Even the journal consisted of little more than daily memoranda, from which the minutes ought to have been, but never were, made; and these fragmentary records of the proceedings of a convention which had been in continuous session for nearly four months were never published until the year 1819, or thirty-two years after the close of the convention. Thus, the American people knew nothing of their greatest convention until a generation later, and then only a few bones of the mastodon were exhibited to their curious gaze.
The members of the convention kept its secrets inviolate for many years. With few exceptions, the great secrets of the convention died with them. Only one, James Madison, left a comprehensive statement of the more formal proceedings. With this notable exception, only a few anecdotes, handed down by tradition, escaped oblivion. The first of the number to break the pledge of secrecy was Robert Yates, Chief Justice of New York, who, in 1821, published his recollections; but, as he had left the convention a few months after it began, his notes ceased with the 5th of July.
The world would thus have been for ever ignorant of the details of one of the most remarkable conventions in the annals of mankind had it not been that one of the ablest of their number, James Madison, regularly attended the sessions and kept notes from day to day of the debates. While he was not a stenographer, he had a gift for condensing a speech and fairly representing its substance. He jealously guarded his Journal of the Convention until his death. Its very existence was known to few. He died in 1836, and four years later the government purchased the manuscript from his widow. Then, for the first time, the curtain was measurably raised upon the proceedings of a convention which had created, as we now know, one of the greatest nations in history. Fifty-three years after the close of the convention, and when nearly every one of its participants were dead, Madison's Journal was first published.
When was a great secret better kept? Grateful as posterity must be for this inestimable gift of great human enterprise, yet even Madison's careful journal fills one with the deepest regret that this wonderful debate, which lasted for nearly four months between men of no ordinary ability, could not have been preserved to the world.
Two or three of the speeches which Madison gives in his Journal are complete, for when Doctor Franklin spoke he reduced his remarks to writing and gave a copy to Madison, but of the other speeches only a fragrant remains. Thus, that "admirable Crichton," Alexander Hamilton, addressed the convention in a speech that lasted five hours, in which he stated his philosophy of government, but of that only a short condensation, and possibly not even an accurate fragment, remains.
Without this extraordinary provision for secrecy, which is so opposed to modern democratic conventions, and which so little resembles the famous point as to "open covenants openly arrived at," the convention could not have accomplished its great work, for these wise men realized that a statesman cannot act wisely under the observation of a gallery, and especially when the gallery compels him by the pressure of public opinion to work as it directs. I recognize that public opinion—often temporarily uninformed but in the end generally right—does often save the democracies of the world from the selfish ends of self-seeking and misguided leadership; but, given noble and wise representatives, they work best when least influenced by the fleeting passions of the day.
It is evident that if the framers of the Constitution had met, as similar conventions have within recent years met at Versailles and Genoa, with the world as their gallery and with the representatives of the Press as an integral part of the conference, they would have accomplished nothing. The probability is that the convention would not have lasted a month if their immediate purpose had been to placate current opinion. It may be doubted whether such a convention, if called to-day, either in your country or mine, could achieve like results, for in this day of unlimited publicity, when men divide not as individuals but in powerful and organized groups, a constitutional convention would, I fear, prove a witches' cauldron of class legislation and demagoguery. Is it not possible that modern democracy is in danger of strangulation by its present-day methods and ideals? Again the words of Washington suggest themselves: "If, to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? Let us raise a standard to which the wise and just can repair."
Working with a sad sincerity and with despair in their hearts, this little band of men wrought a work of surpassing importance, and if they did not receive the immediate plaudits of the living generation, their shades can at least solace themselves with the reflection that posterity has acclaimed their work as one of the greatest political achievements of man.
The rules of order and the nature of the proceedings thus determined, the convention opened by an address by Mr. Randolph of Virginia, in which he submitted, in the form of fifteen points—nearly the number of the fatal fourteen—the outlines for a new government. He himself in his opening speech summarized the propositions by candidly confessing "that they were not intended for a federal government" (thereby meaning a mere league of States) but "a strong consolidated union." Upon this radical change the convention was to argue earnestly and at times bitterly for many a weary day. The plan provided for a national legislature of which the lower branch should be elected by the people and the upper branch by the lower branch upon the nomination of the legislatures of the States. This legislature should enjoy all the legislative rights given to the federation, and there followed the sweeping grant that it "could legislate in all cases to which the separate States are incompetent or in which the harmony of the United States may be interrupted by the exercise of individual legislation," with power "to negative all laws passed by the several States contravening in the opinion of the national legislature the Articles of the Union."
