The American Commonwealth. Viscount James Bryce
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parties assembled in their national conventions, will be fully considered in later chapters.
One of the changes which began about twenty years after the adoption of the Constitution deserves special mention. The Constitution contains no provision regarding the electoral franchise in Congressional elections save the three following:
That the franchise shall in every state be the same as that by which the members of the “most numerous branch of the State legislature” are chosen (art. I, § 2);
That when any male citizens over twenty-one years of age are excluded by any state from the franchise (except for crime) the basis of representation in Congress of that state shall be proportionately reduced (amend. XIV, 1868);
That “the right of citizens of the United States to vote shall not be denied or abridged on account of race, colour, or previous condition of servitude” (amend. XV, 1870).
Subject to these conditions every state may regulate the electoral franchise as it pleases.
In the first days of the Constitution the suffrage was in nearly all states limited by various conditions (e.g., property qualification, length of residence, etc.) which excluded, or might have excluded, though in some states the proportion of very poor people was small, a considerable number of the free inhabitants. At present the suffrage is in every state practically universal. It had become so in the free states4 even before the war. Here is an advance towards pure democracy effected without the action of the national legislature, but solely by the legislation of the several states, a legislation which, as it may be changed at any moment, is, so far as the national government is concerned, mere custom. And of this great step, modifying profoundly the colour and character of the government, there is no trace in the words of the Constitution other than the provisions of the Fourteenth and Fifteenth Amendments introduced for the benefit of the liberated Negroes.
It is natural, it is indeed inevitable, that there should be in every country such a parasitic growth of usages and conventions round the solid legal framework of government. But must not the result of such a growth be different where a rigid constitution exists from what it is in countries where the constitution is flexible? In England usages of the kind described become inwoven with the law of the country as settled by statutes and decisions, and modify that law. Cases come before a court in which a usage is recognized and thereby obtains a sort of legal sanction. Statutes are passed in which an existing usage is taken for granted, and which therefore harmonize with it. Thus the always changing Constitution becomes interpenetrated by custom. Custom is in fact the first stage through which a rule passes before it is embodied in binding law. But in America, where the fundamental law cannot readily be, and is in fact very rarely altered, may we not expect a conflict, or at least a want of harmony, between law and custom, due to the constant growth of the one and the immutability of the other?
In examining this point one must distinguish between subjects on which the Constitution is silent and subjects on which it speaks. As regards the former there is little difficulty. Usage and legislation may expand the Constitution in what way they please, subject only to the control of public opinion. The courts of law will not interfere, because no provision of the Constitution is violated; and even where it may be thought that an act of Congress or of the executive is opposed to the spirit of the Constitution, still if it falls within the range of the discretion which these authorities have received, it will not be questioned by the judges.5
If, on the other hand, either Congressional legislation or usage begins to trench on ground which the Constitution expressly covers, the question at once arises whether such legislation is valid, or whether an act done in conformity with such usage is legal. Questions of this kind do not always come before the courts, and if they do not, the presumption is in favour of whatever act has been done by Congress or by any legally constituted authority. When, however, such a question is susceptible of judicial determination and is actually brought before a tribunal, the tribunal is disposed rather to support than to treat as null the act done. Applying that expansive interpretation which has prevailed since the war as it prevailed in the days of Chief Justice Marshall, the Supreme Court is apt to find grounds for moving in the direction which it perceives public opinion to have taken, and for putting on the words of the Constitution a sense which legalizes what Congress has enacted or custom approved. When this takes place things proceed smoothly. The change which circumstances call for is made gently, and is controlled, perhaps modified, in its operation.
But sometimes the courts feel bound to declare some statute, or executive act done in pursuance of usage, contrary to the Constitution. What happens? In theory the judicial determination is conclusive, and ought to check any further progress in the path which has been pronounced unconstitutional. But whether this result follows will in practice depend on the circumstances of the moment. If the case is not urgent, if there is no strong popular impulse behind Congress or the president, no paramount need for the usage which had sprung up and is now disapproved, the decision of the courts will be acquiesced in; and whatever tendency towards change exists will seek some other channel where no constitutional obstacle bars its course. But if the needs of the time be pressing, courts and Constitution may have to give way. Salus populi lex suprema. Above the written law, however sacred, stands the safety of the commonwealth, which will be secured, if possible in conformity with the Constitution; but if that be not possible, then by evading, or even by overriding the Constitution.6 This is what happened in the Civil War, when men said that they would break the Constitution in order to preserve it.
Attempts to disobey the Constitution have been rare, because the fear of clashing with it has arrested many mischievous proposals in their earlier stages, while the influence of public opinion has averted possible collisions by leading the courts to lend their ultimate sanction to measures or usages which, had they come under review at their first appearance, might have been pronounced unconstitutional.7 That collisions have been rare is good evidence of the political wisdom of American statesmen and lawyers. But politicians in other countries will err if they suppose that the existence of a rigid or supreme constitution is enough to avert collisions, or to secure the victory of the fundamental instrument. A rigid constitution resembles, not some cliff of Norwegian gneiss which bears for centuries unchanged the lash of Atlantic billows, but rather a seawall, such as guards the seaside promenade of an English town, whose smooth surface resists the ordinary waves and currents of the Channel but may be breached or washed away by some tremendous tempest. The American Constitution has stood unbroken, because America has never seen, as some European countries have seen, angry multitudes or military tyrants bent on destroying the institutions which barred the course of their passions or ambition. And it has also stood because it has submitted to a process of constant, though sometimes scarcely perceptible, change which has adapted it to the conditions of a new age.
The solemn determination of a people enacting a fundamental law by which they and their descendants shall be governed cannot prevent that law, however great the reverence they continue to profess for it, from being worn away in one part, enlarged in another, modified in a third, by the ceaseless action of influences playing upon the individuals who compose the people. Thus the American Constitution has necessarily changed as the nation has changed, has changed in the spirit with which men regard it, and therefore in its own spirit. To use the words of the eminent constitutional lawyer whom I have more than once quoted: “We may think,” says Judge Cooley, “that we have the Constitution all before us; but for practical purposes the Constitution is that which the government, in its several departments, and the people in the performance of their duties as citizens, recognize and respect as such; and nothing else is. . . . Cervantes says: Every one is the son of his own works. This is more emphatically true of an instrument of government than it can possibly be of a natural person. What it takes to itself, though at first unwarrantable, helps to make it over into a new instrument of government, and it represents at last the acts done under it.”
The Results of Constitutional Development
We have seen that the American Constitution has changed, is changing, and by the law of its existence