Crisis in Constitutionalism – 1913

David Jayne Hill, Crisis in Constitutionalism, The North American Review, Vol. 198, No. 697 (Dec., 1913), pp. 769-778

Thoughtful men in all countries of the world are united in the conviction that Constitutional Government embodies the highest ideal for the regulation of human affairs ever conceived by man.

With regard to the attainability and permanence of this ideal, opinions differ widely. Most men agree in the belief that certain peoples are not ripe for it. Others consider it necessary to combine with it some vestiges of absolutism,as a means of rescuing society from the anarchy that would follow upon its possible failure. Still others openly oppose it because, for various reasons, it is their personal interest to do so.

The dangers to Constitutional Government, however, do not arise from the open opposition of its enemies; for in the field of free debate it is abundantly able to defend itself. Its real foes, and they are not a few, are those who do not avowedly attack or resist it; but who, while professing to be its friends and its advocates, secretly repudiate, or intentionally pervert, its fundamental principles.

In contrast with the political absolutism which it was intended to destroy, and which it has endeavored to supersede, Constitutional Government is based upon the principle of equal guarantees for the rights of all citizens, with out distinction of persons or classes, under the protection of co-ordinate and distributed powers, exercised by public officers freely chosen by the people, and revocable after fixed periods of office. Recognizing life, personal liberty, and property as elements of inalienable right, Constitutional Government aims to guard these from every form of violation.

The mere statement of the meaning of Constitutional Government plainly indicates who are its natural enemies. These include all those who, in any form whatever, desire to make the State their private servant, and through control of the public powers use it to serve their own personal or class interests at the expense of others.

The division of men into friends and enemies of Constitutional Government must be based upon the attitude they assume toward its fundamental principle. This principle being the existence of equal and adequate guarantees, by which the life, the personal liberty, and the property of every citizen are rendered inviolate, every person and every organization that aims by means of exceptional legislation to secure advantages to the detriment of others must be classed as an enemy of Constitutional Government; which, although not a guarantee of equal conditions, which is impossible, is essentially a guarantee of equal rights.

The means by which the founders of Constitutional Government intended to obtain this guarantee were threefold.

First of all, the “inalienable rights” of all citizens were to be secured by a fundamental law which placed them beyond the reach of unequal legislation or executive violence. What the advocates of Constitutional Government had suffered from was the exercise of absolute and arbitrary authority. This they intended to end; and, in order to do so, they placed certain encroachments upon personal rights beyond the power of legislatures and executives. In brief, legislative bodies and executive officers were themselves made subject to law; and no man was to be judged except in accordance with the law. Life, liberty, and property were not to be taken away without a day in court, in the presence of responsible authorities acting under the obligations of equal laws.

The second security afforded was a frame of government in which public powers were so distributed that no public officer could commit an act of oppression without rendering himself responsible for his action. The people, through their representatives, could make new laws; but they could make no laws which encroached upon the rights already sacredly guarded by the fundamental law. The executive, when necessary, could act; but only according to law. The judiciary could judge if the law was respected, but only in accordance with those personal securities which the fundamental law provided.

Finally, the people, standing in the place of the sovereign, and exercising sovereign power, did what no other sovereign had ever before voluntarily done in the history of the world: they freely and formally renounced the power to impose their personal arbitrary will upon the organs of government or upon one another. They confided to the operation of the system they had devised and created the legislative, executive, and judicial functions necessary to the application of justice, subject to their approval or reprobation by means already provided for in that system.

Thus absolutism in every form was intended to be extruded from government; which aimed to be a system of just laws and principles in place of mere arbitrary will actuated by caprice, prejudice, malignity, or self-interest.

It is easy to see how this system could be covertly attacked by those who, consciously or unconsciously, were inspired by motives for subverting it.

The first method of attack is through the hasty alteration of the fundamental law itself. Believing in the approximate perfection of our system, the people of the United States have, in general, desired to maintain the stability of the Constitution; and, so far, it has been subjected to very little change. Being essentially a restriction of arbitrary power, it presents a barrier to the aims of those who seek to derive private advantage through the control of the State. As long as it remains intact, there exists a legal obstacle to depredation. No mere demagogue everhas loved, or ever will love, the Constitution; for it is a restraint upon personal ambition and personal interests. He would much prefer to substitute for it the unrestrained “will of the people,” by which he understands assent to his own proposals. With seductive simplicity he blandly asks, “What is the Constitution between friends?”

