Book 6, Chapter 07 : Of Constitutions
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Book 6, Chapter 07
Distinction of regulations constituent and legislative. - Supposed character of permanence that ought to be given to the former - inconsist- ent with the nature of man. - Source of the error. - Remark. - Absurdity of the system of permanence. - Its futility. - Mode to be pursued in framing a constitution. - Constituent laws not more important than others. - In what manner the consent of the districts is to be de- clared. - Tendency of the principle which re- quires this consent. - It would reduce the number of constitutional articles - parcel out the legislative power - and produce the gradual extinction of law. - Objection. - answer.
A QUESTION intimately connected with the political superintendence of opinion is presented to us relative to a doctrine which has lately been taught upon the subject of constitutions. It has been said 'that the laws of every regular state naturally distribute themselves under two heads, fundamental and temporary; laws the object of which is the distribution of political power, and directing the permanent forms according to which public business is to be conducted; and laws the result of the deliberations of powers already constituted.' This distinction being established in the first instance, it has been inferred 'that these laws are of very unequal importance, and that, of consequence, those of the first class ought to be originated with much greater solemnity, and to be declared much less susceptible of variation, than those of the second'. The French national assembly of 1789 pushed this principle to the greatest extremity, and seemed desirous of providing every imaginable security for rendering the work they had formed immortal. It was not to be touched, upon any account, under the term of ten years; every alteration it was to receive must be recognized as necessary by two successive national assemblies of the ordinary kind; after these formalities an assembly of revision was to be elected, and they to be forbidden to amend the constitution in any other points than those which had been previously marked out for their consideration.
It is easy to perceive that these precautions are in direct hostility with the principles established in this work. 'Man and for ever!' was the motto of the labors of this assembly. just broken loose from the thick darkness of an absolute monarchy, they assumed to prescribe lessons of wisdom to all future ages. They seem not so much as to have dreamed of that purification of intellect, that climax of improvement, which may very probably be the destiny of posterity. The true state of man, as has been already said, is, not to have his opinions bound down in the fetters of an eternal quietism, but, flexible and unrestrained, to yield with facility to the impressions of accumulating observation and experience. That form of society will, of consequence, appear most eligible which is least founded in a principle of permanence. But, if this view of the subject be just, the idea, of giving permanence to what is called the constitution of any government, and rendering one class of laws, under the appellation of fundamental, less susceptible of change than another, must be founded in misapprehension and error.
The error probably originally sprung out of the forms of political monopoly which we see established over the whole civilized world. Government could not justly flow, in the first instance, but from the choice of the people; or, perhaps more accurately speaking, ought to be adjusted in its provisions to the prevailing apprehensions of equity and truth. We see government as present administered, either in whole or in part, by a king and a body of noblesse; and we reasonably say that the laws made by these authorities are one thing, and the laws from which they derived their existence another. Now this, and indeed every species of exclusive institution, presents us with a dilemma, memorable in its nature, and hard of solution. If the prejudices of a nation are decisively favorable to a king or a body of noblesse, it seems impossible to say that a king, or a body of noblesse, should not form part of their government. But then, on the other hand, the moment you admit this species of exclusive institution, you counteract the purpose for which it was admitted, and deprive the sentiments of the people of their genuine operation.
If we had never seen arbitrary and capricious forms of government, we should probably never have thought of cutting off certain laws from the code, under the name of constitutional. When we behold certain individuals, or bodies of men, exercising an exclusive superintendence over the affairs of a nation, we inevitably ask how they came by their authority, and the answer is, By the constitution. But, if we saw no power existing in the state but that of the people, having a body of representatives, and a certain number of official secretaries and clerks acting in their behalf, subject to their revival, and renewable at their pleasure, the question how the people came by this authority would never have suggested itself.
A celebrated objection that has been urged against the governments of modern Europe is 'that they have no constitutions'.1 If, by this objection, it be understood that the), have no written code bearing this appellation, and that their constitutions have been less an instantaneous than a gradual production, the criticism seems to be rather verbal than of essential moment. In any other sense, it is to be suspected that the remark would amount to an eulogium, but an eulogium to which they are certainly by no means entitled.
But to return to the question of permanence. Whether we admit or reject the distinction between constitutional and ordinary legislation, it is not less true than the power of a nation to change its constitution, morally considered, must be briefly and universally coeval with the existence of a constitution. The languages of permanence, in this case, is the grossest absurdity. It is to say to a nation, 'Are you convinced that something is right, perhaps immediately necessary, to be done? It shall be done ten years hence.'
