AMERICAN REVIEW. Contents for July. ODE FOR THE FOURTH OF JULY. BY J. STEINFORT KIDNEY. THE LIFE AND OPINIONS OF PHILIP YORICK, Esq., REVOLUTIONARY REMINISCENCES CONNECTED WITH THE LIFE OF Ir may surprise some of our readers to find us speaking of an unwritten Constitution, as if any such thing actually existed, or was, indeed, possible, in this country. Any such surprise, we believe, may give place to conviction, and, we hope, to very serious reflections, by the time we have concluded what we have to say on the subject. The general impression undoubtedly is, that we have, and can have, no Constitutional Law in this country, whether for the several States of the Union, or for the Union itself, but what rests in the text of written instruments. Many, however, who are better instructed on this subject, understand very well that written Constitutions, like all statutes, are necessarily the subjects of authoritative construction and interpretation; and that the conclusions thus reached, when established in a legitimate way, are to be taken along with the written text, as if they were a part of it, for all practical purposes. The several departments, or functionaries, of the government, must put a practical construction on their own powers, and, with or without the aid of the Judicial Department, settle, by their action, many points about which doubts may have arisen. And so much of Constitutional Law as thus rests in interpretation and practical construction, is unwritten law; and so far it may be deemed unavoidable that the written text of the highest law known to political communities, or governments, and where the purpose has been to keep that text as clear as possible of all esoteric authority and influence, should come, at least in some instances, to depend on strument itself, for its true meaning, and matter existing out of and beyond the infor the extent or limitation of its actual powers. of an unwritten Constitution, we mean But when we speak, in this article, something more than this. We think it quite possible for Government, by a practical use of powers more than doubtful, greatly to enlarge the scope of its real authority. Indeed, important and substantial amendments, or rather radical changes, may thus be made in the written instrument; as much so as if they were effected directly by conventions of delegates and popular suffrage. It is not impossible, in this way, essentially to subvert the original Constitution, and set up another and a very different Constitution in its place. We are constrained to think, and it is the object of this article to show, that an operation of this sort has been begun already, and the effect of subversion and substitution actually wrought out, or is being accomplished, to a very serious and alarming extent. There are several clear cases of assumption of power in which the Administration at Washington have indulged within a very recent period, which, if submitted to and acquiesced in by the country, so as to become good and approved precedents for future imitation and action, work, we affirm, an essential and abiding revolution in the Government. As the measures of the Administration, based on these as sumptions of power, have either been executed, or are in process of successful and unrestrained execution, we hold that the written Constitution of the United States, so far as the authority and acts of the existing Government can go, is already actually subverted in the most essential points, and a new Constitution, partly written and partly unwritten, is so far substituted in its place. We hope that no intelligent reader will turn away from this suggestion, that an unwritten Constitution of the United States, in whole or in part, may be made to take the place of the written instrument, however incongruous such an idea may appear with all his previous notions on the subject. Let it be remembered what the British Constitution is, and how it has been made and settled. It is wholly unwritten, though many of its principal features are determined by reference to written documents; and it defines the prerogatives of the sovereign and the authority of parliament, and the powers and privileges of the several estates of the kingdom, and the rights of the nation or the people, just in accordance with the leading occurrences and facts in the history of the empire. It is altogether historical. Such prerogatives as the sovereign has been accustomed to assume and exercise, with the concurrence of the other estates and of the nation, are his constitutional prerogatives. The powers and privileges of the other estates, and the national or popular rights, have been settled in the same way. Some important points in this Constitution, as we all know, have not been adjusted without serious contest and commotion; some, indeed, not without civil war and violent revolution. And we must not forget that if the pretensions and assumptions of prerogative and power put forth and practised by the Stuart kings of England, had prevailed-if they had been acquiesced in and submitted to by the nation-if these kings had not been resisted, and the race and name finally expelled from the kingdom-the English Constitution would have been quite a different thing, in its most vital parts, from what it became under the revolution of 1688, and what it is now. This case of the English Constitution is referred to as an example to show how easy and natural a thing it is for an unwritten or historical Constitution to grow up in any country; and we, in this country, deceive ourselves egregiously if we suppose that, because we began with a written instrument, we are therefore secure against any changes in its features or provisions, except such as may be made according to the forms prescribed in the terms of the instrument itself, and plainly written down, like the rest, as a part of it. If powers are assumed by the Executive, or any department or branch of the Government, and exercised with the concurrence of the nation, we do not see why such powers must not thenceforward be deemed Constitutional, and all acts performed under them as legitimate as if the authority for them was found inserted, in hæc verba, in the written instrument. At least, this must be so, until some very explicit and significant act of dissent shall be manifested on the part of