the fundamental law is found in usage and custom based on precedents and practices of the past, the nation is then said to have an unwritten constitution. The United States has a written constitution,—a document of definite length, prescribing the rules and methods for conducting the government. England has an unwritten constitution,— a set of proceedings and long-standing laws that it has been customary to go by. An important distinction is that in a country with an unwritten constitution the constitution can be changed by the ordinary legislature, just as any law can be amended or changed; while in a country with a written constitution the constitution is placed above and out of the reach of the legislature, being subject to change only by the same superior authority that created the constitution. An unwritten constitution is called flexible; it is "one that is capable at any time of being bent, turned, expanded, or contracted" at the will of the supreme legislature. It is hard to change only as a nation's habits are hard to change. In a government under an unwritten constitution the National Legislature is absolute; it can do what it will. But it feels bound to conduct the government on principles that are well known and of record, according to laws that are written and old, and according to habits that are deep-rooted and revered. These are pretty fair safeguards against usurpation, despotism, and tyranny; and therefore the government of such a legislature, while absolute in law, is constitutional in practice. A written constitution is called inflexible, or rigid. That is, it is one that cannot be easily turned or changed. It stands in unbending resistance against the efforts of a temporary majority in the legislature to override or disregard its provisions. Its terms are fixed, and they can be changed only by the same slow and difficult process by which the constitution was made. So far as our Constitution is looked upon as purely written, to that extent it is inflexible. But even the written Constitution of America has not proven entirely inflexible and rigid. Any constitution that will not bend must break. A constitution must change and expand with the expansion and growth of the country for which it was made; it must be able to accommodate itself, by its flexible, expansive qualities, to changed conditions, or it will be laid aside. There is constant temptation under a very rigid constitution to violate its provisions or to disregard them by very loose construction. The American Constitution contains, not statutory matter, but broad, fundamental principles of government, stated in general terms; and therefore it has found room to expand, not only by the written process of amendment, but also by the processes of interpretation, construction, and usage.' While our Constitution is generally spoken of as written, it is not entirely written. Usage has given us, in considerable measure, an unwritten constitution. There are many instances of constitutional understandings in America, practices and precedents having all the force of law, that have been established by usage. It is the law of the unwritten constitution that Presidential electors have no right to exercise their discretion in voting for presidential candidates; they must vote for their party nominee. A President may not be elected for a third term. A President may remove his appointees without asking the consent of the Senate. The House and Senate both conduct their business by the committee system, the committees in the Senate being elective, while in the House they are appointed by the Speaker. This has no other basis than the usage and standing order of each House. The Senate will not refuse to confirm Cabinet appointments. 1 See the chapter on the Judiciary, p. 339. A member of Congress must reside in the district from which he is chosen. The party caucus determines the course of party action, and a resulting obligation rests on the individual members who participate in the caucus to obey the decision of the caucus meeting. This relates to our party constitution. It may be said that all our party law regulating the constitution of our party machinery and proceedings of party conventions is unwritten law. It consists of nothing but precedents and customs; and the last legislature of the party, that is, the delegate convention, may change the party constitution at will.' Thus we conclude that while our National Government is one of a written constitution, this has not made it inflexibly rigid, nor prevented it from expanding by construction and usage; that while, it is limited in its functions, it may exercise original and inherent powers, as any sovereign nation may, in matters essentially national; that, while it is a democratic republic, its democracy is limited by constitutional safeguards; and that, while it is national, it is also federal. It is a complex, federalnational, democratic republic, not consolidated, but federated, with local self-government in the States under the protection of a powerful Nation. Thus, representative government has been enabled to operate over an extended and Imperial area, and "democracy and empire" are preserved together. 1 While it is the purpose of this chapter to study the structure of our Government apart from political parties, it will be seen, of course, that in our unwritten political constitution our political parties make up a very important part. UNDER The Execu CHAPTER III THE PRESIDENCY NDER the old Confederation the United States had President. There was a presiding officer of "Congress," but he was merely a moderator of a meeting, and was in no sense an executive the Old Con- head of a government. The President was created by the Constitution of 1787. tive under federation. When the Convention met which formed the new Constitution it was not an easy matter to come to a conclusion as to what kind of an Executive the new government should have. It was readily agreed that there should be three departments,—Legislative, Executive, and Judicial; but to cast these into form and to determine their powers, duties, and limitations and their relations to one another was not an easy task. The The original "Randolph Plan," supposed to contain the backbone and skeleton of the Constitution, proposed that a National Executive be instituted to be chosen by the National Legislature. It was thought by some, notably by Roger Sherman of Connecticut, that the Executive should be nothing more than an institution for carrying the will of the legislature into effect; that it should be appointed by, and be accountable to, the legislature. The Executive legislature was to be "the depository of the supreme will of the society"; to make the Executive independent of the legislature was of the very Sherman's Dependence. essence of tyranny. The legislature was the best judge of the business which ought to be committed to the Executive department, and, consequently, of the number necessary to do this business. Therefore Sherman would not have the number of the Executive department fixed, but he would leave the legislature free to appoint one or more as experience might dictate; he would have the Executive entirely dependent upon the legislature. By this theory the legislature is the representative head of the body politic; it thinks and wills and decides. The Executive is but the hands and arms and feet to execute the will and decision arrived at. Parliamen tary and Presidential Compared. These views as to the relation between the executive and the legislative branches of government serve to suggest the difference between the Parliamentary and the Presidential system of government,between the English system and the American. Government When governments are classified according to the relation of the legislature to the Executive, they are either Parliamentary or Presidential. A Presidential Government, like ours, is the form in which the Executive is independent of the legislature. Our President is independent of Congress both in tenure and prerogative. Congress does not elect the President (except in an emergency), nor can it shorten his term, nor take away his constitutional powers, nor in any way remove him, except by impeachment for high crimes and misdemeanors. He was not made entirely independent of the legislature, but as nearly so as could be,—as nearly as would be safe for freedom and good government. Parliamentary Government is the form in which the Executive, is elected by and is dependent upon the legislature, in which the legislature has "complete control of the administration of law." Under this form the legislature is the supreme determining will in the State, and 1 Burgess, p. 13. |