THE GREEN BAG
594
THE
NATION AND THE CONSTITUTION By Hon. Cha LES F. Amidon.
WE have a constitutional theory and a constitutional practice, and, as often happens in such cases, the one is not precisely the same as the other. According to our theory, as lately declared by the Supreme Court, " The Constitution is a writ ten instrument; as such its meaning does not alter. That which it meant when adopted it means now. Being a grant of powers to a government, its language is gen eral, and as changes come in social and political life it embraces in its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This in no manner abridges the fact of its changeless nature and meaning. Those things which are within its grant of power, as those grants were understood when made, are still within them; and those things not within them remain still excluded. As said by Mr. Chief Justice Taney in Dred Scott v. Sandford, 19 Howard, 393, 426: ' As long as it continues to exist in its present form it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers.' " Such is our constitutional theory. Now listen to an accurate statement of our practice: "It is evident when one considers the nature of a rigid or supreme constitution that some method of altering it so as to conform to altered facts and ideas, is indispensable. . . . Since modifications or developments are often needed, and since they can rarely be made by amendment, some other way of making them must be found. The ingenuity of lawyers has discovered one method in interpretation; while the dex terity of politicians has invented a variety of devices whereby legislation may extend,
or usage may modify the express provisions of the apparently immovable and inflexible instrument. . . . The interpretation which has thus stretched the Constitution to cover powers once undreamt of, may be deemed a dangerous resource. But it must be remembered that even the constitutions we call rigid must make their choice between being bent and being broken. The Ameri cans have more than once bent their Consti tution in order that they might not be forced to break it. . . . And it has stood because it has submitted to a process of constant though sometimes scarcely percep tible change which has adapted it to the conditions of the new age." This is not the language of a reforming legislature or a usurping executive; it is the careful and deliberate judgment of a great scholar and great statesman, one of the most competent living authorities on com parative constitutional law, Mr. James Bryce. It must be accepted as an accurate summary of our national history, made by one who brought to the subject no partisan bias or preconceived theories. But if it is thought that an American alone is competent to speak upon this subject, we may hear both our constitutional theory and our constitutional practice from our own highest authority, the late Judge Cooley. " A constitution is not to be made to mean one thing at one time, and another at some subsequent time, when the circum stances may have so changed as, perhaps, to make a different rule in the same case seem desirable. A principal share of the benefit expected from written constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion. ... A court or legislature which should allow a change in public sentiment to influence it in giving to a written constitution a con-
