Chapter III: Part 3

Time has verified the genial doctor's prediction. The career of the new nation thus formed has hitherto been a rising and not a setting sun. He had in his sixty years of conspicuously useful citizenship--and perhaps no nation ever had a more untiring and unselfish servant--done more than any American to develop the American Commonwealth, but like Moses, he was destined to see the promised land only from afar, for the new Government had hardly been inaugurated, before Franklin died, as full of years as honours. Prophetic as was his vision, he could never have anticipated the reality of to-day, for this nation, thus deliberately formed in the light of reason and without blood or passion, is to-day, by common consent, one of the greatest and, I trust I may add, one of the noblest republics of all time.

_III. The Political Philosophy of the Constitution_

In my last address I left Doctor Franklin predicting to the discouraged remnant of the constitutional convention that the nation then formed would be a "rising sun" in the constellation of the nations. The sun, however, was destined to rise through a bank of dark and murky clouds, for the Constitution could not take effect until it was ratified by nine of the thirteen States; and when it was submitted to the people, who selected State conventions for the purpose of ratifying or rejecting the proposed plan of government, a bitter controversy at once ensued between two political parties, then in process of formation, one called the Constitution ratified without controversy. In the remaining ten the struggle was long and arduous, and nearly a year passed before the requisite nine States gave their assent. Two of the States refused to become parts of the new nation, even after it began, and three years passed before the thirteen States were re-united under the Constitution.

It could not have been ratified had there not been an assurance that there would be immediate amendments to provide a Bill of Rights to safeguard the individual. Thus came into existence the first ten amendments to the Constitution, with their perpetual guaranty of the fundamental rights of religion, freedom of speech and of the Press, the right of assemblage, the immunity from unreasonable searches and seizures, the right of trial by jury, and similar guarantees of fundamental individual rights.

Distrustful as the American people were of the new Constitution, they yet had the political sagacity to prefer its imperfections, whatever they imagined them to be, to the mad spirit of innovation; and in order that the great instrument should not, through the excesses of party passion or the temporary caprices of fleeting generations, speedily become a mere "scrap of paper" they very wisely provided that no amendment should, in the future, be made unless it was proposed by at least two-thirds of the Senate and the House of Representatives and ratified by three-fourths of the States through their legislatures or through special conventions. This was only one of many striking negations of the principle of majority rule. As a result of this provision, if we count the first ten amendments as virtually part of the original document, only nine amendments have been adopted in 185 years, and of these, excepting the amendments which ended slavery as the result of the Civil War, only the last three, passed in recent years partly through the relaxing influence of the world war, mark a serious departure from the basic principles of the Constitution.

This stability is the more remarkable when we recall the profound and revolutionary change that has taken place in the social life of man since the Constitution was adopted. It was framed at the very end of the pastoral-agricultural age of humanity. The industrial revolution, which has more profoundly affected man in the last century and a half than all the changes which had theretofore taken place in the life of man since the cave-dweller, was only then beginning. Measured in terms of mechanical power, men when the Constitution was formed were Lilliputians as compared with the Brobdingnagians of our day, when man outflies the eagle, outswims the fish, and by his conquest and utilization of the invisible forces of nature has become the superman; and yet the Constitution of 1787 is, in most of its essential principles, still the Constitution of 1922. This surely marks it as a marvel in statecraft and can only be explained by the fact that the Constitution was developed by a people who, as "children brave and free of the great mother-tongue," had a real genius for self-government and its essential element, the spirit of self-restraint.

While it is true that the _text_ of the instrument has suffered almost as little change as the Nicene Creed, yet it would be manifest error to suggest that in its development by practical application the Constitution has not undergone great changes.

The first and greatest of all its expounders, Chief Justice Marshall, said, in one of his greatest opinions, that the Constitution was--

"intended to endure for ages to come, and consequently to be
_adapted_ to the various crises of human affairs. To have prescribed
the means by which government should in all future times execute
its powers would have been to change entirely the character of the
instrument and to give it the properties of a legal code. It would
have been an unwise attempt to provide by immutable rules for
exigencies which, if foreseen at all, must have been foreseen dimly,
and can best be provided for as they occur."

In this great purpose of enumerating rather than defining the powers of government its framers were supremely wise. While it was marvellously sagacious in what it provided, it was wise to the point of inspiration in what it left unprovided.

Nothing is more admirable than the self-restraint of men who, venturing upon an untried experiment, and after debating for four months upon the principles of government, were content to embody their conclusions in not more than four thousand words. To this we owe the elasticity of the instrument. Its vitality is due to the fact that, by usage, judicial interpretation, and, when necessary, formal amendment, it can be thus adapted to the ever-accelerating changes of the most progressive age in history, and that a people have administered the Constitution who, in the process of such adaptation, have generally shown the same spirit of conservative self-restraint as did the men who framed it.

