Politics

Government According to Law

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In the illuminating study of "Administrative Mobilization' published in another part of this issue, Mr. Graham Wallas winds up a discussion of what the United States might do in peace in order to prepare specifically for war with a startling piece of advice. He suggests the United States would be much better prepared for war in case its Constitution were not so difficult to amend- He says: "I have myself sometimes thought that if I were an American citizen I should concentrate all my own political efforts on a proposal for a constitutional amendment having the single purpose of making more easy the carrying within a reasonable time of other constitutional amendments desired by a majority of the people."

The suggestion deserves more consideration than it will receive. The average member of Congress would be Irritated or amused at the idea of preparing for the possibility of war by the amendment of the amending clause of the Constitution. The average lawyer would wax indignant at the notion of making preparedness for war the pretext for laying profane hands upon the article in the Constitution which safeguards against violation all its other salutary provisions. If an administration which was responsible to Congress, instead of being independent of congressional control, proposed the amendment of Article V as part of a general plan of preparation, it would be unceremoniously dismissed from office. Yet the need is obvious. Can any lawyer affirm that the United States could fight a war such as the one in which Great Britain is now engaged without a more or less systematic violation of the Constitution? It would inevitably result In an aggrandizement of executive, congressional and national power, similar to that which took place during the Civil War, but to a much greater extent. A government which was obliged to suspend the payment of debts, take over the railroads and subordinate the industry of the country to military purposes could not, even with the connivance of the Supreme Court, preserve the appearance of legal conformity. The successful conduct of a serious modern war involves the consequence against which the Constitution was particularly designed to protect American states and citizens--an all-powerful government, which, if fortified by popular consent, could dispose according to its own judgment of the economic and human resources of the nation.

The majority of Americans still shrink from removing the legal obstacles to the organization of an all-powerful national government, because they have no confidence in the ability of popular opinion to employ discreetly or to control sufficiently such a formidable engine of political authority. They prefer to have the government directed and subjugated by a somewhat inaccessible body of law rather than by an all too accessible body of public opinion. The preference is supposed to be a logical consequence of the radically constitutional nature of the American democracy. We may accept the description. Out democracy must be essentially constitutional, but its quality of being constitutional carries with it no such consequence. A nation without Sufficient self-confidence to organize and operate a government capable of being flexibly adapted to the serious practical emergencies of its own career, is trying to dispense with the spiritual foundation of all thoroughgoing democracy. It is basing itself on suspicion and misgivings rather than on loyalty and courage. And as a consequence of proving false to the spirit of democracy it will eventually lose hold on its precious constitutionalism, for its legal machinery will break down unless it is molded and informed by the democratic principle of ultimate popular control of all the machinery and instruments of government.

Conservative American political opinion is justified in attaching a huge importance to constitutionalism. Respect for legal procedure is an indispensable safeguard of the integrity of a democratic commonwealth. A system of government according to law furnishes the citizens of a democratic state with a rough but sufficient method of distinguishing between fair and unfair play. In the absence of constitutionalism the government is, as it were, authorized to cheat--that is, to suit its own convenience in ignoring or accepting uniform rules of action. But a government which is authorized to cheat inevitably breeds suspicion and disloyalty among its citizens. Their only effective remedy for serious grievances is revolution, because orderly agitation is futile as a weapon against a disorderly government. Government according to law is consequently a condition of orderly agitation for the redress of grievances. Without it the mutual good faith among the citizens of a democratic nation which has been called the spiritual foundation of democracy could not exist.

It is because we attach so much importance to government according to law that we advocate so emphatically the amendment of the amending clause of the Constitution. A body of law which can be changed only slowly and with enormous difficulty invites and provokes lawlessness, because in such a body of law no sufficient provision can be made for grave and unexpected crises. The law can be adapted to ordinary social and economic changes by an organ of benevolent interpretation such as the Supreme Court, but the Supreme Court can modify the law only in minor ways and by imperceptible degrees. If it connived at frank and clear violations of the Constitution, even in a crisis, it would undermine its own authority. Yet its failure to acquiesce and conform in the case of a serious national emergency would not prevent the violation from taking place. As long as unexpected crises and revolutionary convulsions are bound to occur in the life of every nation, a system of government according to law should be contrived to deal with them legally. If they cannot be handled legally, the impulse of self-preservation will force the nation to adopt illegal remedies.

The chief obstacle to the amendment of the amending clause of the Constitution is not a strong conviction of the value of government according to law. It is that very different thing, a conviction of the value of government by law. The friends of government by law insist that the Constitution must be left extremely difficult of amendment because it enshrines a body of authoritative political dogma which governments should not be allowed to repudiate under any conditions. The contention raises much matter for controversy. We do not believe any such body of achieved political dogmas can reasonably be held to exist; and if they do exist we feel certain they are not embodied in the Constitution. But assuming that they do exist and are embodied in the Constitution, a government consecrated to their recognition and service could not be accurately described as a constitutional democracy. It really is a system of autocratic legalism--a monarchy of constitutional principle. It would be autocratically legalistic, because the salvation of the state would be made to depend upon conformity to a supreme set of rules rather than upon popular good faith and increasing popular political ability and experience. The law would be raised on high like a monarch, inaccessible, privileged and inviolate. The first duty of every good citizen would be not merely to obey the law as law, but to believe in it as the living and saving political truth.

That this autocracy of the American constitutional system has had its benefits in the past can scarcely be denied. The Constitution has performed for the American people a service similar to that which their kings have performed for the European nations. It has bound us together during a period of political adolescence. In the beginning a nation needs a fixed landmark, which it must accept without question, from which it must not be allowed to stray very far, and on which its loyalty must be fastened. But such a landmark is needed, not as the advocates of government by law would have us believe, to prevent the nation from subsequently adventuring a journey of its own, but to prevent it from going astray until it is old enough and educated enough to profit from traveling. The American people know all they need to know about the country surrounding their ancient landmark. They have exhausted its sources of moral subsistence. Unless they prefer to stand still they must break away and lay out a new route in comparatively unexplored country. The laying out of such a route is imposed upon Americans because they claim to be a self-governing democracy. If they refuse to move on they will forfeit their right to be called a democracy, because they will refuse to assume responsibility for their own behavior and destiny. They will be shirking the opportunity to exercise control over their own collective life. But when they move on, as, willy nilly, they must, they can show that they have profited by their prosperous sojourn under the shadow of a presumably righteous law. They can take with them, not a body of truth which will save them from sin and error, but the will to govern themselves according to the most adequate law that their aspiration and intelligence can manufacture out of their experience.

Learned Hand was a Chief Judge on the United States Court of Appeals for the Second Circuit.

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