THE SUBJECT OF LAW and constitutionalism is broader in scope than that of the court system of a state. Accordingly, the treatment of the legal order will introduce the entire subject of political organization, while the study of courts will take its place in the sequence of chapters on more specialized political institutions. The breadth of the subject of law and constitutionalism results from the place law holds in society. We shall shortly define the term law, but meanwhile we may visualize its role in society if we remember that every culture has a system of orderly and continuous procedures enveloping its political institutions and regulating the behavior of the members of the community. Men can expect certain acts because they are lawfully required of individuals. The legal role of political institutions and the legal relationships among them make up the constitution of the society. The culture determines the state of the laws and the constitution, and, in turn, the laws and constitution-because the men who work with them acquire various interests and habits -influence the culture to some extent.
Our discussion of the legal and constitutional order is divided into three parts. In the first section, we discuss the relation of law to custom and to ethics, define law, and present various ways of classifying it. The second section depicts the growth of modern constitutions and explains how constitutions change. The third and final section, taking the concept of constitutionalism in its deepest meaning, tries to explain the social forces that support or disturb the constitutional order.
There are three principal ways of studying law and the legal order. One is to study them as the habits or customs of a community. Another way is to study law and the legal order from the standpoint of some system of ethics that would allow us to decide that one law is good and another bad. A third way is to regard law and the legal order as a specialized part of the political community; as such, they envelop the political institutions of the community and take as their special province the enforcement of prescribed relationships among the officers of the institutions and between the officers and the members of the community. This third method of analysis is regarded as most useful for this kind of book and is followed generally. However a brief discussion of law as custom and law as ethical principles will help one understand several important problems of law.
If we study the sources of law thoroughly, we realize that all human communities have definite beliefs regarding the rightness or wrongness of various acts. All communities, large or small, simple or with a complex division of labor, reward and punish the behavior of their members. Courts, sheriffs, administrative officers, and armies are present in most communities. Yet, with or without such specialized officers, rewards and punishments occur. We mentioned earlier the many ties that bind a community, and the sanctions of ostracism and frustration that follow acts opposed to the customs of the community.
However complex and numerous the rules of a society may be, a considerable part of them will be obeyed without the intervention of special machinery. For men, from infancy onwards, are trained to follow the rules and to do "right" by parents and teachers who themselves have learned the rules the same way as they now impart them. These regular ways in which men learn to behave, with or without formal political officers to proclaim and enforce the "right" behavior, may be called the conventional order. Following Max Weber, "a system of order will be called convention so far as its validity is externally guaranteed by the probability that deviation from it within a given social group will result in a relatively general and practically significant reaction of disapproval."
When we speak of the law, therefore, we ought not to forget the conventional order that joins with the law to make up the general social order. General notions of what is legitimate and illegitimate in politics, of what is right and wrong, of how citizens and officials ought to conduct themselves-all of this kind of moral principle, while it is often spelled out in law, is nevertheless based on the conventional order.
In accepting these points, however, one need not believe some enthusiasts who claim that the community is the source of all law. Many anthropologists and some writers on jurisprudence, especially from among the schools of sociological jurisprudence and conservative historicism, have overemphasized the role of custom in creating and enforcing law. They see the political process as a rubber stamp for the conventional order. They reason that law almost always has a base in custom, in what the community believes is right, and that a pure declaration or command will have little or no effect. Law to them has the medieval meaning subscribed to officially by the medieval kings and barons, who believed law could only be the declaration of the already established behavior patterns of the community.
This view is too exclusive for us. The infinitely complex and changing world of human relations produces ever new situations and consequently ever new law. A new law is declared in order to meet a novel situation, and being declared, is enforced, and being enforced, creates a new condition to which the community adjusts. The law may be determined by the past, but it may be "new," nevertheless, and it can in turn determine to some extent the future.
A second way of studying the law is to establish for oneself a system of ethical principles, a set of beliefs about what is good and bad, and to evaluate the statutes of various countries according to those beliefs. Usually a writer who adopts this procedure terms the statutes he likes "lawful" and those he does not like "unlawful." This is no crime, of course, but it is often uneconomical, scientifically speaking, and also causes difficulties of communication. For we have to learn not only a set of facts but also the set of preferences and prejudices of the writer in order to understand what is being said. Furthermore, writers of this kind often discuss values that they themselves have not defined. They neglect to tell us what they mean by "good," "just," "reasonable," and other terms denoting values. They only delude themselves if they think that everyone agrees on the meaning of such words.
Those who use evaluative definitions of the law can find agreement to their definitions only among those who share their ideas on what "justice" and "good conduct" are. For example, St. Thomas Aquinas defined law as "an ordinance of reason, for the common good, made and promulgated by him who has the care of the community." Notice the words "reason" and "good"; they signal that there lies behind them a system of values that must be accepted or understood before the meaning of the definition can become clear. For otherwise, people who think they are using the term "law" as Aquinas defines it will in fact have various different and often incompatible notions about what is good and bad, law or not law.
