Part 8

Such written documents are so often referred to as "The Constitution" that citizens of some of the {100} six younger nations often assume that "The Constitution" is the whole Constitution of their respective governments. The first such written power of attorney to the legislators, and as such an expression of the views then held by a certain body politic, was signed aboard the _Mayflower_ in 1620.[100-1] This Constitution by which the forty-one signers "solemnly and mutually . . . covenant and combine ourselves together into a civil body politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute and frame-[laws]--unto which we promise all due submission and obedience,"[100-2] did not, however, supersede all other, including unwritten, governmental traditions of that body politic. Constitutions written later have similarly left for their respective groups much continuing tradition, that has been respected and has been enlarged upon. We have written down that which we felt strongly about, but we have also continued other customs. Written "constitutions" have been expressions of public belief as to the form of framework of any given body politic, but for interpretation they have had to rely on unwritten or previously written tradition, as developed to meet arising needs. The mere writing has not arrested our constitutional growth nor rendered inflexible our governmental forms.

The American Constitution consists really of {101} two portions, the written and the unwritten. The tenacity with which the nation clings to certain traditions never put in writing or even at variance with the spirit of the writing, makes it advisable, if not absolutely necessary, so to consider it. Lord Bryce, familiar with the nature of the British Constitution, calls the usages that have grown up apart from the written Constitution "parts of the actual or (so to speak) 'working' Constitution"[101-1] of America. As illustrative of the latter he mentions certain American customs: "The president practically is limited to two continuous terms of office. The presidential electors are expected to vote for the candidate of the party which has chosen them, exercising no free will of their own. The Senate always confirms the nominations to a cabinet office made by the President."[101-2] These instances, of what he calls the American working Constitution, are supported by the same force that maintains the entire British Constitution--public opinion.

To the Britisher, this point of view is thoroughly natural. He has at home a Constitution which is also compounded of written and unwritten parts. To the American this phraseology may sound strange, for he has long been accustomed to think the "Constitution" refers to a particular written document and the judicial decisions thereunder. For the unwritten or working basis of his government he has had no word.

The real difference in the two Constitutions must be sought in the amending power. To the amending of the unwritten portions of either there is no check on Parliament or on Congress, other than public {102} opinion. To the amending of the written portion of the British Constitution, there is likewise no check other than public opinion. Parliament amends the written and unwritten portions of the Constitution,--at the will of a majority of the House of Commons. Congress cannot so amend the written portions of the American Constitution; that is a prerogative of the voters alone. Therein lies the mystery of the alleged respective "flexity" and "rigidity" of the two. But the mystery is less, and the distinctions of flexity and rigidity grow of uncertain value when it is realized that both Constitutions are being constantly changed by the genius of our race. As in the case of our laws, our Constitutions are being steadily interpreted in accord with the will of the voters. That we do not change more suddenly is due to the conservative, yet discreet, action of our representatives, sanctioned by the voters.

An enactment of Parliament at variance with the British Constitution changes that Constitution. An enactment of Congress at variance with the written portion of the American Constitution does not change the Constitution but remains at variance with it. To uphold the written Constitution in such a case and to insist on the priority of its terms over the acts performed by representatives acting under it, early became the self-imposed duty of the American courts. "But this, although, as we may well think, a sound conclusion, was not a necessary one; and it was long denied by able statesmen, judges, and lawyers."[102-1] This function of the courts was for years a unique feature of the United {103} States government. "The right to deal thus with their legislatures had already been asserted in the States, and once or twice it had really been exercised. Had the question related to a conflict, between that [federal written] Constitution and the enactment of a State, it would have been a simpler matter. These two questions, under European written constitutions, are regarded as different ones. It is almost necessary to the working of a federal system that the general government, and each of its departments, should be free to disregard acts of any departments of the local states which may be inconsistent with the federal constitution. And so in Switzerland and Germany the federal courts thus treat local enactments. But there is not under any written constitution in Europe a country where a court deals in this way with the acts of its coördinate legislature."[103-1]

Because the power to amend the written Constitution is not in Congress, it has come about that courts see to it that the will of the popular power so expressed shall not be ignored or vitiated by those who are the servants of that popular power. Because the power to amend the written portions of the British Constitution is in Parliament, there can be no clash between the wishes of Parliament and its Constitution. What Parliament _does_ is the final test of what the Constitution _is_.

