Darrell Figgis

“ We are more frequently, in the intake and output of our lives, blacksmiths or architects, or whatever else, than we are individuals or citizens. Have we not rights and duties there too, both for ourselves and to the Nation; and should not the Constitution make provision for this, the larger part of our lives, as well as for the lesser parts? Can provision be said to have been completely made either for our own lives or for the interplay that constitutes the life of the Nation if this aspect be neglected? ”

“ Under the Constitution the minorites of the day have the honest chance of becoming the majorites of the morrow in a peaceable manner. But what would be the worth of this honest chance before a powerful Government unless these protections, these rights of a sovereign people, were placed in the care of the third institution of the Constitution, the institution entrusted with the interpretation and enforcement of laws?
It is true that the Judiciary may abuse its power (since power is nearly always abused) by interpreting social reform, let us say, to be "opposed to public morality." ”

“ Without some such provision a Constitution might be written in water, and its guarantees set aside by any powerful executive, or any executive not instantly answerable to the people's will. A provision of this kind is, therefore, a necessary democratic safeguard. It is true that in the United States the judicial review of the Supreme Court over legislative and executive acts has led to unfortunate decisions and much acrimonious discussion. The evils of an institution are always apparent, and no institution but has its evils. ”

“ But with the Referendum in their hands (especially with the Initiative added to it) the will of the people is always present. The people can hasten legislation where it moves slowly. They can retard it where it presses too fast ahead. They themselves can make the pace. And the effect on themselves is that with this added responsibility, they take a quick interest in their own concerns. In the first place they break up the power of political organisations; and in the second place they themselves become alert and educated citizens, responsible and intelligent guiders of their own destinies. ”

“ But when a Legislature and an Executive have been brought into existence, as necessary organisations for a people’s government of themselves, a Judicial organisation at once becomes necessary. For no law can so be made as of itself to fit each particular case. ”

“ The Canadian Constitution, for example, having provided for the Union of Provinces by which the Federation was created, begins at once with the statement that "the Executive Government and authority of and over Canada is hereby declared to continue and be vested in the Queen." Nothing has been said about a Legislature—nothing about the people of Canada. The Constitution begins at once with an Executive Authority which nothing has brought into being, and which therefore exists of its own right, original and indefeasible, all things else in the Constitution depending from it. ”

“ Unfortunately few people regard their Judicature with the same pride of possession with which they (sometimes) regard the Legislature, and even the Executive. Even when folk; disapprove of their law-makers and their ministers, they disapprove because they conceive they have acted mistakenly on their behalf, whereas they conceive of judges as having acted from a malignancy inborn in them or in the system, with the kind of disapproval reserved for those who are created and are destined to act against their behalf. ”

“ For if the passing of a Constitution is an act of full sovereignty, and if that Constitution, being a Fundamental Law, restricts and limits all future law-making, then the assemblies to come which will pass those future laws will not be sovereign.
They will not be able to do what they will, and they will not be able to act as they will, for they must obey the requirements and act within the limits of the Constitution, as prescribed by the first Assembly, which alone was of full sovereignty. ”

“ In the degree in which it is neglected, or frustrated, there is suspicion, irritation, discontent. And as it is always the Executive which tends naturally, where it does not intrigue deliberately, to upset that order, by gathering all power into its hands, obviously the provisions respecting the formation and maintenance of Executive Power are the most critical part of every Constitution. ”

“ But by making the entire country one constituency for the election of the Senate, no merely local interest will have power to secure election. And thus it will be possible to find a place for the Senatorial Person from, as the Constitution reads, "citizens who have done honour to the nation by reason of useful public service, or who, because of special qualifications or attainments, represent important aspects of the nation’s life." ”

“ The mere existence of the Referendum has proved to be a check on legislation that might otherwise have been carried by parliamentary manoeuvring for votes. The people, in actual fact, have proved to be both purer and more conservative than their representatives; and the tendency towards economy in the expenditure of public moneys has, in the main, been not the least benefit it has conferred. People are little inclined to study bills debated in the national assembly when they realise that they are powerless to change or check the measures it may pass. ”

“ For it is a sound rule that the people are generally better than their representatives—wiser of counsel, more disinterested of judgment—and it is therefore provided in the Constitution that there shall be an Assembly of Representatives, but that the people may require of that Assembly that laws be referred to them for final decision, or that laws be made to suit their desire. ”

“ The injustice would exist; but it would be limited; and lawyers of another country might be supposed to wish to search for justice, even if the trading enterprise had its seat in their own nation and the individual were Irish. But a Constitution is the very charter of a nation's freedom.
Cases concerning an interpretation of the Constitution are vital to a whole people, and, as between two nations, vital to international safety and polity. ”

“ There is, indeed, much virtue in the liberty of the Chamber to appoint as Ministers persons who may be specially qualified, but who may not be members. In the jostle at the hustings to enter a Chamber of but two hundred members it is unlikely that the best ability would always succeed, if it were so much as willing to share the fray. A Legislature should therefore not be hampered in the choice of its Executive by restricting that choice to two hundred persons. If persons, not members of the Chamber, were appointed as Ministers, clearly they could not vote ”