We could use the definition of Aquinas only by explaining his system of values. This would require a lengthy treatise on morals. Unfortunately, there are many writers who use words like "good" or "reasonable," but unlike Aquinas have never defined or systematized anywhere the meaning of those words. They will cite an action, call it lawful or unlawful, and leave one to accept uncritically their dogma or to lapse into bewilderment. Thus, if a man believes Gandhi a just person and defines law as "the principles of justice," then we are likely to be trapped into accepting whatever Gandhi did as just and lawful and what his opponents did as unjust and unlawful. We shall then either be fooled or bewildered unless we see the verbal trick being played.
Another kind of difficulty, related to the difficulty of treating the law as moral precepts with which we agree or disagree, appears when writers speak of natural law. "Laws of nature" (the "law of gravity," for example), say some, need no sanctions or compulsion apart from their internal compulsion or inevitability. Are not human laws the same? Two possible answers may be given, but we adhere to the second for the purposes of this book.
The first answer would be "yes"; the morals of mankind, if plumbed to their depths, may reveal universal agreement as to what is good and lawful. This universal agreement may be regarded as the basic or "natural" law; it causes men to tend toward similar "good" behavior everywhere. What is "true" is also "good." This is the view of the "natural law" school of jurisprudence. We do not use this approach because there is insufficient evidence to prove that there are universally held ethical ideas of law in man's nature.
The second answer would be "no"; it is more useful to recognize that there exist different systems of ethics and ethical directives among human communities. This is the view of men like Roscoe Pound of the school of "sociological jurisprudence." We can make scientific statements about the ethical directives of each community and the manner in which adherence to directives by the members of the community is systematically compelled. However, faced with strong and widespread disagreement among men as to what is right and wrong, we could never say what everybody regards as law is the same, and consequently could never agree that there is only a single body of laws that is at the same time universally agreed to and universally right.
Temporarily, at least, we believe that more can be found out about the legal customs of people by taking a relativist viewpoint. Thus, following our own notions, we find a law in one country that may require a free press and another law in a second that may prohibit a free press. Both are laws, even though we think one good and the other bad. By putting our prejudices aside, we can study both laws objectively.
Reserving as separate issues, then, the interpretation of law as custom and the ethical meanings that might be given the term, we may define laws as the ethical directives in a community, deviations from which are met usually by measures to compel conformity or by punishment, applied by public officers. This is essentially the definition employed by Max Weber.
A discussion of the elements of the definition of law is now in order. The words "ethical directives" denote that there is always stated or implied in a law that something is good, that the behavior described is better than the behavior prohibited. The "thou shalt" and "it is forbidden to" discriminate "good" from "bad" conduct.
The term "community" has been defined in Volume I as the people with respect to their interrelations. The law exists with respect to such a community; but what of the multitude of laws that affect only a part of the community? Examples would be laws governing hours of work, or business contracts, or railroads. Such laws may be included in our definition since they cover all the members of the community who may engage themselves in the network of relationships covered by the law. Thus a man need not sell liquor, but he must have a license if he wishes to sell liquor.
"Deviations" mean not doing what the law tells one to do or doing what the law tells one not to do. The term "usually" is introduced into the definition in order to convey the fact that the machinery of justice need not be invariably effective for law to exist. A great many laws are successfully violated at least once.
The salient point of our definition, the point that differentiates law from the conventional order and gives to law its important place in the study of the state, is in the phrases that deal with enforcement. Deviations are met usually by "measures to compel conformity or by punishment, applied by public officers." While customs are enforced by scorn, ostracism, and like sanctions, deviations from the law spur into action men who hold office to enforce the law. If all men are to register for military service, public officers round up the reluctant and procrastinating few and compel them to register. Anyone who continues to avoid registering is charged with deliberately violating the law and is subjected to trial and, if found guilty, to punishment. If fire prevention and safety precautions are to be taken by all theater and hotel owners, inspectors visit the premises to ensure compliance with the law. Offenders may be ordered to conform, warned of possible criminal actions, and, if unheeding, subjected to indictment, trial, and punishment.
Who make the laws of a society? The law in American society, under our given definition, may be classified according to its formal origins as common law, judge-made law, or legislation. Most other modern societies depend for their laws on legislation and judge-made law. Law may also be created by the political constituency, the body of citizens, in which event it may be called popular law.
The common law, the important body of law found in English-influenced legal systems, is the findings, declaration, and enforcement of the customs of the country by a court, together with the modifications introduced into these findings by changes in community, judicial, legislative, and executive opinion, but especially in judicial opinion. The fifty American court systems follow interpretations of the common law different from those that prevail in English courts. The "common law" of Illinois, for example, is not the same as the "common law" of England. In a number of cases, the statutes of the various countries and states have adopted, modified, or repealed common law principles.
Judge-made law is frequently confused or identified with the common law. However, all judges, whether they are interpreting the common law or the most formal kind of enactment, make law in a more or less subtle fashion. They do so by interpreting the meaning of abstract words in a large number of particular cases, as when they decide in particular cases to include or exclude certain kinds of persons or actions from the coverage of the law. Over a period of time, there accrues a judge-made slant in the law. The extreme version of this process is found when judges are allowed to pass on the question of whether a legislative enactment conforms to a constitution. Such is the case in the American state and national governments, where it is called the power of "judicial review."