Undoubtedly, any inflexible obstacle to a transitory popular impulse can at times be made to appear too rigid, but it is precisely this clear and definite obstruction to impulsive and ill-considered action which constitutional guarantees are intended to impose. It is always a dangerous moment for the liberties of a people when it is proposed to substitute for the deliberately established reasonableness of a constitutional provision the impromptu and uncontrolled impulses of the moment; or to open the way with out serious reflection and debate for mere political experiments.

Two constitutional changes have been recently urged and passively accepted. The election of United States Senators by legislative bodies has sometimes been attended with corruption, and this has led to a demand for popular nominations and elections. In order to lower import duties, an income tax, – hitherto left to the several States, which can levy no import taxes,- has been urged as a means of supporting the Federal Government. To accomplish this, a constitutional change was necessary, since an unequal tax was prohibited, and an equal tax was not deemed practicable. It is, perhaps, too early to demonstrate the results of these changes; but it remains to be seen how the people, if they cannot succeed in choosing trustworthy legislators from among their own immediate neighbors, will be able to select worthier senators from among persons whom they know only by reputation; nor is it certain that the power to impose a Federal income tax without any kind of restriction may not eventually become the instrument of mere class and sectional legislation. It will be gratifying if these experiments result in an elevation of political morals, or in greater social equity; but it is not yet certain that these results will follow.

A second point of attack upon the Constitution is through the encroachment of one or more of the three divisions of public power upon the legitimate domain of the others. The American conception of government has always laid stress upon the balance of the public powers, which is intended to limit the excesses of all. When, however, we consider the possible effect of the power concentrated in one man both to urge and to veto new laws, backed with the enormous influence of Federal patronage, the employment of which may be so easily concealed behind the mask of apparently beneficent legislation, we contemplate the nearest approach to absolute power now to be found in any constitutional government in the world. In defense of this centralization of authority it may be said that a President of the United States is responsible to the country, and particularly to his party, for the fulfilment of promises made in the platform of the party that elected him, and this is true; but executive urgency and executive prohibition have not always been exercised exclusively with the purpose of fulfilling party promises, but sometimes merely upon the personal initiative of the executive himself, who has thereby assumed the exercise of a prerogative which, however pleasing it may be to those who profit by its results, when considered from a constitutional point of view, is certainly of doubtful propriety, if not of doubtful legality. Fidelity in urging the fulfilment of previously made party promises and personal ballons d’essai sent up for the purpose of securing the favor of the majority, without regard to the previously determined policies of the party, are two entirely different methods of official procedure. The business of a President is to execute the laws and urge the fulfilment of party pledges, but it is not his prerogative to revolutionize the government.

But encroachments upon constitutional limitations by the executive are not more dangerous than those of a legislative origin. For these there is always the plausible excuse that they spring more directly from the expressed will of the people, since the legislators have received a recent mandate from them. It is, however, a perversion of reasoning to maintain that their mandate includes an instruction to disregard the spirit of the Constitution, or to strain it to the breaking-point. It is, therefore, essential that the judiciary be free, pure, and faithful in its interpretation of the fundamental law. It is equally important that it should have the confidence and support of the people. Nothing could so fatally affect the foundations of Constitutional Government as a loss of confidence on the part of the people in the purity, fidelity, and intelligence of the judiciary. By every means that will leave it free and responsible it should be placed and kept upon the highest plane of honor and authority, for it is by its essential nature the guardian of our guarantees of liberty.

There is a third, and a far more insidious, form of attack upon Constitutional Government which should not escape observation. It is the disposition to withdraw and annul that act of popular renunciation of each in the interest of all upon which the success of Constitutional Government is based. It is important that this point should be made clear, for it contains the chief justification for speaking of a “crisis” in constitutionalism.

Attention has been called to the fact that the third step in the development of the Constitution of the United States was the voluntary surrender of arbitrary power by the sovereign people. This was not an abdication of power by the people as a whole in the interest of a majority, but a determination that absolutism in every form should be abolished altogether. It was the surrender of will to reason, of private interest to the public good, of the individual to the State as the institution of organized justice.

