COLUMBIA LAW REVIEW JANUARY, 1934 NO. 1 THE CONSTITUTION AS AN INSTITUTION* Men limp along for years or decades with an outworn, perform- ce-baffiing framework of their thought, until some child, inadequately wught to “see,” cries out that the king in question has no clothes. New junderstanding comes typically as a scattered qualification of the existing Iways of thinking. Scattered and occasional, not sustained or consistent. And qualification, not reorganization. ‘The king in question here is our Constitution. His supposed clothes consist of our now prevailing theory of constitutional law. It is too much to argue that that theory does not exist; the trouble is that it does. But it is high time that the untutored bystander set up his out- cry. The theory does not serve to clothe. It leaves naked most of what needs covering and what it covers, it fetters, where it should leave free. This is no discovery. Bentley saw and said in 1908 all that should have been necessary to force constitutional law theory into total re- construction! McBain, in 1927, saw and said it again, and more 6 This paper will appear jn Srupres in Law 1x Hoxon or Own Kir Me- ‘Munsay. It represents an effort to round out, on the side of constitutional law theory, some implications of the point of view presented before the League for Industrial Democracy at Camp Tamiment in June, 1933, to appear in A New Con STITUTION FoR AMERICA, ed. Paul Blanshard; my first phrasing of the idea appears in 3 Natowat. Encyc. (1933) 239. T owe many suggestions to the work of Max Radin and James Landis. But ost of all I am indebted to Bentley’s magnificent study. And for needed help in clarifying both theory and presentation I owe thanks to Ambrose Doskow, Milton Handler, Herbert Wechsler, and Emma Corstvet. For further development re the idea ‘of official behavior as the central material for legal theory, see A Realistic Jurisprudence (1930) 30 Couusnia Law Rev. 431; re the conception of interested groups, see Legal Institutions and Economics (1925) 15 Am. Ec. Rev. 665, Law Enforcement and Law Observance (1928) 1928 Proc. Cone. Soc. Woek 127. and What Price Contract (1931) 40 Yate L. J. 704; re the common law judicial process and the government of cases by rules, see Legal Tradition and Social ‘Science Method in Essays on Reseagci 1x THE Soctat. Screxces 89, esp. 105 fi (1931); Law and the Modern Mind, a Symposium (1931) 31 Couumeta Law Rev. 82; Some Realirm about Realism (1931) 44 Harv. L. Rev, 1222, 1236 ff; and PrAjuoizrenreciit U. RECHTSPRECHUNG IN Amenika (1933) §52 f.; also Brasmte Busu (1930) ¢. [V, V; re attitudes or sets of people and institutions, ‘and the interaction of diversified groups of institutions, see Behind the Low of fvorce (1931) 32 Covumpta Law Rey. 1281, esp. 33 id. 249 ff., the, third por- tion of which will include particular study of ‘the influence of laymen's practices on lawmen's attitudes and ethics. ‘THE Process oF Government (1908) 9. 295, 325 ff. Why so profound and i a book has found so little echo, I cannot make out. Morris Ted me to it. I feel like entitling this paper A Rediscovery of Bentley.2 COLUMBIA LAW REVIEW accessibly, and was indorsed and supplemented by Landis? It has been implicit always, and explicit often, in the magnificent work of Beaed® Indeed, any student of Brycet ought to have moved forthwith into ac- rests the full import of his best work But none of these men carried through his insight, interested in government than in constitution, more interested in general sociological theory than in either, limited his remarks on the nature of a constitution to a dozen pages. Bryce, despite his description of the English Constitution in terms which apply to any constitution, allowed himself to be misled in America by the presence of a Document and of a theory.* This, even though in dealing with our government he could wrestle toughmindedly with such of its unofficial aspects as Tammany Beard was not greatly interested in personal reform of legal absurdities his work has run to stress on extra-legal actualties. _MeBain, finaly. although his very theme was The Living Constitution, and although he demonstrates beyond cavil (especially in his early chapters) the exist. ence of a living Constitution which completes, alters, aye, and over- rides the Document, moves then into discussion of what our Consti- tution ought to be. Some other scholar, before or since, milked the insight for all that it has to give. I do not know. But this stands clear: if he has, his work has found no hearing among constit. tional lawyers. It is up to constitutional laymen to take a hand ® The argument of this paper runs somewhat as follows: The existing theory of our constitutional law once had some point and value; as ap, plied to a code some century and a half old, it has ceased to serve. It covers perhaps half of what the Court actually does, but covers thar half in such manner as to throw the other half into Stygian black theory which suffers from any such misrepresentation of the facts con. Bentley, more may have ,MCBAWN. THe Lrvmec Consrrruriow (1927) perhaps esp, ©. 1; to which add Landis’ review (1928) 41 Haxv. L. Rev, 545, og Gans especially in Anenican Goveatmext ap Potinics (Ist ed. 1910; 6th ed. 1931) and THe Awenicax Levtatian (1930). {In order to forestall misconception: I am not ar ; Again, to forestall misconception: I am not by trade a constitutional lawyer. Therefore; this paper may be shot through with errors in delicate det tne Paper Purports. for all that, to talk sense in rugged outline. Indeed its narkor suspects Beata tard for any person unblest with child-like innocence of tog aya technique to talk sense in a field so ridden by archaic nonsenseTHE CONSTITUTION AS AN INSTITUTION 3 fuses and distorts issues.7 It cannot hel, Ip but lead, repeatedly, to pur- blind action. And action which is intellectually purblind, even when tuition, registers an unfortunate num- ber of misses on occasions when bull's-eyes are necded. A recanvaes of the nature of any working constitution, and especially of ours, as being in essence not a document, but a living institution built. (hi torically, genetically) in frst instance around a particular Document, pvould make clear both the fact of and the reasons for the major vagaries jof the Court's action. Tt would lay the foundation for an intelligent Teconstruction of our constitutional law theory. The practice of the Court to date offers indication that such reconstruction would be healthy. Indeed, the times make it rather clear that some reconstruction is on they call for getting clear the issues involved, before the re- Tue Orrnovox Tory an Its Merits The framework of orthodox number of propositions which to dlen visitor from Mars would so blinders of fami and now ‘onstitutional theory consists of a anew Adam or the well-known sud- em appalling. Indeed, save for the arity, they would appall the thinking man of here (1) There is the notion that the primary source of information as to what our Constitution comes to, is the language of a certain Docw, ment of 1785, together with a severely select coterie of additional para. Sraphs called Amendments, Is this not extraordinary? ‘The Docas ment was framed to start a governmental experiment for an agricultural, sectional, seaboard folk of some three millions. Yet it is supposed to control and deseribe our Constitution after a century and a half of operation; it is conceived to give basic information about the govern- ment of a nation, a hundred and thirty millions strong, whose population and advanced industrial civilization have spread across a continent, (2) There is the notion that rulings of the Supreme Court on Constitutional points interpret or apply, seldom do more than merely ,j,htave no quarrel with Pound's insight that certain formal postulates of legal thinking ‘are mere postulates, not purporting to depict the fret y Comparison of {deals of Law (1933) 47°Hawy. L. Reve 1. 