Legislation is the formally structured process that is given a monopoly or at least a quasi-monopoly of the designing and promulgation of new, positive law. Thus legislation may be made by a legislature alone, an executive officer alone, or by a combination of both. Where the executive is confined entirely to administrative tasks or honorary tasks-examples being some of the early American state governors, the English King, and the type of weak presidency found in several European countries - the legislature has a quasi-monopoly over legislation. Where the legislature is entirely absent (as in the France of Louis XIV), weak from external causes (as in the England of Elizabeth 1), or weak from internal causes (as in the German Republic just before Hitler), the executive branch of the government, be it a kingship or republic, designs and influences the design of, and sometimes even promulgates, the positive law.
At other times, the legislative function is divided among the legislature, the executive, and even the judiciary. The legislature may be entitled to design and propose laws, but the executive may be allowed to reject them. This process characterizes the contemporary American national and state systems in their formal structures. Their informal or actual structures may give the executives, because of their powerful political position and other factors, even more power to propose and amend the laws.
The law that is created directly by the body of citizens can only exist when there is an active belief in popular sovereignty. City-states and other small, compact communities have of course a technical advantage in implementing such beliefs, for there the qualified and active people can assemble conveniently to discuss and approve laws. In a larger society, the initiative and referendum, by which the electorate proposes and passes on laws, may exist as examples of the popular law-making process.
The classification just given of the kinds of law is primarily a formal classification. It calls attention to the formal organizations that process, approve, and promulgate ethical directives. It tends to slight the relative strength of the influences that play on the lawmaking process-community leaders, pressure groups, and other influences that are not formally required to operate in order to have a particular event called a law.
Other classifications, both informal and formal, could focus on other criteria. For example, laws could be classified according to the group in the community that has most to say in the making of law-the business interests, the military, the majority of the people, the party leaders, the representatives assembled in the legislature. Or we could classify laws by the number of people they affect-all the people, the electorate, the people of a region, the armed forces, a certain business group, labor, and so on; or by the sanctions attached to them: capital punishment, prison terms, restraints, withholding of benefits, ostracism, publicity, disapproval, and so on; or by the parties entitled to contest one another: nation versus state, nation versus corporate bodies, nation versus individuals, state versus state, corporation versus corporation, individual versus individual, and so on.
Furthermore, laws may be classified according to the type of judicial procedure that is required to determine cases that arise, such as criminal procedure, civil procedure, procedure in equity, or administrative procedure; or according to the kinds of cases: crimes, torts, contract disagreements, and so on; or according to the kinds of courts that have jurisdiction over cases involving the law-international courts, arbitral commissions, national courts (arranged according to whether they have original jurisdiction over a case or whether they take cases on appeal, by appellate jurisdiction), state courts, municipal courts, special courts such as tax courts and traffic courts, and so on. All these classifications may be useful for particular purposes.
Constitutional law is the important body of law that allocates to the agencies of government their part in the making and administration of law. It takes, so to speak, our forms of law and gives them a general relationship to one another. It describes broadly the spheres of operation of the citizenry, the common law (if present in the society), the judge-made law, and legislation.
Bouvier, in his legal dictionary, defines a constitution as "the fundamental law of a state, directing the principles upon which the government is founded, and regulating the exercise of the sovereign powers, directing to what bodies or persons those powers shall be confided and the manner of their exercise."
Americans, and many people of nations influenced by the American idea of a constitution, tend to think of a constitution as a written document, drafted at some convention of the citizens or of the representatives of the political community. It is therefore necessary to point out that a constitution may be unwritten and yet serve the same general function as a written constitution. The Romans had the word "constitutio" that pertained to the collected orders of the Emperor. In medieval England, the same word was used to describe the more important enactments and promulgations. In the course of time, it came to refer only to the more fundamental statutes of the realm, and finally to a body of basic statutes, common law principles, and customary law corresponding rather closely to the definition of constitution given by Bouvier.
The American colonists were familiar with the unwritten English constitution and with the radical criticisms of the unwritten constitution by the Levellers of the mid-seventeenth century. The Levellers possessed three ideas that are the key to the historical understanding of modern constitutionalism of the American and French variety. They believed that the members of a community, in order to put definite checks on the government, had the unquestionable right to contract with one another to establish a frame of government. They therefore wrote several "Agreements of the People" and other documents that they wished to establish as the constitution of the English republic.
Oliver Cromwell, although he believed in the idea of constitutions, found the Leveller proposals too radical for his tastes. In 1654, he declared that every government ought to be founded on an unchanging standard. He actually accepted Lambert's "Instrument of Government" and swore to support it. He later accepted a new "Humble Petition and Advice" as his model of government. But he soon found constitutional documents an inconvenience for his dictatorship and ignored them in practice. The history of written constitutions switches thereafter to America.
The idea of the written basic law begins very early in American history and gains strength from the Leveller beliefs in popular sovereignty, natural rights, and, especially, the social contract. Though the first colonists in Massachusetts and in Virginia did not favor some of the Leveller ideas, they did agree with the radicals that new societies and governments were formed by a contract among the citizens.
Some of the colonists professed to see in the colonial charters granted by the Crown a kind of social compact and fundamental law. Yet the use of such charters could be traced to the charters of the medieval merchant gilds and even to the corporation of ancient Rome. Perhaps more closely resembling the ideal of the compact were the ordinances that the London Company sent to Virginia in 1621, and that prescribed the structure of the colonial government.