A national executive was proposed, together with a national judiciary, and these two bodies were given authority "to examine every act of the national legislature before it shall operate and every act of a particular legislature before a negative thereon shall be final." This marked an immense advance over the Articles of Confederation, under which there was no national executive or judiciary, and under which the legislature had no direct power over the citizens of the States, and could only impose duties upon the States themselves by the concurrence of nine of the thirteen.
Hardly had Mr. Randolph submitted the so-called Virginia plan when Charles Pinckney, of South Carolina, a young man of twenty-nine years of age, with the courage of youth submitted to the House a draft of the future federal government. Curiously enough, it did not differ in principle from the Virginia plan, but was more specific and concrete in stating the powers which the federal government should exercise, and many of its provisions were embodied in the final draft. Indeed, Pinckney's plan was the future Constitution of the United States in embryo; and when it is read and contrasted with the document which has so justly won the acclaim of men throughout the world, it is amazing that so young a man should have anticipated and reduced to a concrete and effective form many of the most novel features of the Federal Government. As the only copy of Pinckney's plan was furnished years afterwards to Madison for his journal, it is possible that some of its wisdom was of thepost factumvariety.
Having received the two plans, the convention then went, on May 30, into a committee of the whole to consider the fifteen propositions in the Virginia planseriatim. They wisely concluded to determine abstract ideas first and concrete forms later. Apparently for the time being little attention was paid to Pinckney's plan, and this may have been due to the hostile attitude of the older members of the convention to the presumption of his youth.
Then ensued a very remarkable debate on the immediate propositions and the principles of government which underlay them, which lasted for two weeks. On June 13 the committee rose. Even the fragments of this debate, which may well have been one of the most notable in history, indicate the care with which the members had studied governments of ancient and modern times. There were many points of difference, but chief of them, which nearly resulted in the collapse of the convention, was the inevitable difficulty which always arises in the formation of a league of States or an association of nations between the great and the little States.
The five larger States had a population that was nearly twice as great as the remaining eight States. Thus Virginia's population was nearly ten-fold as great as Georgia. Moreover, the States differed greatly in their material wealth and power. Nevertheless, all of them entered the convention as independent sovereign nations, and the smaller nations contended that the equality in suffrage and political power which prevailed in the convention (in which each State, large or small, voted as a unit), should and must be preserved in the future government. To this the larger States were quite unwilling to yield, and when the committee rose they reported, in substance, the Virginia plan, with the proviso that representation in the proposed double-chambered Congress should be "according to some equitable ratio of representation."
On June 15 the small States presented their draft, which was afterwards known as the New Jersey plan, because it was introduced by Mr. Patterson of that State. It only contemplated an amendment to the existing Constitution and an amplification of the powers of the impotent Confederation. Its chief advance over the existing government was that it provided for a federal executive and a federal judiciary, but otherwise the government remained a mere league of States, in which the central government could generally act only by the vote of nine States, and in which their power was exhausted when they requested the States to enforce the decrees. Its chief advance over the Articles of Confederation, in addition to the creation of an executive, was an assertion that the acts of Congress "shall be the supreme law of the respective States … and that the judiciary of the several States shall be bound thereby in their decisions," and that "if any State or any body of men in any State shall oppose or prevent the carrying into execution of such acts or treaties the federal executive shall be authorized to call forth the power of the confederated States … to enforce and compel obedience to such acts or an observance of such treaties."
While this was some advance toward a truly national government, it yet left the national executive dependent upon the constituent States, for if they failed to respond to the call above stated the national government had no direct power over their citizens.
The New Jersey plan precipitated a crisis, and thereafter, and for many days, the argument proceeded, only to increase in bitterness.