From the different powers of Parliament and Congress in regard to their respective national Constitutions comes the ambiguity of Pan-Angle usage of the word "unconstitutional."

In the British Isles "unconstitutional" referring {104} to parliamentary action means that someone considers it not consistent with established British political customs. Yet, if the British Parliament enacts any legislation it must be constitutional, because the legislation by its mere enactment is proved not inconsistent with the views of the temporary majority in Parliament. Various British kings have been elected by the Witan and by Parliament; one king was beheaded by the same popular authority; at various dates the duties of kingship have been altered. All these acts were constitutional the day they were voted. It was therefore correct to say in 1910 that the British Constitution "can be torn up by the mere vote of a temporary majority in the two houses of Parliament."[104-1] Since 1911 it would be equally correct to say that such power is now in one House--the House of Commons. It is evident that, "This arrangement, while it makes for flexibility, may be a source of grave danger in the hands of an unscrupulous majority."[104-2]

That forces other than parliamentary majorities may come to exercise more direct control over the British Constitution is not impossible. In the excitement of discussing the place of the House of Lords in the government of the British Isles, the party leaders in 1910, after the death of Edward VII., held a conference. Although they failed to find a consensus of opinion on the best framework for the British Isles government, "The significance of the Conference lies in the precedent it creates for the alteration of the national {105} constitution by the expedient of conference and compromise, instead of by the steam-rolling of a party machine."[105-1] Concerning this same conference another writer observes, "whether in itself it be a development of our Constitution, as some people affirm, or an encroachment on our Constitution, which is the complaint of others, it has at any rate affected our Constitution very materially, simply by its existence."[105-2] If such a conference after deliberating were to lay its conclusions before the people for ratification, it would be analogous to the national constitutional conventions which since the early American experiments have been familiar to the Pan-Angle world. From this the British Isles might come to have a "written constitution" in the same sense that the Constitutions of the United States, Canada, and Australia are written.

For the present, the plan of parliamentary government control which is the British Constitution while successful is, as the above quotations evidence, hazy. And in the British Isles it is fair to consider that "unconstitutional" means "unusual."[105-3]

With Americans the word "unconstitutional" never in popular practice has the comprehensive and indefinite British meaning. As Americans have no term in common use to denote the unwritten part of their Constitution, so they have none at all with which to refer to an infraction of it. The {106} expression has yet to be coined for the American public to employ should the Electoral College act as it did in Washington's day, viz. each elector exercise his individual discretion in voting for a president, or should a president be elected for a third term, whether or not consecutive. In either of these instances the change could not be unconstitutional in the American sense, though it would be unconstitutional in the British sense. In the former case, the procedure would be a return to what was once entirely usual in the American practice, and called for by the one-time working interpretation of the written Constitution. In the latter case, it would be a change to what has never been forbidden by the American written Constitution, but to what is now forbidden by the un-written Constitution. In either of these cases, what would the American courts decide? They would find no violation of the written Constitution, but only of the present unwritten or working Constitution. The American can console himself in his ignorance by the oft-quoted remark: "The Supreme Court has the last guess." The word "unconstitutional" refers to an enactment in such conflict with the written Constitution and decisions thereunder, that American courts will not consider it legal. When legislation beyond the powers conferred by the written Constitution is attempted and a case, for whose decision it is necessary to decide the power of Congress so to enact, is brought to the courts, they will declare the attempted legislation void. The courts, and they alone, have this power. Hence the word "unconstitutional" in America means _illegal_.

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In 1913 occurred a modification of the American unwritten or working Constitution which may or may not pass into a permanent change. George Washington and John Adams addressed Congress orally on public affairs. Thomas Jefferson, the third president, being a poor speaker, changed this part of the working Constitution by addressing Congress through written messages. This custom remained as a revision of the working Constitution until 1913. Of this tradition Wilson wrote in 1898: "Hence a sacred rule of constitutional action!"[107-1] In 1913 he, as president, reverted from this "sacred rule" to the oral custom of Washington, and the country's comment was largely commendatory. In this instance it is likely that the Supreme Court may not guess at all!