The Constitution is neither, on the one hand, a Gibraltar rock, which wholly resists the ceaseless washing of time or circumstance, nor is it, on the other hand, a sandy beach, which is slowly destroyed by the erosion of the waves. It is rather to be likened to a floating dock, which, while firmly attached to its moorings, and not therefore the caprice of the waves, yet rises and falls with the tide of time and circumstance.

While in its practical adaptation to this complex age the men who framed it, if they could "revisit the glimpses of the moon," would as little recognize their own handiwork as their own nation, yet they would still be able to find in successful operation the essential principles which they embodied in the document more than a century ago.

Its success is also due to the fact that its framers were little influenced by the spirit of doctrinarianism. They were not empiricists, but very practical men. This is the more remarkable because they worked in a period of an emotional fermentation of human thought. The long-repressed intellect of man had broken into a violent eruption like that of a seemingly extinct volcano.

From the middle of the eighteenth century until the end of the French Revolution the masses everywhere were influenced by the emotional, and at times hysterical, abstractions of the French encyclopedists; and that these had influenced thought in the American colonies is readily shown in the preamble of the Declaration of Independence, with its unqualified assertion of the equality of men and the absolute right of self-determination. The Declaration sought in its noble idealism to make the "world safe for democracy," but the Constitution attempted the greater task of making democracy safe for the world by inducing a people to impose upon themselves salutary restraints upon majority rule.

Fortunately, the framers of the Constitution had learned a rude and terrible lesson in the anarchy that had followed the War of Independence. They were not so much concerned about the rights of man as about his duties, and their great purpose was to substitute for the visionary idealism of a rampant individualism the authority of law. Of the hysteria of that time, which was about to culminate in the French Revolution, there is no trace in the Constitution.

They were less concerned about Rousseau's social contract than to restore law and order. Hard realities and not generous and impossible abstractions interested them. They had suffered grievously for more than ten years from misrule and had a distaste for mere phrase-making, of which they had had a satiety, for the Constitution, in which there is not a wasted word, is as cold and dry a document as a problem in mathematics or a manual of parliamentary law. Its mandates have the simplicity and directness of the Ten Commandments, and, like the Decalogue, it consists more of what shall not be done than what shall be done. In this freedom from empiricism and sturdy adherence to the realities of life, it can be profitably commended to all nations which may attempt a similar task.

While the Constitution apparently only deals with the practical and essential details of government, yet underlying these simply but wonderfully phrased delegations of power is a broad and accurate political philosophy, which goes far to state the "law and the prophets" of free government.

These essential principles of the Constitution may be briefly summarized as follows:

1.

_The first is representative government_.

Nothing is more striking in the debates of the convention than the distrust of its members, with few exceptions, of what they called "democracy." By this term they meant the power of the people to legislate directly and without the intervention of chosen representatives. They believed that the utmost concession that could be safely made to democracy was the power to select suitable men to legislate for the common good, and nothing is more striking in the Constitution than the care with which they sought to remove the powers of legislation from the _direct_ action of the people. Nowhere in the instrument is there a suggestion of the initiative or referendum.

Even an amendment to the Constitution could not be directly proposed by the people in the exercise of their residual power or adopted by them. As previously said, it could only be proposed by two-thirds of the House and the Senate, and then could only become effective, if ratified by three-fourths of the States, acting, not by a popular vote, but through their chosen representatives either in their legislatures or special conventions. Thus they denied the power of a majority to alter even the form of government. Moreover, they gave to the President the power to nullify laws passed by a majority of the House and Senate by his simple veto, and yet, fearful of an unqualified power of the President in this respect, they provided that the veto itself should be vetoed, if two-thirds of the Senate and House concurred in such action. Moreover, the great limitations of the Constitution, which forbid the majority, or even the whole body of the House and Senate, to pass laws either for want of authority or because they impair fundamental rights of individuals, are as emphatic a negation of an absolute democracy as can be found in any form of government.

Measured by present-day conventions of democracy, the Constitution is an undemocratic document. The framers believed in representative government, to which they gave the name "Republicanism" as the antithesis to "democracy." The members of the Senate were to be selected by State legislatures, and the President himself was, as originally planned, to be selected by an electoral college similar to the College of Cardinals.

The debates are full of utterances which explain this attitude of mind. Mr. Gerry said: "The evils we experience flow from the excesses of democracy. The people are the dupes of pretended patriots." Mr. Randolph, the author of the Virginia plan, observed that the general object of the Constitution was to provide a cure for the evils under which the United States laboured; that in tracing these evils to their origin every man had found it in the tribulation and follies of democracy; that some check, therefore, was to be sought for against this tendency of our Government.

Alexander Hamilton remarked, on June 18, that--

"the members most tenacious of republicanism were as loud as any in
declaiming against the evils of democracy."

He added:

"Give all the power to the many and they will oppress the few. Give
all the power to the few and they will oppress the many. Both ought,
therefore, to have the power that each may defend itself against the
other."

Perhaps the attitude of the members is thus best expressed by James Madison, in the 10th of the Federalist papers:

"A pure democracy, by which I mean a State consisting of a small
number of citizens, who assemble and administer the government in
person, can admit of no cure for the mischiefs of faction. Such
democracies have ever been spectacles of turbulence and contention,
and have often been found incompatible with the personal security
and rights of property, and have generally been as short in their
lives as they have been violent in their deaths."

