Part 18

The first is to give the function to the Legislature, but under conditions which oblige it to act in a special way, different from that by which ordinary statutes are passed. There may, for instance, be required a fixed quorum of members for the consideration of amendments. Belgium fixes this quorum at two-thirds of each House, while also requiring a two-thirds majority of each House for a change. Bavaria requires a quorum of three-fourths of the members of each House; Rumania one of two-thirds. Or again—and this is a very frequent provision, found even when that last-mentioned is wanting—a specified minimum majority of votes may be required to carry an amendment. Sometimes this majority is three-fourths (as in Greece and Saxony, and in the German Empire for a vote of the Federal Council): more frequently it is two-thirds, as in the United States Congress, in the Mexican Chambers, in Norway, Belgium, Rumania, Servia, Bulgaria. Another plan is to require a dissolution of the Legislature, so that the amendments carried in one session may come under the judgement of the electors at a general election, and be thereafter passed, or rejected, by the newly chosen Legislature. This arrangement, often combined with the two-thirds majority rule, prevails in Holland, Norway, Rumania, Portugal, Iceland, Sweden (where the amendment must have been passed in two ordinary successive sessions), and several other States, including some of the republics of Spanish America. It is in substance an appeal to the people as well as to their representatives, and therefore adds a further guarantee against hasty change. Finally, the two Houses of the Legislature may sit together as a Constituent Assembly. Thus in France (Constitution of 1875) when each Chamber has resolved that the Constitution shall be revised, the two are for the moment fused, and proceed to debate and pass amendments. Haiti (Constitution of 1899) has a similar plan, which, oddly enough, was not borrowed from France, but is as old as 1843. Few will suspect France of borrowing from Haiti.

A second plan is to create a special body for the work of revision. In the United States, where a vast deal of constitution making and revising goes on in the several States, such a body is called a Convention, and is usually elected when it is desired to re-draft the whole constitution, the ultimate approval of the draft being, however, almost always reserved for the people[81]. In Servia and Bulgaria, after amendments have been twice passed by the ordinary Legislature, a sort of Special Assembly, similarly elected, but twice as large, called the Great Skuptschina (in Servia) or Great Sobranje (in Bulgaria), receives and finally decides on the proposed amendments.

Footnote 81:

But the Constitution of Mississippi of 1890 was enacted by a Convention only and never submitted to the people. See as to the United States the author’s _American Commonwealth_, ch. xxxvii.

The republics of Paraguay, Guatemala, Honduras, Nicaragua, and Salvador also prescribe Conventions, preceded in each case by votes of the Legislature, such votes usually requiring a two-thirds majority[82].

Footnote 82:

On the whole subject of the modes of amending constitutions reference may be made to the valuable book of my friend M. Charles Borgeaud, Professor at Geneva, _Établissement et Revision des Constitutions_. See also Dareste, _Les Constitutions Modernes_. I owe to these books, and especially to the former, most of the facts here given regarding the minor States.

A third plan is to refer the new constitution, or the amendments proposed (if the revision is partial), to a number of minor or local authorities for approval. This course is an obviously suitable one in a federation, and has accordingly been adopted by the United States, by Mexico, by Colombia, by Switzerland, and by the new Australian Commonwealth, in all of which the component States are consulted, the United States requiring a three-fourths majority of States, Switzerland, Australia, and Mexico a bare majority. (Switzerland and Australia also require a majority of the citizens generally.) It is not, however, invariable in federal countries, for the Argentine Confederation entrusts amendment to a Convention, following on a three-fourths majority vote of the Legislature, and Brazil (now a federal country) leaves it to the Legislature alone, acting by a two-thirds majority in three successive debates. Neither is such a plan necessarily confined to a federation, for the existing Constitution of Massachusetts was (in 1780) submitted to the Towns (_i.e._ townships) of the State, acting as communities, and enacted by the majority of them.