9, T short joyously go further, and urge that no ing (legal or other) could ever square wholly with the facts fa Femain cternally unregenerate. But there re. i ‘re approximations which serve well, whereas ae at9 absurdities so violent as to be clumsy, crazy tools. "A" ocatuloes ot rE [pas to be close enough to the material thought about to et (orement hoe intuitional correctives) adequate results, to get them consistently, eid er get them Bande oan yas the material allows of. “And the argument here is thatetat ce gards our Constitution, the anci i lent postulates,—even as quasi-corrected—have ceased to perform in any such fashion. Sit cis terra lees,COLUMBIA LAW REVIEW interpret or apply, this Document as Amended. This notion is a corol- lary of the first. (3) From the two flows a third: that the next best source of in- formation as to what the Constitution is, lies in the aforementioned rulings of the Supreme Court! (4) Related to these notions are two others. One, that the only amendments to the Constitution are the Amendments, (5) The other—a sort of premise to the theory at large—that “written” and unwritten constitutions are different in their fundamental nature, As to such propositions or notions, or any which are cousin to them, it will be argued here that they are hopelessly misdescriptive of the facts about our constitutional life; and that, further (and in this case by consequence) they are seriously ill-adapted to achieve the major Purposes to which constitutional law theory is designed. As descrip- tions, each contains a kernel of truth: but a kernel so relatively small that the contrary would be closer to accuracy than the propo: The attack just launched contains two distinct counts of description, and inadequacy of functioning. Obviously the second does not per se follow from the first Very bad descriptions may on occasion be extremely serviceable tools of thought. And certain items to the credit of the conceptual structure above suggested need to be set down, on the side of how it works. The matter of description is re- served. (2) To begin with, the theory indicated affords lawyers and judges @ most convenient vocabulary, It affords them, as well, a filing cabinet for the classification of constitutional questions which, though distinctly inconvenient, is at least workable. As texts and digests demonstrate. (b) For judges, it offers a refuge from responsibility. ‘The words of the Document seem repeatedly to guide decision. They seem re. Peatedly even to control decision. Where they do either, they open escape from facing or, indeed, from seeing issues. Where they can be made to seem to do either, they open escape from answering in public for the manner of deciding issues. It is a bit amusing, to reflect that the power of the judg ii} 2 slightly modernized form, the phrasing would be “an even better source Hi information.” |The argument will be that this emeolainn logically involves {iat election of the first two premises, “For it recognsecs he {acess creation by Joey amt, gOnee such creation is recognized and the tmplicalions st soe sy rgnition fairly faced, there is short of some such conclusions as this: offers. For that reasos ‘The newer insights a way houses. *See note 7, supra. tion, : inadequacy in this connection, f€s to pass on constitutional issuesTHE CONSTITUTION AS AN INSTITUTION a at all, like the practice of submitting many such issues to them for final decision, derives in no slightest manner from the words of the Docu- Iment on which the judges purport to rest the clecisions which they make, Hbut instead from precisely such considerations as this same manner of decision tends to keep from consciousness.?° (c) The theory affords further a comforting sense of definite and tangible continuity—which could be had by other means. But it also offers a thing not easily to be had by other means: an even more com- orting sense of, solid permanence, of an unchanging foundation irom Iwhich to face a changing, unreckonable world. “The Constitution does Inot change ; it is merely interpreted.” (d) The theory, moreover, coincides with practice at least in this: that it recognizes the final official arbiter set up by practice (not, I re- peat, by the Document) to determine constitutional controversy that Tefuses otherwise to get settled. From this derives an advantage both practical and esthetic. ‘There is a single designated authority to de- termine, in the ordinary pinch, what is permitted by the Constitution and what is not. This does not remove all doubt; often the oracle has not spoken; often its pronouncements are more authoritative than lucid But constantly reduce the area of doubt the oracle does. The esthetic advantage, meanwhile, lies in one’s relative ability under the orthodox theory to know just what the Constitution “means.” It “means” — under that theory—what the Supreme Court says it means, and neither more nor less. Here again, there remain doubts, but much is gained for the theorist, And much for practice as well: for by thrusting the bridge of “meaning” between the words and new events, it becomes possible to remodel to some extent the going Constitution without departing openly either from the words of the consecrated Document or from a theory almost as sacred as Itself. If no such remodelling had been achieved, it hardly needs argument that either Document or theory would have been junked these many years. (e) Lastly the orthodox approach provides for the guildsmen of the law and for the layman a reasonably single line of ideology about the Constitution and its part in the national life. This makes easy and “The accomplishment of judicial review is a major instance of the leeway allowed to specialists in government—even by other specialists in government. The reasoning was clear: there is a clearly stated “supreme law of the land”; somevne ‘must measure lesser law against it, and the lesser law must yield, or the Document Sease to have effective legal force pro tanto. ‘Thus far, there can be no quarrel, The next proposition of the Court: H’e are the appointed Someone! and in case of dispute the ultimate Someone '—that proposition carries them into territory which under the Document is unstaked. They Occupy that territory. No one challenges their title seriously. Occupation—and assiduous cultivation—produce title under ‘any number of theories. The important thing here is that important and sustained getion, however founded in theory, met with no consistent vigorous challenge fac!—and therefore become a portion of the working Constitutions sage in6 COLUMBIA LAW REVIEW likely the symbolization of the existing government by the Document of 1789. It provides for the existing form of government that sanctity which only century-long tradition can afford. The old and the new are identified in the minds of men, and all that is new is clothed with the ancient glory. Which might be threatened, if the general public came to perceive the facts about the working Constitution ; at the least, such perception would afford a platform for decidedly inconvenient agita- tion.” Doubtless the orthodox theory can list other assets. Surely, how- ever, none that compare with these in value, The major assets being thus in the reckoning, let us turn to consideration of the liabilities. We shall not expect to find these liabilities out in the open. They do not wait for us by appointment, with pink carnations in the left lapel. For any theory without some heritage of truth and work- ability dies young indeed ; this one is finishing out its third half-century. Moreover, devices called hy a faulty theory to its aid, when results are needed which the theory lacks power to produce alone, are not merely correctives, They serve also to save face."® Their purpose is to save the theory from its own implications, but without letting either faultiness of the theory or fact of rescue come to attention. ‘Their operation is therefore not outright and aboveboard. They slink to cover when their work is done. Which is why they are not made consciously a part of regular equipment, regularly employed, called on whenever needed. Which in turn is why they are but partial correctives Tre Private Law Backcrouxn Before bringing the implications of a face-saving corrective tech- nique to bear upon constitutional law it is as well to take stock of the situation on the private side. It paves the way. The orthodox theory * Although the question remains always : inconvenient to whom? On the values and presuppositions of truth-telling in such circumstances, see The Conditions for, ‘and the Aims and Methods of Legal Research (1930) Au. L. S. Rey. 670, 671m. It is at, this point that I differ partly from Jerome Franke in his, conception of the “myth” of legal certainty. Face-saving implies acceptance of things untrue which could be seen to be untrue. But it does not necessarily imply their con scious acceptance, despite conscious perception of their falsity. Cf. Frank, Law Axo THe Moores Mino (1930) ¢., at 9, 37. And Frank's otherwise, illuminating presentation seems to me to wobble now and again between those two ideas, “The argument will proceed: The discrepancy between theory and fact found in private law is exaggerated in the constitutional field, because under a code of rigid words no easy and gradual rewording of outmoded rules in such manner as to hide the changes made in their content, is possible. The consequence is that ith growing age all force in the actual words of a code withers and dies. What is left, and living, is not a code, but an institution. Many of the institution's roots trace back through time into the code. Many do not. But the living institution is neither the dead code nor its “interpretation.” It is not even by any partheno- genesis descended from its great-grandmother code alone. It is mew, it is dif- ferent, it is growing; and in its blood run so many other streams that resemblance to the'code is seldom strong and always confined to single traits.THE CONSTITUTION AS AN INSTITUTION 7 dhat rules decide cases has been splintered sufficiently in recent years to make no longer shocking the proposition that they do not. We know laiready something of the dodges and devices by which that theory was lenabled to maintain itself in the teeth of fact. Finally, and by no means to be disregarded, our constitutional