VITALITY OF THE AMERICAN CONSTITUTION

Address delivered before the Allegheny County Bar Association at the Tenth Annual Dinner, Pittsburgh, Pennsylvania, January 4, 1898.

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OVERNMENT under a written constitution was a noble but daring experiment. Free institutions had survived in England because the British Constitution had proceeded from progressive history"- because it had grown as the people had grown, developed as liberty had developed. If the barons had attempted to fix, with the precision of a pen-point, all the metes and bounds of governmental powers when they wrested Magna Charta from King John; had Sir Edward Coke and the lawyers of England before and after him been strict constructionists of such an instrument, English history would have been lurid with unending revolution — the revolt of Anglo-Saxons against artificial restraint upon their enlarging intelligence and increasing power.

The first question of the thoughtful student of American affairs is: Why did we adopt a written constitution? Why did not England adopt a written constitution also? We know that the English Government operates under a constitution which, though unwritten, is as definite and real as our own. We know, too, that the En

glish people are among the most practical of nations. We know, further, that the English people are the most aggressive in the assertion of personal rights of any people in the world, not excepting Americans. We know that liberty has steadily grown, without a single reaction for hundreds of years, in the mother country, and that the rights of property, of labor and of life are secured by English law more firmly than elsewhere in the world; and we know, finally, that English statesmen have been fruitful of practical methods for the advancement of the English people. Why, then, have they not adopted a written constitution, and why did our fathers, who themselves were English, adopt a written constitution?

The English people did not ordain a written constitution because their customs, their steadily developing modes of procedure, constituted their constitution. These customs, methods, institutions had been growing for centuries. They changed only as the tree changes from sprig to sapling, from sapling to oak. The roots of their constitution were in remote history, and growth was the law of its being. The violation of established modes of procedure or of universal privileges was certain to cause impeachment or revolution if attempted by Parliament or Crown. Thus the British Constitution, springing from the memories of the past, is vitalized by the affections of the present. It has its security not in cold type but in the hearts of the people.

But when the hour came for the founding of our Government, we found no such established system of connected custom and methods of governmental procedure. Personal rights and privileges we had, of course, and modes of thought and living; but these had been

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transplanted from England and Holland and were unsystematized, ineffective, not unified, and they did not afford a working machine of government or give national cohesion to the people. So it became necessary that a constitution should be adopted which should give expression to our nationality, mark out the boundary lines. of governmental procedure, and even enumerate certain fundamental powers and prohibitions.

The germ for such an instrument already existed in most of our state constitutions, which were themselves an outgrowth, in part, of the people's enlarging powers from the colonial charters granted one hundred and fifty years before. No one can read Mr. Fisher's essay without acknowledging that our state constitutions, from which our National Constitution was so largely taken, were the development, through many scores of years, of the original charters granted to the colonists. We all understand, of course, how largely the British Constitution influenced our own; and Mr. Douglas Campbell has demonstrated our constitutional indebtedness to Holland. And even these sources are not the most remote. But such parts of our written Constitution as are indigenous had been growing here on our own soil for a century and a half. The occasion and cause for our adoption of a written constitution, therefore, become clear, and the reason why an equally liberty-loving and practical people, such as the English, preferred an unwritten constitution is explained.

When you come to the interpretation of this most remarkable instrument of history, the American constitution, you will see through a glass darkly unless you consider its purpose and the cause and nature of its origin.

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It was not, as that great phrase-maker, Gladstone, said, struck off at a given time by the brain and purpose of man," and therefore limited in its usefulness to the wisdom and circumstances of that time. On the contrary, our Constitution proceeded from "progressive history," and therefore is capable of future growth, just as it is the result of past growth. The Constitution was not a contract between thirteen allies called states, and so to be construed as a contract is to be construed; it was and is an ordinance of nationality springing from the necessities of the people and established directly by the people themselves. And as the Constitution gradually grew out of the necessities of the people in the past and was formulated out of the necessities of the people at the time of its adoption, so it embraces the necessities of the people for all time. But as the necessities of the people for all time could not possibly have been foreseen by the men who wrote the Constitution, it follows that they could not have intended to confine the purposes of the Constitution and the powers it confers to the necessities of the people of 1789; that they so wrote it that it might meet the requirements of the people for all time.

If that is so, it follows that the Constitution must steadily grow, because the requirements of the people steadily grow. As Mr. Justice Story says of the Constitution: "It was not intended to provide merely for the emergencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence." The safety and vigor of the British Constitution is not only in the inviolability of the customs which constitute it, but even more in its powers of change and growth. So the

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vitality of the American Constitution and all constitutions must reside in their power to grow as the people grow, and furnish scope for the people's power and the Nation's necessities in exact proportion as the people's power and the Nation's necessities enlarge.

The Golden Rule of constitutional interpretation is this: The Constitution exists for the people, not the people for the Constitution.

But how can a written Constitution grow? Its words are there not to be changed. But the people change; conditions change; new problems arise; the happiness and welfare of the Nation constantly demand new methods, enlarging powers, activities in directions hitherto unknown. And if the Constitution can not keep pace with the needs of the people, it ceases to be useful to the people and becomes oppressive to them. If the Constitution had locked up the people's energies and prevented the recognition of their ever-increasing necessities and paralyzed their ever-enlarging powers, the people would have made short work of the Constitution. They would have overthrown it by revolution, if necessary, just as the people will overthrow anything which stands in the way of the prosperity of their homes, the happiness of their firesides.

The march of nationality is not to be withstood; and so the salvation of the Constitution is in its capacity for growth; and he is the enemy, no matter how much he may think himself the friend, of our fundamental law, who does not recognize its capacity for self-enlargement, determined by the enlarging necessities of the people. He is the enemy of the American Constitution who binds the American people to the letter of that instrument; for if that were done, the people's expanding necessities