The fourth plan is to refer amendments to the direct vote of the people. Originating in the New England States of America, where democracy earliest prevailed, this method has spread to Switzerland and to Australia, both of which require for alterations in the Fundamental Instrument a majority of the electors voting as well as a majority of the States. It prevails now not only in these two federations, but also in the several States of the United States (with very rare exceptions). A bare majority of votes is sufficient, except in Rhode Island, where three-fifths are required, and in Indiana and Oregon, which require a majority of all the qualified voters. The popular vote is also in use in the several Cantons of Switzerland. It was repeatedly employed in France during the first Revolution, and again (under the name of _plébiscite_) by Louis Napoleon under the Second Empire.

These variations in the mode of amending are interesting enough to deserve a few comments.

Broadly speaking, two methods of amendment are most in use: that which gives the function to the Legislature, usually requiring something more than a bare majority, and that which gives it to the People, _i.e._ the qualified voters. The former of these methods often directs a dissolution of the Legislature to precede the final vote on amendments, and in this way secures for the people a means of delivering their judgement on the questions at issue. The latter method is, however, a more distinct and emphatic, because a more direct, recognition of Popular Sovereignty; and it has the advantage of making the constitution appear to be the work of the Nation as a whole, apart from faction, whereas in the Legislature it may have been by a party vote that the amendments have been carried. Thus it supplies the broadest and firmest basis on which a Frame of Government can rest. The Convention system is intermediate between the two others, and has struck no deep roots in the Old World, while in the United States it has been virtually superseded (as respects enactment) by that of the direct Popular Vote.

Geographically regarded, the method of revision by Legislature prevails over Europe and over most of Spanish America (being in the latter region sometimes combined with the Convention method). The Constitution which has most influenced others in Europe and become a type for them in this respect is that of Holland (1814), because it was the earliest one established after the revolutionary period. On the other hand, the United States (except the Federal Government) and the democratic governments of the Swiss and Australian Federations are ruled by the Popular method. The Constitution which has set the type of this method is that of Massachusetts of 1780.

As respects facility of change, it is interesting to note that the Constitutions which are most quickly and easily altered are those of Prussia, which prescribes no safeguard save that of two successive votes separated by an interval of at least twenty-one days, and that of France, which requires an absolute majority of each House for a proposal to revise, and an absolute majority of the two Houses sitting together for the carrying of any amendment. The omission of the French Chambers in 1875 to submit to the people the constitution then framed, or to provide for their sanction to any future amendments, was due to the doubt which each party felt of the result of an appeal to the nation. The Republicans, though able to prevent the establishment of a monarchical constitution by the Legislature, were not quite sure that a republican one would be carried if submitted to a popular vote. Thus it has come about that France, which went further towards popular sovereignty in 1793 than any great country has ever done, has lived since 1875 under an instrument never ratified by the people, and which was originally regarded as purely provisional.

The Constitution which it is most difficult to change is that of the United States. It has in fact never been amended since 1809, except thrice between 1865 and 1870, immediately after and in consequence of the Civil War, and then under conditions entirely abnormal, because some States were under military duress.

The tendency of recent years has been towards easier and swifter methods than those which were in favour during the first half of the nineteenth century: and in Germany lawyers and publicists are now disposed to minimize the difference between constitutional changes and ordinary statutes, partly perhaps because doctrines of popular sovereignty obtain little sympathy from the school dominant in the new Empire. That Empire itself presents quite peculiar phenomena. So far as the Reichstag or Federal Assembly is concerned, the constitution can be altered by ordinary legislation. But in the Federal Council a majority is required large enough to enable either Prussia on the one hand or a combination of the smaller States on the other to prevent any change. This is because the component members of the Federation are not republics, as in America, Switzerland, and Australia, but are (except the three Hanse cities) monarchies, so that the Upper Federal House represents not the people but the governments of the several German States.

It is evident that the greater or less stability of any given constitution will (other things being equal) be determined by the comparative difficulty or ease of carrying changes in one or other of the above methods. As one at least of them, that of committing the function of revision to a Constitutional Convention not followed by a popular vote, seems to interpose no more, and possibly even less, difficulty or delay than does the ordinary process of law-making by a two-chambered legislature, it may be asked why a constitution changeable in such a way should be called Rigid at all. Because inasmuch as the method of changing it is different from that of passing ordinary statutes, the people are led to realize the importance of the occasion, and may be deterred, by the trouble and formalities involved in creating the special body, from too lightly or frequently tampering with their fundamental laws. It seems a more momentous step to create this convention _ad hoc_ than to carry a measure through a legislature which already exists, and is daily employed on legislative work. Experience has, moreover, shown in the United States, the country in which this method has been largely used for redrafting, or preparing amendments to, the Constitutions of the several States[83], that a set of men can be found for the work of a Convention better than those who form the ordinary legislature of the State, and that their proceedings when assembled excite more attention and evoke more discussion than do those of a State Legislature, a body which now receives little respect, though perhaps as much as it deserves. Nowadays, however, a draft constitution prepared by a Convention is in an American State almost always submitted to the people for their approval.