lawyers are case-trained men, The ldodges used in private law have their analogues in the constitutional field. To begin with, the theory that rules decide cases seems for a cen- tury to have fooled not only library-ridden recluses, but judges. More, to have fooled even those skilful and hard-bitten first-hand observers of jjudicial work: the practitioners. ‘This fact amazes. For the theory few in the face of common sense and professional experience. If rules decided cases, one judge would be as good as another, provided only the rules had been adduced before him. Yet who knew better than the lawmen that judges, one by one, had earned their reputations as great, or run-of-the-mine, or rather awful? If rules decided cases, law stood still (and as we remember, the theory was at its blindest drawn out to that conclusion). Whereas growth and change of law were as striking in nineteenth- and twentieth-century America as they have ever been. Ii alles decided cases, able lawyers would be unable to disagree, nor could there be dissenting votes save by incompetents, nor could an honest and informed judge ever face reversal. And yet I take the theory still to dominate our legal ideology, if one should take a census of the guild. Why so? How so? Extended rehearsal here of the learning in the field would be offensive; a summary must do. The effective reasons fall into three groups, one dealing with the points where the theory really reflects reality, one with those where it reflects in distortion a certain portion of the relevant reality, the third with points at which its patent departure from reality is psychologically obscured. ‘A. Situations where rules are certain, and the theory that rules decide cases rather accurately reflects reality: (1) Uncontested cases, very often. (2) Cases where the facts-in-court are standardized in terms of rules; so, e.g, when divorce testimony is fitted into the very verbal model set up by some appellate ruling on, say, desertion, or adultery.'# Or, often enough, the affidavits which precede a labor injunction. But to fit here, such cases must normally be also uncontested. (3) There are the cases where the facts-in-life are standardized, whether with an original eye to possible litigation (lease-forms) or ™ Cf. Manswtatt. anb May, Tite Divorce Count, I. Marviann (1932) ¢ V.COLUMBIA LAW REVIEW chiefly by way of extra-legal institutionalization and conventionalization (checks, notes). In cases of this last kind the classification of the facts may be so clear that rules can “decide” cases even out of court. Life does build on regular judicial action ; and perception of regularity often communicated by words describing it; and if one sees fit, he may think of such rules-for-judging as conform to the ways-of-judging as being the immediately operative factor.” To avoid improper inference from the foregoing, it must he re- membered that never, when the facts are in dispute, can rules decide ithe case. At best, they set the framework for decision, and the bounds within which it is to move, No less important: if there is any slightest doubt about the classification of the facts—though they be undisputed— Ithe rule cannot decide the case; it is decided by the classifying. Fi- nally, even where rules are clear, semi-perceived or unperceived practice of action, thought, or emotion, is commonly a far more effective factot than any verbal formula. B. Situations in which, even at times where the rules are uncertain, there is a certain distorted approach to reality in the theory that rules decide cases: (1) The situation-types out of which both rules and legal con- cepts are developed set the framework of approach to any legal prob- lem-situation. The concepts developed out of such situation-types set the framework of thinking about, or even of perceiving, the problem. The number and kind of categories available for sizing up the case is pretty well limited by tradition. Some of this tradition is expressed, more or less accurately, in rules. And it makes a difference whether the issue is posed in terms of “corporation or association?” or of “société anonyme or commandite?”"™ (2) Over and above this, and even in cases for which no rule exists as yet, these categories show, each one, a certain shadowy totality, "Cf, John Dickinson, Legal. Rules: Their Function in the Process of Dex cision (1931) 79 U. of Pa. L. Rev. 833, 846 ff, with the corrective by What Courts Do im Fact (1932) 26 Tu. L. Rev. 645, 649 ff., and 761 ff. ™ Walter Wheeler Cook has devoted a deal of fruitful attention to this _prob- lem of the minor premise. Cf. The Utility of Jurisprudence in the Solution of Legal Problems, in S Lect. ox Lec. Tor. Asx. Bax or Crry or N.Y. (1928) 337 fl. I know few values of comparative law study comparable to that of discovering how far such traditional categorization guides decision. Features that the Anglo- American lawyer views as fundamental fade out of sight; features which to him fare meaningless assume importance. And yet, abroad and here, facts press (over ree decades) with the same bulldog refusal to be downed. ' Where necessary, they reshape the legal categories, Compare, ¢g., German and Anglo-American Fesults in the field of Agency (conversation with Hénegger), or French and American results in the field of industrial and auto liability. ‘On the latter, sce Debk, Automobile Accidents: A Comporstive Study of the Low of Liability in Europe (1931) 79 U. or Pa. L. Rev. 271. Prank,THE CONSTITUTION AS AN INSTITUTION 9 so organized that it tends to develop or expand along one line, and not along another. These tendencies are real; they are observable in judicial behavior. They are expressed in rules only when an over-generalization lof past decisions happens to include the true prediction. But (a point falling rather under C) once a judge has decided that “this is a sale and not an agency,” he comes under their influence—and often enough thinks his then discovery of “the true rule” of Sales to do the deciding."* (Moreover, the verbal formulations we call rules contribute somewhat to the shape and tendency of any category; as Williston remarks, the laccepted constellation of past decisions goes far to determine our way fof reading them, and to constrain their possibilities..? (3) Rules limit the range of decision in the case, in that they re- Iquire the decision to be justified. They also limit the choice of justification, and so affect the precedent-value of decision. /.e., legal practice does all these things, and enough of the practice is effectively expressed (or mis-expressed) in rules to make rules partly operate as such, C. Factors which, even when the theory that rules decide cases ils wholly to meet the situation, still keep that discrepancy from con- scious recognition : (1) Under a theory that rules decide cases, the actual fluidity of precedent is experienced only during the search for a theory, after the impact of a case, This experience is largely wiped out by the im- mediately following justification of the theory in deductive, rigid terms (2) Man (even though he learned square-roots in high school) finds more than one right answer hard to conceive of. And if de- cision is to be “by rules,” the rules must be dealt with as presaging, nay, forcing, that single one “right” answer. Hence reinterpretation of a Precedent becomes in thought merely the search for the “true rule” which it “must” contain2? (3) Whence the insertion between creation and consciousness of creation of those most majestic and baffling of masks: “interpretation” and “application” of that which, before the process, had not been present to be interpreted or applied (4) Our orthodox common law presses upon the judge two de- mands together. He is to abide by precedent and statute. But he is ‘3 For an illustration see Note (1928) 28 Covumsta Law Rey. 66. 2 Wuistox, Some Movenn Tewpenctes iw rite Law (1929) 62. Goodhart, Determining the Ratio Decidendi of a Case (1930) 40 Yaue L. J. 161 will remain the classic illustration of the best work that can be done upon thre Premise. An intelligent reader asks a single question: Why such a futile premise?10 COLUMBIA LAW REVIEW lalso to do justice. The two demands drive into inconsistency." But satisfying either tends to satisfy the conscience. What satisfies the lconscience lulis the mind. Such factors afford some indication of how the myth of legal cer- tainty, once put into the world, has been able to maintain itself. And the matters listed under B and C suggest some of the sleights in use to corriger ta fortune when the theory deals out an unfortunate hand. Against this background of common theory—and of common law tech- niques anent the manipulation of the fifth ace—constitutional cases are decided. But with a difference. For when changes in common law cumulate to the point where even the wilful blind may be expected to perceive the change, some judge rewords “the” rule into a wholly dif- ferent rule tailored more neatly to the current course of decision: one more device to save the face of an insolvent theory. The words of a rigid code do not permit reformulation of the sort. Despite this, our theory of constitutional law maintains itself. The concentration of un- seeingness which has made this possible must be regarded as a notable intellectual achievement. The French, dealing with a code a decade younger, were unable to keep themselves deceived beyond a century ‘The will was indeed there. With the adoption of the code they promptly junked the insight of Portalis*? But the flesh was weak. By the turn of the new century Gény’s obvious sanity had downed even the “system- atic” lawyer’s will to shut his eyes. In Germany, war and inflation did the work within two decades and a half, Gény had gone before; the first gun in Germany was fired by a certain “non-Aryan” Kantoro- wiez in 190%. It remade “Aryan” German legal theory. While, mean- time, the “earthy common sense” of common-lawyers has built footing under footless theory for a century and a half. A feat, I say! On THE Nature oF 4 Cove A code, whether constitutional or other, and whatever its nature or backing, begins of necessity as an experiment.