Civil Government in the United States Chapter VII. Written Constitutions
by John Fiske
In the American state there is a power above the
legislature.
Toward the close of the preceding chapter[1] I spoke of three points
especially characteristic of the American state, and I went on to
mention two of them. The third point which I had in mind is so
remarkable and important as to require a chapter all to itself. In the
American state the legislature is not supreme, but has limits to its
authority prescribed by a written document, known as the Constitution;
and if the legislature happens to pass a law which violates the
constitution, then whenever a specific case happens to arise in which
this statute is involved, it can be brought before the courts, and
the decision of the court, if adverse to the statute, annuls it and
renders it of no effect. The importance of this feature of civil
government in the United States can hardly be overrated. It marks a
momentous advance in civilization, and it is especially interesting as
being peculiarly American. Almost everything else in our fundamental
institutions was brought by our forefathers in a more or less highly
developed condition from England; but the development of the written
constitution, with the consequent relation of the courts to the
law-making power, has gone on entirely upon American soil.
[Footnote 1: See above, p. 172.]
Germs of the idea of a written constitution.
Our indebtedness to the Romans.
Mediæval charters.
The germs of the written constitution existed a great while ago.
Perhaps it would not be easy to say just when they began to exist.
It was formerly supposed by such profound thinkers as Locke and such
persuasive writers as Rousseau, that when the first men came together
to live in civil society, they made a sort of contract with one
another as to what laws they would have, what beliefs they would
entertain, what customs they would sanction, and so forth. This
theory of the Social Contract was once famous, and exerted a notable
influence on political history, and it is still interesting in the
same way that spinning-wheels and wooden frigates and powdered wigs
are interesting; but we now know that men lived in civil society,
with complicated laws and customs and creeds, for many thousand years
before the notion had ever entered anybody's head that things could
be regulated by contract. That notion we owe chiefly to the ancient
Romans, and it took them several centuries to comprehend the idea and
put it into practice. We owe them a debt of gratitude for it. The
custom of regulating business and politics and the affairs of life
generally by voluntary but binding agreements is something without
which we moderns would not think life worth living. It was after the
Roman world--that is to say, Christendom, for in the Middle Ages the
two terms were synonymous--had become thoroughly familiar with the
idea of contract, that the practice grew up of granting written
charters to towns, or monasteries, or other corporate bodies. The
charter of a mediaeval town was a kind of written contract by which
the town obtained certain specified immunities or privileges from the
sovereign or from a great feudal lord, in exchange for some specified
service which often took the form of a money payment. It was common
enough for a town to buy liberty for hard cash, just as a man might
buy a farm. The word charter originally meant simply a paper or
written document, and it was often applied to deeds for the transfer
of real estate. In contracts of such importance papers or parchment
documents were drawn up and carefully preserved as irrefragable
evidences of the transaction. And so, in quite significant phrase the
towns zealously guarded their charters as the "title-deeds of their
liberties."
The "Great Charter" (1215).
After a while the word charter was applied in England to a particular
document which specified certain important concessions forcibly wrung by
the people from a most unwilling sovereign. This document was called
Magna Charta, or the "Great Charter," signed at Runnymede, June 15,
1215, by John, king of England. After the king had signed it and gone
away to his room, he rolled in a mad fury on the floor, screaming
curses, and gnawing sticks and straw in the impotence of his, wrath.[2]
Perhaps it would be straining words to call a transaction in which the
consent was so one-sided a "contract," but the idea of Magna Charta was
derived from that of the town charters with which people were already
familiar. Thus a charter came to mean "a grant made by the sovereign
either to the whole people or to a portion of them, securing to them the
enjoyment of certain rights." Now in legal usage a charter differs from
a constitution in this, that the former is granted by the sovereign,
while the latter is established by the people themselves: both are the
fundamental law of the land.[3] a The distinction is admirably
expressed, but in history it is not always easy to make it. Magna Charta
was in form a grant by the sovereign, but it was really drawn up by the
barons, who in a certain sense represented the English people; and
established by the people after a long struggle which was only in its
first stages in John's time. To some extent it partook of the nature of
a written constitution.
[Footnote 2: Green, Hist. of the English People, vol. i. p.
248.]
[Footnote 3: Bouvier, Law Dictionary, 12th ed., vol. i. p.
259.]
The "Bill of Rights" (1689).
Let us now observe what happened early in 1689, after James II had
fled from England. On January 28th parliament declared the throne
vacant. Parliament then drew up the "Declaration of Rights," a
document very similar in purport to the first eight amendments to
our Federal Constitution, and on the 13th of February the two houses
offered the crown to William and Mary on condition of their accepting
this declaration of the "true, ancient, and indubitable rights of the
people of this realm." The crown having been accepted on these terms,
parliament in the following December enacted the famous "Bill of
Rights," which simply put their previous declaration into the form of
a declaratory statute. The Bill of Rights was not--even in form--a
grant from a sovereign; it was an instrument framed by the
representatives of the people, and without promising to respect
it William and Mary could no more have mounted the throne than a
president of the United States could be inducted into office if he
were to refuse to take the prescribed oath of allegiance to the
Federal Constitution. The Bill of Rights was therefore, strictly
speaking, a piece of written constitution; it was a constitution as
far as it went.