Undoubtedly, the framers of the Constitution in thus limiting popular rule did not take sufficient account of the genius of an English-speaking people. A few of their number recognized this. Franklin, a self-made man, believed in democracy and doubted the efficacy of the Constitution unless it was, like a pyramid, broad-based upon the will of the people.

Colonel Mason, of Virginia, who was also of the Jeffersonian school of political philosophy, said:

"Notwithstanding the oppression and injustice experienced among us
from democracy, the genius of the people is in favour of it, and the
genius of the people must be consulted."

In this they were true prophets, for the American people have refused to limit democracy as narrowly and rigidly as the framers of the Constitution clearly intended. The most notable illustration of this is the selection of the President. It was never contemplated that the people should directly select the President, but that a chosen body of electors should, with careful deliberation, make this momentous choice. While, in form, the system persists to this day, from the very beginning the electors simply vote as the people who select them desire. It should here be noted that Thomas Jefferson, the great Democrat and draftsman of the Declaration of Independence, was not a member of the convention. During its sessions he was in France. He was instrumental in securing the first ten Amendments and the subsequent adaptation of the Constitution to meet the democratic instincts of the American people is largely due to his great leadership.

Moreover, the spirit of representative government has greatly changed since the Constitution was adopted. The ideal of the earlier time was that so nobly expressed by Edmund Burke in his address to the electors of Bristol, for the framers believed that a representative held a judicial position of the most sacred character, and that he should vote as his judgment and conscience dictated without respect to the wishes of his constituents. To-day, and notably in the last half century, the contrary belief, due largely to Jefferson's political ideals, has so influenced American politics that the representatives of the people, either in the legislature or the executive departments of the government, are considered by the masses as only the mouthpieces of the people who select them, and to ignore their wishes is regarded as virtually a betrayal of a trust and the negation of democracy.

For this change in attitude there has been much justification, for in my country, as elsewhere, the people do not always select their best men as representatives, and, with the imperfections of human nature, there has been so much of ignorance and, at times, venality, that the instinct of the people is to take the conduct of affairs into their own hands. On the other hand, this change of attitude has led, in many instances, to government by organized minorities, for, with the division of the masses into political parties, it is easy for an organized minority to hold the balance of power, and thus impress its will upon majorities. Time may yet vindicate the theory of the framers that the limit of democracy is the selection of true and tried representatives.

2.

_The second and most novel principle of the Constitution is its dual form of Government._

This did constitute a unique contribution to the science of politics. This was early recognized by de Tocqueville, one of the most acute students of the Constitution, who said that it was based "upon a wholly, novel theory, which may be considered a great discovery in modern political science."

Previous to the Constitution it had not been thought possible to divide sovereignty, or at least to have two different sovereignties moving as planets in the same orbit. Therefore, all previous federated governments had been based upon the plan that a league could only effect its will through the constituent States and that the citizens in these States owed no direct allegiance to the league, but only to the States of which they were members. The Constitution, however, developed the idea of a dual citizenship. While the people remained citizens of their respective States in the sphere of government which was reserved to the States, yet they directly became citizens of the central government, and, as such, ceased to be citizens of the several States in the sphere of government delegated to the central power; and this allegiance was enforced by the direct action of the central government on the citizens as individuals. Thus has been developed one of the most intricately complex governmental systems in the world.

At the time of the adoption of the Constitution this division of jurisdiction was quite feasible, for, geographically, the various States were widely separated, and the lack of economic contact made it easy for each government to function without serious conflict. The framers, however, did not sufficiently reckon with the mechanical changes in society that were then beginning. They did not anticipate, and could not have anticipated, the centripetal influences of steam and electricity which have woven the American people into an indissoluble unit for commercial and many other purposes. As a result many laws of the Federal Government, in their incidences in this complex age, directly impinge upon rights of the State governments, and _vice versa_, and the practical application of the Constitution has required a very subtle adaptation of a form of government which was enacted in a primitive age to a form of government of a complex age.

Take, for example, the power over commerce. According to the Constitution, the Federal Government had plenary power over foreign commerce and commerce _between_ the States, but the power over commerce _within_ a State was reserved to State governments. This presupposed the power of Government to divide commerce into two water-tight compartments, or, at least, to regard the two spheres of power as parallel lines that would never meet; whereas with the coming of the railroad, steamship and the telegraph commerce has become so unified that the parallel lines have become lines of interlacing zigzags. To adapt the commerce clause of the Constitution to these changed conditions has required, in the highest degree, the constructive genius of the Supreme Court of the United States, and, in a series of very remarkable decisions, which are contained in 256 volumes of the official reports, that great tribunal has tried to draw a line between inter-State and domestic commerce as nearly to the original plans of the framers as it was possible; but obviously there has been so much adaptation to make this possible that if Washington, Franklin, Madison and Hamilton could revisit the nation they created they would not recognize their own handiwork.