The folly of this system may be further elucidated, if further elucidation be necessary, from the following dilemma. Either a people must be governed according to their own apprehensions of justice and truth, or they must not. The last of these assertions cannot be avowed, but upon the unequivocal principles of tyranny. But, if the first be true, then it is just as absurd to say to a nation, 'This government, which you chose nine years ago, is the legitimate government, and the government which your present sentiments approve, the illegitimate'; as to insist upon their being governed by the dicta of their remotest ancestors, even of the most insolent usurper.
It is extremely probable that a national assembly, chosen in the ordinary forms, is just as well entitled to change the fundamental laws as to change any of the least important branches of legislation. This function would never perhaps be dangerous but in a country that still preserved a portion of monarchy or aristocracy; and, in such a country, a principle of permanence would be found a very feeble antidote against the danger. The true principle upon the subject is that no assembly, though chosen with the most unexampled solemnity, is competent to impose any regulations contrary to the public apprehension of right; and a very ordinary authority, fairly originated, will be sufficient to facilitate the harmonious adoption of a change that is dictated by national opinion. The distinction of constitutional and ordinary topics will always appear in practice unintelligible and vexatious. The assemblies of more frequent recurrence will find themselves arrested in the intention of confering eminent benefit on their own country, by the apprehension that they shall invade the constitution. In a country where the people are habituated to sentiments of equality, and where no political monopoly is tolerated, there is little danger that any national assembly should be disposed to enforce a pernicious change, and there is still less that the people should submit to the injury, or not possess the means easily and with small interruption of public tranquility, to avert it. The language of reason on this subject is, 'Give us equality and justice, but no constitution. Suffer us to follow, without restraint, the dictates of our own judgment, and to change our forms of social order, as fast as we improve in understanding and knowledge.'
The opinion upon this head, most popular in France at the time (1792) that the national convention entered upon its functions, was that the business of a convention extended only to the presenting the draft of a constitution, to be submitted in the sequel to the approbation of the districts and, subsequently only to that approba-tion, to be considered as law. This opinion is deserving of a serious examination.
The first idea that suggests itself respecting it is that, if constitutional laws ought to be subjected to the revision of the districts, then all laws ought to undergo the same process, understanding by laws all declarations of a general principle to be applied to particular cases as they may happen to occur, and even including all provisions for individual emergencies that will admit of the delay incident to the revision in question. It is a mistake to imagine that the importance of these articles is in a descending ratio, from fundamental to ordinary, and from ordinary to particular. It is possible for the most odious injustice to be perpetrated by the best constituted legislature that ever was framed. A law rendering it capital to oppose the doctrine of transubstantiation would be more injurious to the public welfare than a law changing the duration of the national representative from two years, to one year, or to three. Taxation has been shown to be an article rather of executive than legislative administration2; and yet a very oppressive and unequal tax would be scarcely less ruinous than any single measure that could possibly be devised.
It may further be remarked that an approbation demanded from the districts to certain constitutional articles, whether more or less numerous, will be either real or delusive, according to the mode adopted for that purpose. If the districts be required to decide upon these articles by a simple affirmative or negative, it will then be delusive. It is impossible for any man or body of men, in the due exercise of their understanding, to decide upon any complicated system in that manner. It can scarcely happen but that there will be some things that they would approve, and some that they would disapprove. On the other hand, if the articles be unlimitedly proposed for discussion in the districts, a transaction will be begun to which it is not easy to foresee termination. Some districts will object to certain articles; and, if these articles be modeled to obtain their approbation, it is possible that the very alteration, introduced to please one part of the community, may tender the code less acceptable to another. How are we to be assured that the dissidents will not set up a separate government for themselves? The reasons that might be offered to persuade a minority of districts to yield to the sense of a majority are by no means so perspicuous and forcible as those which sometimes persuade the minority of members in a given assembly to that species of concession.
It is desirable, in all cases of the practical adoption of any given principle, that we should fully understand the meaning of the principle, and perceive the conclusions to which it inevitably leads. This principle of a consent of districts has an immediate tendency, by a salutary gradation perhaps, to lead to the dissolution of all government. What then can be more absurd than to see it embraced by those very men who are, at the same time, advocates for the complete legislative unity of a great empire? It is founded upon the same basis as the principle of private judgment, which, in proportion as it impresses itself on the minds of men, may be expected perhaps to supersede the possibility of the action of society in a collective capacity. It is desirable that the most important acts of the national representatives should be subject to the approbation or rejection of the districts, whose representatives they are, for exactly the same reason that it is desirable that the acts of the districts themselves should, as speedily as practibility will admit, be in force only so far as relates to the individuals by whom those acts are approved.
