in the written constitution. It has decided that the power to borrow money includes the power to establish banks, that the power to regulate commerce includes the power to fix railroad rates, that the power to establish post-offices includes the power to punish those who use the mails for a fraudulent purpose, and so on. It has been the function of the court to make the words spell out new meanings to fit new situations. One cannot today obtain an adequate knowledge of what these words and phrases mean by merely reading the document; it is necessary to go through the decisions of the Supreme Court and find out just how this great tribunal has interpreted them.
3. Statutes.
The constitution has been developed by law. Many things were left in general terms in order that the details might be settled by Congress or by the state legislature. Nothing is said in the constitution about the organization or procedure of the federal courts. All this has been built up by laws. Nor is anything said about the method of nominating congressmen, or the form of the ballot, or the duties of election officials. That, too, is arranged by law. Much of what we call the machinery of American government today rests upon ordinary laws which can be changed by Congress or the state legislatures at any time.
4. Amendments.
Finally, the constitution can be changed, and on nineteen matters has been changed by amending it. The constitution provides four possible methods of making and ratifying amendments,—two of initiating and two of ratifying. These various ways are stated in the document (Article V) more briefly and more clearly than they can be recapitulated here. But every one of the amendments thus far made has been proposed and adopted in one and the same way, namely, proposal by Congress and ratification by three-fourths of the state legislatures. |Method of making amendments.| The other plan of proposing amendments, that is by calling a constitutional convention, would open the gates for a general revision or for the submission of an entirely new constitution, which is something that public opinion has not yet seemed to favor. If, however, Congress should at any time endeavor to thwart the will of the people by declining to propose an amendment strongly demanded by public opinion its hand could be forced by resort to the convention method.