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THE REAL VALUE OF WRITTEN CONSTITUTIONS,
IF it be true, as the foregoing pages indicate, that all political constitutions undergo a constant and gradual evolution, keeping pace with the development of civilization, whether there be a written constitution or not; that these changes generally take place without formal amendments to the written constitution, the question would naturally arise: Of what value then is a written constitution which demonstrates its superiority over an unwritten constitution? The student who has been in the habit —which is still very common, if not universal, with practical lawyers and judges of beginning his inquiry into constitutional law with the fundamental postulate that all constitutional rules have their root in the written declarations of the sovereign power, and that these declarations must be observed and obeyed in the spirit and meaning with which they were first promulgated,—such a student is apt, if he concedes the truth of the present thesis, to conclude that the superiority of written over purely unwritten constitutions has been dissipated altogether.
There is still room for the claim that the written constitution has in it elements which fundamentally change the character of the government, and which the unwritten constitution cannot possibly claim. Not only this, but the further claim may be substantiated that, with a full understanding of the real value of written constitutions, and a differentiation of that real value from its supposed but fictitious value, the superiority of written over purely unwritten constitutions is enhanced rather than diminished.
In the pursuit of this inquiry, it is necessary, as elsewhere, to take cognizance of the existence and effect of the two opposing social forces, which are present everywhere in bodies-politic, and which were prominently distinguishable at the time when the present Federal Constitution was adopted, viz.: the force of consolidation or centralization, and the force of disintegration. In every body-politic, in the effort to reconcile the claims of legal order and personal freedom from restraint, there are those who, on the one hand, are willing to sacrifice personal liberty to the cause of law and order, only as far as this sacrifice is absolutely necessary to the public safety ; while, on the other hand, there are those who place so high a value upon law and order, that they are willing and are clamorous for the sacrifice of personal liberty, whenever that sacrifice promotes the public
welfare. The first class of political units translate the Latin maxim, salus populi suprema lex, the safety of the people is the highest law; while the second class understand by that maxim that the welfare of the people is the highest law. The first class are therefore always afraid of the tyranny of officials; while the second class dread the power of the demos. The first class are anxious to impose restraints upon the power of the officials ; while the second class are anxious to diminish as far as possible the influence of the people on legislation. The first class are thoroughly democratic in spirit; the second class, thoroughly aristocratic.
It is needless to state that both of these political classes were present in full force during the first years of our national existence. In the sense in which the terms have here been explained, George Washington, Alexander Hamilton, James Madison, John Randolph, and others, who took the same view of politics, were Aristocrats; while Samuel Adams, George Clinton, Thomas Jefferson, Patrick Henry, etc., were Democrats. The Aristocrats, dreading the absolutism of a democratic majority, sought to establish a government, which, although representative and popular in character, could be conducted and controlled by the better elements of society, and whose actual administration would be as free as possible from the influence of the masses. Hence,
in the constitutional convention, they proposed the establishment of a strong national government, with such checks and safeguards thrown around the exercise of the power of amendment, as to give permanency to the form and character of the government, and to prevent radical changes in response to every popular clamor. The Democrats were, on the other hand, in constant fear of the establishment in this country of another George III., under the guise of a popular executive. They fought for their liberties step by step, the result of the contest being that the Federal Constitution became a collection of compromises. But, in order that the opposing ele. ment may not easily or inadvertently secure any increase of power for the Federal Government, the Democrats were likewise anxious to impose restraints upon the power of amendment. Both parties then concurred in the same conclusion, proceeding from opposite standpoints, and resting the conclusions upon different reasons.
But in their desire to impose restraints upon the exercise of official and popular power, respectively, they did not stop with making it difficult to amend the Constitution. Legislation was also made difficult by dividing the legislative power between three different independent bodies or departments of the government, the President, the Senate, and the House of Representatives, and requiring the concurrence of
all, in order to make new laws, or to change existing ones,-except that the two houses of Congress were permitted, by a two-thirds vote in each house, to pass a law over the veto of the President.
The further provision is made, in the procurement of the same ends, that the President, the members of the Senate, and of the House of Representatives, shall not all be elected at the same time. Taken as a whole, it was the most ingenious device for the prevention of legislation that the world has ever known; and after the adoption of the Constitution, both parties, from their respective standpoints, extolled these features of the Constitution, perhaps beyond their true value, losing sight of the great loss which ensues from unwise legislation, because of the supreme difficulty to secure its repeal or modification.'
But all these checks and balances, set down in a written constitution, would be unavailing, if the
John Adams has enumerated these checks and balances as fol. lows: “First, the States are balanced against the general government. Second, the House of Representatives is balanced against the Senate, and the Senate against the House. Third, the executive authority is in some degree balanced against the legislature. Fourth, the judiciary is balanced against the legislature, the executive, and the State governments. Fifth, the Senate is balanced against the President in all appointments to office, and in all treaties. Sixth, the people hold in their own hands the balance against their own representatives by periodical elections. Seventh, the legislatures of the several States are balanced against the Senate by sexennial elections. Eighth, the electors are balanced against the people in their choice of President and Vice-President.”—Letter of John Adams to John Taylor, “Works,” vi., 467.