The first consequence that would result, not from the delusive, but the real establishment of this principle would be the reduction of the constitution to a very small number of articles. The impracticability of obtaining the deliberate approbation of a great number of districts to a very complicated code would speedily manifest itself. In reality, the constitution of a state, governed either in whole or in part by a political monopoly, must necessarily be complicated. But what need of complexity in a country where the people are destined to govern themselves? The whole constitution of such a country ought scarcely to exceed two articles; first, a scheme for the division of the whole into parts equal in their population, and, secondly, the fixing of stated periods for the election of a national assembly: not to say that the latter of these articles may very probably be dispensed with.
A second consequence that results from the principle of which we are treating is as follows. It has already appeared that the reason is no less cogent for submitting important legislative articles to the revisal of the districts than for submitting the constitutional articles themselves. But, after a few experiments of this sort, it cannot fail to suggest itself that the mode of sending laws to the districts for their revision, unless in cases essential to the general safety, is a proceeding unecessatily circuitous, and that it would be better, in as many instances as possible, to suffer the districts to make laws for themselves, without the intervention of the national assembly. The justness of this consequence is implicitly assumed in the preceding paragraph, while we stated the very narrow bounds within which the constitution of an empire, such as that of France for example, might be circumscribed. In reality, provided the country were divided into convenient districts with a power of sending representatives to the general assembly, it does not appear that any ill consequences would ensue to the common cause from these districts being permitted to regulate their internal affairs, in conformity to their own apprehensions of justice. Thus, that which was, at first, a great empire with legislative unity would speedily be transformed into a confederacy of lesser republics, with a general congress or Amphictyonic council, answering the purpose of a point of cooperation upon extraordinary occasions, The ideas of a great empire, and legislative unity, are plainly the barbarous remains of the days of military heroism. In proportion as political power is brought home to the citizens, and simplified into something of the nature of parish regulation, the danger of misunderstanding and rivalship will be nearly annihilated. In proportion as the science of government is divested of its present mysterious appearances, social truth will become obvious, and the districts pliant and flexible to the dictates of reason.
A third consequence, sufficiently memorable, from the same principle, is the gradual extinction of law. A great assembly, collected from the different provinces of an extensive territory, and constituted the sole legislator of those by whom the territory is inhabited, immediately conjures up to itself an idea of the vast multitude of laws that are necessary for regulating the concerns of those whom it represents. A large city, impelled by the principles of commercial jealousy, is not slow to digest the volume of its by-laws and exclusive privileges. But the inhabitants of a small parish, living with some degree of that simplicity which best corresponds to the real nature and wants of a human being, would soon be led to suspect that general laws were unnecessary, and would adjudge the causes that came before them, not according to certain axioms previously written, but according to the circumstances and demand of each particular cause, - It was proper that this consequence should be mentioned in this place. The benefits that will arise from the abolition of law will come to be considered in detail in the following book.3
The principal objection that is usually made to the idea of confederacy, considered as the substitute of legislative unity, is 'the possibility that arises of the members of the confederacy detaching themselves from the support of the public cause'. To give this objection every advantage, let us suppose 'that the seat of the confederacy, like France, is placed in the midst of surrounding nations, and that the governments of these nations are anxious, by every means of artifice and violence, to suppress the insolent spirit of liberty that has started up among this neighbor people'. It is to be believed that, even under these circumstances, the danger is more imaginary than real. The national assembly, being precluded by the supposition, from the use of force against the malcontent districts, is obliged to confine itself to expostulation; and it is sufficiently observable that our powers of expostulation are tenfold increased, the moment our hopes are confined to expostulation alone. They have to display, with the utmost perspicuity and simplicity, the benefits of independence; to convince the public at large that all they intend is to enable every district, and, as far as possible, every individual, to pursue unmolested its own ideas of propriety; and that, under their auspices, there shall be no tyranny, no arbitrary punishments, such as proceed from the jealousy of councils and courts, no exactions, almost no taxation, Some ideas respecting this last subject will speedily occur4 It is not possible but that, in a country rescued from the inveterate evils of despotism, the love of liberty should be considerably diffused. The adherents therefore of the public cause will be many: the malcontents few. If a small number of districts were so far blinded as to be willing to surrender themselves to oppression and slavery, it is probable they would soon repent. Their desertion would inspire the more enlightened and courageous with additional energy. It would be a fascinating spectacle, to see the champions of the general welfare eagerly declaring that they desired none but willing supporters. It is not possible that so magnanimous a principle should not contribute more to the advantage than the injury of their cause.
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