Afterthoughts on Constitutions

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The next thing that occurs to me is that constitutions are of various sorts. Besides constitutions made for real communities, I recall several made for unreal, or nonexistent communities. Of these, the most famous, no doubt, is Plato’s “Republic,” which suffices to recall More’s “Utopia,” Bacon’s “Atlantis,” Cyrano’s “States in the Moon,” and many others, not forgetting the Great Society of the future described by H. G. Wells in the ninth book of his “Outline of History.” But then, since for classification there is some special magic in the number three, there ought to be a third kind of constitution. I think at once of those constitutions which, although appertaining to real communities, are themselves, if not unreal, at least somewhat intangible and illusive. Of these, the English constitution is by far the most intriguing.

The English, if hard pressed, will admit that they have a constitution, but they profess not to know precisely what it is. If you insist upon knowing at any rate where it may be found, they may be heard, with clipped and reticent embarrassment, to mutter something about the Magna Carta and all that rot. A shy people, the English, but a practical people. A practical people, and therefore extremely subtle theorists—after the event: Jesuits lost to the theological but gained for the political realm. Ask an English jurist whether the English constitution anywhere forbids the King to make a statute on his sole authority, and he will very likely say that the question is an improper one, since it does not really arise until a statute, alleged to have been made by the King on his sole authority, comes before the court for adjudication. Actually confronted with this inconvenient predicament, the court would, no doubt, require adequate evidence to convince it that the statute before it had in fact been enacted by the King on his sole authority; and, no doubt, the only evidence which the court would regard as adequate for that purpose, would be a bill proclaiming that His Majesty, the King, with the advice and consent of his faithful Lords and Commons, doth ordain—whatever it is that he ordains. In short, nothing would convince an English court that the King had enacted a statute on his own, except a document proving beyond any doubt whatever that he had done no such thing. Such is the practical English mind. Such is the English constitution. It presumably exists, but the English refuse to define it beforehand: its true meaning is never revealed except on those rare occasions that call for a fresh interpretation of its provisions. In this respect, I may say in parenthetical confidence, it does not, after all, differ much from the written constitution with which we are all most familiar.

Since one thing leads to another, I am reminded by this that the constitution of the United States, whatever else it may be, is a written constitution. As such, it is not, when seen in its historical setting, an isolated phenomenon. On the contrary, the century which elapsed between 1775 and 1875 was pre-eminent for the great number of written constitutions which were drafted and adopted, and, alas, not infrequently abandoned. A few years before 1787, nearly all of the thirteen States adopted such constitutions, besides uniting in a common government under the Articles of Confederation. A few years later, in 1791, the French began their spectacular feat in constitution making. Between 1791 and 1875 Taine counts thirteen French constitutions adopted in relatively rapid succession. I can find only twelve, but maybe Taine is right. It doesn’t really matter. The point is that for facility, speed, and endurance in constitution making, France holds the record. Yet other nations also ran. During the nineteenth century, nearly every country of Europe, to say nothing of Canada, Australia, the Latin-American countries, and the several States of the American Union, adopted one or more constitutions. How many constitutions were carefully drafted, solemnly adopted, and often abandoned between 1775 and 1875 I do not profess to know. But at all events very many—more, I should guess, than during all the preceding centuries of human history.

It may be that at last I have hit upon a significant fact—this sudden epidemic of constitution making, lasting for a brief century, and then dying away almost as suddenly as it began. It could hardly have been a mere academic exercise in literary discourse, although often enough it has that appearance. Some deep-seated disturbance there must have been, some failure of metabolism in the body politic. “It is obvious to all,” said Tocqueville, writing about 1835, “that a great democratic revolution is going on among us.” True enough. The century of constitution making was also a century of revolution—in its most obvious aspects, a political revolution. Marxists will tell us that it was essentially an economic revolution. I agree. I even insist upon it; but only to point out that those who made the revolution were scarcely aware of the fact, or rather were convinced that economic and social ills would readily yield to political remedies. What is the proper basis of political authority? What are the proper limits of governmental power? What are the fundamental and imprescriptible rights of citizens? These were the all-absorbing questions of that time. The purpose of a written constitution was to provide authoritative answers to these questions, to delimit with precision the realms of social compulsion and individual liberty. It was taken for granted that when every man was free, all men would be equal; when all men were equal, everyone would have enough; when everyone had enough, no one would any longer be unjust or inhumane.