** Both as a whole, and in each of its parts. As to the parts, one need only refer to the suc- ™ Legal Tradition and Social Science Method, supra note *, at 106. *Cornil, Antorité de ia loi et autonomic de la jurisprudence (1928) 1 Acta Acabesiar Univensatis Jurisrevnentiax Companativar 128, quotes Portalis skilfully and extensively. Codes of peoples make themselves over the years, but properly speaking no man makes them.” ™ Qutside of constitutional law theory, the phrase is warranted. Cj. Brastaue Busu (1930) 128 ff; 65. I should like to make very clear that my objections in this paper do not go to the major lines of the Court's action. They go toa theory which urns mach important action into lines at ovids with the general tenor of glorious record. * In this I am in full accord with H. Jattrsetss, Bexecrxnaxxeit uxp Recet (1927) 22 ff. ef. 1928 Proc. Cow. Soc. Work, ioc. cit. supra note®.THE CONSTITUTION AS AN INSTITUTION 11 essive Amendments of the Document of 1789, and most particularly jo numbers eighteen and twenty-one, As to the whole, one thinks of Weimar and Hitler; or of those successive slavery-question Com- romises any one of which might have entered permanently, as each did Enter very temporarily, into our own working Constitution. A code begins as an experiment. A successful code is an experi- fnent that works. It incorporates the wisdom of the past. It selects from the present those trends which have a future, and so is in part a jprophecy that will be fulfilled. Yet the portent of death is laid on it y two forces, one of fact and. one of theory. Man cannot see too far into the future. It will never be long before the code is antiquated pr inadequate. This the portent of fact. And that of theory: a code purports to be exclusive and all-inclusive, for present and future. Which neans that in due course it will be made to “contain” what it does not contain. Practices and cases will ivy upon its walls, and kill the stone. When we turn to our own Document in the light of this, we find (with Surprise) that certain of its phrasings still state portions of the working Constitution with some accuracy. We have in fact a legis- lature in two houses. It bears the name Congress. The first of these facts has significance. We have a President. ‘That also has significance. The Senate contains two Senators from each state; each sits for six years. That has significance as well. There is more. The Govern- ment borrows money upon the credit of the United States. There are heads of departments, The pocket veto is expressly foreseen and pro- vided. Over and above the very considerable number of matters of vital moment (Congressional privilege of debate; federal control over interstate commerce) there are a number of minor rule-of-the-road provisions still more or less in force: entitulations, qualifications for office? and the like. There are, moreover, provisions of rare incidence, such as impeachment, which have perhaps a prophylactic value even when they do not come into actual use. Such a one as succession of the Vice-President enjoys the curious distinction of being regularly ap- plied when the contingency arises, without ever being seriously reckoned with beforehand—unless by the wives of vice-presidential candidates. All of these things, and the rarity of Amendments, make a lasting tribute to the skill of the experimenting Framers. The thought that the nation * Whether one prefers ivy or stone is in law as in architecture a question of taste; and in the one case as in the other, taste varies by epoch. But taste (with due allowance for W. 1. Thomas’ magnificent and yet unpublished theory as to the occasional effects of fad) determines commonly less what happens than how the happening is judged. Ch McBatx, op. cit. supra note 2, at 29.12 COLUMBIA LAW REVIEW could work on indefinitely with little more than the original language as its sacred Code has proved correct. The device of enumerating blanket powers leaves the Document, in appearance, still “controlling,” despite range or mass of concrete action taken “under” them. Yet the appearance cheats, Wherever there are today established Practices “under” or “‘in accordance with” the Document, it és only the practice which can legitimatize the words as being still part of our go- ing Constitution. It is not the words which legitimatize the practice. This is the first principle of a sane theory of our constitutional law. Its necessity is patent wherever practice has flatly abrogated a portion of this “supreme law of the land.” Discretion in the electoral college is the classic instance; can any doubt that if that college should today dis- regard their mandate, such action would be contrary to our Constitu- tion? Yet “vote by ballot”—the original language, repeated in the Twelfth Amendment—is a strange way of saying “act as rubber stamps.” Intent, THE NATURE OF THE Case, AND PRACTICE To make clear why the principle which obviously holds in the case of abrogation requires extension no less to “interpretation” and most especially to far-flung “application,” one needs to look a little into the sequence of action “under” a code. One caveat: the argument will not at this point undertake to distinguish terms between the basic aspects of governmental practice and the “mere detail,” though illus- trations will be chosen only from what seems to me to be the former field. Later, some effort will be made to find criteria to help mark one off from the other. And it will be remembered that this inquiry into the practice of the Court is not for the purpose of showing what all lawyers know: to wit, that the Court has indefinitely extended, has nobly pieced out, has skil- fully remade the meaning of the Documentary words. The purpose is rather to make plain the manner of the retailoring, and the source of the new patterns in the nature and needs of government, in order that the real nature of the Constitution as an Institution may stand forth, and the essential conformity of a theory b in those terms to the court's tradition-hallowed practices may cease to be obscured. At the beginning of a code experiment, intent of the language has a clear and proper bearing on men’s actions. Some changes are toward, some older things are to be carried forward. The words have as their function to guide action. The words are thus—at the beginning—best read in terms of the legislative history. Cases already have been put in the debate. But even here, intent cannot rule purely. Some casesTHE CONSTITUTION AS AN INSTITUTION 13 lhave not been put in the debate. Resort must then be had to language land circumstance, to “obvious” rather than to real intent. Forthwith sets in the overwhelming tendency of clear-cut words, in law as in life, to usurp exclusive attention whenever they are met with. And all of this is buttressed by the traditions of our law. Hence the rise of ortho- ldox constitutional theory was, if not inevitable, almost so. A good code being, as indicated, a successful experiment, and one reaching some distance out into so much of the future as wise men might foreguess, the treatment in terms of real plus “necessary” intent does little harm— for some good time. Indeed it furthers mightily the standing of the lcode while the latter is working its way into traditional acceptance. Such treatment has, that is to say, political value. While the code is young, intent” contributes to stability. But the older the code, the less the need for such treatment, and the greater the need for departing from it. Some cases, as has been mentioned, were not put in the debate, The “glass” in which the future shows is metal none too highly polished. The outward sign of the newer inward grace is Marshall's word: “We must remember that it is a Constitution which we are expounding.” Thus is signalled a treat- ment of the Document in which the vital clement becomes the need and circumstances of the case. This also, however, and most unfortunately, darkly. The language is still: “which we are expounding.” The voice of Jacob speaks over pseudo-hands of Esau: pseudo-interpretation. The present need is thus served as if by ancient