Illustrative of the British significance of "unconstitutional" is quoted the following, written in 1910: "It is an undoubted rule of the English constitution that the king shall not refuse his assent to a bill which has passed both Houses of Parliament, but it is certainly not a law. Should the king veto such a bill his action would be unconstitutional, but not illegal."[107-2] A corresponding American example might be furnished by the action of an American president in issuing an order, without being authorized thereto by Congress, temporarily repealing part of a tariff bill. Such an act being outside of the scope of a president's authority would, if reviewed by a court as part of the _ratio decidendi_ of a case, be held unconstitutional and therefore illegal.

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These British and American usages of "constitution" and "unconstitutional" are reflected in the five other Pan-Angle nations. It consequently behoves one to use either of these words with careful attention to the meaning desired. But of each of the seven nations it may be said: that it is governed under a constitution; that some part of its constitution is written; and that through its constitution, however amendable, ultimate control of all questions is in the voters.

Immediate legislative control of these seven nations is in legislatures composed of representatives who act on behalf of the voters, and subject to restrictions, if any, by the voters only. Until 1911, one nation, the British Isles afforded an exception to this as its legislative power was shared by persons who owed their position to their birth. This instance of presentation in a national legislature which was composed otherwise of elected representatives expired before 1911. Since that date the House of Lords exists not as a part of the legislature but as a consultative body subservient to the will of the House of Commons. To-day the legislatures of the Pan-Angle nations are in all cases representative and the representatives, however elected or appointed act on behalf of the voters.[108-1] Those that are considered appointed are {109} in reality chosen by a method of indirect election. For example, in Canada and in New Zealand the representatives who form the upper houses are chosen by the majority in the lower houses at the time of their election. The fact that these "legislators may, in the Canadian case, hold office for life does not affect the fact that they are elected, but concerns only their terms of office. In New Zealand the terms of office of some members of the upper house is for life, whereas more recent members have been chosen for a period of years. In the United States, according to the provisions of the Federal Constitution, the members of the upper house were formerly chosen by the state legislatures. They are now, by the provisions of the Constitution, elected directly.[109-1] In Australia the upper house members are chosen by the voters organized in voting districts larger than those electing representatives. This last is the method toward which the choice of upper house members seems in Pan-Angle nations to be approaching. The discontent in New Zealand and {110} Canada at their present methods and the recent change in America indicate this trend. This tendency emphasizes the insistence of the voters that representatives are responsible only to the voters.

That such representatives are subject to restrictions, if any, by the voters only, is a statement qualified solely by the technical exception that some of the Britannic nations act under Constitutions enacted for them by another nation, viz. the British Isles. This exception is more true in theory than in reality. If in some of the Britannic nations, such as New Zealand and Newfoundland, there have been no ratifications of their respective frameworks of government, nevertheless the whole spirit of the people in these countries, as well as in Canada, where a like state of affairs exists, and in Australia and South Africa where ratifications have occurred on what is in each case substantially their present Constitution, makes evident the tendency of each one of these nations to regard its Constitution as its own act.[110-1] Consequently, it is fair to say that acting under authority of the voters, representatives carry out the national will in each of the seven Pan-Angle nations.

That executive or administrative control is in charge of elected persons is true without exception {111} in these seven nations. The methods of choosing who shall so administer, may be designated respectively as the British and the American. Under both plans the executive is chosen by indirect popular election. The British system produces a prime minister elected by a majority of the more popular (in the British Isles the sole) chamber of the legislature. This prime minister associates about himself certain other men from the same chamber to carry on the government for a certain time, which may be a shorter and therefore an uncertain time. In the American system the people elect representatives, called the electors, to carry out the election of a president. This forlorn novelty, the Electoral College, shows the futility among Pan-Angles of new-fangled institutions. In all other ideas, the framers of the American Constitution of 1787 followed the evolved and known usages of the race. "It was only when they came to construct the machinery for the election of the President that they left the field of American experience and English example and devised an arrangement which was so original that it was destined to break down almost as soon as it was put in operation."[111-1] The true election is no longer by the electors, but by the people of each state using their allotted number of electors as so many counts in favour of one candidate.[111-2] The president associates about himself a group of men chosen from the nation at large. These men act as {112} secretaries to administer departments in behalf of the president, and have no seat in the legislative branch of the government. These two systems are the types used as models throughout the Pan-Angle self-governing areas.