What astonishes us to-day is the widespread and persistent belief that these desired ends could be attained by these means. The failure of many constitutions did not abate the profound conviction that, with a little more enlightenment and insight, the right one, the true Palladium of Liberty, could be constructed. This conviction, since we can no longer share it, seems to us naïve; and we wonder what could have inspired so much optimistic faith in the power of the written word, such a childlike trust in the capacity of the human mind to create and guarantee rights and obligations by official definition.

Answers occur to us, of course. We think at once of the eighteenth century, the Age of Enlightenment, the age that pinned its faith to Natural Law, to the universal and imprescriptible Rights of Man, and to human reason as a sure instrument for discovering and interpreting those rights sub specie aeternitatis. But that is an old story, too familiar to need retelling here, and indeed not to be itself well understood except in terms of some more general frame of reference. Let us then, for the moment dispensing with the testimony of independent witnesses not self-deceived, take a little flight into the blue, and look down upon the Age of Reason as it lies in the long perspective of five or six millennia of history. In short, let us run the risk of going mildly philosophical and visionary.

In the long history of man on the Earth, there comes a time when he remembers something that has been, anticipates something that will be, knows the country he has traversed, wonders what lies beyond—the moment when he is aware of himself as a differentiated, lonely item in the world. Sooner or later there emerges for him the most devastating of all facts; namely, that in an indifferent universe which endures, he alone aspires, struggles to attain, and attains only to be defeated in the end. But to be wholly defeated is intolerable. Of necessity, therefore, he creates ideal worlds of semblance, Utopias of other time or place in which all has been, will be, or may be well. The nature and location of Utopia will depend upon many things, but especially upon what is known or imagined about other times and places. He cannot place Utopia in the moon if he thinks the moon an evil spirit, or in Cathay if he has never heard of Cathay, or in past or future times unless past or future times can be imagined radically different from the present. The nature and location of Utopia, like all thinking, will be largely conditioned by the perspective, long or short, in which men can see themselves acting in time and space. Let us call this the time-and-space frame of reference.

The gradual expansion of the time-and-space frame of reference is of great, but not sufficiently noted, importance in the history of thought. The ancient Sumerians, for example, were in many ways a highly civilized people, but their social thinking was hampered by the fact that they lived in a very narrow time-and-space world. For them the “four quarters of the world” were comprised within the countries of Western Asia; for them the decisive event in history was the Great Flood, previous to which nothing was known (so far as we are aware) except that eight supermen reigned during a period of 240,000 years. Other ancient peoples were less limited than the Sumerians in this respect. But generally speaking, all ancient peoples lived and thought in what must seem to us a restricted and stifling time-and-space frame of reference: little was known of a long-time past; little was known about the extent or the behavior of the outer world of nature.

In ancient societies, accordingly, Utopia, as a necessary compensation for a precarious existence in a world not amenable to man’s control, was most easily projected into the unknown past, pushed back to the beginning of things, to the creation of the world: to the time of P’an Ku and the eighteen celestial emperors, to the Garden of Eden, or the Golden Age of King Chronos when men lived like gods, free from toil and grief. From this happy state of first created things, there had obviously been a decline and fall, occasioned by disobedience and human frailty, decreed as punishment by implacable Fate or the angry gods. The mind of man was, therefore, afflicted with pessimism, oppressed by nostalgia for the lost golden age, a sense of guilt for having betrayed the divine purpose, a feeling of inadequacy for bringing the sinful and perverse world back to its original innocence and purity. To men who felt insecure in a changing world, and helpless in a world always changing for the worse, the future had little to offer. It could be contemplated only with resignation, mitigated by hope of some miraculous intervention of the gods, or the return of the godlike kings, to set things right again, yet with no assurance that from this setting right there would not be another falling away.

This pervasive pessimism was gradually dispelled in the Western world, completely so during the course of the intellectual revolution occurring roughly between the fifteenth and the eighteenth centuries—a revolution which, by emancipating the minds of men from resignation to Fate and the angry gods, enabled them to transfer the golden age from the past to the future. This significant transformation was made possible by a notable extension of historical and scientific knowledge. A group of learned men, differentiated from the ancient priests and scribes, and resolutely dispensing with the assistance of the gods, set themselves to discover how as a matter of fact the outer world of nature behaved, and what as a matter of fact had occurred in times past.