Footnote 83:

No Constitutional Convention has ever been held for revising the Federal Constitution of 1787-9, which was drafted by a Convention and adopted by the thirteen States in succession.

The French plan of using the two Houses sitting together as a Constituent Convention has a certain interest for Englishmen, because the suggestion has been made that disputes between their House of Lords and House of Commons might be settled by a vote of both sitting together, _i.e._ of the whole of the Great Council of the Nation[84] as it sat in the thirteenth century before it had formed the habit of debating and voting in two Houses. It still meets (but does not debate or vote) as one body when the Sovereign, or a Commission representing the Sovereign, is present, as happens at the beginning and at the end of each session.

Footnote 84:

This plan would have more chance of being favourably entertained were the Upper House now, as it was in 1760, less than two hundred strong. As it is now nearly as large as the House of Commons, with a majority of about fourteen to one belonging to one political party, the party which is in a permanent minority might feel that the chances are not equal.

To examine the distinctive qualities of Rigid Constitutions, as I must now do, is virtually to traverse again the same path which was followed in investigating those of the Flexible type, for the points in which the latter were found deficient are those in which Rigid Constitutions excel, while the merits of the Flexible indicate the faults of the Rigid. The inquiry may, therefore, be brief.

The two distinctive merits claimed for these Constitutions are their Definiteness and their Stability.

XI. THE DEFINITENESS OF RIGID CONSTITUTIONS.

We have seen that the distinctive mark of these Rigid Constitutions is their superiority to ordinary statutes. They are not the work of the ordinary legislature, and therefore cannot be changed by it. They are embodied in one written document, or possibly in a few documents, so that their provisions are ascertainable without doubt by a reference to the documentary terms. This feature is a legitimate consequence of the importance which belongs to a law placed above all other laws. That which is to be the sheet-anchor of the State, giving permanent shape to its political scheme, cannot be left unwritten, and cannot be left to be gathered from a comparison of a considerable number of documents which may be confused or inconsistent. Whether it spring from the agreement of the citizens or from the free gift of a monarch, it must be embodied if possible in one, if not, at any rate in only a few solemn instruments. That which is to be a fundamental law, limiting the power of the legislature, must be set forth in specific and unmistakable terms—else how shall it be known when the legislature is infringing upon or violating it? A Flexible Constitution, which the legislature can modify or destroy at its pleasure, though it might conceivably be embodied in one document only, is in fact almost always to be collected from at least several documents, and is often, like the Flexible Constitution of England, scattered through a multitude of statutes and collections of precedents. But the benefits expected from a Rigid Constitution would be lost were its provisions left in similar confusion.

It is not, however, to be supposed that the citizen of a country controlled by a Rigid Constitution who desires to understand the full scope and nature of his government will find all that he needs in the document itself. No law ever was so written as to anticipate and cover all the cases that can possibly arise under it[85]. There will always be omissions, some left intentionally, because the points not specifically covered were deemed fitter for the legislature to deal with subsequently, some, again, because the framers of the constitution could not agree, or knew that the enacting authority would not agree, regarding them. Other omissions, unnoticed at the time, will be disclosed by the course of events, for questions are sure to arise which the imagination or foresight of those who prepared the constitution never contemplated. There will also be expressions whose meaning is obscure, and whose application to unforeseen cases will be found doubtful when those cases have to be dealt with. Here let us distinguish three classes of omissions or obscurities:—

Footnote 85:

‘Neque leges neque senatus consulta ita scribi possunt, ut omnes casus qui quandoque inciderint comprehendantur.’—Iulianus in _Digest_ i. 3, 10.