“ But since the road is, admittedly, neither of the straightest nor of the purest, the expectation of impartial and indifferent justice would be a fool's dream. And where a Court exists from which a people presumes injustice in advance, the wells of security and good order are at once poisoned. ”

“ For there are many questions that cut clean across all parties, which dare not offend a majority or a minority, and where therefore the unity of the party comes before the interest of the nation. But minorities from all parties may join, and in Switzerland have joined, together to press for their adoption, with the consequence that the National Assembly has had no alternative but to frame legislation to deal with them. And when such legislation has come before the people by the Referendum, the people have in many cases adopted them. ”

“ For parties, in so far as parties represent true economic issues, are a natural and inevitable medium for conducting the government of a country. Where parties do not represent such issues, but are held together by unnatural organisations, they do, it is true, obscure the orderly government of a country. The remedy is to be found, not in an enforced and arbitrary creation of an Executive, but in the right election of the Legislature, of which the Executive must be a reflection if the Legislature is to work harmoniously with it, and keep a constant control over it. ”

“ It is therefore the plain duty of every Constitution to keep the Executive simple and flexible, responsive always to the will of the Legislature, as the Legislature should always be responsive to the will of the people. Crises will arise in the history of every nation when the powers of the Executive require to be strengthened ”

“ Moreover, in England it is frequently the practice to recruit the higher offices of the Judiciary, not from men of acknowledged skill in the achievement of equity, but rather from men who have snatched a casual eminence in the heat of party strife, men of political passions and political prejudices, who have come to the front by the very profession of partisanship. ”

“ But where there are no Federated States the people’s direct bestowal of authority cannot be evaded if friction and loss of strength are to be avoided. Thus one returns to the original problem, which is, how the people shall choose a Senate which will not be a copy of the Chamber of Deputies, and how the Senatorial Person will find his way to the councils of the nation, bringing with him an unanswerable authority. ”

“ This, then, is the first definition of a Constitution, that it contains the Fundamental Law of a State, and only the Fundamental Law. In England there is no such thing as a Fundamental Law. It is claimed by English constitutional lawyers that this is because Parliament is sovereign; but the historical truth is that in England Parliament exercises a sovereignty in fact which the King is supposed to exercise in theory; and any attempt to make the theory square with the fact by the writing of a Fundamental Law ”

“ It is such men who will form for the most part the lawyers of the Judicial Committee. Even if the road to that Committee were of the straightest and purest legal character, no reasonable person would expect it to deliver impartial judgment on the Fundamental Law of another nation, especially if an adjustment of the liberties of two nations were concerned, one of those nations being, more than conceivably, their own. ”

“ It reveals a fear of the exercise of the Referendum that experience in other countries does not justify. With the wide franchise allowed in the Constitution, the tendency will be to play into the hands of political parties, and one of the purposes of the Referendum is to destroy the power of political parties. ”

“ In the Irish Constitution, as in most modern constitutions, this order is inverted. The sovereignty is below, and the subjection is above. Never once throughout the Irish Constitution (either in its original or its present form) are the people once considered as subjects, but always as sovereign citizens. The pyramid is based on the broad earth, in the divine right of the people; and a beginning is therefore made with the base, proceeding upward to the apex. The plan in fact is reversed because the philosophy is different. ”

“ THE MAKING OF LAWS.
All powers of Government may derive from the people, but the people cannot of themselves govern themselves. In simple small communities the people may gather together and frame the manner of their government from meeting to meeting (and only then when ancient custom has given them the practice and expectation of such assemblies) ; but among nations for a people to discipline and rule themselves it is necessary that they bestow recognised and definite powers of government on representatives of their choice. ”

“ In addition to this, however, it is to be remembered that the lawyers composing the Judicial Committee are obviously unfamiliar with the principles underlying the structure of our Constitution, since they are quite unlike the principles with which they themselves have to deal. One need not argue which are the better. It is enough that they are unlike. A mechanic cannot be supposed to deliver impartial justice between two farmers in a matter of farming economy. ”

“ Times differ. Constitutions made at a time of fixed social and political ideas, are necessarily fixed in their provisions. Constitutions made at a time, such as the present, when social and political ideas are rapidly shifting and changing must needs indicate the likelihood of change in certain directions; and make allowance for such changes. It is therefore striking to notice that in nearly every Constitution made during and since the Great War such indications are scattered freely. ”

“ But the truth is that such representatives are merely a convenience. They are a people's instruments, and no more. Without them the achievement of a common agreement, and the formulation of laws based on that common agreement, would prove so cumbersome as to be impossible. A people must therefore tolerate them with good humour; and keep them under proper control. And when such representatives have been chosen, they together form an organised body for the making of laws, and for the supervision and control of the execution of such laws. ”

“ It may even happen that the citizen of a State, or a combination of citizens, may have a plain case to be carried to such a Court as against their State, if a Court of sufficient impartiality could be established. States are not always immaculate of justice, particularly to minorities. ”

“ The famous case of the Loch Neagh fisheries is enough to prove that only those who are familiar, not only with Irish circumstances, but with Irish history, can expect to deliver justice in Irish matters. ”

“ For this reason every nation has gone to great care to choose persons of special competence for the body which is to act as a Constituent Assembly—^the body, indeed, which is to act as the first, and, so long as that Constitution shall remain, the last Sovereign Assembly of the nation. ”