For the same reason, the dual system of government has been profoundly modified by the great elemental forces of our mechanical age, so that the scales, which try to hold in nice equipoise the Federal Government on the one hand and the States on the other, have been greatly disturbed. Originally, the States were the powerful political entities, and the central government a mere agent for certain specific purposes; but, in the development of the Constitution, the nation has naturally become of overshadowing importance, while the States have relatively steadily diminished in power and prestige.

These inevitable tendencies in American politics are called "centralization," and while for nearly a century a great political party bitterly contested its steady progress, due to the centripetal influences above indicated, yet the contest was long since abandoned as a hopeless one, and the struggle to-day is rather to keep, so far as possible, the inevitable tendency measurably in check.

Nevertheless, it would be erroneous to suggest that the dual system of government is a failure. It still endures in providing a large measure of authority to the States in their purely domestic concerns, and, in a country that extends from the Atlantic to the Pacific, and from the Lakes to the Gulf, whose northern border is not very far from the Arctic Circle, and whose southern border is not many degrees from the Equator, there are such differences in the habits, conventions, and ideals of the people that without this dual form of government the Constitution would long since have broken down. It is not too much to say that the success with which the framers of the Constitution reconciled national supremacy and efficiency with local self-government is one of the great achievements in the history of mankind.

3.

_The third principle was the guaranty of individual liberty through constitutional limitations._

This marked another great contribution of America to the science of government. In all previous government building, the State was regarded as a sovereign, which could grant to individuals or classes, out of its plenary power, certain privileges or exemptions, which were called "liberties." Thus the liberties which the barons wrung from King John at Runnymede were virtually exemptions from the power of government. Our fathers did not believe in the sovereignty of the State in the sense of absolute power, nor did they believe in the sovereignty of the people in that sense. The word "sovereignty" will not be found in the Constitution or the Declaration of Independence. They believed that each individual, as a responsible moral being, had certain "inalienable rights" which neither the State nor the people could rightfully take from him.

This conception of individualism, enforced in courts of law against executives and legislatures, was wholly new and is the distinguishing characteristic of American constitutionalism. As to such reserved rights, guaranteed by Constitutional limitations, and largely by the first ten amendments to the Constitution, a man, by virtue of his inherent and God-given dignity as a human soul, has rights, such as freedom of the Press, liberty of speech, property rights, and religious freedom, which even one hundred millions of people cannot rightfully take from him, without amending the Constitution. The framers did not believe that the oil of anointing that was supposed to sanctify the monarch and give him infallibility had fallen upon the "multitudinous tongue" of the people to give it either infallibility or omnipotence. They believed in individualism. They were animated by a sleepless jealousy of governmental power. They believed that the greater such power, the greater the danger of its abuse. They felt that the individual could generally best work out his own salvation, and that his constant prayer to Government was that of Diogenes to Alexander: "Keep out of my sunlight." The worth and dignity of the human soul, the free competition of man and man, the nobility of labour, the right to work, free from the tyranny of state or class, this was their gospel. Socialism was to them abhorrent.

This theory of government gave a new dignity to manhood. It said to the State: "There is a limit to your power. Thus far and no further, and here shall thy proud waves be stayed."

4.

_Closely allied to this doctrine of limited governmental powers, even by a majority, is the fourth principle of an independent judiciary_.

It is the balance wheel of the Constitution, and to function it must be beyond the possibility of attack and destruction. My country was founded upon the rock of property rights and the sanctity of contracts. Both the nation and the several States are forbidden to impair the obligation of contracts, or take away life, liberty, or property "without due process of law." The guarantee is as old as Magna Charta; for "due process of law" is but a paraphrase of "the law of the land," without which no freeman could be deprived of his liberties or possessions.

"Due process of law" means that there are certain fundamental principles of liberty, not defined or even enumerated in the Constitution, but having their sanction in the free and enlightened conscience of just men, and that no man can be deprived of life, liberty, or property, except in conformity with these fundamental decencies of liberty. To protect these even against the will of a majority, however large, the judiciary was given unprecedented powers. It threw about the individual the solemn circle of the law. It made the judiciary the final conscience of the nation. Your nation cherishes the same primal verities of liberty, but with you, the people in Parliament, is the final judge. We, however, are not content that a majority of the Legislature shall override inviolable individual rights, about which the judiciary is empowered to throw the solemn circle of the law.

This august power has won the admiration of the world, and by many is regarded as a novel contribution to the science of government. The idea, however, was not wholly novel. As previously shown, four Chief Justices of England had declared that an Act of Parliament, if against common right and reason, could be treated as null and void; while in France the power of the judiciary to refuse efficacy to a law, unless sanctioned by the judiciary, had been the cause of a long struggle for at least three centuries between the French monarch and the courts of France. However, in England the doctrine of the common law yielded to the later doctrine of the omnipotence of Parliament, while in France the revisory power of the judiciary was terminated by the French Revolution.