Some historians believe that the Pilgrim Compact was a more important step in the development of constitutions than the charters or corporate orders. Signed on the Mayflower in 1620 by the 41 men of the Plymouth Colony, the Compact was an agreement of a fundamental nature on the manner of governing the colony. Certain other writers credit the colony of Connecticut with the first constitution. There, in 1639, the towns of Windsor, Weathersfield, and Hartford became associated in a body politic under an instrument that they entitled "The Fundamental Orders." This was undoubtedly the first independent formulation on paper of a democratic plan of government in America, but it was not a final document or a wholly legal document, for the men of Connecticut soon thereafter asked the Crown for a charter.
Another share of the credit for inventing the constitution has gone to the Puritans' use of the agreement or covenant in founding churches. Governor Winthrop of Massachusetts Bay spoke of "the covenant between God and men in the moral law and the political covenants and constitutions among men themselves." He added that "it is of the nature of every society to be knit together by some covenant either expressed or implied."
In all these cases, it is apparent that the belief in the social contract was at work. The conviction was running strong in many places that men, who were solitary individuals by nature, might come together and compact a form of government, and, indeed, that all governments were originally based on such compacts even though the records of them might have been lost. Whatever the relative strength of the influences - the Roman Law, the English examples, the social contract idea, the colonial charters, or the church covenants -the colonists began very early to codify important political practices. The final result was an embodiment of the fundamental law in one comprehensive document, a form of expression that differed from the disconnected, fragmentary elements of the fundamental laws of England.
In the period before the American Revolution, then, the idea of a constitution as a necessary and written fundamental document was in the air, and many colonists looked forward to the time when they might write their own constitutions without depending on the royal charters or on a scattering of customs, usages, and statutes. The great event that opened the modern constitutional period came in May of 1776, when the Continental Congress recommended "to the respective Assemblies and Conventions of the United Colonies, where no government sufficient to the exigencies of their affairs has been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general." Thus the states were invited to draft their own constitutions, and shortly thereafter came the famous Declaration of Independence approved by all of them.
In a few of the original states, the constitutions were framed at first by ordinary legislative bodies that had been convened for legislative purposes rather than solely for the purpose of drafting a basic law. But ever since then, it has been the practice to call special conventions of constitutional bodies for drawing up fundamental documents. The greater part of the original states and some that came along later worked on the theory that these conventions were themselves the embodiment of the people and that their acts needed no ratification by popular vote. As the nineteenth century wore on and popular movements became stronger, the general practice developed of referring draft constitutions to the electorate for final approval.
However, the federal Constitution came too early to be subjected to the full force of the popular ratification movement. The drafters of the new Constitution did not wish to submit the document to the scrutiny of state legislatures, because some states were controlled by anti-nationalists. They therefore suggested it be debated and voted on by conventions called for the special purpose and formed of delegates chosen by the existing electorates of the states. They expected, with good reason, that they might influence the special conventions more than the legislatures. They also wished to be able to say that the Constitution rested on the approval of the whole people, rather than simply on the votes of the state legislators. Only by a narrow margin did the new Constitution triumph, and that margin might not have been achieved if the Constitution had been submitted to popular vote or to the state legislatures.
Whatever the fate of particular constitutions, the idea of having some constitution became ineradicable in America. One of the reasons that constitutionalism has remained so important in American life has been the fact that two major branches of American thought - the moderate or Madisonian democrats and the extreme or Jeffersonian democrats-have been able to agree among themselves that constitutionalism was a good thing. They have agreed that there should be a basic document stating rights and privileges with relation to the government and defining the operations of the state.
However, the reasoning by which each group arrived at this idea is different. A constitution is desired so that the powers of government should be limited by a fundamental law. Yet there are two ways of looking at this fundamental law. One view holds that the government has to be restrained on behalf of the individual. Power has been perverted so frequently that the liberties of the individual require protection by fundamental statutes. The Levellers, and other extreme democrats, were constitutionalists in this sense. They thought that they might limit executive and legislative authority in order to foster the free will of the mass of people.
On the other hand, constitutions were demanded by conservatives as well, for fundamental statutes, as laws created by the past, limit the present and future generations. John Adams, James Madison, and a long succession of Supreme Court justices emphasized this viewpoint; in contrast, Jefferson would have preferred to set a limit to the duration of any particular constitution.
These attitudes towards change-resistance and advocacy -are reflected in differing attitudes towards the amending process. While the founders of .the American federation made the Constitution difficult to amend, Jefferson believed that the Constitution ought not to burden the present generation with the legal conceptions of the past. Patrick Henry, the famous Virginia patriot and orator, attacked the Constitution when it was before the state convention for ratification, declaring that it was aristocratic in nature. Its amendment procedure, he insisted, would allow one-twentieth of the people to block constitutional change, no matter how desperately the change was desired by the rest of the people.
As the views of Jefferson and Henry grew in popularity and influence, later constitutions reflected them. A difficult amending process characterized more frequently the first state constitutions and the federal Constitution than the constitutions that followed. Actually, several of the later ones provided that the people be consulted periodically for the purpose of suggesting amendments. Others provided for amendments through a simple majority vote of a legislature followed by ratification by a majority of citizens voting in a special election. As a result of a movement in the late nineteenth and early twentieth century, thirteen states today provide a constitutional initiative whereby the voters may bring up proposals to amend the constitution and have the proposals acted upon in various ways.