On June 18 Alexander Hamilton, who agreed with no one else, addressed the convention for the first time. He spoke for five hours and reviewed exhaustively the Virginia and New Jersey plans, and possibly the Pinckney draft. Even the fragment of the speech, as taken in long-hand by Madison, shows that it was a masterly argument. He stated his belief "that the British Government was the best in the world and that he doubted much whether anything short of it would do in America." He praised the British Constitution, quoting Monsieur Necker as saying that "it was the only government in the world which unites government strength with individual security." He analysed and explained your Constitution as it then was and advocated an elective monarchy in form though not in name. It is true that he called the executive a "governor" and not a king, but the governor, so-called, was to serve for life and was given not only "a negative on all laws about to be passed," but even the execution of all duly enacted laws was in his discretion. The governor, with the consent of the Senate, was to make war, conclude all treaties, make all appointments, pardon all offences, with the full power through his negative of saying what laws should be passed and which enforced. Hamilton's governor would have been not dissimilar to Louis XIV, and could have said with him, "L'état, c'est moi!" The Senate also served for life, and the only concession which Hamilton made to democracy was an elective house of representatives. Thinly veiled, his plan contemplated an elective king with greater powers than those of George III, an imitation House of Lords and a popular House of Commons with a limited tenure.
Hamilton's plan was never taken seriously and, so far as the records show, was never afterwards considered. His admirers have given great praise to his work in the federal convention. His real contribution lay in the fact that when the Constitution was finally drafted and offered to the people, while he regarded it as a "wretched makeshift," to use his own expression, yet he was broad and patriotic enough to surrender his own views and advocate the adoption of the Constitution. In so doing, he fought a valorous fight, secured the acquiescence of the State of New York, and without its ratification the Constitution would never have been adopted. Hamilton later thought better of the Constitution, and its successful beginning is due in large measure to his genius for constructive administration.
As the debate proceeded, the crisis precipitated by the seemingly insoluble differences between the great and little States became more acute. The smaller States contended that the convention was transgressing its powers, and they demanded that the credentials of the various members be read. In this there was technical accuracy, for the delegates had been appointed to revise the Articles of Confederation and not to adopt a new Constitution. A majority of the convention, however, insisted upon the convention proceeding with the consideration of a new Constitution, and their views prevailed. It speaks well for the honour of the delegates that although their differences became so acute as to lead at times to bitter expressions, neither side divulged them to the outside public. The smaller States could easily have ended the convention by an appeal to public opinion, which was not then prepared for a "consolidated union," but they were loyal enough to fight out their quarrels within the walls of the convention hall.
At times the debate became bitter in the extreme. James Wilson, a delegate of Pennsylvania and a Scotchman by birth and education, turning to the representatives of the little States, passionately said:
"Will you abandon a country to which you are bound by so many strong and enduring ties? Should the event happen, it will neither stagger my sentiments nor duty. If the minority of the people refuse to coalesce with the majority on just and proper principles, if a separation must take place, it could never happen on better grounds."
He referred to the demand of the larger States that representation should be proportioned to the population. To this Bedford, of Delaware, as heatedly replied;
"We have been told with a dictatorial air that this is the last moment for a fair trial in favour of good government. It will be the last, indeed, if the propositions reported by the committee go forth to the people. The large States dare not dissolve the convention. If they do, the small ones will find some foreign ally of more honour and good faith, who will take them by the hand and do them justice."
Finally, the smaller States gave their ultimatum to the larger States that unless representation in both branches of the proposed legislature should be on the basis of equality—each State, whether large or small, having one vote—they would forthwith leave the convention. An eye-witness says that, at that moment, Washington, who was in the chair, gave old Doctor Franklin a significant look. Franklin arose and moved an adjournment for forty-eight hours, with the understanding that the delegates should confer with those with whom they disagreed rather than with those with whom they agreed.
A recess was taken, and when the convention re-convened on July 2, a vote was taken as to equality of representation in the Senate and resulted in a tie vote. It was then decided to appoint a committee of eleven, one from each State, to consider the question, and this committee reported three days later, on July 5, in favour of proportionate representation in the House and equal representation in the Senate. This suggestion, which finally saved the situation, was due to that wise old utilitarian philosopher, Franklin. Again, a vehement and passionate debate followed. Vague references were made to the sword as the only method of solving the difference.
On July 9 the committee again reported, maintaining the principle of their recommendation, while modifying its details, and the debate then turned upon the question to what extent the negro slaves should count in estimating population for the purposes of proportionate representation in the lower House. Various suggestions were made to base representation upon wealth or taxation and not upon population. For several days the debate lasted during very heated weather, but on the night of July 12 the temperature dropped and with it the emotional temperature of the delegates.
