I. PRELIMINARY CONSIDERATIONS.

359. Before proceeding to examine the constitution in detail, it is important to consider what were the conditions under which it was framed. In investigating these conditions we are not concluded by expressions of opinion by members of the constitutional convention. Organic laws, like all other laws, are the product of the conscience and the necessities of the people

from whom they emanate and by whom they are accepted.1 No law, constitutional or statutory, is effective unless declaratory; and in determining what the law really is in other words, to get at the real law of which the formal law is the declaration-we must penetrate to the people, who are the primary law constructors as well as the adopters of the law. Nor is it sufficient to inquire what the people did or said. Primary law-making is unconscious and instinctive; it comes without observation; we must examine, in order to understand its processes, the forces by which it was produced, and the environments to which they were subjected. Hence, while in construing the constitution it is proper to take into consideration the views expressed by the members of the constitutional convention, we must remember that the constitution was evolved in a large measure unconsciously from the conditions in which the community was placed; and it by no means follows, because the formal framers of the constitution succeeded in giving substantial expression to the national conscience and needs, that what they said is equally authoritative with what they did and with what caused their action. In combining, for instance, the two great political factors of the country-the states and the people of the nation-some of the framers of the constitution may have given wrong reasons for a conclusion which was the expression of a national duty and necessity; and it is conceded on all sides that while the clause providing for an electoral college responds to the sense of right and sense of expediency in the nation as a whole, the intentions of those who put it into technical form were very different from the instincts of the constituencies they represented as effectuated in its practical working. It was not in accordance with the people's sense of right and sense of need, that they should part with the prerogative of choosing their chief magistrate. Chosen in such a way as to recognize state demarcations he was to be; yet by the people themselves the choice was to be made. Hence, in construing this and similar clauses which have taken a practical meaning different from

Supra, §§ 14, 19. * Supra, § 27.

• Supra, § 22.

"We cannot escape

history." Close of Mr. Lincoln's message of Dec. 1, 1862, where this position is pressed; see further, infra, § 593.

that assigned to them by the members of the convention,' we must go to the past and cotemporaneous conditions of the country as the primary .source from which the meaning of these disputed terms is to be drawn. So it is with the constitution as a whole. It was declaratory, not of the views of its formal framers, though these views are always interesting, but of the conditions under which they acted; and the permanency of the constitution is due to the faithfulness with which it represented these conditions. Hence, in construing it, we

are to consider, not merely, nor even chiefly, what was said by the members of the constitutional convention, but the conditions under which they acted. In other words, as the constitution was the effect of political conscience and need of the people, it is essential in construing it, that such conscience and need should be taken primarily into account.

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$ 360. What has been said serves to explain the drift of the arguments published by the judges of the supreme court of the United States, and by the great lawyers who have appeared before them, when seeking to determine the meaning of the constitution. In these arguments, whether consisting of opinions of judges or of speeches of counsel, it is to be noticed that the chief place is assigned to the consideration of the conditions which acted on the country both before and during the framing of the constitution, while the speeches of the members of the constitutional convention occupy but a subordinate position. As instances of this mode of exposition may be mentioned, the opinions of the judges of the supreme court of the United States in the legal tender cases, on the reconstruction cases, on the case involving the constitutionality of the statute prohibiting polygamy in the territories. Rare, indeed, are the citations in these documents from the views expressed by members of the constitutional convention. On the other hand, the whole history of the country is appealed to in each case to show what was the country's mind in establishing the constitutional provisions under discussion. And

1 Supra, § 19.

2 Infra, § 612.

opinion of Chief Justice Waite in U. S. v. Reynolds, 98 U. S. 145, we shall find it

If we analyze, for instance, the bases the constitutionality of the ter

this is the more remarkable from the fact that this reference to the history of the country is not made for the purpose of showing that the country acts as a democracy, and that therefore its views, when so acting, are to be ascertained. So far from this being the case, it is assumed throughout that this is not only a constitutional government, and therefore a government under complicated checks and balances, but that the past history of the country shows that this has always been the case. What we can understand the courts as saying in these and other cases is that certain forces were operating in producing a government of a particular type, and that in order to determine the type they explore the forces. That this is a far more legitimate way of getting at the meaning of the constitution than is the searching of the speeches of the members of the constitutional convention, cannot be questioned. Public men do not always give the real reason for their acts; their acts are produced by the conditions under which they act, but their speeches do not necessarily exhibit those conditions, and if they did, the proof they would give would be secondary, not primary. Hence it is, that in the opinions before us the courts, by what is called judicial notice, take within the field of their consideration, as elements by whose aid the constitution is to be construed, the whole of the country's past and present. And this is necessary. Not only is language itself a product of the past-not only is there no single disputed word that we can understand without taking into view its history-but the constitution itself is, as

ritorial polygamy statutes: (1) On the supremacy of the general government over the territories as shown by the history of the country; (2) On the incompatibility of polygamy with the public sense of right, as also historically shown. The same line is followed in the opinions on reconstruction. Such is the line, also, adopted by Mr.Webster in his great argument in the case of the Rhode Island government (6 Webster's Works, 220 et seq.). The question was whether a state constitution could be amended by a popular vote without

prior authorization from the legislature. He denies this, and he rests his conclusions on two positions: (1) The past of the country shows that without legislative initiation no constitutional changes have been made; (2) The conscience of the American people, following in this respect their English ancestors, is institutional so far as concerns government; liberty is essential, but it must be liberty according to rule. That this is the case in the construction of statutes, see infra, §

612.