The American Constitution, the state constitutions, the statutes passed in consequence of them, and the attendant debates have given to American politics and government a legal cast that has often surprised foreign observers. When a change of any kind is proposed in the laws, a great deal of attention is paid to its degree of accord with the basic constitutions, down to the slightest meaning of the last word.
In 1950, even after two decades of great changes in the meaning of many important phrases in the constitution, constitutional interpretation precedes legislative discussion. Thus, in hearings before the House Select Committee on Lobbying Activities during 1950, the Committee had difficulty in reconciling the details of a projected clause regulating lobbyists with the first amendment to the Constitution that guarantees various individual liberties. When Congressman Albert asked Dr. W. Brooke Graves about a possible contradiction between a proposed detail and the first amendment, Dr. Graves could only answer that the question "has been raised in this case that has been before the Court for, I think, more than a year now. There has been no decision on that. It would be very helpful to us if the Court would dispose of that case." Constitutionalism in America, that is to say, has grown into a philosophy of change. Change must be rationalized legally as well as morally and socially. Unless an action accords with the constitutions, even though the action be thought good in itself, it is regarded or obeyed by many with hostility or shame.
Now it would be a grave error to dismiss the great respect for constitutions as "a mere psychological state." It is one of the great constellations of attitudes into which human activity is organized. Science can describe and analyze it but is not permitted to dismiss or depreciate it. Its dismissal or depreciation is purely a political affair - to be left to people attached to different values, to another tradition, to a magnetic leader, or even to cynicism.
It is, of course, natural for persons who believe in one set of values or in one kind of legitimacy, to view the beliefs of others as "irrational." For example, Americans frequently regard the monarchs of England and other countries as irrational, useless, and comical idols. Yet Americans revere constitutions of all kinds (every little club has one) in much the same way that the English revere their royal family. Americans rarely know what the practical effects of their constitutions are (if they have, indeed, ever read them); and they have, by interminable debates and thousands of legal commentaries, furnished amusement to generations of royal subjects abroad.
Evidence of the essential psychological meaning of constitutionalism is afforded by certain meaningless constitutions. The fact that a constitution is written down does not mean that the people hold to it. The English are constitutionalists and therefore have a constitution, even though it is an unwritten one; certain other peoples have written constitutions, but are not constitutionalists. Such meaningless written constitutions are incongruous with the existing sentiments and social organization to which it was hoped they would apply.
How such constitutions came to be adopted is not difficult to explain historically. A number of South American republics, -the republics that were founded in Central Europe after the first world war, the communist republics of Eastern Europe today, and the U.S.S.R. have or have had written constitutions. It is generally observed that these constitutions do not perform the same function as does the American Constitution. All of these constitutions were drafted by small groups of men at a point in history when the United States and France were apparently successful republics. The obvious symbol of their success was the constitution. The new constitutions, therefore, carefully imitated the structure and wording of the existing models. The written document, it was thought, would somehow magically produce all the happy conditions of the model countries. If, as sometimes happened, the national leaders realized the futility of constitutions, given their countries' history, they were still forced to accede to the clamor of public opinion for "something democratic like America has."
Recounting the successive failures of this approach to constitutionalism would be futile. A general respect for legality, for reason in public affairs, for popular consent and participation, and for certain dominant shared values of society must precede a written constitution. These conditions were barely present in America in 1787, and the American Constitution might easily have failed (as it did in 1860). The internal conditions existing today in most countries that have not had long experience with written basic documents are such that a written constitution can hold little meaning. Proclaiming a constitution where there is hardly a legal order is like trying to achieve happiness by assuring oneself that one is happy.
Yet constitutions are the fashion in the twentieth century. Ninety per cent of the world's nations have written constitutions. Communist dictatorships succeed other kinds of dictatorships and promptly draft new meaningless constitutions to replace the old meaningless ones. The several constitutions promulgated by the Republican, Nationalist, and Communist rulers of China since 1900 have had a negligible effect. The Constitution of the U.S.S.R. seems to lead a life of its own. It may be ventured, perhaps, that the repeated failure of this kind of sorcery will produce skepticism among masses of people, and that new revolutions will not for many years more be succeeded invariably by paper documents.
The preceding section has implied that one must search far beyond the language of a written document to explain the durability of certain constitutions. An effective constitution is part of a more basic legal order that may be called constitutionalism. The task of this section is to understand the qualities of a constitutional order.
Constitutionalism, to place it in the perspective of earlier pages of this book is the legal or juridical expression of one type of consensus. Consensus is the shared and agreed-upon political beliefs of most members of the political community. Hence constitutionalism, as part of a consensus, is the "due process" facet of the belief system of a people.
By our definition, in order to have constitutionalism, we must have a consensus. When people cannot agree on any important political issues, they cannot agree on a constitutional order. On the other hand, we can have forms of consensus without having constitutionalism. The Germans subscribed for a time to the doctrines of Nazism to such an extent that a consensus may be said to have existed. But constitutionalism, as we shall treat of it, did not exist in Germany. Similarly, the people of the Soviet Union favor the beliefs of the existing regime, but their paper constitution cannot be said to be based on constitutionalism.