The greatest present danger to Constitutional Government is the revocation of this splendid sacrifice of personal advantage to the common well-being; the agreement of the people not to attempt an act of conquest upon one another, but to live on terms of equality under just laws.

It is worthy of observation that wherever this act of patriotism has been refused Constitutional Government has proved an abject failure. If we consider the revolutions that have stained with blood and ruined the economic life of several of our sister Republics on this continent, we shall find ample and striking illustrations of this assertion. They, like ourselves, have had a fundamental law, often expressed in most irreproachable language, and a frame of government in which the division of powers is theoretically accepted. In fact, however, these elements of constitutional organization have not been treated as realities. Personal ambition, conspiracy, and revolution have defied the system, and frequently destroyed it. Instead of devoting themselves to the State, and making a religion of vital patriotism, -that is, of consecration to the State as the institution of order and justice,- these unfortunate brethren have attached themselves to factions, each seeking to dominate by force the others, and thus creating a scene of constant incertitude, turmoil, lawlessness, and rapine.

We have at the present moment a startling example of this assertion of arbitrary will and repudiation of public authority in our nearest neighbor to the south. Every one who personally knows the Mexican statesmen of the highest type appreciates their learning, their culture, and their sometimes great executive ability. What is lacking to that country? It is the spirit of personal renunciation of arbitrary power in the interest of the public well-being. Rich in natural resources, situated in a most favorable geographical environment, and not wanting in capable men, Mexico is doomed to stagnation, poverty, and discredit, because it is the prey of rival forces within the State, each claiming the right to rule, each determined to destroy the others.

Let us not lose the lesson of this impressive illustration of the unwillingness of men to accept the authority of principles because we ourselves are not at present harassed by banditti and visibly divided by opposing powers within the State. It is opportune for us to ask ourselves, why we are not subjected to this anarchy, and why we enjoy a high degree of peace, order, and justice in our own Republic, which is based on the same fundamental ideas as that of our unfortunate neighbors?

The answer to this question is evident to every thoughtful observer. We have, thus far, been able to maintain respect for our Constitution and our judiciary. We have, in the interest of the public peace, renounced the primitive right of personal self-defense. We have differences, but we endeavor, for the most part, to settle them by an appeal to the law and to the courts. We have, thus far, maintained the renunciation of arbitrary power, which has made our government a success where others have failed; and we have had, and are having, our reward.

Will this condition always continue? There is more than one sign that it will not, unless we are on our guard. The dangers arising from the first and second forms of attack on Constitutional Government are not unworthy of attention, but they are insignificant in comparison with the third; for further alterations cannot be made in the Constitution without fresh consideration by the people, and a misuse of power by the legislative and executive, or even by the judicial authorities, is at least subject to correction. But the third form of attack is of a different nature. It results from a social transformation that may affect constitutionalism at its source by perverting the minds of the people.

For a long time the chief danger to constitutionalism in our country was the menace of conflict between the States. That peril seems now to have passed, for their interests are so nearly identical and their populations are so homogeneous that a divergence of purposes sufficiently wide to lead to armed conflict is altogether improbable.

But there is another source of antagonism which would have an equally disastrous effect upon Constitutional Government, the possibility of which is not entirely excluded from consideration.

We have in recent years developed in the United States a spirit of class antagonism which is peculiarly disquieting. In stating this point it is not at all necessary to cast the blame on any particular stratum of society, and a careful analysis might distribute responsibility in a manner that would not be welcome in quite opposite quarters. The one undeniable fact is that this antagonism exists, and that it has been stimulated by political ambitions that have found their advantage in creating unrest and in deepening the hostility of certain conditions of life toward others.

The peril of this situation is that it does not consist merely in opposing personal sentiments entertained by isolated individuals, but that it aims to control the State by massing its forces in powerful organizations, with the purpose of changing the laws, and even the Constitution, in the interest of special classes.