Foreshadowing of the American idea by Sir Harry Vane
(1656).
The seventeenth century, the age when the builders of American
commonwealths were coming from England, was especially notable in
England for two things. One was the rapid growth of modern commercial
occupations and habits, the other was the temporary overthrow of
monarchy, soon followed by the final subjection of the crown to
parliament. Accordingly the sphere of contract and the sphere of
popular sovereignty were enlarged in men's minds, and the notion of a
written constitution first began to find expression. The "Instrument
of Government" which in 1653 created the protectorate of Oliver
Cromwell was substantially a written constitution, but it emanated
from a questionable authority and was not ratified. It was drawn up
by a council of army officers; and "it broke down because the first
parliament summoned under it refused to acknowledge its binding
force." [4] The dissolution of this parliament accordingly left Oliver
absolute dictator. In 1656, when it seemed so necessary to decide what
sort of government the dictatorship of Cromwell was to prepare the way
for, Sir Harry Vane proposed that a national convention should
be called for drawing up a written constitution.[5] The way in which
he stated his case showed that he had in him a prophetic foreshadowing
of the American idea as it was realized in 1787. But Vane's ideas were
too far in advance of his age to be realized then in England. Older
ideas, to which men were more accustomed, determined the course of
events there, and it was left for Americans to create a government by
means of a written constitution. And when American statesmen did so,
they did it without any reference to Sir Harry Vane. His relation to
the subject has been discovered only in later days, but I mention him
here in illustration of the way in which great institutions grow. They
take shape when they express the opinions and wishes of a multitude
of persons; but it often happens that one or two men of remarkable
foresight had thought of them long beforehand.
[Footnote 4: Gardiner, Constitutional Documents of the Puritan
Revolution, p. lx.]
[Footnote 5: See Hosmer's Young Sir Henry Vane, pp.
432-444,--one of the best books ever written for the reader who wishes
to understand the state of mind among the English people in the crisis
when they laid the foundations of the United States.]
The Mayflower compact(1620).
In America the first attempts at written constitutions were in the
fullest sense made by the people, and not through representatives but
directly. In the Mayflower's cabin, before the Pilgrims had landed on
Plymouth rock, they subscribed their names to a compact in which they
agreed to constitute themselves into a "body politic," and to enact such
laws as might be deemed best for the colony they were about to
establish; and they promised "all due submission and obedience" to such
laws. Such a compact is of course too vague to be called a constitution.
Properly speaking, a written constitution is a document which defines
the character and powers of the government to which its framers are
willing to entrust themselves. Almost any kind of civil government might
have been framed under the Mayflower compact, but the document is none
the less interesting as an indication of the temper of the men who
subscribed their names to it.
The "Fundamental Orders of Connecticut" (1639).
The first written constitution known to history was that by which the
republic of Connecticut was organized in 1639. At first the affairs
of the Connecticut settlements had been directed by a commission
appointed by the General Court of Massachusetts, but on the 14th of
January, 1639, all the freemen of the three river towns--Windsor,
Hartford, and Wethersfield--assembled at Hartford, and drew up a
written constitution, consisting of eleven articles, in which the
frame of government then and there adopted was distinctly described.
This document, known as the "Fundamental Orders of Connecticut",
created the government under which the people of Connecticut lived for
nearly two centuries before they deemed it necessary to amend it. The
charter granted to Connecticut by Charles II. in 1662 was simply a
royal recognition of the government actually in operation since the
adoption of the Fundamental Orders.
Germinal development of the colonial charter toward the
modern state constitution.
In those colonies which had charters these documents served, to a
certain extent, the purposes of a written constitution. They limited the
legislative powers of the colonial assemblies. The question sometimes
came up as to whether some statute made by the assembly was not in
excess of the powers conferred by the charter. This question usually
arose in connection with some particular law case, and thus came before
the courts for settlement,--first before the courts of the colony;
afterwards it might sometimes be carried on appeal before the Privy
Council in England. If the court decided that the statute was in
transgression of the charter, the statute was thereby annulled.[6] The
colonial legislature, therefore, was not a supreme body, even within the
colony; its authority was restricted by the terms of the charter. Thus
the Americans, for more than a century before the Revolution, were
familiarized with the idea of a legislature as a representative body
acting within certain limits prescribed by a written document. They had
no knowledge or experience of a supreme legislative body, such as the
House of Commons has become since the founders of American states left
England. At the time of the Revolution, when the several states framed
new governments, they simply put a written constitution into the
position of supremacy formerly occupied by the charter. Instead of a
document expressed in terms of a royal grant, they adopted a document
expressed in terms of a popular edict. To this the legislature must
conform; and people were already somewhat familiar with the method of
testing the constitutionality of a law by getting the matter brought
before the courts. The mental habit thus generated was probably more
important than any other single circumstance in enabling our Federal
Union to be formed. Without it, indeed, it would have been impossible to
form a durable union.
