A System of Political Science and Constitutional Law

MR. BURGESS has produced a work possessing conspicuous merits and conspicuous faults. It will both command admiration and provoke criticism; and it will be fortunate if the criticism does not overcrow the praise which it must receive. For the very fact that its good and its bad points are equally accentuated tends to make its bad points seem more prominent than any just estimate should pronounce them. It will serve the purposes alike of specific appreciation and specific criticism if, at the outset, a general chart be made of Mr. Burgess’s method and thought, and an outline of the excellences and defects which must be examined and estimated before his work can be appreciated as a whole.

Its excellences are excellences both of method and of thought. There is the utmost clearness and adequacy of analysis throughout the book : nowhere in the two volumes does one lose his way in the subject, or doubt for a moment concerning the bearings of what he reads upon the subject-matter as a whole. There is also, of course, what successful analysis always secures, namely, perfect consistency everywhere ; there is almost complete logical wholeness in the exposition. The reader enjoys the satisfaction, so rare in this day of easy writing, of being nowhere in doubt as to the author’s meaning.

These are excellences of a high order, and are excellences, obviously, not of method only, but of thought as well. The thought is for the most part clear, consistent, and certain. There is accurate knowledge throughout, also, and thoroughness in setting it forth.

The faults of the work, though equally evident, are not so easy of statement: the mind of the reader finds them distinct and irritating, but his vocabulary may find them subtle and difficult of explicit exposure. Stated in the plainest words that come to hand, they consist in a mechanical and incorrect style, a dogmatic spirit, and a lack of insight into institutions as detailed expressions of life, not readily consenting to be broadly and positively analyzed and classified.

We have now our scheme for a more minute and just examination of the contents of the work, whose importance no one can deny without fortifying his judgment by not reading it. The title of the work indicates at once the principal distinction upon which its treatment is based : one portion of it is devoted to those topics touching the nature and operations of the state which the author conceives to fall mainly within the domain of political science; another and quite distinct portion embodies such topics as fall exclusively within the domain of constitutional law. A sharp line of division is run between these two domains. Political science deals with those processes, whether legal or revolutionary, and with those conceptions, whether juristic or lying entirely outside the thought of the lawyer, by virtue of which states come into existence, take historic shape, create governments and institutions, and at pleasure change or discard what forms or laws they must in order to achieve development. Constitutional law, on the other hand, has a much narrower scope. It deals only with such part of political life as is operative within the forms of law, and obedient to its commands and sanctions. Juristic method scrutinizes laws, examines their contents, ponders their meaning, seeks to elicit from them their logical purpose ; does not concern itself with what they ought to contain, but only with what they do contain. The method of political science is much broader and freer. It does not hesitate to question laws as to their right to exist, to indulge bold speculations as to their foundations in the historical development and purposes of the people which has produced them, to account revolution just and necessary upon occasion, to say that laws are valid only so long as they contain some part of the national life and impede no essential measure of reform. Political science, in short, studies the forces of which laws are only the partial ami temporary manifestations, while constitutional law is a study of conditions wholly statical.

Almost all that is most individual and important in Mr. Burgess’s thought lies within the first portion of his work, which deals with the greater topics of political science. The two topics which stand forward most prominently in his treatment, as including all the rest, are Sovereignty and Liberty. The cardinal questions of systematic politics are, first, With whom does supreme political power rest, where is sovereignty lodged ? and second, What liberty does the sovereign vouchsafe to the individual, and what are the guarantees of that liberty ? But neither of these questions, nor any other questions whatever, either of political science or of constitutional law, can be discussed with any assurance of success without a most careful and consistent observance of the distinction between the state and the government. This is a distinction fundamental to every portion, great or small, of Mr. Burgess’s thought. Always, under whatever constitution, distinguishable in thought, the state and the government are in most modern constitutions distinguishable also in fact. Back of the government, or else contained in it, is that other entity in which there persists a life higher than that of the government, and more enduring : that entity is the state, which gives to the government its form and its vitality. State and government are never identical except in mere point of organization ; they may have the same organs, but they are not on that account the same thing. It is the state which is sovereign ; whatever person or body of persons constitutes the sole vital source of political power in a nation, that person or body of persons is the state, and is sovereign. In those periods of the history of politics in which the will of a king or of a prince has been decisive of law and conclusive as to individual liberty, the monarch has himself been the state. “Wherever minorities have established themselves as a ruling class, obeyed by all organs of government, there minorities have wielded sovereignty, have been the state. Whenever majorities command, the nation has itself become sovereign, has been made the state.

