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other hand, this written instrument is so much one of enumeration rather than of description ; is so much an expression of general grants of power rather than the embodiment, in a codified form, of minute detail, - that an appeal to history, to the analogies of other political organizations, and to fundamental ideas of civil polity, of justice and equity, is not entirely superseiled, nay, is often absolutely necessary. The work of the interpreter is not alone verbal; he may, to a considerable extent, strengthen his conclusions by a reference to the doctrines of General Political Law.
§ 18. The science of Political Law, as applied to the Constitution of the United States, demands from the student, the citizen, and the legislator, methods and qualities similar to those which are requisite for the lawyer and the judge in interpreting and expounding the terms of an ordinary statute. The reasons of this are obvious and imperative. The canons of verbal interpretation are everywhere the same in substance; they only vary in respect to the character of the writing to whose explanation they are applied. The method and habit of the lawyer are essentially identical with those of the historical critic or the biblical student. In the practical application of legal principles in the common affairs of life, the written agreement, the deed, the testament, the statute, are construed by the aid of the same rules, simply because they are written. The written constitution, merely because it is a constitution, can form no exception. The most that can be said is, that, as greater interests are involved which affect the state rather than the individual, all narrow and technical construction should, as far as possible, be avoided ; the nature of the writing as an organic law should be allowed its full effect. Still, the truth remains, that the habit of thought of the lawyer is necessary to a correct understanding of the Constitution ; and as, by our peculiar organization, the courts are called upon to apply this fundamental law to the acts of legislatures and executives, in testing the validity of these acts, it follows that the most authoritative expositions of the Constitution have been, and are, made by men trained in their profes. sion and office to the lawyer-like habit.
It is 'no reproach to the Political Law of the United States that this 'method of study is necessary. Certain theorists have complained because the legal spirit has influenced legislators, judges, and jurists in their exposition of the Constitution. These persons have entirely failed to comprehend the nature of our form of government; to discern the essential differences between it and all others existing or past.
It may be that an unwritten, traditional, elastic constitution, capable of continuous development, able, like the Common Law, to adapt itself to the changing needs of society and the state, is superior to the written. It may be that an organic law cast in the mould of an iron code has intrinsic defects which expose the body-politic to grave dangers. Upon this question there may be difference of opinion. But one thing is sure, - that the American people are unanimous in preferring their own written form. Indeed, so far from abandoning the plan, their tendency has constantly been to extend and enlarge it; and state constitutions, as remodelled from time to time, have been made more unyielding, more minute, more like an elaborate code. This tendency is no doubt to be regretted ; its effects have been evil ; it should, if possible, be resisted; but it conclusively shows that a written constitution, with all its results, be they good or evil, is preferred now even more decidedly than when the Convention submitted their labors to the country for approval. It cannot be denied that, by deciding in favor of a fundamental law contained in a written instrument, the people necessarily adopted with it the consequence that this instrument must be read, interpreted, expounded, in the same manner, by the same means and methods, which are appropriate to all other legislative acts. Indeed, the very advantage claimed for our American form of constitution is, that all powers, capacities, and duties are precisely defined by the written word; that there is no room left for sudden or even gradual encroachments upon the rights of the citizen ; that, the writing remaining unaltered, the various departments of the government can ever be held to these plain utterances of the people's will.
g 19. But, while it is necessary that the Constitution should, from its very nature, be read and expounded by the aid of processes which the lawyer uses in interpreting a statute, the lawyer's technical and professional knowledge, training, experience, and skill are by no means required.