the nation. We do not say that every President and Administration would be bound to follow a bad example, and exercise a forbidden power, because a preceding President and Administration had done so. But a forbidden or unauthorized act once passed and accomplished, and the clear sanction of the nation added, could not but be regarded as giving a sufficient authority for its repetition. We know of but one test to which the matter could be brought, and that would be an impeachment; and nobody can pretend that an impeachment could be maintained for an act which could be justified by a clear precedent, when there had been, at the time, not only no impeachment thought of, but, on the contrary, a manifest acquiescence and sanction of the nation. It is true, undoubtedly, that the force of such a precedent, so acquiesced in and sanctioned at one period, might be destroyed at a subsequent period, by a manifest national dissent. Still we must hold that in every case of the exercise of usurped power, once fairly having the national sanction, and not repudiated or condemned by competent judicial authority, nothing short of an unequivocal national act of dissent could hinder that power from being placed in the number of the legitimate constitutional powers of the Government. And more than this; there are acts of Government which, once past and performed, cannot be recalled, and if the power be usurped, it is a usurpation, not only for the occasion, but for all time, or as long as the Government shall stand. Take the case of the acquisition of Louisiana as an example and illustration. If there was no authority in the written Constitution for this great measure-one which has wrought such a change in the whole condition, prospects and destiny of the republic-and we know, at least, that Mr. Jefferson, who was its author and finisher, never entertained a doubt to the contrary-still, when it was once accomplished, when that vast country had been brought under the dominion of the United States, it was too late, if there had been any such disposition, either then or at any time since, to retreat from the position we had assumed. The Old Thirteen had become joined to a new country and domain, and the written Constitution, which had opened, as by a broad chasm, to let in the new territory and its population, must expand itself, and keep expanding, to meet every duty and every exigency of government, which might arise on account of the new acquisition. There was no escape and no alternative. So that those who are prepared to hold or admit, with Mr. Jefferson, that the act by which Louisiana was acquired could not be made to rest on any power in the written Constitution, must admit also, and cannot doubt, that the Government of the United States has, in this single instance, clothed itself with new powers of vast extent and significance, which are now unquestioned and unquestionable; powers adequate not only to the acquisition but to the control and government of a great added empire, with a vast and ever-growing population, in all its complicated affairs and interests, to the full extent to which the authority of the government is exerted, under its written powers, within the limits of its original jurisdiction. And if such new powers exist if they have been exerted and we see their manifest operation and influence every day and in a thousand forms; and if it be conceded that these powers are not found in the original written Constitution of government, then it is clear that they exist outside of that instrument, and are unwritten powers added, by sheer usurpation and the general consent of the nation, to the powers and authority of the written textual Constitution. We have put this case, in a manner, hypothetically, in regard to the question of original Constitutional power, because it is not very material to the point for which we are using it, whether it was actually a case of usurped power or not. Opinion scarcely differed about it at the time. The friends, as well as the opponents of the measure, the most promi nent of them, were unable to find any sanction for it in the Constitution; and some of them, Mr. Jefferson among them, proposed that the breach made by this proceeding in that Instrument should be healed by a post-facto amendment! At least, then, we have a fair right to present this case of the acquisition of Louisiana, since it was very commonly deemed at the period a pretty clear case of usurped and unaccorded power, as in point, to show that it is not an impossible, or even an improbable thing to happen, that the authority of the Federal Government, or of the Executive, should come to be very materially enlarged and extended, by means of assumed powers, which, having the national sanction, whether by some express act, or by expressive silence, must thereafter be regarded, albeit unwritten and historical merely, as having an equal validity with those which are found in the written text of the Constitution. But we come now to consider several recent instances of what we deem to be clear assumptions of power, all of them cases of the highest importance, and which, if we are to look upon them as having already received the national sanction, or as certain to do so, have assuredly wrought the most essential change in the Constitution of the country-have engrafted upon it unwritten provisions, which overthrow the text, and war with the spirit of the written Instrument-have clothed the Federal Government, and the Executive especially, with new and extraordinary powers, such as, in the beginning of our history, no madman ever dreamed of as fit to be entrusted to the sort of government which this was intended to be. The instances to which we refer begin with the Annexation of Texas to the United States, and all of them have grown naturally enough out of that transaction. First comes the measure of Annexation; and, when it is accomplished, we have a new and extended empire, and a foreign people, amalgamated with our own, and the Constitution stretched and pieced out, long enough and broad enough to embrace and cover the whole. While this measure is in negotiation and progress, but before it is consummated, and while, therefore, Texas is as foreign to the United States as China, or Japan, the Executive undertakes the military defence of that foreign country |