So much for the fact of the state as a thing separable from the forms of government, and merely operative through those forms. The organization of the state is another matter. Its organization may be identical with tlie organization of the government, as it practically is in England, where the House of Commons is sovereign ; or it may be distinct from the organization of the government, as it is among ourselves, where our constitutions are not changed by ordinary legislative process, but by other machinery specially arranged for the purpose. Only the state is superior to the laws ; the government is subject to the laws. The state makes constitutions ; governments give effect to them. Whatever power can change the constitution, that power is the state organized. Thus in England the government is organized in the Queen, the Lords, and the Commons ; but, the state is organized in the House of Commons alone, whose will, whenever it, is clearly determinate, is supreme. In France the state is organized in the National Assembly sitting at Versailles; tlie government, in the Chamber of Deputies, the Senate, and the President and Ministers. In Germany the government consists of the Emperor, the Reichstag, and the Bundesrath; but sovereignty resides in the Reichstag and a majority of the Bundesrath great enough to include at least forty-five out of the fifty-eight votes of that body. In the United States, while the government is organized in the houses of Congress and the President, the state has an alternative organization, represented by the two alternative methods of amending the Constitution permitted by Article V. of that instrument.

Nor does the significance of this distinction between state and government stop here. It is carried much further, to the upsetting of not a little familiar phraseology ; for it invades that portion of Mr. Burgess’s book which is devoted to comparative constitutional law, and commands his discussion of the forms of government. We can no longer speak of a federal state, but only of a federal government ; neither does there exist any dual state, though dual governments there may be and have been. Every state is single and indivisible, let governments have what duality or complexity they may. The sovereign body which can make or unmake constitutions is in every case a single body ; but the governments which give effect to constitutions may be made up of as many distinct and balanced parts as constitution makers may succeed in giving them. Sweden-Norway, for example, is not a dual state, for there is no such thing, but two states bound together in some important matters under a common government, which you may, if you choose, call a dual government.

If it be asked, Why must the sovereign will be always conceived of as single and indivisible, — why may it not be dual or treble, or multiple ? the answer is ready and emphatic : Because sovereignty is by very definition supreme will, and there can be but one supreme will. This is an old answer, sometimes supposed to have become long ago axiomatic ; only the reasoning here built upon it contains anything that is new.

Such is the theoretical side of the book, such its structure of thought. The importance and serviceableness of such an analysis will not for a moment be doubted. It is only in the application of it to the actual facts of political life, the actual phenomena of state growth, that difficulty enters. Mr. Burgess himself does not seem to feel that there are any difficulties. He is as confident in his application of this analysis as in his construction of it. It is characteristic of him to have no doubts ; to him the application of his analysis seems the perfect and final justification of it. His thoughtful readers, however, will experience much more difficulty and have many more doubts. For he makes specific application of his analysis to the governments of the United States, England, France, and Germany, — governments with which every student of politics is familiar, and whose history is known in detail. It is in his treatment of the history of these governments — a treatment in every instance as brief as it is confident — that our author is at his boldest in making trial of his theories. He subjects them to great risks in the process, and they by no means escape damage. Or perhaps it would be more just to say that, in seeking a very absolute exemplification of the truth of his theories at every stage of complex national histories, like those of Germany, France, and England, he displays an extraordinary dogmatic readiness to force many intricate and diverse things to accommodate themselves to a few simple formulas. He believes that he can specifically identify on the one hand the state, and on the other the government, in each period of the manifold development of these great nations, — that he can point out exactly, that is, the real possessors of sovereign influence or authority during each principal age of their political growth ; and the attempt must give every reader accustomed to deal with the multiform and delicate phenomena of such growth a distressing impression of crudeness and dogmatic presumption.

Perhaps the most striking example of this quality is afforded by Mr. Burgess’s confident analysis of our own national history in the terms of his theory. Without touch of hesitation, he formulates our history as follows: A national “state” came into existence among us in 1774 with the assembling of the first Continental Congress; so long as the Continental Congress continued to sit, it represented that state: in organization; when that state, thus in Congress assembled, consented to the formation of the Confederation, under the Articles framed in 1777 and put into operation in 1781, it consented to its own dissolution, for those Articles attributed statehood to the several commonwealths, denying in every provision the existence of any single national sovereign will ; but in the Constitution of 1789 the national state reasserted itself and regained organization, while the common wealths lost their statehood, and became once again merely governments. These conclusions Mr. Burgess reaches, not as a lawyer, of course, for they are without sanction in our legal history, but as a political scientist: they are the “ facts ” of the case as contradistinguished from the law of the case, — a distinction upon which he is careful to insist. The distinction is indeed valid, — nay, obvious enough: but many there be that are betrayed into singular error in the use of it. For the facts have to be determined ; and while it is generally easy enough to determine what the law is, political fact is subtle and elusive, not to be caught up whole in any formula. It is a thing which none but a man who is at once a master of sentences and a seer can bring entire before the mind’s eye in its habit as it lived, so many-sided is it and so quick to change.