Some days previous, namely, June 28, when the debates were becoming so bitter that it seemed unlikely that the convention could continue, Doctor Franklin, erroneously supposed by many to be an atheist, made the following solemn and beautiful appeal to their better natures. He said:
"The small progress we have made after four or five weeks' close attendance and continual reasonings with each other—our different sentiments on almost every question, several of the last producing as many noes as ayes, is, methinks, a melancholy proof of the imperfection of the human understanding. We indeed seem to feel our own want of political wisdom, since we have been running about in search of it. We have gone back to ancient history for models of government, and examined the different forms of those Republics which, having been formed with the seeds of their own dissolution, now no longer exist. And we have viewed modern States all around Europe, but find none of their constitutions suitable to our circumstances.
"In this situation of this Assembly, groping as it were in the dark to find political truth, and scarce able to distinguish it when presented to us, how has it happened, sir, that we have not hitherto once thought of humbly applying to the Father of Lights to illuminate our understandings?… And have we now forgotten that powerful Friend or do we imagine that we no longer need His assistance? I have lived, sir, a long time, and the longer I live, the more convincing proofs I see of this truth: ThatGod governs in the affairs of men. And if a sparrow cannot fall to the ground without His notice, is it probable that an empire can rise without His aid? We have been assured, sir, in the sacred writings, that 'except the Lord build the House they labour in vain that build it.' I firmly believe this; and I also believe that without His concurring aid we shall succeed in this political building no better than the builders of Babel. We shall be divided by our little partial local interests; our projects will be confounded, and we ourselves shall become a reproach and byword down to future ages. And what is worse, mankind may hereafter from this unfortunate instance, despair of establishing governments by human wisdom and leave it to chance, war, and conquest.
"I therefore beg leave to move that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business, and that one or more of the clergy of this city be requested to officiate in that service."
It may surprise my audience to know the sequel. The resolution was voted down, partly on the ground that if it became known to the public that the convention had finally resorted to prayers it might cause undue alarm, but also because the convention was by that time so low in funds that, as one of the members said, it did not have enough money to pay a clergyman his fees for the service. I suspect that their controlling reason was their indisposition to break their self-imposed rule of secrecy by contact with the outer world until their work was completed. Perhaps they thought that "God helps those who help themselves."
On July 16 the compromise was finally adopted of recognizing the claims of the larger States to proportionate representation in the House of Representatives, and recognizing the claims of the smaller States by according to them equal representation in the Senate. This great result was not effected without the first break in the convention, for the delegates from New York left in disgust and never returned, with the exception of Hamilton, who occasionally attended subsequent sessions. Such was the great concession that was made to secure the Constitution; and the only respect in which the Constitution to-day cannot be amended is that by express provision the equality of representation in the Senate shall never be disturbed. Thus it is that to-day some States, which have less population than some of the wards in the city of New York, have as many votes in the Senate as the great State of New York. It is unquestionably a palpable negation of majority rule, for as no measure can become a law without the concurrence of the Senate—now numbering ninety-six Senators—a combination of the little States, whoso aggregate population is not a fifth of the American people, can defeat the will of the remaining four-fifths. Pennsylvania and New York, with nearly one-sixth of the entire population of the United States, have only four votes in ninety-six votes in the Senate.
Fortunately, political alignments have rarely been between the greater and the smaller States exclusively. Their equality in the Senate was a big price to pay for the Union, but, as the event has shown, not too great.
The convention next turned its attention to the Executive and the manner of its selection, and upon this point there was the widest contrariety of view, but, fortunately, without the acute feeling that the relative power of the States had occasioned.
Then the judiciary article was taken up, and there was much earnest discussion as to whether the new Constitution should embody the French idea of giving to the judiciary, in conjunction with the Executive, a revisory power over legislation. Three times the convention voted upon this dangerous proposition, and on one occasion it was only defeated by a single vote. Fortunately, the good sense of the convention rejected a proposition, that had caused in France constant conflicts between the Executive and the Judiciary, by substituting the right of the President to veto congressional legislation, with the right of Congress, by a two-thirds vote of each House, to override the veto, and secondly by an implied power in the Judiciary to annul Congressional or State legislation, not on the grounds of policy, but on the sole ground of inconsistency with the paramount law of the Constitution. In this adjustment, the influence of Montesquieu was evident.
These and many practical details had resulted in an expansion of the fifteen proposals of the Virginia plan to twenty-three.
