Open main menu

Page:Harvard Law Review Volume 2.djvu/371

This page needs to be proofread.



selves as privileged orders. The point of contention, therefore, was, whether it was the king who was sovereign, or the parliament, in which the privileged classes alone were represented. Nobody contended that the people were sovereign. The power passed in time from king to parliament, but there never was a day in the history of the country when the sovereign power was not wielded by the law-making authority. In the United States, on the other hand, there never was a time when, both as a theory and as an actual fact, there was not back of the legislature an effective sovereign power in the people.

I now lay down the proposition that, by reason of the facts already stated, the constitution of the United States is the most conservative instrument of government known to the world. Possibly one who is accustomed to look upon the United States as the chief representative of political progress, and to regard conservatism as the antagonism of progress, may see in this state- ment a contradiction in terms. But it is, nevertheless, true. Progress is assured through the conservative features of the con- stitution, in harmony with which the progressive spirit of the people acts and moves. In the fact that the constitution, though at any particular time binding inflexibly, is, nevertheless, subject to safe amendment, is to be found our security for what we have, and the possibility of anything better that time and experience may demonstrate the need for. When, as has commonly been the case with republics, the vote of an excited assembly may at once put anything into the constitution or put anything out, the republic itself is at the mercy of the fears, the passions, or the prejudices of the hour, and a dictator may come as naturally as a change in the seasons. Andrew Jackson, in one of his letters in the period of nullification, showed a true perception of the strength of the constitution when he said : " Perpetuity is stamped upon the con- stitution by the blood of our fathers, by those who achieved as well as those who improved our system of free government. For this purpose was the principle of amendment inserted in the constitu- tion." But the provision for amendment was purposely made conservative. The President cannot change the constitution ; Congress cannot change it ; the people themselves cannot change it hastily, under the influence of temporary passions and excite- ments. The process is safe, but necessarily slow and deliberate. And such it ought to be. The constitution emanated from the