The United States, however, embodied it in its form of government and thus made the judiciary, and especially the Supreme Court, the balance wheel of the Constitution. Without such power the Constitution could never have lasted, for neither executive officers nor legislatures are good judges of the extent of their own powers.

Nothing more strikingly shows the spirit of unity which the Constitution brought into being than the unbroken success with which the Supreme Court has discharged this difficult and most delicate duty. The President is the Commander-in-Chief of the Army and the Navy and can call them to his aid. The legislature has almost unlimited power through its control of the public purse. The States have their power reinforced by armed forces, and some of them are as great in population and resources as many of the nations of Europe. The Supreme Court, however, has only one officer to execute its decrees, called the United States Marshal; and yet, without sword or purse, and with only a high sheriff to enforce its mandates, when the Supreme Court says to a President or to a Congress or to the authorities of a great--and, in some respects, sovereign--State that they must do this or must refrain from doing that, the mandate is at once obeyed. Here, indeed, is the American ideal of "a government of laws and not of men" most strikingly realized; and if the American Constitution, as formulated and developed, had done nothing else than to establish in this manner the supremacy of law, even as against the overwhelming sentiment of the people, it would have justified the well-known encomium of Mr. Gladstone.

It must be added, however, that in one respect this function of the judiciary has had an unfortunate effect in lessening rather than developing in the people the sense of constitutional morality. In your country the power of Parliament is omnipotent, and yet in its legislation it voluntarily observes these great fundamental decencies of liberty which in the American Constitution are protected by formal guarantees. This can only be true because either your representatives in Parliament have a deep sense of constitutional morality, or that the constituencies which select them have so much sense of constitutional justice that their representatives dare not disregard these fundamental decencies of liberty.

In the United States, however, the confidence that the Supreme Court will itself protect these guaranties of liberty has led to a diminution of the sense of constitutional morality, both in the people and their representatives. It abates the vigilance which is said to be ever the price of liberty.

Laws are passed which transgress the limitations of the Constitution without adequate discussion as to their unconstitutional character, for the reason that the determination of this fact is erroneously supposed to be the exclusive function of the judiciary.

The judiciary, contrary to the common supposition, has no plenary power to nullify unconstitutional laws. It can only do so when there is an irreconcilable and indubitable repugnancy between a law and the Constitution; but obviously laws can be passed from motives that are anti-constitutional, and there is a wide sphere of political discretion in which many acts can be done which, while politically anti-constitutional, are not juridically unconstitutional. For this reason, the undue dependence upon the judiciary to nullify every law which either in form, necessary operation, or motive transgresses the Constitution has so far lessened the vigilance of the people to protect their own Constitution as to lead to its serious impairment.

5.

_The fifth fundamental principle was a system of governmental checks and balances_.

The founders of the Republic were not enamoured of power. As they viewed human history, the worst evils of government were due to excessive concentration of power, which like Othello's jealousy "makes the meat it feeds on."

This system of checks and balances again illustrates that the Constitution is the great negation of unrestrained democracy. The framers believed that a people was best governed that was least governed. Therefore, their purpose was not so much to promote efficiency in legislation as to put a brake upon precipitate action.

Time does not suffice to state the intricate system of checks and balances whereby the legislature acts as a check upon the executive and the executive upon the legislature, and the Supreme Court upon both. When the Republic was small, and its public affairs were few, this system of checks and balances worked admirably, but to-day, when the nation is one of the greatest in the world, and its public affairs are of the most important and complicated character, and often require speedy action, it may be questioned whether the system is not now an undue brake upon governmental efficiency, and does _not_ require some modification to ensure efficiency. Indeed, it is a serious question with many thoughtful Americans whether the growth of the United States has not put an excessive strain upon its governmental machinery.

This system was in part due to the confident belief of the framers of the Constitution in the Montesquieu doctrine of the division of government into three independent departments--legislative, executive and judicial; but experience has shown how difficult it is to apply this doctrine in its literal rigidity. One result of the doctrine was the mistaken attempt to keep the legislative and the executive as far apart as possible. The Cabinet system of parliamentary government was not adopted. While the President can appear before Congress and express his views, his Cabinet is without such right. In practice, the gulf is bridged by constant contact between the Cabinet and the committees of Congress, but this does not wholly secure speedy and efficient co-operation between the two departments. As I speak, a movement is in progress, with the sanction of President Harding, to permit members of his Cabinet to appear in Congress and thus defend directly and in person the policies of the Executive.

This separation of the two departments, which causes so much friction, has been emphasized by one feature of the Constitution which again marks its distrust of democracy, namely the fixed tenure of office. The Constitution did not intend that public officials should rise or fall with the fleeting caprices of a constituency. It preferred to give the President and the members of Congress a fixed term of office, and, however unpopular they might become temporarily, they should have the right and the opportunity to proceed even with unpopular policies, and thus challenge the final verdict of the people.

