CHAPTER VIII.

THE CONSTITUTION OF THE UNITED STATES.

"All theory is wan and grey,

Green is life's golden tree."-Goethe.

To make or to declare constitutions involves great responsibilities, because they are laws not only for the time being, but they are expected to last for all time to come. Those who administer government under them have excuses for neglect or malfeasance, which statesmen carrying on the affairs of states without them, have not; for a thing right in itself may be unconstitutional, and things wrong in themselves may be constitutional, and thus have a sort of advanced legalization. This latter is specially to be dreaded where the judiciary holds, as that of American states has done, that all acts not prohibited in the constitution, in terms, cannot be excepted to by the courts, because then legislative and executive power is not only unlimited in theory, but practically unchecked. Those who purpose to do a wrong, simply avoid the specific form thereof named or prohibited in the constitution, and adopt an indirect mode that is almost sure to be even more pernicious than the thing forbidden in terms. The ingenuity of men in the long future, in the pursuit of their ends, is sure to beat the men of the present, who are only endeavoring to guard against known evils. The social and political elements, from whose prescience flow the proper safeguards in government, as well as the better institutions, are always more or less hampered in constitutional conventions. These assemblies are themselves but temporary bodies, and swayed by the present purposes of a period. Foresight and a sagacious policy are the attributes of single minds, who may or may not persuade a majority to adopt their views. Their ideas, when thrown upon society as the seed-field of the future, have the probability of adoption, if they are sound and can stand the test of time; but in a convention the impressions of the present control and are

CONSTITUTION OF THE UNITED STATES.

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against them, and they may choke them there. And this tendency of conventions justifies the witty remark once made: "that constitutions made by them are most likely to be the best instruments of a particular time, but sure to be, for that very reason, the worst for ever after." In such bodies there are always scores of persons, each of whom would make a better constitution for future use than the whole body itself. The practical of to-day is often the folly of the future; and the impractical of the present is frequently the wisdom of the time to come. That which a generation holds to be truth is generally but error that has grown old and venerable at the hand of the past.

We shall understand this the moment we analyze the import of the common remark, that the American Constitution is a series of compromises; for what is a compromise? Is it not, even in the good sense, a mutual yielding of particular forces to provisions for the common good, which these forces are in a position to deny, and would deny if they consulted only their special interests and idealities? Each compromise is, so to speak, a transaction between social and political forces (in federal constitutions particularly the latter); and it would seem that it is better and wiser to aim, in framing constitutions, mainly at providing permanent organs, that settle for society issues as they arise, than to attempt to establish a perpetual law or constant rules of action. If these premises are true, we have the test by which to judge the instrument before us, and we ask, therefore: Does the Constitution of 1787 provide efficient organs for evolving the right law at all times, or, better said, a wise, virtuous, and intelligent public will? Are the branches of the government which are erected and the forces that move them, properly self-poised? Have the bodies politic which are united by it into an organic public personality, therein the freedom of consent and dissent which is necessary to their and the public safety at all times? Will the future transactions-call them compromises if you please—of the government also be the ethical yieldings to reasons of state, just as the Constitution itself was made? Or is there a forestalling of the freedom of American society to adjust its difficulties, as they present themselves, by the rule of right? In short, is the true constitutional public spirit a continued probability in the very government that was then made, or was it exhausted in the Convention that framed it? If it still lives and has its freedom of action by the Constitution as well as in the government, then the instrument before us is a success, otherwise it is a failure.

The public mind of the period had, with all its fervor for

constitutions, an inner instinct that constitution-making might be abused for the enactment of rules and the establishment of organs, that would force them either to do what they did not want to do, or prevent them from doing what they might and ought to desire to do. They feared Hamilton particularly for that reason, and they liked Madison because his "festina lente" suited their temper better. And, with Washington at the helm, they felt satisfied that the ship of state would be run rather in the wake of British political experience, than by the stearingpoints of either rigid organizers like Hamilton or Adams, or political theorists like Jefferson or Luther Martin. A kingship modified into a presidency; an omnipotent parliament reduced to making the legislature the master branch of government; a judicial power confined to cases and kept squarely out of public questions; these three, as checks and balances on each other, with popular elections raised to the character of a deciding superior authority over all, these were, in their opinion, the organic totality within which that which they called liberty would be safe. To say that they missed entirely the unity of government which exists in England through the conjunction of the king, the great interests, and the spiritual and possessory forces in the two Houses of Parliament, would be as untrue as it would be to assert that it actually exists, but only in another form, in our public organism. The fact is, that the people of the states as well as the constitutional Convention were afraid of unity; they called it "consolidation," and they were really apprehensive that they had more of it in the Constitution than was wholesome. Yet when the convention was weary it voted; and, weary of discussion, the states ratified the Constitution; but it was not then, and has never been since, the actual law of our government. Ever so often sworn to, it had never more than a

formal existence.