The result of this twofold enterprise was an unprecedented expansion of the time-and-space frame of reference within which men could form a pattern of human activities in relation to the world in which they occurred. Accumulated knowledge of history, filling in time past with a continuous chain of credible events from remote beginnings, gradually banished all lost golden ages, and enabled men to live without distress in a changing world of human relations, since they could regard it as not necessarily changing for the worse. At the same time, more competent observation of the heavenly bodies disclosed a universe infinitely extended, while more exact measurement of the action of material things disclosed an outer world of nature indifferent to man indeed, yet behaving, not as the unpredictable sport of the gods, but in ways understandable to human reason, and thus ultimately amenable to man’s control.

Within this enlarged and transformed time-and-space world, there was room for men to stand more aloof from themselves, to view themselves more objectively, in longer perspective: to see themselves as infinitesimal in a universe of infinite spaces, as temporary and negligible in an endless series of passing generations. This enlarged view was at first bewildering, no doubt. Men were a little “frightened by the eternal silence of the infinite spaces”; they still courted the favor of communal gods, still looked back with envious admiration to the golden age of classical antiquity. But not for long. If the moderns were still inferior to the ancients, it seemed not unlikely that accumulating experience, added to what the Greeks knew, would presently redress the balance in favor of the moderns. If the silence of the infinite spaces reduced man to insignificant proportions in the cosmic scheme, it was reassuring, was it not, to reflect that the reason of man was sufficiently ingenious to have discovered that insignificance. Still more reassuring to know that the outer world of nature, however indifferent to man’s fate, was equally indifferent to its own, and for that reason would lend itself, without anger or retaliation, to rational manipulation in the service of human needs.

Thus the conditions were fulfilled which made it possible for men to conceive of Utopia as a future state of their own devising. Living in a world of nature that could be regarded as amenable to man’s control, and in a world of social relations which need not be regarded as an inevitable decline and fall from original perfection, they could formulate the modern idea of progress: the idea that man, by deliberate intention and rational direction, can set the terms and indefinitely improve the quality of his mundane existence.

The eighteenth century was the moment in human history when men experienced the first flush and freshness of this resplendent idea, the moment when its engaging implications were first fully understood, the moment when, not yet brought to the harsh appraisal of experience, it could be accepted with unclouded optimism. Never had the universe seemed less mysterious, more simply constructed, more open and visible, more eager to yield its secret to common-sense questions. Never had the nature of man seemed less perverse, or the mind of man less perverted; never had the will and intelligence of man seemed more pliable to the pressure of rational persuasion. All the insoluble riddles that man had ever propounded seemed on the point of solution, all the frustrations that had ever impeded his search for salvation seemed on the point of being resolved. Evils had only to be accurately noted to lose half their menace, and ideal ends were already half accomplished as soon as they were correctly defined.

The great secret was at last out: God was not angry. God the Father was seen to be no more than a benevolent investment trust in perpetuity, a well-disposed First Cause, who had created the world on a simple rational plan, and had endowed man with a spark of the divine reason capable of discovering to his advantage the laws of nature and his own being. To bring his ideas, his actions, and his institutions into harmony with the universal laws of nature, was man’s simple allotted task.

Upon this optimistic note, the revolutionary age opened. Its distinguishing characteristic is the idea that revolution itself is in the nature of things. Revolution no longer needs apology, since it has ceased to be a blasphemy and has become a right. Revolutionists are no longer intriguers bargaining under cover for power, but accredited agents of Destiny, whose mission it is to harmonize the social structure with the law of nature and of nature’s God. Possessed of these credentials, the character of the constitution seems predetermined. Since social evils are the result of ignorance or neglect of the natural rights of man, the first task of political science is to define these rights, the second to devise a mechanism of government suited to guarantee them. The natural rights are easily defined, since they are self-evident: all men are created equal, and are endowed by their Creator with certain inalienable rights, among which are life, liberty, and the pursuit of happiness. The all-inclusive right is liberty: freedom of thought, so that the truth may prevail; freedom of occupation, so that careers may be open to talent; freedom of self-government, so that no man may be compelled against his will.

The making of the constitution, as Barère said, was the work of weeks, since its principles were the result of a century of enlightenment, and little more was required than to transcribe on the tablets of the law the eternal truths engraved on the hearts of all men. Legislators were recorders: the constitution did not create rights, it merely recognized them; it did not restrain natural human impulses, it merely gave them the right of way.