meaning; more recent wisdom clothes itself in ancient words; the road over fiction has begun. More, and worse: it is not conscious fiction. Clothed as it is in the language of original intent and language of the Document, the newer method of dealing does not overthrow or displace the old, Rather does it creep in silently, alongside, but leave the old still nominal master of the house. By its own phrasing it invites confusion. By its own verbal expression it invites its own inventors, in any subsequent case, to overlook it, or to throw it out In curiously similar fashion the working Constitution creeps in be- side the Document, always in deference, always in nominal subjection. Not being clothed in words, it can be unobtrusive—so much so that even in the occasional instances (electoral college; the President's power over war-making, or dependence on him to initiate legislation, appro- priation or other) in which practice flouts the Document, no man sees the flouting, thanks to the observance of the form—thanks also to the now ingrown institution of simply taking the Document, without thought or inquiry, as being the dominant factor. But the President's position as head of his party, as dispenser ofwu COLUMBIA LAW REVIEW patronage, as limited by the “courtesy of the Senate” as long as ad- ministration Senators are good—are these not basic to the framework lof our government? Or the expected second term? Or the uncon- Stitutionality of a third? There is only one reason for considering such matters extra-constitutional: the no-longer-reasoned, creaking, ideology which simply takes the Document as both dominant and all- containing. Do I mean that the Supreme Court would, on demand, de- clare the third election of a president to be void? Of course not2? 1 mean that institutions which sit so firmly that the Supreme Court never gets a chance to pass on variations from them attain the zenith of fun- damental law's perfection. Neither, as has been indicated, would I deny the shaping influence of the Document—which is to say, of men's ways and attitudes with reference to the Document—upon the going Constitution2* ‘The argu- 2 The Supreme Court is not the final arbiter of constitutionality. It is merely the official organ for final pronouncement. Hence, it moves within limits. Im the case put, the limits would, by popular action, have expanded to fit the case. GThere.is no question that the Text has influenced the course of growth. me take a single instance. The money and borrowing powers have excused first 3 National Bank, then a national banking. system, then a Federal Reserve System, all, as it happened, making little initial allowance’ for the needs of either indastriel Seat iCaltural banking. One step toward fling out the system was found in. the securities affiliates. Their connection with the Document escapes my untrained £76; the giddy trapere-work of constitutional theory is not for mere commerce augers Yet I have heard nothing of serious challenge to the consitutionaliey the affiliates—prior to the crash. (For post-crash challenge, cf Note (1033) 40 Sauumma Law Rev. 324) More, had they been managed as’ befitted their pos bilities, to Produce 2 natioral banking system integrated with intelligence ant] en Treg ith fome sense of public responsibility, 1 think the position, ieseapathe that after ten years of operation they never would have been successfully challenged ‘on the constitutional point. Not the innovation, nor the transparent, hypocrisy of the devices used to innovate, but varying sense as to which way lay Pressing need, has becn the determinative factor in their history. Yet even these fomeie sere: {ics afiliates ehowed the marks of the Document’s influence. “They, were nominally, Seperate corporations, with segregated assets; they could, as national banke cout} ete ase city and state lines, and scatter offices throughout the country; thee SHerations were pot subject to national banking examination—in a word, by forcing a branch of banking outside of the “banking” system built Primarily upon the money vom er Ane Document contributed its effective part to irresponsibility and ce Uke semi-collapse of its materially more legitimate offspring. re, Document thus plays its part. Tt serves not only as above, in forcing growth gut of certain institutional channels; it also at times forees rewie Gak fahory wattle; and sometimes it checks growth for a time (income tary ertid aber; minimum wage) or even chokes it off entirely. OF the last, illustrations ii fls tax field are too familiar to warrant listing. ‘The most dramatic wae is SUT the (effect on flow of capital into non-private enterprise of the exemption of Stpte and municipal obligations from federal taxation, plus the unanticipated later Decency the income tax. To be sure, that exemption was Isid denne by the Peement, but by Marshall; but in this matter of shaping, the wet eg ‘what the Court has thus far made it stand for, flow at any given eenets indistinguishably together. And it is, as T have insisted to boredom, not the Dern itself, but men's actions and attitudes with reference to have effect. Their actions No conscious intent thus toTHE CONSTITUTION AS AN INSTITUTION ub ment is, that there is only one way of knowing whether, and how far, any portion of the Document is still alive; and that is to watch what men are doing and how men feel, in the connection. If their doing and feeling squares more or less roughly with the language, so much the luckier for the language ; if not, so much the worse. Whether the one ‘or the other, it is the action and the attitude which give the light. The argument is, further, that most of the going framework of our Levi- athan is hardly adumbrated in the Document. As a criterion of what our working Constitution is, the language fails in both directions. It affords neither a positive nor a negative test. Here and there the two do square. Some instances above. But, to repeat, the working Constitution is in good part utterly extra-Docu- mentary (the privilege of Senatorial filibuster ; the powers of the Con- ference Committee; the President’s power of removal; the Supreme Court's power of review ; the party system; the campaign fund). This, plus the less frequent fact of abrogation, ought to be enough in itself to kill the Cock Robin of orthodox theory (who cares who did it, if it be done?) and to dethrone the Words. But the Words put forward a cover first to be disposed of. Great portions of the working Constitu- tion, while not described or prescribed by the Document, are urged to be merely its “applications”—or merely the “application” of its words “as interpreted.” Let us tug a little at the texture of this cover, to test its strength. The argument is simple enough, if I may shift the figui once tails have come to dwarf and wag dogs, “dog” ceases to be a con- venient or significant concept for classifying the things that reall matter. It becomes inconvenient, first, in lumping disparate things to- gether: white-slaving, railroad consolidation, Federal Trade Commis- sion, prize-fight films, radio control, drug traffic, conceivably migratory birds, certainly N.R. A. (and so child labor, and barbers) —all basket marked “regulate commerce among the several State is tradition, but it is not sense. The unifying feature is not “ gulate commerce”—the verbal excuse—but “things which seem to call for centralized regulation"—the fact. What matter whether any of them had been successfully hung upon the taxing power, or the treaty power, or the money power? Yet the greater inconvenience lics in obfuscation undermine the scheme of private enterprise; yet what agitator has ever done so ef- fective a job of boring from within? The apparent concessions thus made to theoretical difference of written and unwritten constitutions should, however, not be read as meaning so very much, Both illustrations rest vastly more on practice than on the Text. And the deflec. tion of later development by the historically acquired set-up of existing practice— and thought—is found no less with an “unwritten” constitution. Consider the history of the King's Council ; or more concretely, the effect of the existing system of peer-creation on the reform of 1911.16 COLUMBIA LAW REVIEW of those vibrant tails which have become the things that count in life. When the offshoot-of-an-offshoot-of-an-offshoot turns giant and per- manent, its great-grand-parentage no longer gives clue to what it is. “To provide for the common defense” as an objective, and “to raise and support Armies” and “to make Rules for the Government and Regu- lation of the land and naval Forces,” as powers, are limited by certain Documentary provisions on quartering of troops and martial law, and by others on taxation, appropriations, due process, and equal protec- tion of the laws. They are extended by the provision concerning all laws necessary and proper, But it is not these provisions which have meaning in our lives. Nor are these provisions in any intelligible sense being “applied.” There is nothing to apply. We are told not to have an army, but that we may have one. As a grant of power, the provisions