Development and Expansion of Constitutions

Development and expansion of constitutions. A Constitutions is the fundamental law according to which the government of a state is organized, and agree- ably to which the relations of individuals or moral persons to the community are determined. It may be a written instrument, a precise text or series of texts, enacted at a given time by a sovereign power, or it may be the more or less definite result of a series of legislative enactments, ordinances, judicial decisions, precedents and customs, of diverse origin and of unequal value and importance.

Most existing free constitutions are of the first mentioned type. To the second class belongs the English constitution the one from which all others are in some degree descended. As the private law of the United Kingdom is not embodied in a code, so the rules of its government are not written. A Parliamentary vote, a decision of a court, may result in an extension or in a curtailment of these rules.

Processes of Growth :-

It is an old saying, attributed both to Sir James McIntosh and Sir Henry Maine, that constitutions grow, instead of being made. Whatever may be the amount of truth contained in the saying, it is undeniably true that no existing constitution has reached its final form and become, as it were, a dead or fixed thing incapable of further development.

Time and habit, said President Washington, in his farewell address, are at least as necessary to fix the true character of governments as of other human institution. Constitutions must grow, observed Lord Brougham,

“if they are of any value they have roots, they ripen, they endure.”

Those that are fashioned, he continued, resemble painted sticks, planted in the ground, as I have seen in other countries what are called trees of liberty. They strike no root, bear no fruit, swiftly decay, and ere long perish?

Custom and Usage :-

Written constitutions grow in three ways by usage, by judicial interpretation, and by formal amendment. The part played by custom and usage in the development of a Constitution depends upon a variety of circumstances. It is more potent in the case of old than of new constitutions. It also plays a more important role in old and well settled societies, where the inhabitants have greater veneration for the past and a higher regard for precedent than those of newer societies have.

In the newer states of America, where constitutions are often revised or made over entirely at least once in every generation, development by usage is inconsiderable. Similarly in France, where the constitutional development of the country has been characterized more by revolution than by evolution and where eleven Constitutional regimes have come and gone since 1789, the development of the constitution through usage and custom has been relatively small.

The constitution of the United States, however, the oldest existing American constitution except that of Massachusetts, has developed and expanded in many directions through the Operation of custom and usage, as has already been mentioned above.

In all states the laying down of new rules and the inauguration of new practices tend to create a body of customary law which supplements and often modifies to some extent the actual working of the law as embodied in the written constitution. A constitution so free of detail and so concise of statement as that of the United States must necessarily be supplemented by legislation, judicial interpretation, or usage. Without understandings and conventions it would in fact be unworkable.

Development by Judicial Interpretation :-

The development of a written constitution by judicial interpretation necessarily results from the ambiguities of language and the deficiencies of expression which abound in the most carefully framed instrument, from the rise of new conditions, and finally from the inevitable differences of opinion which arise concerning the meaning of its provisions. Under such circumstances it devolves upon the judiciary to ascertain not only the true meaning of that which is expressed in the constitution but also that which the framers , intended to express, and of drawing conclusions respecting its applicability to subjects which lie beyond the direct expressions of the text and which the framers would have dealt with had they been gifted With the power of foresight.

Expansion by interpretation is especially potent in countries like the United States, where the judiciary plays an exceptionally important role, possessing not only the power to interpret the meaning of the provisions of the constitution, but also to declare statutes which are in conflict with the supreme law to be of no force and effect. It is almost a commonplace to say that a very large part of the constitution of the United States consists of judicial addenda. Almost every clause has been the subject of interpretation and construction and if we were to strip it of the meanings that have been added by the courts during its existence of more than a century, we should hardly be able to recognize it.

Development by Formal Amendment :-

The most definite source of constitutional expansion, particularly in republican states, is, of course, formal amendment of the written instrument in accordance with the method of procedure set forth by it. As has been said, provision for its own alteration has come to be regarded as an essential part of every written constitution. Some of the early American state constitutions (eight of them all together and all belonging to the eighteenth century) contained no such provisions.

Whether this commission was due to oversight, or failure to appreciate the obvious advantages of expressly pointing out in the Constitution itself the mode of procedure to be observed in altering its provisions , or whether it was due to the prevailing opinion, repeatedly asserted in the bills of rights, that the people have an inalienable right at all times to amend their constitutions and hence a belief that no necessity existed for limiting their right by self-imposed restrictions,-there is a difference of Opinion.

Whatever may have been the reason, the desirability, not to say necessity, of providing in the constitution a method of legal and orderly procedure for making alterations soon came to be recognized and all the American state constitutions framed since the beginning of the nineteenth century, with three exceptions, have contained amending provisions.

No written constitution is complete without such a provision, and of those actively in force to-day, those of Italy and Spain appear to be the only ones which are silent on this point. In some respects the amending provision is the most important part of the constitution, because, as has been said, upon the correspondence of the written constitution With the real and natural conditions of the state depends the question whether it shall develop with peaceable continuity or shall suffer alternations of stagnation, retrogression, and revolution.

President Wilson aptly remarked that a constitution must of necessity be a vehicle of life, that its substance is the thought and habit of the nation and as such it must grow and develop as the life of the nation changes. Living political constitutions must be Darwinian in structure and in practice? John Stuart Mill well observed that no constitution can expect to be permanent unless it guarantees progress as Well as order. Human societies grow and develop with the lapse of time, and unless provision is made for such constitutional readjustments as their internal development requires, they must stagnate or retrogress.

