Kings and Constitutions

Rousseau’s profound observation that “the strongest is never strong enough to remain forever master unless he transforms force into law and obedience into duty” suggests several interesting implications in respect of constitutions. Insistence on established forms and procedures appears to be a deep-seated tendency of human nature. As a consequence, rulers and ruling classes not only readily accept a regularly defined way of doing things; they quickly exploit such ready acceptance on the part of the body of the people.

If contemporary evidence were needed for this well-established practice, the dictatorships would furnish it. Both Mussolini and Hitler, for example, after a short-lived initial tendency, in the first flush of success, to boast of revolution, soon began vigorously to assert faithful adherence to their countries’ organic laws. This, it would seem, is a matter of elementary intelligence. Glorification of disregard for a settled way of doing things manifestly tends towards encouragement of resistance to constituted authority.

As a matter of fact, evidence of the same important phenomenon can be found in past history and in connection with democracy. The United States is an example in point.

As President Lowell suggested nearly half a century ago (though he tucked away in a foot-note what is one of the most important of all considerations in connection with American constitutional history), the generation that framed the Constitution of the United States “praised it beyond their own belief in its merits”; and, he concludes, “this effort to force themselves to admire the Constitution was marvelously successful, and resulted, in the next generation, in a worship of the Constitution of which its framers never dreamed.”

In his “Bulwark of the Republic,” Mr. Burton J. Hen-drick suggests almost at the beginning that the Constitution of the United States performs in this country the same service that the Royal Family performs in England. In other words, he compares the Constitution of the United States not with the Constitution of England but with one of its institutions, kingship. This is almost certainly a betrayal of the fact that his main interest is not so much in what a constitution is as in what it may be made to do. So far as kingship in England is concerned, what a constitution may he made to do is ably described by Mr. Kingsley Martin in “The Magic of Monarchy.” This little book is written for Americans who have wondered, in connection with Mrs. Simpson and Edward VIII, what has happened to British monarchy. Mr. Martin’s answer is this: “The Monarchy has become sacred, its sacred character protected by a taboo.”

In the middle of the nineteenth century, there was recent memory of individual monarchs who could scarcely be considered exemplary; and monarchy was frankly criticized. In the twentieth century, criticism and serious discussion have been almost totally absent, even from the press. This contrast is connected with a growth of intense emotional loyalty, which has inevitably been exploited by those who guide public opinion. The basic explanation for this loyalty Mr. Martin finds in the phenomenon of “compensating personality,” in the conception of the king as father of his people. These people have come to see in the Royal Family the romance and other qualities that their own lives lack. As a result, two conditions are necessary for monarchy to be retained. The first is that the king shall play no part in politics, and the second is that his character shall be such as to command general respect. Mr. Baldwin and the Archbishop were so uncertain whether these conditions prevailed in connection with Edward VIII that they saw danger of the development of a new concept of monarchy. Mr. Martin dislikes the implications of all this for democracy. He finds a real danger to lie in the “cultivation of irrationality.” England, he concludes, “has come perilously near repudiating the central thesis of democracy when the public is allowed to fall into a sentimental and snobbish adulation for everything royal.”

Mr. Martin, in asserting as a fact the exploitation of emotional loyalty for monarchy, in condemning the danger for democracy of such exploitation, and in attempting an explanation of the nature of the loyalty, differs on all three points from Mr. Hendrick and from his treatment of the Constitution of the United States. The author of “Bulwark of the Republic” mentions the “intense loyalty and devotion” of the American people for the Constitution, as well as their “affection and veneration”; but he does not treat of the exploitation of such feelings. Far from condemning such exploitation, he engages in it himself; and his whole book—it would seem designedly—performs the function of glorification. In the third place, he attempts no fundamental analysis of popular emotion. The result is a high degree of formalism. This is manifest in connection with numerous matters dealt with in the book, but it is especially evident with respect to its principal thesis. This thesis seems to be the simple one that the Constitution has made possible in this country the triumph of nationalism. Mr. Hendrick completely ignores the reciprocal character of the relationship involved, and he neglects to examine the equally plausible thesis that nationalism has made possible in this country the triumph of the Constitution.

In reality, Mr. Hendrick’s book is largely a history of secession movements in the United States. The account of such movements, because of the author’s persistence in supporting his principal thesis, contains some rather curious logic. Threats of secession, Mr. Hendrick naturally asserts, have emanated from enemies of the Constitution. But failure of such threats, he argues, has been in each case a triumph for nationalism. Therefore, he concludes, the Constitution has been the cause of the triumph of nationalism. This reasoning is particularly startling when applied to the War between the States. The long section of Mr. Hendrick’s volume devoted to this critical period is entitled “The Great Failure of the Constitution.” Thus, by holding the Constitution responsible for the outbreak of the Civil War, Mr. Hendrick stresses primarily the mere fact that hostilities could exist in the Republic; and, by neglecting to view the War as in any way a test of the forces and resources of nationalism in this country, he gives no credit to his beloved nationalism for its outcome. But for his apparent conviction that the Constitution must be cause and cannot be effect, he might have cleared the document of failure and rejoiced in a major triumph for nationalism, because of its good effects upon the Constitution.,

The formalistic character of Mr. Hendrick’s treatment of the Constitution of the United States is probably to be attributed to the formal concept of a constitution that prevails in this country. Agreement that a constitution is to be identified with a given document removes emphasis from the substance of things. What it is that makes up a constitution is judged by the test of whether it is to be found in a specific document. On the other hand, where no such document exists, as in England, everything that fundamentally concerns the organization and process of government is regarded as being part of the constitution. Emphasis is on substance, not form. This is a possible reason why Mr. Martin, though he deals with the most formal aspect of the English Constitution, concerns himself so much more than Mr. Hendrick with the substance of things. This, however, cannot be the whole explanation. The Constitution of the United States can be treated without special pleading and without overemphasis on the formalistic. It is so treated by Mr. Dean Alfange in his excellent volume which received the Theodore Roosevelt Memorial Award.

“The Supreme Court and the National Will” covers much the same ground as the “Bulwark of the Republic.” Here, however, the similarity for the most part ceases. The first book, as its title implies, avoids the static point of view that is inevitably involved in treating the Constitution of the United States as the Ank of the Covenant and the Supreme Court as its champion. Mr. Alfange’s account is primarily expository; and yet his calm exposition includes the statement of some devastating truths. His simple social and economic interpretations seem genuinely profound. Nevertheless, he manages to display a detachment that just misses leaving the impression of lack of conviction. The avowed purpose of the book is to furnish, in respect of the story of the Constitution and the Supreme Court, an un-technical account that will serve as a background for an understanding of the recent crisis, which can scarcely be considered permanently settled. If, as is to be hoped, there are still people who are interested in sane examination of the subject, they cannot hope to find a better introduction to it.