In the two plans we have popular election with virtual similarity. This is remarked in the following comment on the choice, in 1841, of a British national executive: "But the Reform Act of 1832 introduced a new order of things. In 1835 the result of a general election was for the first time the direct cause of a change of ministry, and in 1841 a House of Commons was elected, for the express purpose of bringing a particular statesman into power. The electorate voted for Sir Robert Peel, and it would have been as impossible for the house then elected to deny him their support as it would be for the college of electors in the United States to exercise their private judgment in the selection of a president."[112-1] The results of parliamentary general elections in the British Isles are announced on newspaper bulletin boards in terms of votes for the leaders of the opposing parties, just as in America the state vote is credited directly to the presidential candidates.

Adherence to either the American or British type of executive does not connote a corresponding similarity in other governmental respects. Australia has a British style executive in connection with an American style legislature. Moreover, Australia's written Constitution has been left unfixed in certain matters, so that, if after trial the British system of executive is found wanting, and some modification {113} shall seem better, a change may be made without the need of constitutional amendment.[113-1]

While representatives are elected to carry out the executive will of the voters under both the British and the American systems, the methods of discharging that duty present differences. These may be summed up in the statement that the British executives take the form of a responsible cabinet; and the American executives, both federal and state, take the form of a cabinet which is not in the same sense responsible. An explanation lies in the race's experience with executives.

The Teuton executive was in the form of an elected king who carried out the wishes of the majority which elected him. He could be and was deposed at the will of his constituents. In short, he was a spokesman. As the nationality of the British Isles crystallized, this spokesman assumed his powers were not subject to recall by his {114} fellow-citizens; considered his office hereditary; and undertook to extend his functions in his own right, not by right of being the spokesman of a majority to whom he was responsible.

At the time of the American Revolution the executive office in the British Isles was held in a way quite unlike the Teuton ideal, and local self-government had, owing to economic changes, sunk to a low level. The king and a few of the landed gentry controlled Parliament and the election of a large proportion of its members.[114-1] When, therefore, the Americans framed their system of government, they had before them an executive example on which they wished to improve. They accordingly created a king who could not initiate or prevent legislation; who was automatically recalled every four years; and who, in common with all other citizens, held no title that could be inherited. Most of the state governments, affected by the same ideas, have gone further. They have even taken from the executive the appointment of judges, making them also elective, though a few states and the national government continue the system of appointing the judiciary through the executive. Further checks to the president's power were devised in making his appointments to the executive and judicial services as well as his negotiations of treaties subject to confirmation by the Senate. Thus the American president is a modified eighteenth-century British king.

After America had become independent and had {115} framed its federal government, the British Isles electorate gradually reasserted its power, and took back into the keeping of its elected representatives the control of executive affairs.[115-1] That return to earlier ideas has produced a spokesman who is elected for five years but may be, and usually is, recalled before the expiration of this term,--by the shifting opinion of the voters manifested in the votes of their representatives in Parliament. This spokesman is no longer called a king but a prime minister. "The imperial sovereignty which is exercised in the name of the King actually resides in the British Prime Minister, a gentleman who holds his office at the pleasure of the majority of the British House of Commons."[115-2] He and his associates, chosen from the members of Parliament, constitute a ministry, of which a portion is called the cabinet. It is this cabinet, this managing committee, that both executes the laws of the British Isles and takes charge of the legislation desired, supposedly, by a majority of the British voters. As the voters elect the members of Parliament and the latter elect the ministry, and as the ministry cannot continue in office in the face of an opposing majority in Parliament, this cabinet executive control is called a "responsible government," _i.e._ responsible directly to the people.

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