and judicial constructions placed. Much more then must we expect to find great public and constitutional enactments subjected to the closest scrutiny in order to discover every shade of meaning which their words can be made to bear. Probably no writing except the New Testament, the Koran, the Pentateuch, and the Digest of the emperor Justinian has employed so much ingenuity and labour as the American Constitution, in sifting, weighing, comparing, illustrating, twisting, and torturing its text. It resembles theological writings in this, that both, while taken to be immutable guides, have to be adapted to a constantly changing world, the one to political conditions which vary from year to year and never return to their former state, the other to new phases of thought and emotion, new beliefs in the realms of physical and ethical philosophy. There must, therefore, be a development in constitutional formulas, just as there is in theological. It will come, it cannot be averted, for it comes in virtue of a law of nature: all that men can do is to shut their eyes to it, and conceal the reality of change under the continued use of time-honoured phrases, trying to persuade themselves that these phrases mean the same thing to their minds today as they meant generations or centuries ago. As a great living theologian says, “In a higher world it is otherwise; but here below to live is to change, and to be perfect is to have changed often.” 1
The Constitution of the United States is so concise and so general in its terms, that even had America been as slowly moving a country as China, many questions must have risen on the interpretation of the fundamental law which would have modified its aspect. But America has been the most swiftly expanding of all countries. Hence the questions that have presented themselves have often related to matters which the framers of the Constitution could not have contemplated. Wiser than Justinian before them or Napoleon after them, they foresaw that their work would need to be elucidated by judicial commentary. But they were far from conjecturing the enormous strain to which some of their expressions would be subjected in the effort to apply them to new facts.
I must not venture on any general account of the interpretation of the Constitution, nor attempt to set forth the rules of construction laid down by judges and commentators, for this is a vast matter and a matter for law books. All that this chapter has to do is to indicate, very generally, in what way and with what results the Constitution has been expanded, developed, modified, by interpretation; and with that view there are three points that chiefly need discussion: (1) the authorities entitled to interpret the Constitution, (2) the main principles followed in determining whether or not the Constitution has granted certain powers, (3) the checks on possible abuses of the interpreting power.
I. To whom does it belong to interpret the Constitution? Any question arising in a legal proceeding as to the meaning and application of this fundamental law will evidently be settled by the courts of law. Every court is equally bound to pronounce and competent to pronounce on such questions, a state court no less than a federal court;2 but as all the more important questions are carried by appeal to the Supreme Federal Court, it is practically that court whose opinion determines them.
Where the federal courts have declared the meaning of a law, everyone ought to accept and guide himself by their deliverance. But there are always questions of construction which have not been settled by the courts, some because they have not happened to arise in a lawsuit, others because they are such as cannot arise in a lawsuit. As regards such points, every authority, federal or state, as well as every citizen, must be guided by the best view he or they can form of the true intent and meaning of the Constitution, taking, of course, the risk that this view may turn out to be wrong.
There are also points of construction on which every court, following a well-established practice, will refuse to decide, because they are deemed to be of “a purely political nature,” a vague description, but one which could be made more specific only by an enumeration of the cases which have settled the practice. These points are accordingly left to the discretion of the executive and legislative powers, each of which forms its view as to the matters falling within its sphere, and in acting in that view is entitled to the obedience of the citizens and of the states also.
It is therefore an error to suppose that the judiciary is the only interpreter of the Constitution, for a large field is left open to the other authorities of the government, whose views need not coincide, so that a dispute between those authorities, although turning on the meaning of the Constitution, may be incapable of being settled by any legal proceeding. This causes no great confusion, because the decision, whether of the political or the judicial authority, is conclusive so far as regards the particular controversy or matter passed upon.
The above is the doctrine now generally accepted in America. But at one time the presidents claimed the much wider right of being, except in questions of pure private law, generally and prima facie entitled to interpret the Constitution for themselves, and to act on their own interpretation, even when it ran counter to that delivered by the Supreme Court. Thus Jefferson denounced the doctrine laid down in the famous judgment of Chief Justice Marshall in the case of Marbury v. Madison;3 thus Jackson insisted that the Supreme Court was mistaken in holding that Congress had power to charter the United States Bank, and that he, knowing better than the court did what the Constitution meant to permit, was entitled to attack the bank as an illegal institution, and to veto a bill proposing to recharter it.4 Majorities in Congress have more than once claimed for themselves the same independence. But of late years both the executive and the legislature have practically receded from the position which the language formerly used seemed to assert; while, on the other hand, the judiciary, by their tendency during the whole course of their history to support every exercise of power which they did not deem plainly unconstitutional, have left a wide field to those authorities. If the latter have not used this freedom to stretch the Constitution even more than they have done, it is not solely the courts of law, but also public opinion and their own professional associations (most presidents, ministers, and congressional leaders having been lawyers) that have checked them.
II. The Constitution has been expanded by construction in two ways. Powers have been exercised, sometimes by the president, more often by the legislature in passing statutes, and the question has arisen whether the powers so exercised were rightfully exercised, i.e., were really contained in the Constitution. When the question was resolved in the affirmative by the court, the power has been henceforth recognized as a part of the Constitution, although, of course, liable to be subsequently denied by a reversal of the decision which established it. This is one way. The other is where some piece of state legislation alleged to contravene the Constitution has been judicially decided to contravene it, and to be therefore invalid. The decision, in narrowing the limits of state authority, tends to widen the prohibitive authority of the Constitution, and confirms it in a range and scope of action which was previously doubtful.
Questions of the above kinds sometimes arise as questions of interpretation in the strict sense of the term, i.e., as questions of the meaning of a term or phrase which is so far ambiguous that it might be taken either to cover or not to cover a case apparently contemplated by the people when they enacted the Constitution. Sometimes they are rather questions to which we may apply the name of construction, i.e., the case that has arisen is one apparently not contemplated by the enacters of the Constitution, or one which, though possibly contemplated, has for brevity’s sake been omitted; but the Constitution has nevertheless to be applied to its solution. In the former case the enacting power has said something which bears, or is supposed to bear, on the matter, and the point to be determined is, What do the words mean? In the latter it has not directly referred to the matter, and the question is, Can anything be gathered from its language which covers the point that has arisen, which establishes a principle large enough to reach and include an unmentioned case, indicating what the enacting authority would have said had the matter been present to its mind, or had it thought fit to enter on an enumeration of specific instances?5 As the Constitution is not only a well-drafted instrument with few ambiguities but also a short instrument which speaks in very general terms, mere interpretation has been far less difficult than construction.6 It is through the latter chiefly that the Constitution has been, and still