provide a verbal peg on which a billion dollar budget can still be hung. The peg has meantime ceased to be of intei est. It has been used. Its service is done. What is of interest, are the ingrained ways of the folks who consume the billion, supported by the ways of those who provide it: provision for service-disabled veterans as a national institution, awards to other veterans as a national racket, the use of air-forces (forces not mentioned, if I remember rightly, in the Document) for show-purposes as a national amusement and for propa- ganda purposes as 2 national indulgence, the interesting bottle-necked promotion-system, non-conscription in time of peace, the Officers’ Re- serve, the undiscoverability of colored or Jewish West Point graduates. ‘These things are living Constitution, acted on, suffered by all, and in appropriate quarters passionately approved. They might, under the Document, be wholly different. But they are not. Their connection the Document is so remote and inconclusive as to require a de- tective novelist to trace. I repeat that it is they, and not the Words, which carry living meaning. Stronger instances under other general powers are legion. It takes, for instance, a person gifted with a keen and abstract intellect to figure the Documentary basis for the Depart- ment of Labor or that of Agriculture. Let me digest the argument thus far (1) The orthodox theory breaks down when practice abrogates and negates the Document. (£.g., the President has de facto and with Vox Populi's approval the power to make war; could, indeed, if he wanted to, “declare” it.) (2) The orthodox theory leaves wholly uncovered a mass of fun- damental governmental structures and norms which do not happen to be mentioned in the Document, even by innuendo (party system, .g.).THE CONSTITUTION AS AN INSTITUTION Ww (3) The orthodox theory as to “interpretation” or “application” # the Document, or as to “exercise of powers" lacks all perspective and pbscures all meaning. An inch from the eye is a portion of the Text; the whole living world behind is “covered” by it. Only because the Supreme Court has been so good at three-card monte” has made so fruch sccm to be where it was not, have the Document and its Theory been able to survive so long. (4) In result, it is institutions which test whet! jin the Words, and how much force, itutions which validate the Words, institutions, her there is still force and what that force is. It is in- not the Words which validate the Hence it behooves us to look into the institutions. finauiry the foundations of a saner theory may, From such an with luck, emerge. f institutions in general; ‘om other phi ‘over, we can turn from fact to theory, matter of what to do about it. ses of government. This from description to the pressing behave in certain patterns a, b and ¢, and do ceivable patterns d to w. And the Probabilit in the fact that people do not behave in other con- able pat 0 ty that an institution will comin, Soimeides with whatever probability there is thes people will continue so to behave, Every living constitution is an institution; it lives only so far as that is true, And the difference between a “written” and an “unwritten” constitution lies only in the fact that the shape of raefescard mont, like the shel-game, depends on the undo ct that the oratced band Wicker than the anpractisey nee. oan fact that Bae the HEU te ocaslonl Coral Fecognized as consummate el been _percei OF ration yee See oreed oot the nes ot ye tin commen father's times”: "A Mas ethics are paste om18 COLUMBIA LAW REVIEW action in the former case is somewhat influenced by the presence of a particular document, and of particular attitudes toward it, and particular ways of dealing with its language. A national constitution is a somewhat peculiar institution in that it involves in one phase or another the ways of a huge number of people —well-nigh the whole population. If, like ours, it is'a firmly established constitution, it involves ways of behavior deeply set and settled in the make-up of these people—and it involves not patterns of doing (or of inhibition) merely, but also accompanying patterns of thinking and of emotion—attitudes, ¢g., potent and largely predictable, toward the verbal symbol “Constitution” and toward any person supposed to be attacking “Tt.” As an institution of major size, then, our working Constitution embraces the interlocking ways and attitudes of different groups and classes in the community—different ways and attitudes of different Sroups and classes, but all cogging together into a fairly well organized whole. Perhaps it is as well to stop for an illustration. Any family is an institution. Any family is made up of persons. But not every aggrega- tion of persons is a family. The persons in a family have one or another trait in common: either they live together, or they are related by blood, or both, We shall take for further development a case in which these two common factors concur. Yet what appears at once is the divergence of the ways of action of the persons concerned, despite the common fac- tors. Mr. Hubb goes out to work and provides for payment of the bills. When he rises, his breakfast has been attended to; and the bathroom hhas been left free for his shaving. He, and no other, reads the news. Paper while he eats. Before he leaves for his train, he fixes the furnace: and he receives certain instructions as to things to be brought back on his return. There is no need to go on. It is obvious that Mr. Hubb's Patterns of behavior are not those of Mrs. Hubb, nor those of the maid, nor those of little Lorna. But it is equally obvious that the patterns of all four intercog like the wheels of a clock, and make a whole go round which we choose to call “a fi and which is more than and different from the constituent parts, It is obvious, moreover, that Mr. Hubb's be. havior lies in good. part in pattern: others. And normatized. 1f he sl inner, Should forget the ordered purchases, or should gamble away his pay- check at a poker-game, Mrs. Hubb would not only be upset in her co- operation, but would feel aggrieved. Meanwhile, each other member at "Ch, note 28, supra,THE CONSTITUTION AS AN INSTITUTION y contributes her own quite diverse patterns to the interlocking fhole that goes on as a whole. Now what holds of the gearing together of the ways of single per- Kons into a small group holds of the gearing together of the ways of hhole groups into a still larger whole. A factory combines management personnel, foremen, operating labor, repair staff, shipping clerks. A ational corporation combines different factories (now taken as units) ‘th the commercial divisions of the head office, the selling staff, the rectors, the varied security-holders. A national government—but, fagain, why go on? The essential fact is that the larger the number of ‘rsons concerned, and the more intense their participation, (a) the rore intricate the detail of the patterned clock-work, (b) the greater the range of room for slipping gears, (¢) the larger and more internally complex the units which must be taken as units, if discussion is to re main intelligible. Tue Consrituvion ; Spactacists, INterestep Groves, Puatic To sum up: no institution consists of like ways among all the per- sons concerned. It is the unlikeness plus the complementary crossplay of the organized ways which is the most convenient criterion for mark- ing off an “institution” from a mere imple culture-trai ‘As to our working Constitution, even in so rough a sketch as this, it will pay to distinguish three categories of persons whose ways are concerned, The first are the specialists in governing. ‘The second are what we may term the interested groups: aggregations of people more or Jess organized around some interest, who direct pressure upon the spe- cialists ot upon the general public in furtherance of their own particular desires, ‘The third are those who, as to any given issue, are left over— call them the general public. ‘They are important, as will appear; but important rather as is the audience in a theatre, as distinguished from actors and stage-hands, or from author and producer. Plays succeed or flop. So do constitutions. So does constitutional change. The au- dience, however, initiates neither play nor change. By specialists in government I mean those people whose business is governing in general, or, perhaps more accurately, people so far as they enter into the general business of governing. This includes most official office-holders, be they legislators, executives, admin judges. But when, say, a legislator conceives his job to include getting the silver or aluminum or power people what they want merely because they want it, he will for my present purpose be dividing his time between member of an interested s, in other words, serves specialization in government and activity as group. The classification by persons, or by off20 COLUMBIA LAW REVIEW merely as an approximation to a classification of activity and attitude — Somewhat obviously to be included among these specialists would be such party officials as devote a good share of their time to the prob- lems of de facto government : Mr. Croker, Mr. Penrose, Mr. Curry. Be- yond this, as suggested, the group shades off in terms of more or less time, more or less intensity, more or less success or influence, of per- sons partly specializing on such other matters as, say, road construction, saloon-keeping, labor union management, corporation law practice, gangsterism, or investment banking. The general position here to be maintained is that these specialists occupy, with reference to what the working Constitution is and how it changes, the key position, with vani- Jous of the interested groups serving now to induce, now to inhibit, one Jor another change. One small group of specialists, the judges, hold a peculiar veto-power, called on fairly often, exercised only occasionally. The general public hold a further veto power, but one exercised rarely indeed. Referendum and recall of judicial decisions were devices aimed at furthering the exercize. Elections are an indirect and rather ineffec- tive device for the purpose. Riot and revolution—when sticeessful—are its final expression. In all but odd cases this power of the general public Operates not as a veto of action taken, but as a deterrent from taking action—for fear of what might happen * “Excursus: On the nature of these concepts.