[Footnote 6: Bryce, American Commonwealth, vol. i. pp. 243,
415.]
Abnormal development of the state constitution, encroaching
upon the province of the legislature.
The Swiss "Referendum" 196
Before pursuing this subject, we may observe that American state
constitutions have altered very much in character since the first part
of the present century. The earlier constitutions were confined to a
general outline of the organization of the government. They did not
undertake to make the laws, but to prescribe the conditions under
which laws might be made and executed. Recent state constitutions
enter more and more boldly upon the general work of legislation. For
example, in some states they specify what kinds of property shall be
exempt from seizure for debt, they make regulations as to railroad
freight-charges, they prescribe sundry details of practice in the
courts, or they forbid the sale of intoxicating liquors. Until
recently such subjects would have been left to the legislatures, no
one would have thought of putting them into a constitution. The motive
in so doing is a wish to put certain laws into such a shape that it
will be difficult to repeal them. What a legislature sees fit to enact
this year it may see fit to repeal next year. But amending a state
constitution is a slow and cumbrous process. An amendment may be
originated in the legislature, where it must secure more than a mere
majority--perhaps a three fifths or two thirds vote--in order to pass;
in some states it must be adopted by two successive legislatures,
perhaps by two thirds of one and three fourths of the next; in some
states not more than one amendment can be brought before the same
legislature; in some it is provided that amendments must not be
submitted to the people oftener than once in five years; and so
on. After the amendment has at length made its way through the
legislature, it must be ratified by a vote of the people at the next
general election. Another way to get a constitution amended is to call
a convention for that purpose. In order to call a convention, it is
usually necessary to obtain a two thirds vote in the legislature; but
in some states the legislature is required at stated intervals to
submit to the people the question of holding such a convention, as
in New Hampshire every seven years; in Iowa, every ten years; in
Michigan, every sixteen years; in New York, Ohio, Maryland, and
Virginia, every twenty years.[7] A convention is a representative
body elected by the people to meet at some specified time and
place for some specified purpose, and its existence ends with the
accomplishment of that purpose. It is in this occasional character
that the convention differs from an ordinary legislative assembly.
With such elaborate checks against hasty action, it is to be presumed
that if a law can be once embodied in a state constitution, it will be
likely to have some permanence. Moreover, a direct vote by the people
gives a weightier sanction to a law than a vote in the legislature.
There is also, no doubt, a disposition to distrust legislatures and in
some measure do their work for them by direct popular enactment. For
such reasons some recent state constitutions have come almost to
resemble bodies of statutes. Mr. Woodrow Wilson suggestively compares
this kind of popular legislation with the Swiss practice known as the
Referendum; in most of the Swiss cantons an important act of
the legislature does not acquire the force of law until it has been
referred to the people and voted on by them. "The objections
to the, referendum," says Mr. Wilson, "are, of course, that it
assumes a discriminating judgment and a fullness of information on the
part of the people touching questions of public policy which they do
not often possess, and that it lowers the sense of responsibility on
the part of legislators." [8] Another serious objection to our recent
practice is that it tends to confuse the very valuable distinction
between a constitution and a body of statutes, to necessitate a
frequent revision of constitutions, and to increase the cumbrousness
of law-making. It would, however, be premature at the present time to
pronounce confidently upon a practice of such recent origin. It is
clear that its tendency is extremely democratic, and that it implies
a high standard of general intelligence and independence among the
people. If the evils of the practice are found to outweigh its
benefits, it will doubtless fall into disfavour.
[Footnote 7: See Henry Hitchcock's admirable monograph, American
State Constitutions, p. 19.]
[Footnote 8: Wilson. The State, p. 490.]
[QUESTIONS ON THE TEXT removed]
BIBLIOGRAPHICAL NOTE.
Written Constitutions.--Very little has been written or published with
reference to the history of the development of the idea of a written
constitution. The student will find some suggestive hints in Hannis
Taylor's Origin and Growth of the English Constitution, vol. i,
Boston, 1889. See Henry Hitchcock's American State Constitutions; a
Study of their Growth, N.Y., 1887, a learned and valuable essay. See
also J.H.U. Studies, I., xi., Alexander Johnston, The Genesis of a
New England State (Connecticut); III., ix.-x., Horace Davis, American
Constitutions; also Preston's Documents Illustrative of American
History, 1606-1863, N.Y., 1886; Stubbs, Select Charters and other
Illustrations of English Constitutional History, Oxford, 1870;
Gardiner's Constitutional Documents of the Puritan Revolution, Oxford,
1888.