The American Commonwealth. Viscount James Bryce
to speak, the complement and crown of the state constitutions, which must be read along with it and into it in order to make it cover the whole field of civil government, as do the constitutions of such countries as France, Belgium, Italy.
The administrative, legislative, and judicial functions for which the federal Constitution provides are those relating to matters which must be deemed common to the whole nation, either because all the parts of the nation are alike interested in them, or because it is only by the nation as a whole that they can be satisfactorily undertaken. The chief of these common or national matters are:1
War and peace: treaties and foreign relations generally
Army and navy
Federal courts of justice
Commerce, foreign and between the several states
Currency
Copyright and patents
The post office and post roads
Taxation for the foregoing purposes, and for the general support of the government
The protection of citizens against unjust or discriminating legislation by any state2
This list includes the subjects upon which the national legislature has the right to legislate, the national executive to enforce the federal laws and generally to act in defence of national interests, the national judiciary to adjudicate. All other legislation and administration is left to the several states, without power of interference by the federal legislature or federal executive.
Such then being the sphere of the national government, let us see in what manner it is constituted, of what departments it consists.
The framers of this government set before themselves four objects as essential to its excellence, viz.:
Its vigour and efficiency
The independence of each of its departments (as being essential to the permanency of its form)
Its dependence on the people
The security under it of the freedom of the individual
The first of these objects they sought by creating a strong executive, the second by separating the legislative, executive, and judicial powers from one another, and by the contrivance of various checks and balances, the third by making all authorities elective and elections frequent, the fourth both by the checks and balances aforesaid, so arranged as to restrain any one department from tyranny, and by placing certain rights of the citizen under the protection of the written Constitution.
They had neither the rashness nor the capacity necessary for constructing a constitution a priori. There is wonderfully little genuine inventiveness in the world, and perhaps least of all has been shown in the sphere of political institutions. These men, practical politicians who knew how infinitely difficult a business government is, desired no bold experiments. They preferred, so far as circumstances permitted, to walk in the old paths, to follow methods which experience had tested.3 Accordingly they started from the system on which their own colonial governments, and afterwards their state governments, had been conducted. This system bore a general resemblance to the British Constitution; and in so far it may with truth be said that the British Constitution became a model for the new national government. They held England to be the freest and best-governed country in the world, but were resolved to avoid the weak points which had enabled King George III to play the tyrant, and which rendered English liberty, as they thought, far inferior to that which the constitutions of their own states secured. With this venerable mother, and these children, better in their judgment than the mother, before their eyes, they created an executive magistrate, the president, on the model of the state governor, and of the British Crown. They created a legislature of two houses, Congress, on the model of the two houses of their state legislatures, and of the British Parliament. And following the precedent of the British judges, irremovable except by the Crown and Parliament combined, they created a judiciary appointed for life, and irremovable save by impeachment.4
In these great matters, however, as well as in many lesser matters, they copied not so much the Constitution of England as the constitutions of their several states, in which, as was natural, many features of the English Constitution had been embodied. It has been truly said that nearly every provision of the federal Constitution that has worked well is one borrowed from or suggested by some state constitution; nearly every provision that has worked badly is one which the Convention, for want of a precedent, was obliged to devise for itself. To insist on this is not to detract from the glory of that illustrious body, for if we are to credit them with less inventiveness than has sometimes been claimed for them, we must also credit them with a double portion of the wisdom which prefers experience to a priori theory, and the sagacity which selects the best materials from a mass placed before it, aptly combining them to form a new structure.5
Of minor divergences between their work and the British Constitution I shall speak subsequently. But one profound difference must be noted here. The British Parliament had always been, was then, and remains now, a sovereign and constituent assembly. It can make and unmake any and every law, change the form of government or the succession to the Crown, interfere with the course of justice, extinguish the most sacred private rights of the citizen. Between it and the people at large there is no legal distinction, because the whole plenitude of the people’s rights and powers resides in it, just as if the whole nation were present within the chamber where it sits. In point of legal theory it is the nation, being the historical successor of the Folk Moot of our Teutonic forefathers. Both practically and legally, it is today the only and the sufficient depository of the authority of the nation; and is therefore, within the sphere of law, irresponsible and omnipotent.
In the American system there exists no such body. Not merely Congress alone, but also Congress and the president conjoined, are subject to the Constitution, and cannot move a step outside the circle which the Constitution has drawn around them. If they do, they transgress the law and exceed their powers. Such acts as they may do in excess of their powers are void, and may be, indeed ought to be, treated as void by the meanest citizen. The only power which is ultimately sovereign, as the British Parliament is always and directly sovereign, is the people of the states, acting in the manner prescribed by the Constitution, and capable in that manner of passing any law whatever in the form of a constitutional amendment.
This fundamental divergence from the British system is commonly said to have been forced upon the men of 1787 by the necessity, in order to safeguard the rights of the several states, of limiting the competence of the national government.6 But even supposing there had been no states to be protected, the jealousy which the American people felt of those whom they chose to govern them, their fear lest one power in the government should absorb the rest, their anxiety to secure the primordial rights of the citizens from attack, either by magistrate or by legislature, would doubtless have led, as happened with the earlier constitutions of revolutionary France, to the creation of a supreme constitution or fundamental instrument of government, placed above and controlling the national legislature itself. They had already such fundamental instrument in the charters of the colonies, which had passed into the constitutions of the several states; and they would certainly have followed, in creating their national constitution, a precedent which they deemed so precious.
The subjection of all the ordinary authorities and organs of government to a supreme instrument expressing the will of the sovereign people, and capable of being altered by them only, has been usually deemed the most remarkable novelty of the American system. But it is merely an application to the wider sphere of the nation, of a plan approved by the experience of the several states. And the plan had, in these states, been the outcome rather of a slow course of historical development than of conscious determination taken at any one point of their progress from petty settlements to powerful republics. Nevertheless, it may well be that the minds of the leaders who guided this development were to some extent influenced and inspired by recollections of the English Commonwealth of the seventeenth century, which had seen the establishment, though for a brief space only, of a genuine supreme or rigid constitution, in the form of the famous Instrument of Government of 1653, and some of whose sages