The American Commonwealth. Viscount James Bryce
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been in excess of the powers of Congress. But it disapproved the Alien and Sedition laws of 1798, and although these statutes were never pronounced unconstitutional by the courts, this popular censure has prevented any similar legislation since that time.18 The people have, of course, much less exact notions of the Constitution than the legal profession or the courts. But while they generally desire to see the powers of the government so far expanded as to enable it to meet the exigencies of the moment, they are sufficiently attached to its general doctrines, they sufficiently prize the protection it affords them against their own impulses, to censure any interpretation which palpably departs from the old lines. And their censure is, of course, still more severe if the court seems to be acting at the bidding of a party.
A singular result of the importance of constitutional interpretation in the American government may be here referred to. It is this, that the United States legislature has been very largely—though less in recent years than formerly—occupied in purely legal discussions. When it is proposed to legislate on a subject which has been heretofore little dealt with, the opponents of a measure have two lines of defence. They may, as Englishmen would in a like case, argue that the measure is inexpedient. But they may also, which Englishmen cannot, argue that it is unconstitutional, i.e., illegal, because transcending the powers of Congress. This is a question fit to be raised in Congress, not only as regards matters with which, as being purely political, the courts of law will refuse to interfere, but as regards all other matters also, because since a decision on the constitutionality of a statute can never be obtained from the judges by anticipation, the legislature ought to consider whether they are acting within their competence. And it is a question on which a stronger case can often be made, and made with less exertion, than on the issue whether the measure be substantially expedient. Hence it was usually put in the forefront of the battle, and argued with great vigour and acumen by leaders who might be more ingenious as lawyers than farsighted as statesmen.
A further consequence of this habit is pointed out by one of the most thoughtful among American constitutional writers. Legal issues are apt to dwarf and obscure the more substantially important issues of principle and policy, distracting from these latter the attention of the nation as well as the skill of congressional debaters.
“The English legislature,” says Judge Hare, “is free to follow any course that will promote the welfare of the State, and the inquiry is not, ‘Has Parliament power to pass the Act?’ but, ‘Is it consistent with principle, and such as the circumstances demand?’ These are the material points, and if the public mind is satisfied as to them there is no further controversy. In the United States, on the other hand, the question primarily is one of power, and in the refined and subtle discussion which ensues, right is too often lost sight of or treated as if it were synonymous with might. It is taken for granted that what the Constitution permits it also approves, and that measures which are legal cannot be contrary to morals.”
The interpretation of the Constitution has at times become so momentous as to furnish a basis for the formation of political parties; and the existence of parties divided upon such questions has of course stimulated the interest with which points of legal interpretation have been watched and canvassed. Soon after the formation of the national government in 1789 two parties grew up, one advocating a strong central authority, the other championing the rights of the states. Of these parties the former naturally came to insist on a liberal, an expansive, perhaps a lax construction of the words of the Constitution, because the more wide is the meaning placed upon its grant of powers, so much the wider are those powers themselves. The latter party, on the other hand, was acting in protection both of the states and of the individual citizen against the central government, when it limited by a strict and narrow interpretation of the fundamental instrument the powers which that instrument conveyed. The distinction which began in those early days has never since vanished. There has always been a party professing itself disposed to favour the central government, and therefore a party of broad construction. There has always been a party claiming that it aimed at protecting the rights of the states, and therefore a party of strict construction. Some writers have gone so far as to deem these different views of interpretation to be the foundation of all the political parties that have divided America. This view, however, inverts the facts. It is not because men have differed in their reading of the Constitution that they have advocated or opposed an extension of federal powers; it is their attitude on this substantial issue that has determined their attitude on the verbal one. Moreover, the two great parties have several times changed sides on the very question of interpretation. The purchase of Louisiana and the Embargo acts were the work of the strict constructionists, while it was the loose constructionist party which potested against the latter measure, and which, at the Hartford Convention of 1814, advanced doctrines of state rights almost amounting to those subsequently asserted by South Carolina in 1832 and by the Secessionists of 1861. Parties in America, as in most countries, have followed their temporary interest; and if that interest happened to differ from some traditional party doctrine, they have explained the latter away. Whenever there has been a serious party conflict, it has been in reality a conflict over some living and practical issue, and only in form a debate upon canons of legal interpretation. What is remarkable, though natural enough in a country governed by a written instrument, is that every controversy has gotten involved with questions of constitutional construction. When it was proposed to exert some power of Congress, as for instance to charter a national bank, to grant money for internal improvements, to enact a protective tariff, the opponents of these schemes could plausibly argue, and therefore of course did argue, that they were unconstitutional. So any suggested interference with slavery in states or territories was immediately declared to violate the states’ rights which the Constitution guaranteed. Thus every serious question came to be fought as a constitutional question. But as regards most questions, and certainly as regards the great majority of the party combatants, men did not attack or defend a proposal because they held it legally unsound or sound on the true construction of the Constitution, but alleged it to be constitutionally wrong or right because they thought the welfare of the country, or at least their party interests, to be involved. Constitutional interpretation was a pretext rather than a cause, a matter of form rather than of substance.
The results were both good and evil. They were good in so far as they made both parties profess themselves defenders of the Constitution, zealous only that it should be interpreted aright; as they familiarized the people with its provisions, and made them vigilant critics of every legislative or executive act which could affect its working. They were evil in distracting public attention from real problems to the legal aspect of those problems, and in cultivating a habit of casuistry which threatened the integrity of the Constitution itself.
Since the Civil War there has been much less of this casuistry because there have been fewer occasions for it, the broad construction view of the Constitution having practically prevailed—prevailed so far that the Supreme Court now holds that the power of Congress to make paper money legal tender is incident to the sovereignty of the national government, and that a Democratic House of Representatives passes a bill giving a federal commission vast powers over all the railways which pass through more than one state. There is still a party inclined to strict construction, but the strictness which it upholds would have been deemed lax by the broad constructionists of the days before the Civil War. The interpretation which has thus stretched the Constitution to cover powers once undreamt of, may be deemed a dangerous resource. But it must be remembered that even the constitutions we call rigid must make their choice between being bent or being broken. The Americans have more than once bent their Constitution in order that they might not be forced to break it.
The Development of the Constitution by Usage
There is yet another way in which the Constitution has been developed. This is by laying down rules on matters which are within its general scope, but have not been dealt with by its words, by the creation of machinery which it has not provided for the attainment of objects it contemplates, or, to vary the metaphor, by ploughing or planting ground which though included within the boundaries of the Constitution, was left waste and untilled