CHAPTER XXXV

THE RESULTS OF CONSTITUTIONAL DEVELOPMENT

WE have seen that the American Constitution has changed, is changing, and by the law of its existence must continue to change, in its substance and practical working even when its words remain the same. "Time and habit," said Washington,

are at least as necessary to fix the true character of governments as of other human institutions:" and while habit fixes some things, time remoulds others.

It remains to ask what has been the general result of the changes it has suffered, and what light an examination of its history, in this respect, throws upon the probable future of the instrument and on the worth of Rigid or Supreme constitutions in general.

The Constitution was avowedly created as an instrument of checks and balances. Each branch of the National government was to restrain the others, and maintain the equipoise of the whole. The legislature was to balance the executive, and the judiciary both. The two houses of the legislature were to balance one another. The National government, taking all its branches together, was balanced against the State governments. As this equilibrium was placed under the protection of a document, unchangeable save by the people themselves, no one of the branches of the National government has been able to absorb or override the others, as the House of Commons and the Cabinet, itself a child of the House of Commons, have in England overridden and subjected the Crown and the House of Lords. Each branch maintains its independence, and can, within certain limits, defy the others.

But there is among political bodies and offices (i.e. the persons who from time to time fill the same office) of necessity a constant 1 Farewell Address, 17th September 1796.

strife, a struggle for existence similar to that which Mr. Darwin has shown to exist among plants and animals; and as in the case of plants and animals so also in the political sphere this struggle stimulates each body or office to exert its utmost force for its own preservation, and to develop its aptitudes in any direction wherein development is possible. Each branch of the American government has striven to extend its range and its powers; each has advanced in certain directions, but in others has been restrained by the equal or stronger pressure of other branches. I shall attempt to state the chief differences perceptible between the ideas which men entertained1 regarding the various bodies and offices of the government when they first entered life, and the aspect they now wear to the nation.

The President has developed a capacity for becoming, in moments of national peril, something like a Roman dictator. He is in quiet times no stronger than he was at first, possibly weaker. Congress has in some respects encroached on him, yet his office has shown that it may, in the hands of a trusted leader and at the call of a sudden necessity, rise to a tremendous height.

The ministers of the President have not become more important either singly or collectively as a cabinet. Cut off from the legislature on one side, and from the people on the other, they have been a mere appendage to the President.

The Senate has come to press heavily on the executive, and at the same time has developed legislative functions which, though contemplated in the Constitution, were comparatively rudimentary in the older days. It has, in the judgment of American publicists, grown relatively stronger than it then was.

The Vice-President of the United States has become even more insignificant than the Constitution seemed to make him.

On the other hand, the Speaker of the House of Representatives, whom the Constitution mentions only once, and on whom it bestows no powers, has now secured one of the leading parts in the piece, and can affect the course of legislation more than any other single person.

An oligarchy of chairmen of the leading committees has sprung up in the House of Representatives as a consequence of

1 It is from these ideas that one must start in attempting such a comparison, because to endeavour to determine what the powers of each body and person really were would involve a long and difficult inquiry.

the increasing demands on its time and of the working of the committee system.

The Judiciary was deemed to be making large strides during the first forty years, because it established its claim to powers which, though doubtless really granted, had been but faintly apprehended in 1789. After 1830 the development of those powers advanced more slowly. But the position which the Supreme court has taken in the scheme of government, if it be not greater than the framers of the Constitution would have wished, is yet greater than they foresaw.

Although some of these changes are considerable, they are far smaller than those which England has seen pass over her Government since 1789. So far, therefore, the rigid Constitution has maintained a sort of equilibrium between the various powers, whereas that which was then supposed to exist in England between the king, the peers, the House of Commons, and the people (ie. the electors) has vanished irrecoverably.