Books have recently been written with the endeavor to make it appear that the Constitution of the United States is a belated eighteenth-century construction, devised in the interest of a property-possessing class, and at present an anachronism. For the first time since it was adopted the Constitution has within very recent years been treated with open disrespect. What is the reason for this opposition? It is that the Constitution presents an obvious barrier to the designs of those who oppose it. If we seek the actuating principle of this opposition, we find it in the doctrine that the unregulated will of the majority is a more desirable form of authority than deliberately accepted principles of government sanctioned by general assent and tried and tested by experience.

Should this tendency become further accentuated by combinations of power able eventually to control the State in their own interest, -we should find ourselves in a position not dissimilar from that in which Mexico is placed today, – divided into hostile factions, one class plundered by another, and the country utterly powerless to defend its interests or maintain its dignity in the field of international relations.

The means of preventing this calamity, -or the remedy for it, if it is already in some degree upon us,-is evidently a determination on the part of the people that arbitrary power in every form must be renounced; that life, liberty, and property shall still enjoy protection against any form of absolutism that may be asserted within the State.

To apply this remedy, the country needs two things. First, to consider seriously the drift of the social forces now operating among us, with a view to forming a clear conception of the degree in which we are adhering to or departing from the spirit of conformity to just and equal laws; and, second, an active movement on the part of thoughtful citizens to arrest an anti-constitutional tendency.

In considering the drift of the social forces now in operation, one is struck by the diminished respect for law simply because it is law. This is, no doubt, in part owing to the changed conception of the source of legal authority. When men sincerely believed in “inalienable rights,” and conceived of law as the guardian of those rights, it was esteemed worthy of a sentiment of reverence. At present the importation of a conception of law as the decree of a dominating will, without relation to fundamental rights,- which are alleged to have no demonstrable existence, – has made it difficult to respect law in and for itself. If, after all, it is merely arbitrary; if it proceeds from no moral principle; if, in short, it is the expression of mere will, and not of reason -it is difficult, it is even unreasonable,
to demand that it be respected.

It is necessary in the life of every nation that from time to time it be called upon to reflect upon the principles that underlie its existence. The present generation has been confronted with no great national crisis that has called for such reflection. The shock that has been given to the party system of government in the United States may prove to be such a crisis. We have suddenly been brought face to face with the question, “What is our political future tobe?” It is for the reason and the conscience of the people to answer, but it remains to be determined on what lines the answer is to be given.

Naturally, in moments of indecision, men look for leaders; but, unless they look also for principles, they look in vain. The choice must be made between experience and experiment; between arbitrary decisions and fundamental principles; in a word, between political anarchy and Constitutional Government.

The one thing most certain is that, if we are to preserve and justify Constitutional Government, we must be ever ready to defend it. If we are to defend it, we who believe in it must act together. To many minds it seems at this moment, the one overmastering issue. When principles have been settled, men have always been found to render them effective. What we need at present is not so much leaders as a statement of the principles by which we should
be led, and which we should then insist upon having applied in practice. In seeking for these we cannot do better than to revert to the great doctrines of our fathers, which, in the midst of revolutions on every side, have brought us to great power as a nation; and which, if faithfully applied, will continue to give us great prosperity as a people.

If from the dissolution of party ties, which has brought home to us the problem of our political future, we are able to rally about the one rock of salvation, the rights of the individual citizen as guaranteed by the Constitution, the atmosphere will clear. We shall see that a State cannot be built upon private interests of any kind, and that our prosperity as a Republic consists in the readiness to renounce the control of the State for our own advantage, by giving to each individual not only full liberty to exercise and develop all his powers in his own way, but protection in preserving that liberty by preventing the public Powers from falling under the domination of any class or combination of men having for its object the subjection of others to their private will.

In the days of our Civil War much aid was afforded to the cause of preserving the Union by the formation of clubs composed of citizens who perceived in that movement the great issue of the hour. It is possible that the time has come when a similar interest in the preservation of Constitutional Government, through the cultivation of respect for the spirit of the Constitution, may be desirable and even necessary.

Such a movement would, undoubtedly, be stoutly opposed; but the intensity of the opposition and the comments that would attend it would, perhaps, furnish surprising proofs that we are at present passing through a crisis of constitutionalism in which the great structure of liberty and justice erected by our fathers is being insidiously undermined, not in the interest of the people, of whose rights it is the only guarantee, but in the interest of private powers within the State which, for purposes of their own, wish to dominate it and employ it as the instrument of their designs.

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