Page:Popular Science Monthly Volume 22.djvu/717
LAW AGAINST RIGHT.
WHATEVER truth there may be in the declaration that "paper constitutions will not work as they are intended to work," it is very certain that written and unwritten constitutions do not work in the same way, and do affect the habits of mind of the people very differently. In England "the Constitution" is a body of precedents and practices, which are interpreted and applied to new cases in accordance with the historic spirit of the Government; while in this country "the Constitution" is a printed document that may be bought for a nickel, and learned by heart in a week. To find out the meaning and obligations of the English Constitution, we are referred to the principles of the national policy; to find out the requirements of our own Constitution, we are referred to its explicit clauses. These Constitutions do not work alike; and in one important respect they do not work as we should anticipate. We should naturally expect that the English Constitution would be so complex a thing as to be far removed from the people, and create a multitude of law interpreters, who would practically have the whole subject in their own hands. And at first sight it would seem that with a written constitution so much is gained in the way of simplicity, where everything is made as plain, definite, and positive as language can make it, that the people should perfectly understand the instrument, and there would be little need of professional commentators. But, in point of fact, the English Constitution is by no means withdrawn from the consideration of the English people, nor does the simplicity of our own written charter save us from the need of a host of lawyers. Yet there is a divergence in the function of the lawyers in the two cases, which corresponds to an equal diversity in the mental habits of the people in the respective countries. Where the supreme law is unwritten, and has to be sought in the usages and principles of the government, the process of its interpretation is far more open than in the other case, more a matter of adaptation and readjustment. Tendencies and progress and new circumstances are taken into account, and each step of the elucidation becomes a part of the continuous national process of establishing the Constitution. The people know the fundamental principles, the great landmarks of guidance, which are to control the course of lawyers and judges, and they can understand whether the supreme objects of the Constitution are fulfilled or defeated. Appeal will naturally be made to the more rational and liberal elements of the national policy, and the task of amending and improving the Constitution itself will be felt as a permanent responsibility. The men of to-day are, therefore, as much "founders of the Constitution" as those of former generations.
But it is very different where the Constitution is a written document which was made the supreme law in a former age. Only the glorified "fathers" are here ranked as founders of the Constitution. It embodied the ideas and the wisdom of its time; but all questions are closed by it, save those of the verbal significance of its clauses. It is amendable only through political spasms, and by an implied impeachment of the patriots who formed it, and whom there is an increasing tendency to regard as infallible. Questions of interpretation necessarily arising, tend to become narrow and technical, a matter of rules and definitions, while the lawyers will