To make ourselves perfectly clear and to be fair to everyone, we should state that we mean by constitutionalism only one kind of juridical condition and the expression of only one kind of consensus. Constitutionalism, then, is a legal order in which the ethical directives of the community are determinate and stable as a whole, and the measures taken to compel conformity with and punish deviations from the ethical directives do not depend upon the power of the deviant individual. "One law for all men," and "government by laws, not men" are two common slogans that express the essential sentiment of constitutionalism.
This definition of constitutionalism is very close in meaning to the rule of law, as the English scholar, A. V. Dicey, defined it. The "rule of law" means that "no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land." Furthermore, "every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals."
Constitutionalism is also close in meaning to the condition of juridical defense, as Gaetano Mosca described it. Juridical defense is the high discipline of the moral sense, brought about through social mechanisms, which prevent the uncontrolled aspirations of individuals from governing society. It is the condition of a government characterized by established and regular rules.
According to Mosca, various social arrangements can abet or destroy the condition of juridical defense. The political organization proper, he felt, is the most important object of study because it determines the relationships between officers and public, and among the branches of government. Within the political organization, he thought, juridical defense is destroyed if a single political force predominates and checks and balances are absent in the various branches of the government. Juridical defense cannot survive, he says, if the religious and the secular power are one and the same group, if wealth is concentrated in a few hands, if a huge army is maintained over any length of time, and if universal suffrage is used to select personnel for all important offices.
This bare recital of the institutions constituting juridical defense readily suggests the political theory of James Madison. The proceedings of the American Constitutional Convention of 1787-a century before Mosca assayed the conditions of juridical defense - and the great debate over the proposed Constitution had much to say about each of these problems. It is significant that a writer who drew his materials primarily from European experience and world history could agree on the essentials of a constitutional environment with a group of Americans who, while in the great European intellectual tradition, had specific and pressing problems to solve. One must admire the fine application of theory to practical conditions that characterizes the American Constitution.
Rather than adhere exclusively to the views of Dicey, Mosca, or Madison, we shall draw liberally from them and others in presenting the factors that foster or discourage constitutionalism in the political community. However, we shall use Mosca's categories because they are excellent for analytic purposes. The factors affecting constitutionalism, therefore, will be treated under the headings of the separation of powers, economic concentrations, church-state separation, standing armies, and universal suffrage.
The theory of separation of powers (and its related theory of checks and balances) received its first formulation Polybius' history of the Roman Republic, although Plato and Aristotle certainly had something like it in mind. More recently, Baron de Montesquieu, in his Spirit of the Laws (1748), proposed the clear and permanent division of the executive, judicial, and legislative authority. The making of the law and the administration of the laws were to be assigned to different branches of the government. Such an arrangement, he believed, would not only increase the competence of each part to perform its assigned duties, but would also prevent any simple agency from monopolizing power and abusing its exercise. This separation of powers implies checks and balances, for each of the great powers-legislative, executive, or judicial-can block the free working of the other powers. The power to make laws, for example, is the power to determine in large measure the substance of administration. The power to execute the laws is in turn the power to determine their substantial content.
In a brilliant stroke on behalf of constitutionalism, American theory put the theory of Montesquieu into effect. It gave the legislature, the executive, and the judiciary more precise spheres of operation than ever before or afterwards. Furthermore, not relying solely on the negative aspects of the separation of powers to prevent a monopoly of power by one branch, certain deliberate checks and balances were inserted in the political organization. Thus the President was given the veto power partly to protect him from domination by the Congress. The veto was widely regarded in the early days as intended principally to shield the executive.
The theory of the separation of powers has come under considerable attack in recent times. It has been stated that the American governmental branches, while admirably suited to self-defense, are poorly equipped for efficient and expeditious law-making. Antagonists of the American system have pointed with favor to the British parliamentary system. There the Cabinet and Parliament depend upon one another for survival, and the Prime Minister and Cabinet combine executive and legislative leadership. The Parliament may force the Cabinet to resign by voting against its bills, and the Cabinet controls the introduction of proposed legislation. They are so closely connected that they cannot remain for any length of time hostile to one another, as can the American Congress and President. Yet the British system seems to provide no less due process of law and juridical defense than the American, and in some ways it seems to provide more.
However, though much has been written on this controversy, the great complexity of the problem has prevented agreement among political scientists. In both countries a separation of powers does exist, but in different degrees and with somewhat different consequences. In neither country is there a monopoly of power by either the executive or legislature, and in both countries the judiciary is independent. Such variations on the theme of the separation of powers incline us to the view that this device is only one of several major elements in constitutionalism. Neither the British nor the American system can be said to provide the "optimum" balance of protection and efficiency. Too many factors of a historical and institutional nature interfere with a sharp distinction.
The separation of powers exhibits its meaning more clearly when one examines governments that make no pretense of employing the principle. In the Fascist states of yesterday and in Eastern Europe, in Asia, and in certain of the South American countries today, the ruling groups have explicitly denounced the separation of powers. The courts, the legislatures, and the executive branches descend in a single, authoritative monolith, directed, so far as events will allow, by a single set of wills. The very idea of a separation of powers is abhorrent, because it implies compromise, indirection, frustrations of power, and legalizing of conflict. If Lord Acton spoke the truth, that "all power tends to corrupt and absolute power corrupts absolutely," then a completely integrated governing group, possessed of many functions and united in force and direction, would indeed terrorize those who agree with Lord Action on what constitutes corruption. Individuals, under such conditions, could not depend upon impartial and objective execution of the laws.
