Open main menu

Page:Harvard Law Review Volume 2.djvu/365

This page needs to be proofread.



resort to civil war. Under such a constitution, too, the legislative power is necessarily supreme, and under the influence of tem- porary excitement it may remodel the constitution at will, and eliminate from it any principle, however important or venerable. It is scarcely possible that the powers of government should be thus abused under a written constitution which, like that of the United States, was the origin of the government itself. Such a constitution is "a code of finalities," or, as some have caUed it, "a rigid constitution." It creates departments and agencies of gov- ernment, and confers powers upon them. The very specification of powers is a limitation ; and, unless by manifest usurpation, public authorities can exercise none that are not in terms conferred. They cannot, therefore, annul, set aside, or suspend any constitu- tional principle, for the plain reason that no authority to do so has been given. The declarations of rights Which in Britain are merely advisory to parliament are in the federal constitution im- perative commands. Chief Justice Marshall stated the principle succinctly when he said : "The government of the United States can claim no powers which are not granted to it by the constitution ; and the powers actually granted must be such as are expressly given, or given by necessary implication." As the constitution itself declares : " The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people."

The weakness commonly inhering in a constitution thus formed is that it is formed regardless of the most important principle of all, namely, the principle of growth and expansion. This has been the radical vice of most European written constitutions; each of them has been framed as if it were the beginning of the nation, instead of being, as it was in fact, merely a step in its progress. No such vice inhered in the constitution of the United States. The instrument is quite as truly a growth as is the consti- tution of the British Empire ; it is in fact a continuation and natural expression of English liberty. As Mr. Lowell has said: "The acorn from which American democracy sprang was ripened on the British oak." Our fathers wisely clung to what their ancestors had won in their long struggles for personal freedom, — and just as wisely appropriated the general principles of government which in the course of ages had become settled and accepted in England It was only in a very narrow sense that the new government could