Having thus determined the general principles that should guide them in their labours, the convention, on July 26 appointed a Committee on Detail to embody these propositions in the formal draft of a Constitution and adjourned until August 6 to await its report. That report, when finally completed, covered seven folio pages, and was found to consist of a Preamble and twenty-three Articles, embodying forty-three sections. The draft did not slavishly follow the Virginia propositions, for the committee embodied some valuable suggestions which had occurred to them in their deliberations. Nevertheless, it substantially put the Virginia plan into a workable plan which proved to be the Constitution of the United States in embryo.
When the committee on detail had made its report on August 6, the convention proceeded for over a month to debate it with the most minute care. Every day for five weeks, for five hours each day, the members studied and debated with meticulous care every sentence of the proposed Constitution. Time does not suffice even for the barest statement of the many interesting questions which were thus discussed, but they nearly ran the whole gamut of constitutional government. Many fanciful ideas were suggested but with unvarying good sense they were rejected. Some of the results were, under the circumstances, curious. For example, although it was a convention of comparatively young men, and although the convention could have taken into account the many successful young men in public life in Europe—as, for example, William Pitt—they put a disqualification upon age by providing that a Representative must be twenty-five years of age, a Senator thirty years of age, and a President thirty-five years of age. When it was suggested that young men could learn by admission to public life, the sententious reply was made that, while they could, they ought not to have their education at the public expense.
The debates proceeded, however, in better temper, and almost the only question that again gave rise to passionate argument was that of slavery. The extreme Southern States declared that they would never accept the new plan "except the right to import slaves be untouched." This question was finally compromised by agreeing that the importation of slaves should end after the year 1808. It however left the slave population then existing in a state of bondage, and for this necessary compromise the nation seventy-five years later was to pay dearly by one of the most destructive civil wars in the annals of mankind.
August was now drawing to a close. The convention had been in session for more than three months. Of its work the public knew nothing, and this notwithstanding the acute interest which the American people, not merely facing the peril of anarchy, but actually suffering from it, must have taken in the convention. Its vital importance was not under-estimated. While its builders, like all master builders, did "build better than they knew," yet it cannot be said that they under-estimated the importance of their labours. As one of their number, Gouveneur Morris said: "The whole human race will be affected by the proceedings of this convention." After it adjourned one of its greatest participants, James Wilson, of Pennsylvania, said:
"After the lapse of six thousand years since the creation of the world, America now presents the first instance of a people assembled to say deliberately and calmly and to decide leisurely and peaceably on the form of government by which they will bind themselves and their posterity."
In the absence of any authentic information, the rumour spread through the colonies that the convention was about to reconstitute a monarchy by inviting the second son of George III, the Bishop of Osnaburg, to be King of the United States; and these rumours became so persistent as to evoke from the silent convention a semi-official denial. There is some reason to believe that a minority of the convention did see in the restoration of a constitutional monarchy the only solution of the problem.
On September 8 the committee had finally considered and, after modifications, approved the draft of the Committee on Detail, and a new committee was thereupon appointed "to revise the style of and arrange the articles that had been agreed to by the House." This committee was one of exceptional strength. There were Dr. William Samuel Johnson, a graduate of Oxford and a friend of his great namesake, Samuel Johnson; Alexander Hamilton, Gouveneur Morris, a brilliant mind with an unusual gift for lucid expression; James Madison, a true scholar in politics, and Rufus King, an orator who, in the inflated language of the day, "was ranked among the luminaries of the present age."
The convention then adjourned to await the final revision of the draft by the Committee on Style.
On September 12 the committee reported. While it is not certain, it is believed that its work was largely that of Gouveneur Morris.
September 13 the printed copies of the report of the Committee on Style were ready, and three more days were spent by the convention in carefully comparing each article and section of this final draft.
On September 15 the work of drafting the Constitution was regarded as ended, and it was adopted and ordered to be engrossed for signing.
It may be interesting at this point to give the result of their labours as measured in words, and if the framers of the Constitution deserve the plaudits of posterity in no other respect they do in the remarkable self-restraint which those results revealed.
The convention had been in session for 81 continuous days. Probably they had consumed over 300 hours in debate. If their debates had been fully reported, they would probably have filled at least fifty volumes, and yet the net result of their labours consisted of about 4,000 words, 89 sentences, and about 140 distinct provisions. As the late Lord Bryce, speaking in this age of unbridled expression, both oral and printed, so well has said:
"The Constitution of the United States, including the amendments, may be read aloud in twenty-three minutes. It is about half as long as Saint Paul's Epistle to the Corinthians, and one-fourth as long as the Irish Land Act of 1881. History knows few instruments which in so few words lay down equally momentous rules on a vast range of matters of the highest importance and complexity."