Whereas the separation of powers supports a constitutional order economic concentrations form a barrier to constitutionalism. Aristotle recognized the political importance of the form in which wealth is distributed. He emphasized that the concentration of wealth increased the possibilities of class warfare and proposed the middle class state as the most stable. James Madison clearly foresaw the political troubles that would arise from dividing society into a rich and a poor class. Yet neither the American nor any other constitution has established a formula to prevent the wealthy from becoming arbiters of justice. And since wealth is often a means to power, there is always the threat that such power may be used to alter the interpretation and administration of the law, and so destroy constitutionalism.
It is a moot question, not to be answered in a few words, whether constitutionalism suffers more from private concentrations of wealth or from government nationalization that consigns political and economic power to one and the same group of officials. Therefore we cannot say that a socialist or communist constitution, by proclaiming the nationalization of the means of production, solves the age-old problem of preventing great economic concentrations that crush the smaller interests and reduce individual choices to the mercy of administrative discretion. Here political policy may face an impossible decision, unless administrative planning can make giant strides. The technological revolution will not be halted merely because it creates political problems: concentrations mount steadily, and whoever controls the great industries will have awful political power.
An organized religion can, under certain circumstances, monopolize political power as much as can a plutocracy. It is then a barrier to constitutionalism. Until the twentieth century, most Europeans and Americans saw the politico-religious problem as one of freeing the state from the church. Thus the French and American revolutionaries, following various English and continental reformers of the seventeenth century, set up the liberal position of the nineteenth century. Constant religious struggles had brought intermittent chaos and costly wars to Europe and England. The leaders of the late eighteenth century and nineteenth century revolutionary and liberal movements in Europe and America became convinced that a political organization .that was identified with a religious creed could rarely make rational changes. And it is true that theocratic states in which the same individuals are secular legislators and interpreters of religious dogma tend to determine all kinds of everyday matters by reference to some unchangeable religious dogma.
The American Constitution, in declaring that the Congress shall make no law respecting the establishment of any religion, provides the classic form of the doctrine of the separation of church and state. The American example is followed, in law or in fact, in every constitutional government; one should not be unduly impressed with the fact that certain countries, like England and Sweden, have state churches. Such churches do no actively participate in the political process. Nor should one feel that the principle of separation is not working because there are religious pressure groups. The principle need not be driven to its extreme to make sense.
Actually, the twentieth century, reversing the trend of centuries past, has introduced the problem of the state that pursues the church, swallows its tenets, and regurgitates them in secular form. Thus, the Eastern European communist governments, not satisfied with the separation principle, have taken control of the churches and use them as instruments of the regime. This action is simply an inverse abandonment of the principle, and consequently increases the totalitarian nature of the state. The church becomes a means of destroying political enemies of the regime. For instance, in certain Eastern European countries after World War II, the priests were compelled to reveal to political authorities the secrets of the confessional.
Another commonly encountered foe of constitutionalism is a large and uncontrolled standing army. The control of standing armies has been a live problem in the Western world ever since the legions of Rome turned on the Republic and then revolted periodically against the imperial government. The American Constitution sought to restrict the power of a standing army to destroy the constitutional order by providing that each state might raise and govern its own militia or national guard. It thus allayed the fears of many who wanted protection against future emergencies but felt that standing armies, if large and unchallenged, would threaten local liberties. The Constitution also sought to assure civilian control of the military by designating the chief executive as the commanderin-chief of the armed forces, and by delegating to Congress the power to declare war and to raise and equip an army. However, the American system, like every other system of civilian control that has been devised, is not immune to the possibility of military control. For juridical defense, in the case of this institution more than any other, is at the mercy of external events. Wars, even more than those massive industrial changes that concentrate a nation's wealth, threaten the defensive barriers of the constitutional state.
Now we may turn to the final political factor that has been alleged to be destructive to constitutionalism - universal suffrage. Most modern constitutions, as was indicated in our study of electorates, provide nearly every adult with the vote. However, the leaders of the American Constitutional Convention and political theorists like James Kent, Mosca, Taine, Guizot, and Ortega would have preferred to limit the suffrage to men who hold some property. The American Constitution encourages, but does not demand explicitly, universal suffrage. Who is right and who is wrong depends upon our answer to three questions: Is universal suffrage absolutely destructive of constitutionalism? If not, is it harmful to constitutionalism? If so, what kind of suffrage should be substituted for universal suffrage, if constitutionalism is the objective most desired?
The answer to the first question, so far as it may be given, is as follows: Universal suffrage, absolutely construed and absolutely employed, is absolutely destructive of constitutionalism. That is to say, if all offices of the government are subjected to election by a universal electorate, if all the major decisions of the political community are centralized in the offices of the government, then the condition of the political organization will be highly unfavorable to legal stability and the rule of law.
