The Constitution of the United States | Page 6

the founders of the
American Republic in 1787 did in a microcosmic form, a short
narration of that earlier achievement may not be unprofitable in this day
and generation, when we are blindly groping towards some common
basis for international co-ordination.
One of England's greatest Prime Ministers, William Pitt, shortly after
the adoption of the Constitution, prophetically said that it would be the
admiration of the future ages and the pattern for future constitution
building. Time has verified his prediction, for constitution making has
been, since the American Constitution was adopted, a continuous

industry. The American Constitution has been the classic model for the
federated State. Lieber estimated that three hundred and fifty
constitutions were made in the first sixty years of the nineteenth
century, and, in the constituent States of the American Union, one
hundred and three new Constitutions were promulgated in the first
century of the United States.
"Have you a copy of the French Constitution?" was asked of a
bookseller during the second French Empire, and the characteristically
witty Gallic reply was: "We do not deal in periodical literature."
Constitutions, as governmental panaceas, have come and gone; but it
can be said of the American Constitution, paraphrasing the noble
tribute of Dr. Johnson to the immortal fame of Shakespeare, that the
stream of time, which has washed away the dissoluble fabric of many
other paper constitutions has left almost untouched its adamantine
strength. Excepting the first ten amendments, which were virtually a
part of the original charter, only nine others have been adopted in more
than one hundred and thirty years.
A constitution, while primarily for the distribution of governmental
powers, is, in its last analysis, a formal expression of adherence to that
which in modern times has been called the higher law, and which in
ancient times was called natural law. The jurisprudence of every nation
has, with more or less clearness, recognized the existence of certain
primal and fundamental laws which are superior to the laws, statutes, or
conventions of living generations. The original use of the term was to
import the superiority of the Imperial edict to the laws of the Comitia.
All nations have recognized this higher law to a greater or less extent.
If we turn to the writings of the most intellectual race in ancient time
and possibly in recorded history--the Greeks--we shall see the higher
law vindicated with incomparable power in the moral philosophy of its
three greatest dramatists, Aeschylus, Sophocles, and Euripides. How
was it better expressed than by Antigone when she was asked whether
she had transgressed the laws of the state and replied:
"Yes, for that law was not from Zeus, nor did Justice, dweller with the
gods below, establish it among men; nor deemed I that thy

decree--mere mortal that thou art--could override those unwritten and
unfailing mandates, which are not of to-day or yesterday, but ever live
and no one knows their birthtide."
Five centuries later the greatest of the Roman lawyers and orators,
Cicero, spoke in the same terms of a higher law, "which was never
written and which we are never taught, which we never team by
reading, but which was drawn by nature herself."
The Roman jurists gave it express recognition. They always recognized
the distinction between jus civile, or the law of the State, and the jus
naturale, or the law of Nature. They nobly conceived that human
society was a single unit and that it was governed by a law that was
both antecedent and paramount to the law of Rome. Thus, the idea of a
higher law transcending the power of a living generation, and therefore
eternal as justice itself--became lodged in our system of jurisprudence.
Nor was the Common Law wanting in a recognition of a higher law
that would curb the power of King or Parliament, for its earlier masters,
including four Chief Justices (Coke, Hobart, Holt, and Popham),
supported the doctrine, as laid down by Coke, that the judiciary had the
power to nullify a law if it were "against common right and
reason."--(Bonham's Case, 8 Coke Reports, 114.)
This view as to the limitation of government and the denial of its
omnipotence was powerfully accentuated in America by the very
conditions of its colonization. The good yeomen of England who
journeyed to America went in the spirit of the noble and intrepid Kent,
when, turning his back upon King Lear's temporary injustice, he said
that he would "shape his old course in a country new." Was it strange
that the early colonists, as they braved the hardships and perils of a
dangerous voyage, only to be confronted in the wilderness by disease,
famine and massacre, should fall back for their own government upon
these primal verities of human society, and claim not only their
inherited rights as