New men will rise to study it.”
V
GOVERNMENT UNDER THE CONSTITUTION
It is by no means wholly to our advantage that our constitutional law is contained in definitive written documents. The fact that it is thus formulated and rendered fixed and definite has seriously misled us, it is to be feared, as to the true function and efficacy of constitutional law. That law is not made more valid by being written, but only more explicit; it is not rendered more sacred, but only more definite and secure. Written constitutions are simply more or less successful generalizations of political experience. Their tone of authority does not at all alter the historical realities and imperative practical conditions of government. They determine forms, utter distinct purposes, set the powers of the State in definite hierarchy; but they do not make the forms they originate workable, or the purposes they utter feasible. All that must depend upon the men who become governors and upon the people over whom they are set in authority. Laws can have no other life than that which is given them by the men who administer and the men who obey them. Constitutional law affords no exception to the rule. The Constitution of the United States, happily, was framed by exceptional men thoroughly schooled in the realities of government. It consists, accordingly, not of principles newly invented, to be put into operation by means of devices originated for the occasion, but of sound pieces of tested experience. It has served its purpose beneficently, not because it was written, but because it has proved itself accordant in every essential part with tried principles of government—principles tested by the race for whose use it was intended, and therefore already embedded in their lives and practices. Its strength will be found, upon analysis, to lie in its definiteness and in its power to restrain rather than in any unusual excellence of its energetic parts. For the right operation of these it has had to depend, like other constitutions, upon the virtue and discretion of the people and their ministers. “The public powers are carefully defined; the mode in which they are to be exercised is fixed; and the amplest securities are taken that none of the more important constitutional arrangements shall be altered without every guarantee of caution and every opportunity for deliberation.... It would seem that, by a wise constitution, democracy may be made nearly as calm as water in a great artificial reservoir.”[D]
[D] Sir Henry Maine: Popular Government (Am. ed.), pp. 110, 111.
We possess, therefore, not a more suitable constitution than other countries, but a constitution which is perfectly definite and which is preserved by very formidable difficulties of amendment against inconsiderate change. The difference between our own case and that of Great Britain upon which we have most reason to congratulate ourselves is that here public opinion has definite criteria for its conservatism; whereas in England it has only shifting and uncertain precedent. In both countries there is the same respect for law. But there is not in England the same certainty as to what the law of the constitution is. We have a fundamental law which is written, and which in its main points is read by all alike in a single accepted sense. There is no more quarrel about its main intent than there is in England about the meaning of Magna Charta. Much of the British constitution, on the contrary, has not the support of even a common statute. It may, in respect of many vital parts of it, be interpreted or understood in half a dozen different ways, and amended by the prevalent understanding. We are not more free than the English; we are only more secure.
The definiteness of our Constitution, nevertheless, apart from its outline of structural arrangements and of the division of functions among the several departments of the government, is negative rather than affirmative. Its very enumeration of the powers of Congress is but a means of indicating very plainly what Congress can not do. It is significant that one of the most important and most highly esteemed of the many legal commentaries on our government should be entitled ‘Constitutional Limitations.’ In expounding the restrictions imposed by fundamental law upon state and federal action, Judge Cooley is allowed to have laid bare the most essential parts of our constitutional system. It was a prime necessity in so complex a structure that bounds should be set to authority. The ‘may-nots’ and the ‘shall-nots’ of our constitutions, consequently, give them their distinctive form and character. The strength which preserves the system is the strength of self-restraint.
And yet here again it must be understood that mere definiteness of legal provision has no saving efficacy of its own. These distinct lines run between power and power will not of their own virtue maintain themselves. It is not in having such a constitution but in obeying it that our advantage lies. The vitality of such provisions consists wholly in the fact that they receive our acquiescence. They rest upon the legal conscience, upon what Mr. Grote would have called the ‘constitutional morality,’ of our race. They are efficient because we are above all things law-abiding. The prohibitions of the law do not assert themselves as taskmasters set over us by some external power. They are of our own devising. We are self-restrained.
This legal conscience manifestly constitutes the only guarantee, for example, of the division of powers between the state and federal governments, that chief arrangement of our constitutional system. The integrity of the powers possessed by the States has from the first depended solely upon the conservatism of the federal courts. State functions have certainly not decayed; but they have been preserved, not by virtue of any forces of self-defence of their own, but because the national government has been vouchsafed the grace of self-restraint. What curtailment their province might suffer has been illustrated in several notable cases in which the Supreme Court of the United States has confirmed to the general government extensive powers of punishing state judicial and executive officers for disobedience to state laws. Although the federal courts have generally held Congress back from aggressions upon the States, they have nevertheless once and again countenanced serious encroachments upon state powers; and their occasional laxity of principle on such points is sufficiently significant of the fact that there is no balance between the state and federal governments, but only the safeguard of a customary ‘constitutional morality’ on the part of the federal courts. The actual encroachments upon state rights which those courts have permitted, under the pressure of strong political interests at critical periods, were not, however, needed to prove the potential supremacy of the federal government. They only showed how that potential supremacy would on occasion become actual supremacy. There is no guarantee but that of conscience that justice will be accorded a suitor when his adversary is both court and opposing litigant. So strong is the instinct of those who administer our governments to keep within the sanction of the law, that even when the last three amendments to the Constitution were being forced upon the southern states by means which were revolutionary the outward forms of the Constitution were observed. It was none the less obvious, however, with what sovereign impunity the national government might act in stripping those forms of their genuineness. As there are times of sorrow or of peril which try men’s souls and lay bare the inner secrets of their characters, so there are times of revolution which act as fire in burning away all but the basic elements of constitutions. It is then, too, that dormant powers awake which are not afterward readily lulled to sleep again.
Such was certainly the effect of the civil war upon the Constitution of the Union. The implying of powers, once cautious, is now become bold and confident. In the discussions now going forward with reference to federal regulation of great corporations, and with reference to federal aid to education, there are scores of writers and speakers who tacitly assume the power of the federal government to act in such matters, for one that urges a constitutional objection. Constitutional objections, before the war habitual, have, it would seem, permanently lost their prominence.
The whole energy of origination under our system rests with Congress. It stands at the front of all government among us; it is the single affirmative voice in national policy. First or last, it determines what is to be done. The President, indeed, appoints officers and negotiates treaties, but he does so subject to the ‘yes’ of the Senate. Congress organizes the executive departments, organizes the army, organizes the navy. It audits, approves, and pays expenses. It conceives and directs all comprehensive policy. All else is negation. The President says ‘no’ in his vetoes; the Supreme Court says ‘no’ in its restraining decisions. And it is as much the law of public opinion as the law of the Constitution that restrains the action of Congress.