If a parliamentary form of government, immediately responsive to current opinion as registered in elections, is the great desideratum, then the fixed tenure of offices is the vulnerable Achilles-heel of our form of government. In other countries the Executive cannot survive a vote of want of confidence by the legislature. In America, the President, who is merely the Executive of the legislative will, continues for his prescribed term, though he may have wholly lost the confidence of the representatives of the people in Congress. While this makes for stability in administration and keeps the ship of state on an even keel, yet it also leads to the fatalism of our democracy, and often the "native hue" of its resolution is thus "sicklied o'er with the pale cast of thought." Take a striking instance. I am confident that after the sinking of the _Lusitania_, the United States would have entered the world war, if President Wilson's tenure of power had then depended upon a vote of confidence.

6.

_The sixth fundamental principle is the joint power of the Senate and the Executive over the foreign relations of the Government_.

I need not dwell at length upon this unique feature of our constitutional system, for since the Versailles Treaty, the world has become well acquainted with our peculiar system under which treaties are made and war is declared or terminated. Nothing, excepting the principle of local rule, was of deeper concern to the framers of the Constitution. When it was framed, it was the accepted principle of all other nations that the control of the foreign relations of the Government was the exclusive prerogative of the Executive. In your country the only limitation upon that power was the control of Parliament over the purse of the nation, and some of the great struggles in your history related to the attempt of the Crown to exact money to carry on the wars without a Parliament grant.

The framers were unwilling to lodge any such power in the Executive, however great his powers in other respects. This was primarily due to the conception of the States that then prevailed. While they had created a central government for certain specified purposes, they yet regarded themselves as sovereign nations, and their representatives in the Senate were, in a sense, their ambassadors. They were as little inclined to permit the President of the United States to make treaties or declare war at will in their behalf as the European nations would be to-day to vest a similar authority in the League of Nations. It was, therefore, first proposed that the power to make treaties and appoint diplomatic representatives should be vested exclusively in the Senate, but as that body was not always in session, this plan was so far modified as to give the President, who is always acting, the power to _negotiate_ treaties "with the advice and consent of the Senate." As to making war, the framers were not willing to entrust the power even to the President and the Senators, and it was therefore expressly provided that only Congress could take this momentous step.

Here, again, the theory of the Constitution was necessarily somewhat modified in practical administration, for under the power of nominating diplomatic representatives, negotiating treaties, and in general, of executing the laws of the nation, the principle was soon evolved that the conduct of foreign affairs was primarily the function of the President, with the limitation that the Senate must concur in diplomatic appointments and in the validity of treaties, and that only both Houses of Congress could jointly declare war. This cumbrous system necessarily required that the President in conducting the foreign relations of the Government should keep in touch with the Senate, and such was the accepted procedure throughout the history of the nation until President Wilson saw fit to ignore the Senate, even when the Senate had indicated its dissent in advance to some of his policies at the Versailles Conference.

I suppose that since that conference no part of our constitutional system has caused more adverse comment in Europe than this system. It often handicaps the United States from taking a speedy and effectual part in international negotiations, although if the President and the Senate be in harmony and collaborate in this joint responsibility, there is no necessary reason why this should be so.

I share the view of many Americans that this provision of the Constitution was wise and salutary, especially at this time, when the United States has taken such an important position in the councils of civilization. The President is a very powerful Executive, and his tenure, while short, is fixed. Generally he is elected by little more than a majority of the people, and sometimes through the curious workings of the electoral college system, he has been only the choice of a minority of the electorate. For these reasons, the framers of the Constitution were unwilling to vest in the President exclusively the immeasurable power of pledging the faith, man-power, and resources of the nation and of declaring war. The heterogeneous character of our population especially emphasizes the wisdom of this course, for it would be difficult, if not impossible, for an American President to make an offensive and defensive alliance with any nation or declare war against another nation without running counter to the racial interests and passions of a substantial part of the American nation. For better or worse, the United States has limited, but not destroyed, as the world war showed, its freedom to antagonize powerful nations from whose people it has drawn large numbers of its own citizenship. The domestic harmony of the nation requires that before the United States assumes treaty obligations or makes war such policy shall represent the largely preponderating sentiment of its people, and nothing could more effectually secure this end than to require the President, before making a treaty, to secure the assent of two-thirds of the Senate and a majority of both Houses of Congress before making war.

While this may lead, as it has in recent years, to temporary and regrettable embarrassments, yet in the long run, it is not only better for the United States, but it is even to the best interests of other nations, for in this way they are safeguarded against the possible action of an Executive with whom racial instincts might still be very influential. In your country, where the Government of the day is subject to immediate dismissal for want of confidence, such power over foreign relations can be safely entrusted to a few men, but in the United States, with its fixed tenures of office, a President could pledge the faith and involve his nation in war against the interests and will of the people. Suppose the President had unlimited power over our foreign relations and that within the next ten years an American, whose parents were born in any European nation, was elected on purely domestic issues, he could, with his assured four years of power, bring about a new alignment of nations and shake the political equilibrium of the world. The Constitution wisely refused to grant such a power. Hence the provision for the concurrence of the legislative representatives of the nation. At all events, it constitutes a system which, as the last presidential election showed, the American people will not willingly forgo. It is true that this system makes it difficult for the United States to participate effectively in the main purpose of the League of Nations to enforce peace by joint action at Geneva, but to ask the United States to surrender a vital part of its constitutional system, upon which its domestic peace so largely depends, in order to promote the League, seems to me as unreasonable as it would be to ask your country to abolish the Crown, to which it is sincerely attached as a vital part of its system, as a contribution towards international co-operation. You would not surrender such an integral part of your system, and therefore it is not reasonable to expect a similar sacrifice on our part, even though the meritorious purposes of the League be freely recognized.

