Stability and change

The central problem in the development of a system of constitutional law is, as Holmes suggests, to recognize the need for adapting and changing to meet new circumstances, while preserving the basic values of the constitutional system. In a world growing constantly more crowded and complex with new ideas, new technical developments, new ways of living, new standards of social responsibility, and new world crises, the pressure on constitutional rules established to meet the different conditions of an earlier day will inevitably force their revision or abandonment.

The most obvious method of adapting constitutional law to changed conditions is to replace the old constitution with a new one. When an existing political system is overthrown, the new holders of power customarily seek to organize and legitimize their regime by the adoption of a new constitution. It is an index to the political instability of France that it has had 15 constitutions since the Revolution. American states also adopt new constitutions often, but not because of political upheaval. State constitutions tend to be very long and detailed, regulating the minutiae of the state and local governmental system, and can become obsolete quite rapidly. Periodically, therefore, states find it more expedient to draft a new constitution than to attempt to patch up the old one.

More commonly, the process of constitutional adaptation is achieved by amendment, interpretation, and custom. The drafters of the U.S. constitution were the first to recognize the need for making provision within the document itself for its own revision. The presence of the amending clause was one of the factors that led Thomas Jefferson, originally inclined to oppose the constitution, to decide in its favor.

The method of amending the constitution is usually more difficult than the passage of normal legislation, although this is not true in some countries, such as New Zealand and the Republic of South Africa. The arrangements for amending the U.S. constitution, requiring approval by two-thirds of each house of Congress and three-fourths of the states, have on occasion been criticized as too difficult. Following the Civil War amendments (thirteenth, fourteenth, and fifteenth), there was a period of more than forty years during which the constitution appeared unamendable, in spite of strong pressure for revision to meet the problems of a rapidly expanding economy. But between 1913 and 1933 six amendments were added to the constitution, and the experience with the eighteenth (prohibition) amendment showed that it was even possible for a small but dedicated pressure group to exploit the amending machinery.

Article 89 of the French constitution provides for amendment of the constitution by vote of parliament. In 1962, however, President de Gaulle ignored this method and submitted to a popular referendum an amendment providing for election of the president by popular vote instead of by limited suffrage. In Australia proposed amendments, after passage by each house of Parliament, must be approved by a popular referendum throughout Australia and also by a majority vote in four of the six states. The Canadian constitution (British North America Act of 1867) contains no provision for its own amendment; consequently, constitutional change has required recourse to the original source of the constitution, the British Parliament.

The amending power has been less important in the development of the U.S. constitution than has the previously discussed process of interpretation. The document, drafted in 1787, could scarcely have met the needs of a world power in the twentieth century unless it had been construed with some flexibility. It was one of John Marshall's greatest achievements that he saw the need for a broad construction of the constitution. “We must never forget, that it is a constitution we are expounding,” he said, one that is “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs” (McCulloch v. Maryland, 4 Wheaton 316, 1819).

Revising a constitution by interpretation does create both theoretical and practical problems. Justice Frankfurter once suggested that “nothing new can be put into the Constitution except through the amendatory process. Nothing old can be taken out without the same process” (Ullmann v. United States, 350 U.S. 422, 1956). It must be presumed that he was using this rather extreme method of warning that if a constitution is to fulfill its function of acting as a stabilizing and controlling influence in a political system, the interpretations given to it must be maintained with some measure of continuity, and the agencies that interpret and apply the constitution must feel under some compulsion to accept the views announced by their predecessors.

Regard for precedent is, of course, one of the foundation stones of legal systems generally, applicable in both constitutional and statutory interpretation. However, the principle of stare decisis, necessary as it is in the settlement of normal legal controversies, presents unusual difficulties when applied to constitutional meanings. If a constitutional interpretation, once announced, can be modified only by constitutional amendment, an impossible burden is thrown on the amending machinery. The U.S. Supreme Court has, therefore, on occasion overruled its earlier decisions. One of the most noteworthy instances of the overruling of a prior constitutional position occurred in 1954 in Brown v. Board of Education (347 U.S. 483). In an 1896 decision the Supreme Court had held that segregated facilities for Negroes were not a violation of the equal protection clause of the fourteenth amendment, provided they were the “equal” of the facilities provided for white persons. But when the Court had to decide in 1954 whether racial segregation was permissible in the public schools, it held unanimously that “we cannot turn the clock back … to 1896. … We must consider public education in the light of its full development and its present place in American life throughout the Nation.” Such consideration convinced the Court that the rule of “separate but equal” was no longer compatible with the concept of equal protection under the laws, and consequently it was abandoned.

Date: 2016-04-22; view: 813