The American Commonwealth. Viscount James Bryce
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administration a concrete expression proportionate to its strength. The mind of the nation is now awake to these needs and desires, but it is reluctant to depart from the existing boundaries of federal action and state action. Thus it continues to wrestle with the problem, the difficulties of which lie not merely in the solution to be attained but in the manner of attaining the solution, because there are objections to both the courses which might have to be taken, the course of amending the Constitution and the course of encouraging the federal courts to effect by interpretation alterations so large as are desired. No one desire to weaken confidence in the fundamental instrument.
Whatever changes may come, and whether they come sooner or later, it is clear that the nation feels itself more than ever before to be one for all commercial and social purposes, every part of it more interlaced with and dependent on all the other parts than at any previous epoch of its history. This feeling, due to influences which have been steadily gaining ground, cannot but have its effect upon political institutions. It does not necessarily portend any menace to the states. Everyone feels that they are necessary and must be maintained. But it presages some further extensions of federal authority.
One new fact which was expected to exalt the majesty and strengthen the power of the national government has so far made little if any difference—I mean the acquisition of transmarine possessions and particularly of the Philippine Islands, which are immediately dependent upon that government, and bring it into relation with new foreign problems. These conquests are too relatively small and too distant to occupy the thoughts of the people. The lustre of the national government has not been visibly enhanced by its control of the new possessions, and still less has its character as a constitutional government suffered from the fact that it exercises a larger sway than is permitted to it at home. It is not through the so-called “imperial position” which the government of the United States now holds, nor through the place it has assumed as a world power, but rather through the internal causes above referred to, that the forces which make for the unification of the country seem to be working. Yet in one respect the war with Spain did contribute to the strengthening of a sentiment of unity, for it obliterated the relics of sectional antagonism which had lingered on from the days of the Civil War. Soldiers from the North and soldiers from the South fought side by side in Cuba under one flag.
Growth and Development of the Constitution
There is another point of view from which we have still to consider the Constitution. It is not only a fundamental law, but an unchangeable law, unchangeable, that is to say, by the national legislature, and changeable even by the people only through a slow and difficult process. How can a country whose very name suggests to us movement and progress be governed by a system and under an instrument which remains the same from year to year and from century to century?
By the “constitution” of a state or a nation we mean those of its rules or laws which determine the form of its government, and the respective rights and duties of the government towards the citizens and of the citizens towards the government. These rules, or the most important among them, may be contained in one document, such as the Swiss or Belgian Constitution, or may be scattered through a multitude of statutes and reports of judicial decisions, as is the case with regard to what men call the English Constitution. This is a distinction of practical consequence. But a still more important difference exists in the fact that in some countries the rules or laws which make up the constitution can be made and changed by the ordinary legislature just like any other laws, while in other countries such rules are placed above and out of the reach of the legislature, having been enacted and being changeable only by some superior authority. In countries of the former class the so-called constitution is nothing more than the aggregate of those laws—including of course customs and judicial decisions—which have a political character; and this description is too vague to be scientifically useful, for no three jurists would agree as to which laws ought to be deemed political. In such countries there is nothing either in the form of what are commonly called constitutional laws, or in the source from which they emanate, or in the degree of their authority, to mark them off from other laws. The Constitution of England is constantly changing, for as the legislature, in the ordinary exercise of its powers, frequently passes enactments which affect the methods of government and the political rights of the citizens, there is no certainty that what is called the Constitution will stand the same at the end of a given session of Parliament as it stood at the beginning.1 A constitution of this kind, capable at any moment of being bent or turned, expanded or contracted, may properly be called a flexible constitution.
In countries of the other class the laws and rules which prescribe the nature, powers, and functions of the government are contained in a document or documents emanating from an authority superior to that of the legislature. This authority may be a monarch who has octroyé a charter alterable by himself only. Or it may be the whole people voting at the polls; or it may be a special assembly, or combination of assemblies, appointed ad hoc. In any case we find in such countries a law or group of laws distinguished from other laws not merely by the character of their contents, but by the source whence they spring and by the force they exert, a force which overrides and breaks all enactments passed by the ordinary legislature. Where the constitution consists of such a law or laws, I propose to call it a rigid constitution, i.e., one which cannot be bent or twisted by the action of the legislature, but stands stiff and solid, opposing a stubborn resistance to the attacks of any majority who may desire to trangress or evade its provisions. As the English Constitution is the best modern instance of the flexible type, so is the American of the rigid type.
It will at once be asked, How can any constitution be truly rigid? Growth and decay are the necessary conditions of the life of institutions as well as of individual organisms. One constitution may be altered less frequently or easily than another, but an absolutely unchangeable constitution is an impossibility.2
The question is pertinent; the suggestion is true. No constitution can be made to stand unsusceptible of change, because if it were, it would cease to be suitable to the conditions amid which it has to work, that is, to the actual forces which sway politics. And being unsuitable, it would be weak, not rooted in the nature of the state and in the respect of the citizens for whom it exists; and being weak, it would presently be overthrown. If therefore we find a rigid constitution tenacious of life, if we find it enjoying, as Virgil says of the gods, a fresh and green old age, we may be sure that it has not stood wholly changeless, but has been so modified as to have adapted itself to the always altering circumstances that have grown up round it. Most of all must this be true of a new country where men and circumstances change faster than in Europe, and where, owing to the equality of conditions, the leaven of new ideas works more thoroughly upon the whole lump.
We must therefore be prepared to expect that the American Constitution will, when its present condition is compared with its fire-new condition in 1789, prove to have felt the hand of time and change.
Historical inquiry verifies this expectation. The Constitution of the United States, rigid though it be, has changed, has developed. It has developed in three ways to which I devote the three following chapters.
It has been changed by amendment. Certain provisions have been struck out of the original document of 1787–88; certain other, and more numerous, provisions have been added. This method needs little explanation, because it is open and direct. It resembles the method in which laws are changed in England, the difference being that whereas in England statutes are changed by the legislature alone, here in the United States the fundamental law is changed in a more complex fashion by the joint action of Congress and the states.
It has been developed by interpretation, that is, by the unfolding of the meaning implicitly contained in its necessarily brief terms; or by the extension of its provisions to cases which they do not directly contemplate, but which their general spirit may be deemed to cover.
It has been developed by usage, that is, by the establishment of rules not inconsistent with its express provisions, but giving them a character, effect, and direction