I have thus summarized briefly and most inadequately some of the essential principles of the Constitution. I have only been able to suggest very impressionistically what they are and the lessons to be drawn from them. If I were able to deliver a dozen addresses on the subject in this historic Hall and with this indulgent audience I would not scratch even the surface. To understand the Constitution of the United States you must not only read the text but the thousands of opinions rendered in the last 130 years by the Supreme Court in its great task of interpreting this wonderful document. Few documents have been the subject of more extended commentaries. The four thousand words have been meticulously examined through intellectual microscopes in judicial opinions, textbooks, and other commentaries which are as "thick as autumnal leaves that strow the brooks in Vallombrosa."

One can say of this document as Dr. Furness, in his variorum edition of _Hamlet_, says of the words of that character:

"No words by him let fall, no syllable by him uttered, but has been
caught up and pondered, as no words except those of Holy Writ."

But what of its future and how long will the Constitution wholly resist the washing of time and circumstance? Lord Macaulay once ventured the prediction that the Constitution would prove unworkable as soon as there were no longer large areas of undeveloped land and when the United States became a nation of great cities. That period of development has arrived. In 1880 only 15 per cent. of the American population lived in the cities and the remainder were still on the farms. To-day over 52 per cent, are crowded in one hundred great cities. Lord Macaulay added:

"I believe America's fate is only deferred by physical causes.
Institutions purely democratic will sooner or later destroy liberty
or civilization, or both.... The American Constitution is all sail
and no anchor."

In this last commentary Lord Macaulay was clearly mistaken. As I have shown, the Constitution is not "purely democratic." It is amazing that so great a mind should have so little understood that more than any other Constitution, that of America imposes powerful restraints on democracy. The experience of a century and a quarter has shown that while the anchor may at times drag, yet it measurably holds the ship of state to its ancient moorings. The American Constitution still remains in its essential principles and still enjoys not only the confidence but the affection of the great and varied people whom it rules. To the latter this remarkable achievement must be attributed rather than to any inherent strength in parchment or red seals, for in a democracy the living soul of any Constitution must be such belief of the people in its wisdom and justice. If it should perish to-morrow, it would yet have enjoyed a life and growth of which any nation or age might be justly proud. Moreover, it could claim with truth, if it finally perished, that it had been subjected to conditions for which it was never intended and that some of its essential principles had been ignored.

The Constitution is something more than a written formula of government--it is a great spirit. It is a high and noble assertion, and, indeed, vindication, of the morality of government. It "renders unto Caesar [the political state] the things that are Caesar's," but in safeguarding the fundamental moral rights of the people, it "renders unto God the things that are God's."

In concluding, I cannot refrain from again reminding you that this consummate work of statecraft was the work of the English-speaking race, and that your people can therefore justly share in the pride which it awakens. It is not only one of the great achievements of that _gens aeterna_, but also one of the great monuments of human progress. It illustrates the possibilities of true democracy in its best estate. When the moral anarchy out of which it was born is called to mind, it can be truly said that while "sown in weakness, it was raised in power."

To the succeeding ages, it will be a flaming beacon, and everywhere men, who are confronted with the acute problems of this complex age, can take encouragement from the fact that a small and weak people, when confronted with similar problems, had the strength and will to impose restraint upon themselves by peacefully proclaiming in the simple words of the noble preamble to the Constitution:

"We, the people of the United States, in order to form a more
perfect union, establish justice, ensure domestic tranquillity,
provide for the common defence, promote the general welfare, and
secure the blessings of liberty to ourselves and our posterity, do
ordain and establish this Constitution for the United States of
America."

Note the words "ordain and establish." They imply perpetuity. They make no provision for the secession of any State, even if it deems itself aggrieved by federal action. And yet the right to secede was urged for many years, but Lincoln completed the work of Washington, Franklin, Madison and Hamilton by establishing that "a government for the people, by the people and of the people should not perish from the earth."

_IV. The Revolt Against Authority_

"Where there is no vision, the people perish: but he that keepeth the law, happy is he."

PROVERBS xxix. 18.

One of the most quoted--and also mis-quoted--proverbs of the wise Solomon says, as translated in the authorized version: "Where there is no vision, the people perish." What Solomon actually said was: "Where there is no vision, the people _cast off restraint_." The translator thus confused an effect with a cause. What was the vision to which the Wise Man referred? The rest of the proverb, which is rarely quoted, explains:

"Where there is no vision, the people cast off restraint: _but he that keepeth the law, happy is he_."

