sat for two years only, and owed little of his subsequent eminence to his career there.
VIII. The independence of the judiciary, due to its holding for life, has been a conspicuous merit of the federal system, as compared with the popular election and short terms of judges in most of the states. Yet even the federal judiciary is not secure from the attacks of the two other powers, if combined. For the legislature may by statute increase the number of federal justices, increase it to any extent, since the Constitution leaves the number undetermined and the president may appoint persons whom he knows to be actuated by a particular political bias, perhaps even prepared to decide specific questions in a particular sense. Thus he and Congress together may obtain such a judicial determination of any constitutional question as they join in desiring, even although that question has been heretofore differently decided by the Supreme Court. The only safeguard is in the disapproval of the people.
It is worth remarking that the points in which the American frame of national government has proved least successful are those which are most distinctly artificial, i.e., those which are not the natural outgrowth of old institutions and well-formed habits, but devices consciously introduced to attain specific ends.5 The election of the president and vice-president by electors appointed ad hoc is such a device. The functions of the judiciary do not belong to this category; they are the natural outgrowth of common law doctrines and of the previous history of the colonies and states; all that is novel in them, for it can hardly be called artificial, is the creation of courts coextensive with the sphere of the national government.
All the main features of American government may be deduced from two principles. One is the sovereignty of the people, which expresses itself in the fact that the supreme law—the Constitution—is the direct utterance of their will, that they alone can amend it, that it prevails against every other law, that whatever powers it does not delegate are deemed to be reserved to it, that every power in the state draws its authority, whether directly, like the House of Representatives, or in the second degree, like the president and the Senate, or in the third degree, like the federal judiciary, from the people, and is legally responsible to the people, and not to any one of the other powers.
The second principle, itself a consequence of this first one, is the distrust of the various organs and agents of government. The states are carefully safeguarded against aggression by the central government. So are the individual citizens. Each organ of government, the executive, the legislature, the judiciary, is made a jealous observer and restrainer of the others. Since the people, being too numerous, cannot directly manage their affairs, but must commit them to agents, they have resolved to prevent abuses by trusting each agent as little as possible, and subjecting him to the oversight of other agents, who will harass and check him if he attempts to overstep his instructions.
Someone has said that the American government and Constitution are based on the theology of Calvin and the philosophy of Hobbes. This at least is true, that there is a hearty Puritanism in the view of human nature which pervades the instrument of 1787. It is the work of men who believed in original sin, and were resolved to leave open for transgressors no door which they could possibly shut.6 Compare this spirit with the enthusiastic optimism of the Frenchmen of 1789. It is not merely a difference of race temperaments; it is a difference of fundamental ideas.
With the spirit of Puritanism there is blent a double portion of the spirit of legalism. Not only is there no reliance on ethical forces to help the government to work; there is an elaborate machinery of law to preserve the equilibrium of each of its organs. The aim of the Constitution seems to be not so much to attain great common ends by securing a good government as to avert the evils which will flow, not merely from a bad government, but from any government strong enough to threaten the preexisting communities or the individual citizen.
The spirit of 1776, as it speaks to us from the Declaration of Independence and the glowing periods of Patrick Henry, was largely a revolutionary spirit, revolutionary in its faith in abstract principles, revolutionary also in its determination to carry through a tremendous political change in respect of grievances which the calm judgment of history does not deem intolerable, and which might probably have been redressed by less trenchant methods. But the spirit of 1787 was an English spirit, and therefore a conservative spirit, tinged, no doubt, by the hatred to tyranny developed in the revolutionary struggle, tinged also by the nascent dislike to inequality, but in the main an English spirit, which desired to walk in the old paths of precedent, which thought of government as a means of maintaining order and securing to everyone his rights, rather than as a great ideal power, capable of guiding and developing a nation’s life. And thus, though the Constitution of 1789 represented a great advance on the still oligarchic system of contemporary England, it was yet, if we regard simply its legal provisions, the least democratic of democracies. Had the points which it left undetermined, as for instance the qualifications of congressional electors, been dealt with in an aristocratic spirit, had the legislation of Congress and of the several states taken an aristocratic turn, it might have grown into an aristocratic system. The democratic character which it now possesses is largely the result of subsequent events, which have changed the conditions under which it had to work, and have delivered its development into the hands of that passion for equality which has become a powerful factor in the modern world everywhere.
He who should desire to draw an indictment against the American scheme of government might make it a long one, and might for every count in it cite high American authority and adduce evidence from American history. Yet a European reader would greatly err were he to conclude that this scheme of government is a failure, or is, indeed, for the purposes of the country, inferior to the political system of any of the great nations of the Old World.
All governments are faulty; and an equally minute analysis of the constitutions of England, or France, or Germany would disclose mischiefs as serious, relatively to the problems with which those states have to deal, as those we have noted in the American system. To anyone familiar with the practical working of free governments it is a standing wonder that they work at all. The first impulse of mankind is to follow and obey; servitude rather than freedom is their natural state. With freedom, when it emerges among the more progressive races, there come dissension and faction; and it takes many centuries to form those habits of compromise, that love of order, and that respect for public opinion which make democracy tolerable. What keeps a free government going is the good sense and patriotism of the people, or of the guiding class, embodied in usages and traditions which it is hard to describe, but which find, in moments of difficulty, remedies for the inevitable faults of the system. Now, this good sense and that power of subordinating sectional to national interests which we call patriotism, exist in higher measure in America than in any of the great states of Europe. And the United States, more than any other country, are governed by public opinion, that is to say, by the general sentiment of the mass of the nation, which all the organs of the national government and of the state governments look to and obey.7
A philosopher from Jupiter or Saturn who should examine the Constitution of England or that of America would probably pronounce that such a body of complicated devices, full of opportunities for conflict and deadlock, could not work at all. Many of those who examined the American Constitution when it was launched did point to a multitude of difficulties, and confidently predicted its failure. Still more confidently did the European enemies of free government declare in the crisis of the War of Secession that “the republican bubble had burst.” Some of these censures were well grounded, though there were also defects which had escaped criticism, and were first disclosed by experience. But the Constitution has lived on in spite of all defects, and seems stronger now than at any previous epoch.
Every constitution, like every man, has “the defects of its good qualities.” If a nation desires perfect stability it must put up with a certain slowness and cumbrousness; it must face the possibility of a want of action where action is called for. If, on the other hand, it seeks to obtain executive speed and vigour by a complete concentration of power, it must run the risk that power will be abused and irrevocable steps too hastily taken. “The liberty-loving people of every country,”