—It will be obvious that the categories thus laid down flow one into another. and even overlap today an independent office-holder, i influence, the day after 2 bought-2 group. He may be president of th Ba THE GaSe for some utility. “Neither he nor any other may, in the rate case be able to tell whether his conception of good government, his conception of’ he clients’ interest, his personal prestige and satistaction in victory, his love of te Hume as such, or his prospective fee, is his fundamental drive. In so far the three “descriptive” categories fail of accurate description. And as of these, st of ie other categories here suggested. “Way,” for example, is the roughest inaceure EGReralization of individual acts of individual people, all of a given line cree Peing treated for convenience as if they were interchangeably Ske, “Of Chances the ditnemicroscope, they are not 30 alike. Yet often, for the purpose ins hand, Usatiflerences can safely be. sunk in the similarities. “the turning” heck oe ne STRCK at one seston of a legislature can be treated as “the sume’ ya ay position members may protest simultaneously fighti 1 OF even that some ses. FY, does not obscure the on in given circumstance among cer ‘a way” among those people. Attenmiance ut sauterativey, pairing) may be re 3 w s larly, 0 far as certain ind ate active regularly and in cooperation, they can be ‘caih “ 1 sate pic shone Gr etek SP rede ba fn” For AAvain, 20 far as ways interlock in complement, they build into “an institution This countly ta ig eartiamentary debate is, ¢.., distinctly more an tah ‘NUNS country than in some others. “It is not, to be sure, when Caan ined ationTHE CONSTITUTION AS AN INSTITUTION 21 Tue Roe oF THE Srectatists It has been urged thus far that a working constitution is an institu- tion, that it is an institution highly complex in nature, that it can be viewed with some adequacy as the interaction of the quite different ways land attitudes of three diverse categories of people, and that of these the specialists in government stand at the focus. 1 propose now to con- lcentrate for a time upon the ways of these last. For not only is it they lwho are the prime movers in preserving so much of the Constitution las is preserved; it is also they who in all save most peculiar instances— lon eleven occasions in our history, to be exact—arrange all amending lof that Constitution. Surely there are few superstitions with less substance than the he- lief that the sole, or even the chief process of amending our Constitu- tion consists of the machinery of Amendment. Party system and cam- paign fund, protective tariff and sceret ballot, patronage and Senatorial filibuster, judicial review and national banking: these sit as firmly, and tail, a way, but a complex. Only the speaker presides, Only one member holds the’ floor at a time; the others sit. “The rules of order” hold for all, but the pre~ fictable action of individuals which they call for is diferent action by different individuals, all organized into a going whole, The difference between “way” and institution” is thus commonly merely one of emphasis and level of discourse. Where thought of as a unit in a larger whole, a complex may be treated as “a way,” though the same complex, when treated’ as a subject for nicer analysis, would be thought of as an integration of interlocking parts. the outer boundaries of a group or of an institution are almost never sharply marked. Each shades off into its neighbors, Some ways or men are closely, ‘others not so closely, tied into the perceptible core. Are lobbyists, of pages, oF inactive Senators, as’ much “The Senate” as floor leaders? The United States Steel Corporation—meaning thereby the persons with their significant ways and attitudes—might in one connection be considered to be the managing personnel, in another that personnel plus major stockholders, in still another that personnel plus all stockholders, and so on through bondholders, interested bankers, white collar staff, laborers, customers—or even customers of customers. A “basic™ out- fit is of necessity an outfit with outward boundary undefined. ‘The farther out one goes, to be sure, the slighter the nexus, the greater the outward range and angle-spread of radiation, the more disturbing the dynamic context of other groups and institutions built around other types of center. Yet the core is always clear—as clear as the boundary, in any given discussion. mus be arbitrary. There is, certainly in a complex society, no escape from this f that the marking off of “om interest.” “a group,” “an institution” is an artificial abstraction from a complexly concrete mass of phenomena: nor any escape from the correlative fact: that the boundaries drawn will always be indefensible, save as they become useful and significant for the purpose in hand. Hence all tha intended by the use of such terms, unqualified, is, throughout this paper, twofold: first (and descriptively) that in significantly high measure the attributes of the concept are present in fact in the life around us; second (and theoretically) that any increasing quantum of theit presence or of their range or intensity where pres- ent would strengthen the truth-value of the proposition announced concerning them, (Throughout the above my lasting indebtedness to. Max Weber will be ob- vious. And Sumner must be added, and Ehrlich, and W. I. TI and Under- hill Moore, and that relentless teacher that facts must be regarded: A. L. Corbin. The last will not agree with my paper. But he will recognize his contribution to it.)22 COLUMBIA LAW REVIEW most of them weigh as heavily, in our governmental structure as did lever indirect election of Senators or the power of the federal courts to entertain a suit against one State brought by a citizen of another. They were put into our working Constitution by the specialists. Two of them (filibuster and review) could each be taken out by the vote of a single body of specialists. Their disappearance is less likely in fact than was, eg., the coming of the income tax, and hardly more so than a territorial reorganization of States into Regions, or the alteration of the two-Sen- ator allotment. This feature of highly probable permanence is, as will appear, one essential criterion of what is Constitution, and what is not. Here it suffices to note that the amendment of the living Constitution to include these phases has been the work either mainly or exclusively of the specialists in government, and that the process of Amendment has not been found requisite in that work. Whether it be to continue or to repeat, let me attempt further to make a seemingly unorthodox position unambiguous: the working Con- stitution is amended whenever the basic ways of government are changed, The reform of Cannon’s committee rules was a striking stance; they had been fundamental, The entrance of the federal gov- ernment into control of the air was a second. The N.R. A. may be hoped to bea third, Indeed, amendment occurs typically by action of the rele~ vant specialists alone, and without alteration of the language of the Doc- ument, Of their own motion they can, and of their own motion or under pressure from interested groups they do, change the manner of govern- ment in vital aspects, widen it startingly, ring out old pieces of the Con- stitution as bells ring out an Old Year. It is they who have remade the pattern of government as we have passed from a dominantly agricul: tural into a dominantly industrial and on into a dominantly financial economy. It is they who have tinkered, twisted, invented, on the gov- ernmental side, either to further shifts in economic institutions or to catch up with such shifts; to attempt some adjustment of the emergent new to the persistent old. By legislation, By executive or administra- tive practice. By building the wherewithal to elect