Chapter XV: The Future of the Flexible and Rigid Types

A few concluding reflections may be devoted to the probable future of the two types that have been occupying our minds. Are both likely to survive? or if not, which of the two will prevail and outlast the other?

Two reasons suggest themselves for predicting the prevalence of the Rigid type. One is that no new Flexible Constitutions have been born into the world for many years past, unless we refer to this class those of some of the British self-governing Colonies[90]. The other is that no country now possessing a Rigid Constitution seems likely to change it for a Flexible one. The footsteps are all the other way. Flexible Constitutions have been turned into Rigid ones. No Rigid one has become Flexible[91]. Even those who complain of the undue conservatism of the American Constitution do not propose to abolish that Constitution altogether, nor to place it at the mercy of Congress, but merely to expunge parts of it, though no doubt parts which (such as the powers of the Judiciary) have been vital to its working.

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Footnote 90:

The British self-governing Colonies (except the two great federations,
see ante, pp. 198-9) have constitutions which may be changed in all or
nearly all points by their respective legislatures, but they are not
independent States, and the power of the legislatures to alter the
constitutions is therefore not complete.

Footnote 91:

The Constitution of Italy, already referred to, is scarcely an
exception.

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Against these two arguments may be set the fact that popular power has in most countries made great advances, and does not need the protection of an instrument controlling the legislature and the executive, which are already only too eager to bend to every breeze of popular opinion. If we lived in a time of small States, as the ancients did, the people would themselves legislate in primary assemblies. Why then, it may be asked, should they care to limit the powers of legislatures which are completely at their bidding? The old reasons for holding legislatures and executives in check have disappeared. Why should the people, safe and self-confident, impose a check on themselves? In this there may be some truth. But it must be remembered that since modern States are larger than those of former times, and tend to grow larger by the absorption of the small ones, legislatures are necessary, for business could not be carried on by primary popular assemblies, even with the aid of ‘plébiscites.’ Now legislatures are nowhere rising in the respect and confidence of the people, and it is therefore improbable that any nation which has a documentary Constitution, holding its legislature in subjection, will abolish it for the benefit of the legislature, although it may wish to do more and more of its legislation by the direct action of the people, as it does in Switzerland and in some of the States of the American Union. On the whole, therefore, it seems probable that Rigid Constitutions will survive in countries where they already exist.

Two other questions remain. Will existing Flexible Constitutions remain? Are such new States as may arise likely to adopt Constitutions of the Rigid or of the Flexible type?

An inquiry whether countries which, like Hungary and Britain, now live under ancient Flexible Constitutions will exchange them for new documentary ones would resolve itself into a general study of the political prospects of those countries. All that can be said, apart from such a study, is that our age shows no such general tendency to change in this respect as did the revolutionary and post-revolutionary era of the first sixty years of the nineteenth century. Still, a few lines may be given to considering whether any such alteration of form is likely to pass on the Constitution which has long had the unquestioned pre-eminence in age and honour, that, namely, of the United Kingdom, which is really the ancient Constitution of England so expanded as to include Scotland and Ireland.

So far as internal causes and forces are concerned, this seems improbable. The people are not likely, despite the alarms felt and the advice tendered by the uneasy persons to whom reference has already been made, to part with the free play and elastic power of their historical Cabinet and Parliamentary system. England has never yet made any constitutional change either on grounds of theory or from a fear of evils that might arise in the future. All the modifications of the frame of government have been gradual, and induced by actually urgent needs.

But there is another set of causes and forces at work which may, as some think, affect the question. It has already been noted that Rigid Constitutions have arisen where States originally independent or semi-independent have formed Confederations. These States, finding the kind of connexion which treaties had created insufficient for their needs, have united themselves into one Federal State, and expressed their new and closer relation in the form of a documentary Constitution. Such a Constitution has invariably been raised above the legislature it was creating, because the States which were uniting wished to guard jealously such autonomy as they respectively retained, and would not leave those rights at the mercy of the legislature. This happened in the United States in 1787-9, in Switzerland after the fall of Napoleon, in Germany when the North German Confederation and German Empire were created in 1866 and 1870-71. It has happened also in Canada and in Australia.