But this situation is practically inconceivable. All known electorates, universal or not, have been limited, both internally and externally. Most voters are limited internally by a frame of mind that will never allow them to focus on particular objects with the intensity of desire that individual politicians may possess; they are ordinary people with ordinary apathies; in order to become absolutist or fanatic, they must first be regimented into an elitist or charismatic party; and this process invariably brings an oligarchic clique to the fore - like the Nazis or the communists - so that, if damage is done to the constitutional order, it can hardly be said to have been done by the universal electorate.
In fact, the critics of universal suffrage have succumbed to the same fallacy as their opponents. While they ridicule the idea that universal suffrage can attain democracy, they gullibly accept the idea that universal suffrage can get so strong as to destroy juridical defense. Universal suffrage has not turned out to be the instrument of sweeping change that either its advocates or opponents thought it would be. It causes great commotion, of course; some men move in and out of office rapidly. But this fact, if it means anything, is a positive step towards a rule of law since it tends to prevent the establishment of a permanent ruling group.
Political, economic, and social change have come most abruptly and drastically - that is, without the rule of law or juridical defense - in countries like Nazi Germany or Communist Russia, where universal suffrage was meaningless because no general issues were presented to the voters for decision. No one, we suppose, would take the totalitarian plebiscite to represent the normal operation of universal suffrage.
The normal functioning of universal suffrage, it would seem, almost requires a matured, half-solved issue. The issue must not split the population irrevocably. For example, an outstanding decision by universal suffrage was the vote of the Italian electorate to replace the monarchy by a republic. This followed World War II and the margin of victory was a modest one. The same government remained in office before and after the event. If such an issue had been put on .the agenda of universal suffrage in the mid-nineteenth century, nothing less than a violent revolution would have occurred. That the issue was important, no one can deny. Seldom has a great community voted on the issue of monarchism versus republicanism. But one must also agree that the issue was mature, not revolutionary; conditions were ripe for a public decision, whether we agree with the verdict or not. Consequently, the decision was accepted peaceably.
Electorates are always limited externally too, by laws that restrict their rights to act. The national judiciary in America is appointed on indefinite tenure. The state governments have a number of powers that they may exercise independently of the national legislative authority. The Senate has six-year tenure, and never turns over by more than one third every two years. Governments of the British and French type also allow the electorate to make only limited and general decisions.
Electorates adjust over a period of time to the demands made upon them and to the limitations imposed upon them. It is impossible to prescribe exactly that condition of an electorate that is best reconciled with the condition of juridical defense. But one may observe, among certain past and present electorates in America, Britain, and Europe, a kind of mass "sensing" of the limits of what "ought to be asked for" and what "ought to be withheld from" popular decision. If we could describe more precisely this "sensing" process among peoples experienced or "fitted" for the exercise of suffrage, we might perceive more clearly how the process operates as an element in consensus. There is little doubt that the "sensing" of electoral functions in a manner consonant with juridical defense is an important facet of consensus, and, thence, a determinent of constitutionalism. The dependence of a constitutional order on the "sensing" ability of its people lends importance to the expression that "a people gets the kind of government it deserves."
What has been said of the internal and external limits of universal suffrage holds for restricted suffrage as well. The crux of the Mosca argument against universal suffrage seems to be this: universal suffrage enlarges the span of demands with which a government must contend. Instead of providing only a few with a means of stating their demands or feelings, it provides everyone with the means. This complicates the problem of distributing the goods of life. Internal conflicts increase. Thus universal suffrage, by bringing on internal conflict, reduces the conditions favorable to juridical defense. In short, if scarce prizes are being dispensed, better order can prevail if only a few are allowed to apply for the prizes.
Yet the legislative and judicial processes of colonial America and eighteenth-century England, both of which had a limited suffrage, were not more favorable and perhaps much less favorable to the condition of juridical defense than their counterparts today, when universal suffrage prevails. It seems that in both countries, universal suffrage, while associated with changing economic policies, has not destroyed or seriously harmed the general state of constitutionalism. When we add to this example the well known fact that oligarchies have undergone at least as many bloody crises and ruthless expropriations as democracies in proportion to their number, we must conclude that a limited class is apt to do as much damage to constitutionalism as an enlarged electorate. We would conclude, then, that not only is universal and absolute suffrage an impossibility, but also that a universal suffrage that is limited in power is inherently no more harmful to constitutionalism than is a restricted suffrage that is limited in power.
No one of these various features of political organization, such as the separation of powers and the suffrage, can carry the weight of constitutionalism by itself. Nor can any one of these features destroy constitutionalism by itself, under conditions that actually occur, except perhaps, in the very long run, and then only if it has meanwhile rendered meaningless the operations of the other institutions supporting constitutionalism. In a constitutional order, the effective separation of powers, the wide distribution of wealth, the separation of church and state, civilian control of the military, and the universal electorate of limited power combine and buttress one another, establishing the condition of juridical defense and providing the basis for the rule of law. Juridical defense and the rule of law give a written or determinate constitution effective meaning. The three together establish the presence of constitutionalism. And they are all manifestations of the type of consensus that is a condition of democracy.
At this point, these statements, though quite general, must satisfy us. But their meaning will be rendered more clear and will be corrected in part by our further investigation at closer range of the institutions of the legislature, the executive, and the courts.