The first class includes matters, passed over in silence by the written constitution, which cannot be deemed to have been left to be settled either by the legislature or by any other organ of government, because they are too large or grave, as for instance matters by dealing with which the legislature would disturb the balance of the constitution and encroach on the province of the Executive, or the Judiciary, or (in a Federal Government) of the component States. Matters belonging to this class can only be dealt with by an amendment of the constitution itself.

The second class includes gaps or omissions relating to matters not palpably outside the competence of the legislature as defined by the constitution. Here the proper course will be for the legislature to regulate such matters by statute, or else to leave them to be settled by the action of the several organs of government each acting within its own sphere. These organs may by such action create a body of usage which, when well settled, will practically supplement the defects of the constitution, as statutes will do in like manner, so far as they are passed to cover the omitted cases.

The third class consists not of omissions but of matters which are referred to by the constitution, but in terms whose meaning is doubtful. Here the question is what interpretation is to be given to its words by the authority entitled to interpret, that authority being in some countries the legislature, in others the judicial tribunals. To the subject of Interpretation I shall presently return. Meantime, it must be noted that both Legislation and Usage in filling up the vacant spaces in the constitution, and Interpretation in explaining its application to a series of new cases as they arise upon points not expressly covered by its words, expand and develop a constitution, and may make it after a long interval of time different from what it seemed to be to those who watched its infancy. The statutes, usages, and explanations aforesaid will in fact come to form a sort of fringe to the constitution cohering with it, and possessing practically the same legal authority as its express words have. And it thus may happen that (as in the United States) a large mass of parasitic law grows up round the document or documents which contain the Constitution. Nevertheless there will still remain a distinction between this parasitic law and usage and the provisions of the constitution itself. The latter stand unchangeable, save by constitutional amendment. Statutes, on the other hand, can be changed by the legislature; usage may take a new direction; the decisions given interpreting the constitution may be recalled or varied by the authority that pronounced them. All these are in fact Flexible parasites growing upon a Rigid stem. Thus it will be seen that the apparent definiteness and simplicity of Documentary Constitutions may in any given case be largely qualified by the growth of a mass of quasi-constitutional matter which has to be known before the practical working of the constitution can be understood.

XII. THE STABILITY OF RIGID CONSTITUTIONS.

The stability of a constitution is an object to be much desired both because it inspires a sense of security in the minds of the citizens, encouraging order, industry and thrift, and because it enables experience to be accumulated whereby the practical working of the constitution may be improved. Political institutions are under all circumstances difficult to work, and when they are frequently changed, the nation does not learn how to work them properly. Experiment is the soul of progress, but experiments must be allowed a certain measure of time. The plant will not grow if men frequently uncover the roots to see how they are striking. Constitutions embodied in one legal document and unchangeable by the legislature, are intended to be, and would seem likely to be, peculiarly durable. Being definite, they do not give that opening to small deviations and perversions likely to arise from the vagueness of a Flexible or ‘unwritten’ Constitution, or from the probable discrepancies between the different laws and traditions of which it consists. They may be battered down, but they cannot easily (save by a method to be presently examined) be undermined. When an attack is made upon them, whether by executive acts violating their provisions, or by the passing of statutes inconsistent with those provisions, such an attack can hardly escape observation. It is a plain notice to the defenders of the constitution to rally and to stir up the people by showing the mischief of an insidious change. The principles on which the government rests, being set forth in a broad and simple form, obtain a hold upon the mind of the community, which, if it has been accustomed to give those principles a general approval, will be unwilling to see them tampered with. Moreover the process prescribed for amendment interposes various delays and formalities before a change can be carried through, pending which the people can reconsider the issues involved, and recede, if they think fit, from projects that may have at first attracted them. Both in Switzerland and in the States of the American Union it has repeatedly happened that constitutional amendments prepared and approved by the legislature have been rejected by the people, not merely because the mass of the people are often more conservative than their representatives, or are less amenable to the pressure of particular ‘interests’ or sections of opinion, but because fuller discussion revealed objections whose weight had not been appreciated when the proposal first appeared. In these respects the Rigid Constitution has real elements of stability.

Nevertheless it may be really less stable than it appears, for there is in its rigidity an element of danger.