Two proposals of a federalizing nature have recently been made regarding the United Kingdom, one to split it up into a Federation of four States, the other to make it a member of a large Federation. Neither seems likely to be carried out at present, but both are worth mentioning, because they illustrate the occasions on which, and methods by which, constitutions may be transformed. The United Kingdom stands to its self-governing Colonies in what is practically a permanent alliance as regards all foreign relations, these relations being managed by the mother country, with complete local legislative and administrative autonomy both for each Colony and for the mother country[92]. Many think that this alliance is not a satisfactory, and cannot well be a permanent, form of connexion, because at present almost the whole burden—and it is a heavy one—of naval and military defence falls upon Britain, while the Colonies have no share in the control of foreign relations, and may find themselves engaged in a war, or bound by a treaty, regarding which they have not been consulted. Thus the idea has grown up that some sort of confederation ought to be established, in which there would be a Federal Assembly, containing representatives of the (at present seven) component States[93], and controlling those matters, such as foreign relations and a system of military and naval armaments, which would be common to the whole body. If this idea were ever to take practical shape, it would probably be carried out by a statute establishing a new Constitution for the desired Confederation, and creating the Federal Assembly. Such a statute would be passed by the Parliament of the United Kingdom, and (being expressed to be operative over the whole Empire) would have full legal effect for the Colonies as well as for the mother country. Now if such a statute assigned to the Federal Assembly certain specified matters, as for instance the control of imperial defence and expenditure or (let us say) legislation regarding merchant shipping and copyright, taking them away from the present and future British Parliament as well as from the parliaments of the several Colonies, and therewith debarring the British Parliament from recalling or varying the grant except by the consent of the several Colonies (or perhaps of the Federal Assembly itself), it is clear that the now unlimited powers of the British Parliament would have been reduced. A part of the future British Constitution would have been placed beyond its control: and to that extent the British Constitution would have ceased to be a Flexible one within the terms of the definition already given[94]. Parliament would not be fully sovereign; and if either the British or a Colonial Parliament passed laws inconsistent with statutes passed by the Federal Assembly in matters assigned to the latter, the Courts would have to hold the transgressing laws invalid.

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Footnote 92:

This autonomy is, however, not legally complete as regards the
Colonies, for the mother country may, though she rarely does, disallow
colonial legislation. In Canada the Dominion Legislature cannot affect
the rights of the several Provinces, the power to do so remaining with
the Imperial Parliament which passed the Confederation Act of 1867. So
too under the Constitution of the Australian Commonwealth the rights
of each colony are protected by the instrument of federation.

Footnote 93:

Viz. the United Kingdom, the two great Colonial Federations (Canada
and Australia), and four comparatively small self-governing Colonies,
viz. New Zealand, Cape Colony, Natal, and Newfoundland.

Footnote 94:

It may of course be observed (see p. 207, ante) that the British
Parliament, while it continues to be elected as now, may be unable to
divest itself of its general power of legislating for the whole
Empire, and might therefore repeal the Act by which it had resigned
certain matters to the Federal Assembly and resume them for itself.
This is one of those _apices iuris_ of which the Romans say _non sunt
iura_; and in point of fact no Parliament can be supposed capable of
the breach of faith which such a repeal would involve. The supposed
legal difficulty might, however, be avoided by some such expedient as
that previously suggested.

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Doubtless, if such a Federal Constitution were established, a Supreme Court of Appeal on which some colonial judges should sit would be thought essential to it, and questions arising under the Federation Act (as to the extent of the powers of the Federal Assembly and otherwise) would go before it, sometimes in the first instance, sometimes by way of appeal from inferior Courts.

The other proposal is to turn the United Kingdom itself into a Federation by erecting England, Scotland, Ireland, and Wales into four States, each with a local legislature and ministry controlling local affairs, while retaining the Imperial Parliament as a Central or Federal Legislature for such common affairs as belong in the United States to Congress, and in Canada to the Dominion Parliament, and in Australia to the Commonwealth Parliament. If such a scheme provided, as it probably would provide, for an exclusive assignment to the local legislatures of local affairs, so as to debar the Imperial Parliament from interfering therewith, it would destroy the present Flexible British Constitution and substitute a Rigid one for it. Care would have to be taken to use proper legal means of extinguishing the general sovereign authority of the present Parliament, as for instance by directing the elections for the new Federal Legislature to be held in such a way as to effect a breach of continuity between it and the old Imperial Parliament, so that the latter should absolutely cease and determine when the new Constitution came into force. Upon this scheme also it would be for the Courts of Law to determine whether in any given case either the Federal or one of the Local Legislatures had exceeded its powers.

Some persons have proposed to combine both these proposals so as to make the four parts of the United Kingdom each return members, along with the Colonies, to a Pan-Britannic Federal Legislature, and to place the local legislatures of Scotland, for instance, or Wales, in a line with those of the Australian Commonwealth or New Zealand. On this plan also—a highly inconvenient one—the British Constitution would become Rigid.

The difficulties, both legal and practical, with which these proposals, taken either separately or in conjunction, are surrounded, are greater than those who advocate them have as yet generally perceived.