Chapter V: Illustrations From Modern History of the Action of Constitutions

The best instance of the capacity of a Constitution to reinforce and confirm existing centripetal tendencies is supplied by the history of the Rigid Constitution of the United States. That instrument was at first received with so little favour by the people that its ratification was, in many States, obtained with the greatest possible difficulty, and the original document secured acceptance only on the understanding, which was loyally carried out, that it should forthwith receive a number of amendments. Within fifteen years the party which had advocated it was overthrown in the country, and ultimately broke up and vanished. A generation passed away before it began to be generally popular. But after a time it secured so widespread a respect that even during the fierce and protracted struggle which ushered in the Civil War few attacked the Constitution itself, nearly all the combatants on one side or the other claiming that its provisions were really in their favour. It was not round the merits, but round the true construction, of the instrument that controversy raged. Since the Civil War, and the amendments which embodied the results of the Civil War, it has been glorified and extolled in all quarters[109], and has unquestionably been a most potent influence in consolidating the nation, as well as in extending the range and the activity of the central government.

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Footnote 109:

Only since 1890 have complaints begun to be made: see Essay III, p.
239, _ante_.

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To what is this success due? Regarded as a Frame of Government, _i.e._ as a piece of mechanism for distributing powers between the Executive, the Legislature and the Judiciary, the American system has probably been praised beyond its deserts. Both the mode of electing the President and the working of Congress leave much to be desired. But the Constitution has had two conspicuous merits. It so judiciously estimated the centripetal and centrifugal forces as they actually stood at the time when it was framed, frankly recognizing the latter and leaving free play for them, and while throwing its own weight into the scale of the centripetal, doing this only so far as not to provoke a disjunctive reaction, that it succeeded in winning respect from the advocates both of States’ Rights and of National Unity[110]. Thus it was able to add more strength to the centripetal tendency than it could have done had it been originally drawn on more distinctly centripetal lines. For—and here comes in the second merit—its provisions defining the functions of the central Government were expressed in such wide and elastic terms as to be susceptible of interpretation either in a more restricted or in a more liberal way, _i.e._ so as to allow either a less wide or a more wide scope of action for the Central Government. During the earlier years, when State sentiment was still stronger than National sentiment, the scope remained limited, because both the executive and the legislature wished to keep it so, and such extensions as there were came from judicial construction. But latterly, and especially since the prodigious development of internal communications has stimulated commerce, and since the death blow given to States’ Rights doctrines by the Civil War, the scope has been widened, and has widened quite naturally and gradually, with no violence to the words of the Constitution, but according to that expansive interpretation of them which changing conditions and a corresponding change in national sentiment prescribed[111].

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Footnote 110:

It has been accused of having caused a civil war by omitting to deal
with the questions out of which the Civil War arose, and by failing to
negative the right of secession. But to this it may be answered that
an attempt to deal with those questions or to negative that right
might possibly have prevented it from having ever been accepted.

Footnote 111:

This interpretation has sometimes been at variance with the views of
the older interpreters, but no instance occurs to me in which an
impartial jurist could have pronounced it inadmissible.

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Nowadays one hears in the United States less about the Constitution than about the Flag[112]. But that is partly because the Constitution has done its work, and made the Flag the popular badge of a Unity which it took nearly a century to endear to the nation.

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Footnote 112:

This is still more so to-day (1900) than it was when this Essay was
first composed.

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One might go on to illustrate the efficiency of a Constitution in consolidating a people composed of disparate elements from the parallel case of Switzerland, where communities speaking three (it might almost be said four) different languages have been brought much closer together by the Constitutions of 1848 and 1874 than they were before, or could have been without some such arrangement. Switzerland, however, is a more complicated case, because much has turned on the external pressure towards unity exerted by the fear felt for several great bordering Powers. The formidable neighbours of the Confederation have, so to speak, squeezed together into a Swiss people the originally dissimilar Alemannic, Celto-Burgundian, Italian, and Romansch communities.

The two instances of the United States and Switzerland[113], compared with those of unitary countries living under Rigid Constitutions, such as France, Belgium, Holland and Denmark, suggest the observation that the service which Rigid Constitutions may render in strengthening the centripetal tendency can best be rendered where a Federation is to be constructed. For in these cases what is needed is an arrangement by which the several rights of the component communities which are to form the State may be so protected that they need not fear to give their allegiance to the State and cordially support its Central Government. The existence of such communities is an expression of forces actually operative which are centrifugal as towards the State as a whole, and therefore need to be studied. By giving a carefully limited scope to these forces, and thereby diminishing their possibilities of danger, the Constitution subserves the cohesion of the States. In a truly unitary country this service is not needed. But there are cases in which States endeavouring to become unitary would have done better had they sought to apply the federal principle, placing it under the protection of a Rigid Constitution. I have already referred to Denmark. Holland might probably have saved Belgium by a concession of some such kind. Whether a similar contrivance might not have been profitably employed within the British Isles in A.D. 1782, or in A.D. 1800, or again later, is a question which will already have presented itself to one who has followed the argument thus far.

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Footnote 113:

One would like to refer to the cases of the numerous so-called
republics, most of them federal, of Spanish America. But apart from
the difficulty of ascertaining their constitutional history, little of
which has been written, some of these republics seem to pay so little
regard to their constitutions, living generally in a state of
revolution, whether subsiding, or actually raging, or apprehended,
like the Atlantic during a series of cyclones following one another
along the same track from the Bermudas to the Fastnet, that it is hard
to draw any conclusions of value from them. They are in fact republics
only in name: and it is surprising that Sir H. Maine in his _Popular
Government_ condescended to go to them for arguments to discredit
democracy. They are military tyrannies, the product of peculiar
historical, territorial and racial conditions.

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In dwelling upon the services which Constitutions may render, by fostering the centripetal forces, or by restraining the violence and softening the action of the centrifugal forces, we must not forget that no scheme of government can hope permanently to resist the action of either tendency if either develops much greater strength than it possessed when the Constitution was framed. If the centripetal forces grow, the Constitution whose provisions have recognized and given scope to the centrifugal will be practically, in some of those provisions, superseded. If the centrifugal grow, it may be overthrown. It is where the forces are nearly balanced, that the weight of the Constitution may turn the scale, and avert conflicts which would have rent the community, or caused a violent subjection of one part of it to the other. And in any case the Constitution ought, where dissimilative and disruptive forces are feared, to be so drawn as to enlist all available motives of interest, to shelter the law behind popular sentiment where possible, to oppose it to sentiment as little as possible, and to avoid challenging at the same time the hostility of several kinds of sentiment.