The fact just stated stands self-confessed in the political history of the United States, in the improvisation of an extraconstitutional government through our partizan organizations. Had the organism provided in the Constitution sufficed, no such outside rule would have been necessary or possible. And if it were allowed to exist at all, it should, like the British (unwritten) constitution, have been openly recognized and organically constituted. But it pleased the people of the United States to prefer to practise party politics, with constant professions of abhorrence of them, and finally to rush into a bloody war upon the theory that it was always universally understood: that submission to partizan election results was the fundamental test of loyalty. In the unwritten, but-mark it!-professedly denied,

party government, it was so, perhaps; but it was not down in the written-out constitutional government. And this creates the discord, or, if you will allow the phrase, the Scylla and the Charybdis that has ever perplexed American statesmen; for if they made the outside organism their guide, they violated the regular Constitution; and if they followed the latter, they gainsaid the almost legitimatized irregular rule. An understanding is, and has been, wanting as to what constitutes the unal public will, which none may disobey. And that understanding must, if it is ever reached, be put into writing in due form, or else it is not American constitutional law. And in saying that, we know very well how difficult it will be to put this thing in terms, the perplexity being the disposition of the American public mind not to call things by their right name. All partizans claim to be patriots; all personal-success hunters pretend to have no aim but the public good, and all profess to be obedient servants of the popular will; yet all are ever engaged either to mould it or to set it aside, if it is too sturdy for their tricks.

Every political organism must have: a known and at all times ascertainable source, as well as a depository of its supreme public will. A theocracy rests on the divine will, revealed through prophets and continued through a priesthood; an absolute government obeys the will of the living potentate; in a constitutional monarchy it is the king, sustained and controlled by state councils, legislatures, courts, and a body of officials that formulate and enforce the collective public will: commonwealths, like England, have their conjunctive public will emanating from public conferences between the elementary forces and interests existing in society; in pure democracies the popular mind, though ever chaotic, is the rule; in federal unions the fundamental agreement is the fountain of the general body politic; and its members are the residuary factors of all amendments and additions. Which of these, either separate and distinct or collective (perhaps better said eclectic), is the principle or method of the Constitution of 1787? Perhaps the readiest answer will be: they are all there; and we would be the last to deny the fact; but does it not, if that be so, prove that there is no definite unity in our political conglomerate, and that we never can arrive at a conclusive settlement of any public matter? We have political habits, brought originally from England, but they are not here, as there, a consistent part of the constitution; on the contrary, they are ever at war with it, as they are carried on by our political parties. They are really our governing machinery, and through them we have our plebiscites with

their variations. Call them, if you please, the bastards of our institutions, but are they not in power? Is not our whole political existence an eternal voting process on fictitious issues, always ending in fictitious decisions?

The preamble of the Constitution would seem to indicate that the Convention regarded itself as the medium of popular sovereignty; but the body of the Constitution reads as if the legislative and executive organs therein created were to be the authorities that formed the public will by deliberation, after they should be elected. General Washington did so regard it, and with him, though in a more offensive way, Adams and Hamilton. Jefferson was for a predetermination of public question by popular will, and he drew Madison to himself, though the latter was much less pronounced. At any rate, the school or party they formed and carried into power fought their politics on that line, and are responsible for the almost total absorption of the politics of the country in party government. That they started it only in opposition to another kind of party government, that of combined great interests, is true; but also, that they gave to theirs permanent and formal, if popular, dominion, and that it has grown as a democracy into an embodiment of an office-seeking and office-holding class interest, which awaits now only an identification with great social class interests to form, as an aristocracy, not only the meanest, but also the most irremovable tyranny the world ever saw. It intends at all times to put its will, formed from motives of party interest, in lieu of the regular public will, formed from motives of common public interests; and the voters are but the tools for giving this or that class interest preponderance. Our people may laugh

at the chains that environ them, but they are none the less enslaved.

This compound character of our institutions,-compound of ideal written and unwritten modes of government,-crops out specially in the lower House of Congress. Its model is the British House of Commons, minus the right to vote cabinets in and out; still it is a partizan legislative body. It was intended to be the ever-ready power for holding the executive branch under constant and immediate responsibility. But the President being also elected by the people, both claim to represent popular will. To find which is to be the master-will, it always takes a presidential election. But does it close matters then? The constant and immediate responsibility of the Executive is thus entirely frittered away, and the Constitution has become like a closet full of good things that is locked and the key lost. Still the sense of a want of having quick and direct responsibility is in the