Unamendable Constitutions :-

In a few instances constitutions have even undertaken to prohibit absolutely their own amendment in respect to certain provisions. Thus an amendment to the French constitution adopted in 1884 declares that the national assembly shall never entertain a proposal for the abolition of the republican form of government. Whether one national assembly can thus legally tie the hands of another in perpetuity is doubtful Esmein thinks it may.

Duguit adopts the contrary view95 and it would seem rightly so. The provisions in the constitution of the United States that no amendment could be made prior to the year 1808 affecting in any manner the first or fourth clauses of Sec. 9 of Article I (relative to the prohibition of the importation of slaves) and that no state without its consent shall be deprived of its equal suffrage in the Senate96 afford somewhat similar examples of an attempt to limit the sovereign power of the people to change the constitution under which they live.

Such provisions are highly objectionable on grounds of public policy and are of doubtful validity. They rest on the assumption that their authors are infallible and that they have a right to bind future generations to accept as final what they have decreed. An unamendable constitution, said Mulford, is the worst tyranny of time, or rather the very tyranny of time.

It makes an earthly providence of a convention which has adjourned without day. It places the scepter over a free people in the hands of dead men, and the only office left to the people is to build thrones Out of the stones of their sepulchres. Each generation, said Jefferson, has a right to determine the law under which it lives the earth belongs in usufruct to the living the dead have neither powers nor rights over it.

Flexibility of Amendment :-

The provision for amendment should be neither so rigid as to make needed changes practically impossible nor so flexible as to encourage frequent and unnecessary change and thereby lower the authority of the constitution. The machinery of amendment, remarked Judge Jameson, should be like a safety valve, so devised as neither to operate the machine with too great facility nor to require, in order to set it in motion, an accumulation of force sufficient to explode it.

In arranging it, due consideration should be given on the one hand to the requisites of growth and on the other hand to those of conservatism. The letter of the constitution must neither be idolized as a sacred, instrument With that mistaken conservatism which clings to its own worn out garments until the body is ready to perish from cold, nor yet ought it to be made a plaything of politicians, to be tampered With and degraded to the level of an ordinary statute.

Some Existing Modes of Amendment :-

It is not possible here to consider the modes of constitutional amendment which have been adopted in the different countries. Undoubtedly the most flexible is that of Great Britain, where, as already stated, the procedure is exactly the same as that for the enactment or amendment of ordinary statutory legislation.

In the absence of a provision in the constitution of Italy for its own amendment, the parliament has assumed the prerogative of amending it at will, and apparently according to the ordinary process of legislation. So far as the amending power is concerned the constitution of France also is flexible, changes being made by the parliament meeting at Versailles in joint assembly of the two chambers after they have by separate resolutions at Paris declared in favor of amendment.

Most constitutions are rigid in the sense that they are amendable only by a different procedure than that by Which ordinary laws may be altered that is they distinguish clearly between the constituent power and the legislative power, each being exercisable by different organs according to different processes. Generally, the procedure is also much more difficult.

Thus under the constitution of the United States an amendment may be prevented by the vote of one more than one third of the members of either the Senate or the House of Representatives, and when proposed by the two houses may be defeated by the legislatures of one more than one fourth of the states.

Indeed, it would be possible, on account of the great inequality of population of the different states, for one fortieth of the people living in sparsely settled states to prevent an amendment demanded by the other thirty-nine fortieths.

In consequence of this cumbersome and undemocratic system of amendment it has been proposed to substitute a more flexible and democratic procedure under which an amendment might be proposed by a simple majority of the two houses of Congress and ratified by a majority of the voters in a majority of the states, provided the latter were a majority of the total vote cast throughout the country.

Some of the American state constitutions are even more difficult of amendment, and in several of them (e.g., Illinois and Indiana), efforts to change them have rarely succeeded.

Opposing Attitudes in respect to the Sanctity of the Constitution :-

The opinions of political writers regarding the attitude which a people should adopt in respect to their constitution-whether it should be treated as something sacred and therefore left to develop only by natural processes, or whether it should be regarded in the light of all human institutions and should be freely altered from time to time so as to bring it into harmony with new and changed conditions, have naturally varied.

The political philosophy of Edmund Burke represented the former view. In his Reflections on the French Revolution he maintained that the constitution is an entailed inheritance, a trust to be administered by those who inherit it, it is therefore sacrilegious to touch it with violent hands as the French architects of ruin had done in the case of their own constitution.

The path of happiness for both men and nations, he said, does not lie through sweeping innovation but in revering and doing justice to the past. So extreme a view of the sanctity of the Constitution finds few supporters to-day, but even in the United States there are some who deplore the modern tendency to regard constitutions in a spirit which they consider as irreverent.

But with the passing of time the view of Jefferson has come more and more to be the political philosophy of the mass of the American people and indeed of the democratic peoples of the world generally.

Constitutions, he said, should not be looked upon with sanctimonious reverence like the ark of the covenant, too sacred to be touched. The frequency with which old constitutions are revised or replaced by new ones is evidence enough that the philosophy of Jeiferson rather than that of Burke has triumphed.