The vision, then, is the authority of law, and Solomon's warning is that to which the great and noble founder of Pennsylvania, William Penn, many centuries later gave utterance, when he said:

"That government is free to the people under it, where the laws rule and the people are a party to those laws; and all the rest is tyranny, oligarchy and confusion."

It is my present purpose to discuss the moral psychology of the present revolt against the spirit of authority. Too little consideration has been paid by the legal profession to questions of moral psychology. These have been left to metaphysicians and ecclesiastics, and yet--to paraphrase the saying of the Master--"the laws were made for man and not man for the laws," and if the science of the law ignores the study of human nature and attempts to conform man to the laws, rather than the laws to man, then its development is a very partial and imperfect one.

Let me first be sure of my premises. Is there in this day and generation a spirit of lawlessness greater or different than that that has always characterized human society? Such spirit of revolt against authority has always existed, even when the penalty of death was visited upon nearly all offences against life and property. Blackstone tells us (Book IV, Chap. I) that in the eighteenth century it was a capital offence to cut down a cherry tree in an orchard--a drastic penalty which should increase our admiration for George Washington's courage and veracity.

We are apt to see the past in a golden haze, which obscures our vision. Thus, we think of William Penn's "holy experiment" on the banks of the Delaware as the realization of Sir Thomas More's dream of Utopia; and yet Pennsylvania was somewhat intemperately called in 1698 "the greatest refuge for pirates and rogues in America," and Penn himself wrote, about that time, that he had heard of no place which was "more overrun with wickedness" than his City of Brotherly Love, where things were so "openly committed in defiance of law and virtue--facts so foul that I am forbid by common modesty to relate them."

Conceding that lawlessness is not a novel phenomenon, is not the present time characterized by an exceptional revolt against the authority of law? The statistics of our criminal courts show in recent years an unprecedented growth in crimes. Thus, in the federal courts, pending criminal indictments have increased from 9503 in the year 1912 to over 70,000 in the year 1921. While this abnormal increase is, in part, due to sumptuary legislation--for approximately 30,000 cases now pending arise under the prohibition statutes--yet, eliminating these, there yet remains an increase in nine years of over 400 per cent, in the comparatively narrow sphere of the federal criminal jurisdiction. I have been unable to get the data from the State Courts; but the growth of crimes can be measured by a few illustrative statistics. Thus, the losses from burglaries which have been repaid by casualty companies have grown in amount from $886,000 in 1914 to over $10,000,000 in 1920; and, in a like period, embezzlements have increased five-fold. It is notorious that the thefts from the mails and express companies and other carriers have grown to enormous proportions. The hold-up of railroad trains is now of frequent occurrence, and is not confined to the unsettled sections of the country. Not only in the United States, but even in Europe, such crimes of violence are of increasing frequency, and a recent dispatch from Berne, under date of August 7, 1921, stated that the famous International Expresses of Europe were now run under a military guard.

The streets of our cities, once reasonably secure from crimes of violence, have now become the field of operations for the foot-pad and highwayman. The days of Dick Turpin and Jack Sheppard have returned, with this serious difference--that the Turpins and Sheppards of our day are not dependent upon the horse, but have the powerful automobile to facilitate their crimes and make sure their escape.

Thus in Chicago alone, 5000 automobiles were stolen in a single year. Once murder was an infrequent and abnormal crime. To-day in our large cities it is of almost daily occurrence. In New York, in 1917, there were 236 murders and only 67 convictions; in 1918, 221, and 77 convictions. In Chicago, in 1919, there were 336, and 44 convictions.

When the crime wave was at its height a year ago, the police authorities in more than one American city confessed their impotence to impose effective restraints. Life and property had seemingly become almost as insecure as during the Middle Ages.[3]

[Footnote 3: The reader will bear in mind that these words were spoken in August 1921. Unquestionably, the situation has greatly improved during the present year(1922).]

As to the subtler and more insidious crimes against the political state, it is enough to say that graft has become a science in city, state and nation. Losses by such misapplication of public funds--piled Pelion on Ossa--no longer run in the millions but the hundreds of millions. Our city governments are, in many instances, foul cancers on the body politic; and for us to boast of having solved the problem of local self-government is as fatuous as for a strong man to exult in his health when his body is covered with running sores. It has been estimated that the annual profits from violations of the prohibition laws have reached $300,000,000. Men who thus violate these laws for sordid gain are not likely to obey other laws, and the respect for law among all classes steadily diminishes as our people become familiar with, and tolerant to, wholesale criminality. Whether the moral and economic results of Prohibition overbalance this rising wave of crime, time will tell.

_In limine_, let us note the significant fact that this spirit of revolt against authority is not confined to the political state, and therefore its causes lie beyond that sphere of human action.

Human life is governed by all manner of man-made laws--laws of art, of social intercourse, of literature, music, business--all evolved by custom and imposed by the collective will of society. Here we find the same revolt against tradition and authority.