THE UNITED STATES

Lake Wakatip Mail, Issue 4347, 11 January 1938, Page 7

THE UNITED STATES

CONSTITUTION TO-DAY AFTER A CENTURY AND A-HALF BATTLE OF FUTURE With the single exception of the British Constitution, that of the United States is the oldest living instrument of government in our civilisation, writes Harold Laski, in the ‘ Manchester Guardian.’ It has survived cm war, world war, and a technological revolution far more profound than its makers could even have conceived, ihe 55 men who met in Philadelphia in the hot summer of 1787 achieved, on any showing, a remarkable work. They met only to revise the loose articles of confederation which hardly bound together the 13 independent States, each profoundly jealous of its sovereignty. There was no President and no Cabinet • the Congress could vote law's and money, but it had no power of enforcement or collection ; it could declare wai, but had no assurance that the States would supply armies; it could regulate neither currency nor trade; it had not even the capacity to enforce foreign treaties. When, on September 17, 1787. 39 of its members set their hand to the plan they had devised they had built a national framew'ork of government for the people of the United States. REMARKABLE ACHIEVEMENT. It was accomplished only amidst acute difficulty and disagreement. There were differences about the pow'ers of the President and the method of his election. There were differences about the nature and powers of the Legislative Assembly. There W'ere differences about the extent of the authority to be conferred upon the national Government they called into being. There were moments wdien their work seemed almost certain to fail. It was probably only because, meeting in secret, they were free from the pressure of public opinion outside and because the sense of urgency drove the majority to compromise that they were able to succeed at all. The ratification of the new instrument was secured only by a mixture of cajolery and coercion in which the masses' played hardly any part. Looking at the work they did in the light of the knowdedge we now have (much of it knowdedge concealed from their own generation), the surprising thing about the Philadelphia Convention is the mere fact of its success. Rarely has so momentous an edifice been constructed to rapidly amid circumstances so little propitious of success.

The 55 men were, indeed, almost as distinguished a body as could have been collected together in the America of the time. Washington was naturally made its President, and if he contributed little to its actual deliberations the mere authority of his presence was significant. Of the others, Franklin and Madison, Hamilton and Gouverneur Morris, the Pinckneys of South Carolina, Luther Martin of Maryland, Kino- of Massachusetts, and Robert Morris, the Pennsylvanian architect of revolutionary finance, would have lent distinction to any assembly. The reader of the convention’s records will hnd in them a body of political science unsurpassed in depth and sagacity by the dis- ( missions of any popular assembly engaged in a similar task. BULWARK OF PROPERTY. They succeeded because they knew the urgency of their task; if they failed, they knew that the future might well undo the fruits of the independence they had so hardly won. They succeeded also because public opinion was unaware of the gigantic task to which they set their hand and unable, therefore, to influence the debates which led to their conclusions. But urgency and secrecy apart, they succeeded also because, overwheirainglv they shared a common philosophy. Mostly, they were men of substance. They were afraid of the danger of mass opinion. They sought an instrument of government which would safeguard property from the invasion of democratic power. “ The evils we experience,” said Gerry of Massachusetts, “ How from the excess of democracy.” It was necessary, felt Madison, “ to provide more_ effectually for the security of private rights ” in some fashion “ consistent with the democratic form of government.” The Constitution they built was intended as an assurance to property that its rights would not be invaded by the demo--1 cracy That explains the nature of the presidential office as they coin ceived it; it explains the doctrine of judicial review; it explains why 7 the election of senators was left to the Legislatures of the States. The people,” Hamilton told the Convention. “ seldom -judge or determine right.” Without safeguards there might be, as experience warned them, “ emissions of paper money, largesses to the people, a remission of debts.” NO ECONOMIC DEMOCRACY. Mr Morris, the financier, had no doubt of what he wanted. There should be the form of political democracy, but safeguards against its transformation into an economic democracy. The veto of the Supreme Court would be ‘‘a strong barrier against the instability of legislative assemblies.” In the 150 years that have passed something of the work of the 55 men has changed. The President and the Senate are popularly elected. The growth of political parties has done something to mitigate the hard outline of the original separation of powers. Public opinion has been able, from time to time, to make its views felt upon the minds of the judges of the Supreme Court. But the instrument ot 1787 still remains in its major principles, the determinant of political possibilities in the United States, Its virtues have become a popular legend, consecrated afresh in each generation, so consecrated, indeed, that even those who, like President Roosevelt, have most suffered from its defects have been persuaded to attribute them rather to the human agencies through which they work than to the character of the instruments themselves. Where, aitei IoU years of evolution, does the Amennn Constitution stand? THE INDUSTRIAL REVOLUTION. It rules a very different society from that of 1787. Giant industry, growth