or control execu- tives or legislators, Under their hands the Document has been blotted out like the original text upon a double palimpsest “By action of the relevant specialists alone.” Often a single person (a President), or a single group; more often several groups in active or passive concert. Occasionally, as mentioned, one peculiar group in- trudes a veto: the judges. ‘Their power so to do, if called upon. is the most vital reason for invoking the cumbersome machinery of Amend- It is not the only reason. Neither, thanks to the awkwardness ment. is their veto often an occasion for its invocation. In of the machinery,THE CONSTITUTION AS AN I. VSTITUTION 23 the main, when the judges interpose their Nay, men shrug and suffer. Yet this much is patent: unless the judges have vetoed, or unless it is confidently believed that if called upon they will veto, Amendment is in the main unnecessary, and is rarely resorted to. Where their veto occurs lor is anticipated, the working Constitution (which includes judicial re- view) prescribes Amendment as the sole available process of amending? This not because the Document so says, nor is it because the proposed Lmendment varies from the Document, or from its judicial “interpreta~ lion.” It is because one body of the relevant specialists happen to be nzvilling 10 let the proposed amendment pass. Why else are we con- cerned about the personnel of the Court? Yet of certain Amendments, such as those on woman's suffrage or direct election of Senators, or, say, one admitting some hitler-like for- feign-born to the Presidency, the use of the formal machinery would be reasonably predictable (uniess perhaps in a time of overwhelming emer- gency) even though the Court's veto might not be expected. For the Working Constitution consists not merely in powers of the specialists, hor merely in their existing ways of action; it includes no less their at- fitudes toward the Document and its language. It embraces deep-seated inhibitions among many of the most influential guildsmen (not judges alone) against departing openly from its express language, or even, at times, from what is thought to be the “‘intent” of less express wording. In this the specialists resemble the members of the undifferentiated gen- tral public—save that some of the specialists have some knowledge of what the express language of the Document happens to be. The spe- cialists are, then, self-limited in their powers of amending; or more ac- curately, they are limited in their discovery of their own de facto powers, or in the use of those discovered, by traditions regarding the Document Which have shaped their imaginations and their consciences in the very process of becoming specialists. ‘Tue Rove oF THe Generat Puaiic Less potent, I suspect, and if not that, then less frequently opera- tive, are inhibitions based on the attitudes of the general public (from which distinguish at this point interested groups). Two factors charac- terize the general public's rdle, There is an unreasoned, unreasoning, tradition-founded loyalty to a symbol of national unity and permanence. ‘Along with this there is a pervasive ignorance and indifference as to al- most all detail. ‘The loyalty, so far as I can observe, is in first instance WAg an alternative, there is the remodelling of the Court—say, by way of increase of rumbers; of even by way of ftroducing. retiring age syecteng. et inctay. by duly attractive pension. But these are still in the realm of expediency and experiment24 COLUMBIA LAW REVIEW to a phrase, without more: “The Constitution.” It runs in infinitely de- creased measure to the Document of 1789—which is currently enough supposed to begin: “When in the course of human events” or: “We hold these truths to be self-evident.” Rather is the second line of loyalty to a sligh idealized picture of the Nation-As-It-Stands—including elec- tions (pruned in dream of fraud, or blackjack, or of the triumph of the wicked enemy), including the present incumbents of highest office (somehow made National by panoply), including Prosperity (around the corner), including the People (always with silent elimination from that concept of particular objectionable elements, the negative selection varying to taste), including finally American Prestige as painted by pulp paper fiction, grade school history books and Fourth of July ora- tions. All of which is somehow identified with the War of Independence and with a Document, and conceived loosely as having existed, with minor aberrations, from the glorious beginning. ‘This popular loyalty, though real, is blind. It is almost empty of specific content. Therefore (a) it leaves the specialists free to shape and reshape the working Constitution in almost any way they please, and almost to any extent on which they get together—whether they get together by concerted action or by drift. But (b) the combination of in- tense loyalty to a symbol with total emptiness of concrete content means an ever-present latent possibility that the symbol may become attached in the popular mind to any concrete content at all. And persons opposed to any projected change may work the hook-up. And simple and clear language in the Document may mightily facilitate such an arrangement, even though it should fail to stir the inhibitions of the specialists at large, or of the judiciary in particular. Here, then, lie both the scope and the limits of the leeway which the general public affords the specialists. And be it noted that the scope it For the most potent limitation lies inside the skulls of the specialists. Whereas the public not only know nothing of the real operation of the Constitution—they also care nothing about it. What difference whether income taxation rests on “interpre- tation” or Amendment? What matter—to most—whether the 18th ‘Amendment be on the books, and if on the books, whether it or a Vol- stead Act do the forbidding; whether New York has thirty-nine repre- sentatives, or fifty-two, or eighty-seven; whether Congress or the States regulate longshoremen's accident compensation; whether impeachment of judges calls for majority, two-thirds, three-fourths, or unanimous vote; whether “to receive ambassadors” does or does not imply the power of refusing recognition to a foreign government? What farmer cares whether a mortgage-moratorium or scaling-down clashes with theTHE CONSTITUTION AS AN INSTITUTION 25 impairment of contracts clause? One can indeed in normal times con- ive an uproar if the electoral college should proceed to perform its original Documentary function, or if the President should seek to dis- solve Congress by action of the military arm. Bounds there are. But ‘The interested groups Tue Rove or THe Interestep Grours Wherefore one other type of limit should be mentioned. When faction by the specialists on a point of constitutional change pinches the personal toes of Albert Jones too sharply, Albert is likely to react as he does to less fundamental change of similar effect. If part of a group, lhe fights effectively to block or undo the change. If only one of an lunorganized class, he groans and gets nowhere, unless the pressure is painful and sustained enough to lock his fellows and himself together into an interested group. For the effective block upon constitutional change which ranges too far or in a direction undesired—alongside the self-limitation of the specialists, and the looming spectre of the Court—is the pressure of these interested groups. They are plentiful ; and many or most of them are single-minded, and motivated in a fashion which reminds one of the Economic Man. To the extent that they are groups at all, they are or- ganized ; to the extent that they have found intelligent leadership, they are effectively organized, and their organization is effectively applied where it will do them the most good. They '‘sce” bosses ; they persuade administrators; they lobby bills into the legislature and out of committee, or out of the legislature and permanently into committee; they draw the teeth of legislation during passage, or in the process of its “applica- tion”; or, if the bill serves them, they get teeth into it, and give “due” unofficial aid in its enforcement ; they discover barriers in the language of the Venerable Document, or in the cases “under” it, and press those barriers upon the courts, Nor is this all, ‘They also “educate” the public; they offer generous aid in framing and forcing the issues of Political campaigns. And I take the presence of such groups, and their activities in squeezing upon the specialists either directly or by way of first stirring the theretofore disinterested public, to be essential portions of the working Constitution of these United States. It is hard, without them, to see how our government would govern, The mind of a mere professor staggers in void when he attempts to conceive Manufacturers’ Association, Beet Sugar Interests, Public Utilities, Federation of Labor, Magazine Publishers, Oil, or United Realtors abstracted from the na- ™ Such as, e.g.. appears to be again emerging among farmers. Or must one subdivide into cotton, corn, tobacco farmers, and the like?