In the other struggle that has gone on in America, that between the National government and the States, the results have been still more considerable, though the process of change has sometimes been interrupted. During the first few decades after 1789 the States, in spite of a steady and often angry resistance, sometimes backed by threats of secession, found themselves more and more entangled in the network of Federal powers which sometimes Congress, sometimes the President, sometimes the Judiciary, as the expounder of the Constitution, flung over them. Provisions of the Constitution whose bearing had been inadequately realized in the first instance were put in force against a State, and when once put in force became precedents for the future. It is instructive to observe that this was done by both of the great national parties, by those who defended State rights and preached State sovereignty as well as by the advocates of a strong central government. For the former, when they saw the opportunity of effecting by means of the central legislative or executive power an object of immediate party importance, did not hesitate to put in force that central power, forgetful or heedless of the example they were setting.

It is for this reason that the process by which the National government has grown may be called a natural one. A political force has, like a heated gas, a natural tendency to expansion, a tendency which works even apart from the knowledge and inten

tions of those through whom it works. In the process of expansion such a force may meet, and may be checked or driven back by, a stronger force. The expansive force of the National government proved ultimately stronger than the force of the States, so the centralizing tendency prevailed. And it prevailed not so much by the conscious purpose of the party disposed to favour it, as through the inherent elements of strength which it possessed, and the favouring conditions amid which it acted, elements and conditions largely irrespective of either political party, and operative under the supremacy of the one as well as of the other. Now and then the centralizing process was checked. Georgia defied the Supreme court in 1830-32, and was not made to bend because the executive sided with her. South Carolina defied Congress and the President in 1832, and the issue was settled by a compromise. Acute foreign observers then and often during the period that followed predicted the dissolution of the Union. For some years before the outbreak of the Civil War the tie of obedience to the National government was palpably loosened over a large part of the country. But during and after the war the former tendency resumed its action, swifter and more potent than before.

A critic may object to the view here presented by remarking that the struggle between the National government and the States has not, as in the case of the struggles between different branches of the National government, proceeded merely by the natural development of the Constitution, but has been accelerated by specific changes in the Constitution, viz. those made by the three last amendments.

This is true. But the dominance of the centralizing tendencies is not wholly or even mainly due to those amendments. It had begun before them. It would have come about, though less completely, without them. It has been due not only to these

amendments but also

To the extensive interpretation by the judiciary of the powers which the Constitution vests in the National government. To the passing by Congress of statutes on topics not exclusively reserved to the States, statutes which have sensibly narrowed the field of State action.

To exertions of executive power which, having been approved by the people, and not condemned by the courts, have passed into precedents.

These have been the modes in which the centralizing tendency has shown itself and prevailed. What have been the underlying causes?

They belong to history. They are partly economical, partly moral. Steam and electricity have knit the various parts of the country closely together, have made each State and group of States more dependent on its neighbours, have added to the matters in which the whole country benefits by joint action and uniform legislation. The power of the National government to stimulate or depress commerce and industries by tariff legislation has given it a wide control over the material prosperity of part of the Union, till "the people, and especially the trading and manufacturing classes, came to look more and more to the national capital for what enlists their interests, and less and less to the capital of their own State. . . . It is the nation and not the State that is present to the imagination of the citizens as sovereign, even in the States of Jefferson and Calhoun. . . . The Constitution as it is, and the Union as it was, can no longer be the party watchword. There is a new Union, with new grand features, but with new engrafted evils."1 There has grown up a pride in the national flag, and in the national government as representing national unity. In the North there is gratitude to that government as the power that saved the Union in the Civil War; in the South a sense of the strength which Congress and the President then exerted; in both a recollection of the immense scope which the war powers took and might take again. All over the country there is a great army of Federal office-holders who look to Washington as the centre of their hopes and fears. As the modes in and by which these and other similar causes can work are evidently not exhausted, it is clear that the development of the Constitution as between the nation and the States has not yet stopped, and present appearances suggest that the centralizing tendency will continue to prevail.

How does the inquiry we have been conducting affect the judgment to be passed upon the worth of rigid constitutions, i.e. of written instruments of government emanating from an authority superior to that of the ordinary legislature? The question is a grave one for European countries, which seem to be passing from the older or flexible to the newer or rigid type of constitutions. A European reader who has followed the facts stated in the

1 Cooley, History of Michigan.