of population, the exhaustion of the free lands, implication in the world market, the development of a permanent proletariat, these have created problems unthinkable in 1787. The negative state of those days has become the positive state. Laissez-faire has, perforce, given way to regulation by Government. Centralisation in industry and finance makes essential legislative uniformities unthinkable at a time when it took longer to go from Boston to New York than it now takes to go from New York to San Francisco. Electric power, soil erosion, the holding company, the factory farm, the chain store, all these were unknown. A new America has been born. _ Does the old Constitution fit the circumstances of the new America? It is, to say the least, doubtful whether the technique of federalism is adequate to the problems of the modern industrial State. The uniformities it requires are hindered by the distribution of functions implied in the Constitution of 1787. They are hindered, further, by the fact that the areas of the constituent States are, in large degree, obsolete. The separation of powers in the Federal Constitution tends increasingly to result in the confusion of powers. It stands in the way of that necessary delegation of authority which has become imperative in the modern State. It is an obstacle which destroys unity in the making of policy and coherence in legislation. The methods by which its more extreme difficulties are obviated prevent the Federal Government from attaining that first necessity of modern legislation—an adequate Civil Service. POWER OF COURT. But the central weakness of the scheme of 1787 is unquestionably the power of the Supreme Court. Its tradition is overwhelmingly that of the founders —fear that the rights of property may be invaded, zeal to prevent the encroachment of popular will on economic privilege. “ The Constitution,” said Chief Justice Hughes, is what the judges say it is ” ; and the constant temptation of Judges who have been, for the most part, the legal ministrants to successful business men is the persuasion to translate the business man’s philosophy into constitutional principles inaccessible to attack save by the uniquely difficult way of constitutional amendment. Anyone who studies the attitude of the Supreme Court to the Commerce Clause or to the Due Process Clause will see how the legal mind of the United States is still predominantly wedded, in the age of the positive State, to the ideals of a laissez-faire society incompatible with its adequate functioning. In a civilisation in which the lawyer has become parasitic upon big business the doctrine of judicial review of Federal legislation is a constant threat to the foundations of political democracy. For judicial review, narrowly used, becomes nothing so much as the bulwark of vested interests, the perpetuation of which is incompatible with the modern conception of social justice. NO LONGER UNIQUE. What, briefly, has occurred is that the unique society for which the founders legislated in 1787 has become a capitalist democracy in no fundamental particular distinguished from similar societies elsewhere. The unique opportunities the United States presented before the war have largely vanished: the stratafications of its structure are different in degree rather than in kind from those of Great Britain or France, of Sweden or Czechoslovakia. But the Constitution of 1787 is essentially an instrument behind which there is the assumption of uniqueness, and its interpretation is more toughly resistant to new ideas than that of any comparable body of prnicip'les. Slowly but irresistibly the principles for basic changes in American social relationships is being realised by the common man; the immense majorities President Roosevelt secured in 1932 and 1936 are nothing so much as his comment upon that necessity. Whether the Constitution in its present form has the amplitude requisite to their acceptance it is not easy to prognosticate; all the power of American business is on the side of traditions incompatible with adaptation. The field, certainly, is set for great battles in the coming years, even if we cannot hope to discern their outcome, and the objective of the combatants will be the right either _to maintain or to alter the Constitution in its present form. JEFFERSON’S WARNING. How far what is occurring to-day could have been present to the minds of the men who met at Philadelphia in 1787 is amusing but fruitless as a speculation. Their world is not our world; their intentions do not touch our problems. From the words of the founders anyone may take sentences to prove that they stand on one side or another. The real urgency is to insist that their intentions are irrelevant to contemporary needs. The point of all this was put supremely by Thomas Jefferson: ' “ Some men,” he wrote, “ look at Constitutions with sanctimonious reverence, and deem them like the Ark of the Covenant —too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; 1 belonged to it and laboured with it. It deserved well of its country. It was very like the present, but without the experience of the present, and 40 j-ears of experience in government is worth a century of book reading; and this they could say themselves were they to rise from the dead.” If contemporary America can meet its constitutional problems in Jefferson’s spirit it will have little reason to fear for its destiny.