no means required. In fact, the rules and principles of verbal criticism are essentially the same when applied to all writings : they are not arbitrary, but are based upon reason, and may be easily appreciated and employed by all persons of common understanding. The layman may comprehend the true meaning of a testament or of a statute as readily as a lawyer; but both would arrive at the result in the same manner; both would consciously or unconsciously apply the same rules to the resolution of a doubt, or the clearing up of an obscurity. The great mass of citizens, the electors who represent and act in the name of this body, the legislators who are chosen to carry on the constructive work of the government, are alike competent to approach the organic law in the true spirit, and interpret it with accuracy. This is the chief merit of our type of constitution, - a merit which is often claimed for codes of private law. All may read, all may understand; the only uncertainty will be that which must always inhere in language, which can never be an absolutely perfect medium for the expression of thought,
20. But, while this careful, textual, lawyer-like mode is indispensable in construing the fundamental law of the United States, there is still room for the more free, wide, and statesmanlike methods. The letter of the instrument is not so imperative as to shut out all but a verbal criticism. The whole field of political action not being occupied, the question constantly arises, what is the limit beyond which the government may not pass. The grants of power being rather enumerated than described, the inquiry must continually recur, what special acts may be done by virtue of these general concessions. To answer these all-important questions may well demand the highest resources of statesmanship in the legislators who make, in the executives who administer, and in the courts who expound, the laws, — may well require of those who choose these representatives an education in the principles of civil polity far beyond that needed by any other people. The lessons
taught by history, drawn from the experience of other nations, suggested by the analogies of other governments, contained in the principles of justice and equity, may always exert their due influence upon him who studies and expounds our Constitution.
§ 21. It is evident, then, that the true method of interpretation is a resultant of these somewhat divergent forces, - a combination of the precise, strict, verbal, narrow mode of the lawyer, and the broader, freer habit of the statesman. The one looks mainly at the letter, disregarding consequences, motives, reasons — ita lex scripta est; the other passes by the letter, and concerns itself with great principles, with considerations of a high expediency, with far-reaching national results. From the very commencement of the present government, there have existed two schools who represent these two modes of construction. The one has unduly exalted the lawyer-like,
the other the statesman-like, process. Each is in error, and disasters would surely follow were either to obtain a permanent supremacy. With the one school, the Constitution loses its character as the fundamental, organic law of a government, and sinks to the level of an ordinary private statute, to be expounded with all the technical and literal precision which would be appropriate to a penal code. By them the canons of verbal criticism are invoked without any regard to the object and nature of the instrument to which they are applied. With the other school, the Constitution loses its character of law at all, and becomes simply a starting-point from which to construct a system unwritten and traditional. The one would cramp and dwarf the energies of a growing nation ; the other would remove all the barriers which have been set up lest those energies should finally become self-destructive. Combine the two, and the essential ideas of a positive law, and of a political society as the subject of that law, are preserved ; the safety and stability of the government are ensured ; the national development may go on uninterrupted by arbitrary restraints, and unbroken by sudden shocks. Such has thus far been the method adopted by legislators, executives, and courts, and approved by the people : let us hope that it may never be abandoned.
§ 22. The study of their Political Law is of the highest importance to American lawyers and American citizens. In no other country is the legal profession placed under such an imperative duty to become familiar with this special branch of jurisprudence. The Constitution of the United States is a law to legislatures, to executives, and to courts both of the nation and of the states; the constitution of each commonwealth is, in like manner, a law to its local authorities. Every statute, every administrative act, every exercise of jurisdiction, must be tested by, and conform to, this fundamental utterance of the people's sovereign will. Hence the bar and the bench are called upon to exercise a function unknown in other countries, – that of pronouncing upon the validity of a statute by comparing it with the Constitution, and by deciding as to the power of the legislature to enact it. English courts are constantly compelled to construe and interpret; but for them to declare an act of Parliament void, from a want of authority in that body, would be an anomaly indeed. Private rights and duties are affected by all governmental acts; and the American lawyer cannot meet the requirements of his profession, cannot maintain the private interests intrusted to him, unless he is acquainted not only with the text of the Constitution, but also with the judicial and legislative interpretation which forms the mass of our Political Law.
$ 23. The motives which should urge the citizen are far higher and more imperative than those addressed to the law. yer. Second only to his duty to God, stands that to his country; the welfare of the body-politic has a stronger claim upon him than even that of family or of self. How wonderfully has this truth, forgotten perhaps for a while, been recognized, accepted, and acted upon within the last six years ! But, by the organization of our government, the welfare of the bodypolitic is committed directly to the citizen. Even if not an elector, he may become one; and, at all events, he may exert a controlling influence which goes to make up a part of that public opinion which carries along with it electors and the elected. Weighty as is the obligation resting upon all citizens, it assumes a deeper and more imperative nature as it affects