Even including the nineteen amendments, the Constitution, after one hundred and thirty-five years of development, does not exceed 7,000 words. What admirable self-restraint! Possibly single opinions of the Supreme Court could be cited which are as long as the whole document of which they are interpreting a single phrase. This does not argue that the Constitution is an obscure document, for it would be difficult to cite any political document in the annals of mankind that was so simple and lucid in expression. There is nothing Johnsonese about its style. Every word is a word of plain speech, the ordinary meaning of which even the man in the street knows. No tautology is to be found and no attempt at ornate expression. It is a model of simplicity, and as it flows through the reaches of history it will always excite the admiration of those who love clarity and not rhetorical excesses. One can say of it as Horace said of his favourite Spring:
O, fons Bandusiae, splendidior vitro. Dulce digne mero, non sine floribus.
If I be asked why, if this be true, it has required many lengthy opinions of the Supreme Court in the 256 volumes of its Reports to interpret its meaning, the answer is that, as with the simple sayings of the great Galilean, whose words have likewise been the subject of unending commentary, the question is not one of clarity but of adaptation of the meaning to the ever-changing conditions of human life. Moreover, as with the sayings of the Master or the unequalled verse of Shakespeare, questions of construction are more due to the commentators than to the text itself.
On September 17 the convention met for the last time. The document was engrossed and laid before the members for signature. Of the fifty-five members who had attended, only thirty-nine remained. Of those, a number were unwilling to sign as individuals. While the members had not been unconscious of the magnitude of their labours, they were quite insensible of the magnitude of their achievement. Few there were of the convention who were enthusiastic about this result. Indeed, as the document was ready for signature, it became a grave question whether the remnant which remained had sufficient faith in their own work to subscribe their names, and if they failed to do so its adoption by the people would have been impossible. It was then that Doctor Franklin rendered one of the last and greatest services of his life. With ingratiating wit and with all the impressiveness that his distinguished career inspired, Franklin thus spoke:
"I confess that there are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them. For having lived long I have experienced many instances of being obliged by better information or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment and to pay more respect to the judgment of others. Most men indeed as well as most sects in religion think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele, a Protestant, in a dedication tells the Pope that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain French lady, who in a dispute with her sister, said: 'I don't know how it happens, sister, but I meet with nobody but myself that's always in the right.'—Il n'y a que moi qui a toujours raison.
"In these sentiments, sir, I agree to this Constitution with all its faults, if they are such; because I think a general government necessary for us, and there is no form of government but what may be a blessing to the people, if well administered, and I believe further that this is likely to be well administered for a course of years, and can only end in despotism as other forms have done before it, when the people shall become so corrupted as to need despotic government, being incapable of any other. I doubt, too, whether any other convention we can obtain may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom you inevitably assemble with those men all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, sir, to find this system approaching so near to perfection as it does…. Thus, I consent, sir, to this Constitution because I expect no better, and because I am not sure that it is not the best. The opinions I have had of its errors I sacrifice to the public good, I have never whispered a syllable of them abroad. Within these walls they were born and here they shall die. If every one of us in returning to our constituents were to report the objections he has had to it and endeavour to gain partisans in support of them, we might prevent its being generally received, and thereby lost all the salutary effects and great advantages resulting naturally in our favour among foreign nations as well as among ourselves from our real or apparent unanimity.
"On the whole, sir, I cannot help expressing a wish that every member of the convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility—and to make manifest our unanimity, put his name to this instrument."
Truly this spirit of Doctor Franklin could be profitably invoked in this day and generation, when nations are so intolerant of the ideas of other nations.
As the members, moved by Franklin's humorous and yet moving appeal, came forward to subscribe their names, Franklin drew the attention of some of the members to the fact that on the back of the President's chair was the half disk of a sun, and, with his love of metaphor, he said that painters had often found it difficult to distinguish in their art a rising from a setting sun. He then prophetically added:
"I have often and often in the course of the sessions and the vicissitudes of my hopes and fears in its issues, looked at that behind the President without being able to tell whether it was rising or setting. But now at length I have the happiness to know that it is a rising and not a setting sun."
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 thetextof 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 beadaptedto 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 thedirectaction 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 JamesMadison, 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, andvice 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 commercebetweenthe States, but the power over commercewithina 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 doesnotrequire 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 theLusitania, 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.