For more than half a century, this naïve faith retained its prestige, suffering some defeats and disillusionments, but playing its appointed rôle in great revolutionary days in many countries, presiding at the installation of many constitutional bulwarks of human liberty. Yet it could not forever withstand the attrition of slow-footed time and drab experience without losing much of its original glamour. After the great days of 1848 we note a perceptible drop of the idealistic temperature. The failure of so many revolutions and constitutions as a panacea for social and economic ills disclosed the fact that the nature of man was far more perverse, the mind of man far less responsive to rational persuasion and humane impulses, than the Age of Enlightenment had supposed.

There was, it seemed, a “higher law” than the constitution, a law, whatever it might be, which could not be appeased by the rational definition and official proclamation of the imprescriptible rights of man. The ends most passionately desired by men turned out to be tribal rather than universal in character. National aspirations could be better, or at least more quickly, achieved by blood and iron than by speeches and resolutions of majorities: blood drawn by the lash better compensated by blood shed by the sword than by the sweet reasonableness of congressional debate.

After 1848, constitutions could still be constructed, but they ceased to carry a sacred or mystical sanction. They were not Palladiums of Liberty, but political bargains—a device of Orleanist monarchists to outwit the Bonapartists, a compromise to enable Magyars and Austrians to manage their respective barbarians, a species of political blackmail to win German Liberals to the cause of Prussian domination.

One hundred and fifty years have passed since the Age of Enlightenment declared its faith in the perfectibility of man. One hundred and fifty years during which men have endeavored to create Utopia by the application of intelligence to the mastery of nature and the organization of social relations. What remains to-day of the optimistic faith which inspired this effort? Whatever remains, it is not an excess of optimism. We find ourselves presented, not with Utopia, but with a disturbing paradox: whereas the effort to subject the outer world of nature to human control has proceeded with unanticipated success and mounting confidence, every effort to shape the world of social relations to humane ends by rational means has ended in confusion and defeat. We know so much more, and are so much less sure, than the Age of Enlightenment. We have learned that man is far more complex than things, and far less tolerant of rational manipulation and control.

What confuses our purposes and defeats our hopes is that the simple concepts upon which the Age of Enlightenment relied with assurance have lost for us their universal and infallible quality. Natural Law turns out to be no more than a convenient and temporary hypothesis. Imprescriptible rights have such validity only as prescriptive law confers upon them. Liberty, once identified with emancipation of the individual from governmental restraint, is now seen to be inseparable from the complex pattern of social regulation. Even the sharp, definitive lines of reason and truth are blurred. Reason, we suspect, is a function of the animal organism, and truth no more than the perception of discordant experience pragmatically adjusted for a particular purpose and for the time being.

Looked at in this gray light, constitutions are seen to be documents historically conditioned, the imperfect and temporary products of time and place. Whatever the intention of their framers may have been, their meaning is determined by the ingenuity of judges, God helping them, to luff and fill before the shifting winds of social opinion. Constitutions, if we have them, we retain from force of habit; but we do not make new ones if we can help it. Having lost the universal formula for their construction, the task is too formidable.

We have lost the formula, yet something remains of the old faith. What remains is the conviction that man’s fate rests with man himself, since nature is indifferent and the gods unavailing. His fate will be what he makes or fails to make it. He may will to make it fair, but we are not sure his intelligence is adequate to the task. Adequate or not, he must rely upon it, since it is the only guide he has.

We still hold, therefore, to the belief that man can, by deliberate intention and rational direction, shape the world of social relations to humane ends. We hold to it, if not from assured conviction, then from necessity, seeing no alternative except cynicism or despair. Some there are who, perplexed and angry, abandon the method of rational persuasion for irresponsible force and the assistance of communal or dialectical gods, beating at once, with equal gusto and emotional abandon, the tom-tom and the heads of their opponents. But this recourse is not for those who still cherish the value of truth and the increase of knowledge, since it is, after all, no more than veiled despair or cynicism disguised.

Like it or not, we are confronted once more with the necessity of making constitutions. Since we have learned that constitutions are inseparable from the complex pattern of social regulation, we may call them codes rather than constitutions. Call them what we please, they will inevitably differ in character from the constitutions that derive from the Age of Enlightenment. They will be shaped by an experimental and pragmatic rather than by an absolute conception of rights. They will be based less upon universal principles than upon statistical tables, will be concerned less with invariable natural law and more with temporary but insistent concrete needs. They will be less suited, no doubt, to the nature of man but better adapted, let us hope, to the frailties and vagaries of men.