It is always necessary to ascertain, therefore, just what a writer means by the antithesis between law and fact. Mr. Burgess believes, as we have seen, that a “state,” with a single sovereign will, sprang into existence, however imperfect its organization, with the assembling of the Continental Congress of 1774. He evidently, therefore, excludes opinion altogether from the category of “ fact; ” for he quite certainly would not undertake to prove that in contemporary thought there was any real recognition of the occurrence of so momentous an event. He admits, indeed, with perhaps a touch of regret, that “ the dull mind of the average legislator cannot at once be made conscious of such changes; ” and he would probably admit also that even legislators who were not dull, like Madison and Hamilton, for example, were quite unconscious that a state had been born in 1774, and destroyed in 1781. The truth is, of course, that political fact is made up largely of opinion. Opinion is no less a fact than is heat, or cold, or gravitation. It is a determining force, and for that reason a controlling fact ; in political development it is the fact of facts. If Mr. Burgess could but appreciate this, it would give life and significance to his theories such as in his own hands they do not possess. The national " state,” with its sense of unity and of a common purpose, if democratic in structure, comes always slowly into existence, with the habit of coöperation and the growth of the national idea. The commonwealths of 1774 esteemed themselves states, and were states; adding nothing to their independence and dignity, assuredly, by the arrangement of 1781, but on the contrary consciously curtailing their privileges thereby. States they remained both in consciousness and purpose when they entered the union consummated in 1789. The national “ state ” has come into existence since then by virtue of a revolution of ideas, by reason of national union and growth and achievement, through a. process also of struggle and of civil war. A state cannot be born unawares, cannot spring unconsciously into being. To think otherwise is to conceive mechanically, and not in terms of life. To teach otherwise is to deaden effort, to leave no function for patriotism. If the processes of politics are unconscious and unintelligent, why then this blind mechanism may take care of itself ; there is nothing for us to do.

The truth seems to be that Mr. Burgess does not keep the method of the jurist and the method of the political scientist quite so distinct as he supposes. The juristic method is the method of logic : it squares with formulated principles ; it interprets laws only, and concrete modes of action. The method of political science, on the contrary, is the interpretation of life ; its instrument is insight, a nice understanding of subtle, unformulated conditions. For this latter method Mr. Burgess’s mind seems unfit; the plain logic of concrete modes of action is much more natural to him than the logic of circumstance and opinion. Where he employs the forms and expressions of induction, therefore, he will often he found using in reality the processes of a very absolute deduction. He has strong powers of reasoning, but he has no gift of insight. This is why he is so good at logical analysis, and so poor at the interpretation of history. This is why what he says appears to have a certain stiff, mechanical character, lacking flexibility and vitality. It seems to have been constructed, not conceived. It suggests nothing; it utterly lacks depth and color. As a matter of fact, these defects do not invalidate in the least the serviceable analysis upon which the whole work is founded, neither do they rob its very excellent and lucid discussions of comparative constitutional law of their significance ; but they do put the author at a great disadvantage with his reader by creating the impression that the whole matter of the volumes has been arbitrarily conceived.

Mr. Burgess, constructing thus, does not write in the language of literature, but in the language of science. The sentences of the scientist are not sentences in the literary sense, — they are simply the ordered pieces of statements ; they are not built upon any artistic plan, but upon the homeliest principles of grammatical joinery, which cares nothing for color, or tone, or contrast, but contents itself with mere serviceable construction out of any materials that will hold together mechanically. There is no “ style ” about such writing; words are used simply as counters, without regard to the material out of which they are made, or to the significance which they bear in their hearts. A book thus constituted may be read much and consulted often, but can itself never live : it is not made up of living tissue. It may suggest life, but it cannot impart it. Doubtless the artificers of such writings do not pretend to be making literature, but they have no choice; if they do not write literature, they do not write truth. For political science cannot be truthfully constructed except by the literary method; by the method, that is, which seeks to reproduce life in speech. Constitutional law may perhaps dispense with the literary method in its expositions, but political science cannot. Politics can be successfully studied only as life ; as the vital embodiment of opinions, prejudices, sentiments, the product of human endeavor, and therefore full of human characteristics, of whim and ignorance and half knowledge ; as a process of circumstance and of interacting impulses, a thing growing with thought and habit and social development — a thing various, complex, subtle, defying all analysis save that of insight. And the language of direct sight is the language of literature.

It would not be possible to criticise these volumes in detail without criticising them in very great detail. The strong ideas that stand out in them will prove eminently serviceable to subsequent writers in the great field which they seek to occupy, and will doubtless pass into the literature of the subject ; but Mr. Burgess’s specific judgments upon the political history of the four great nations with whose institutions he chiefly concerns himself, his judgments also upon races and upon race development in the opening chapters of the work, every attempt that he makes, to unfold the interior meanings of national political development, must provoke sharp dissent and criticism. Perhaps this, in the absence of a suggestive method of treatment, will be the book’s means of stimulation. Its very dogmatism, indeed, will prove not unpleasant to those who have experienced a touch of ennui in this age of cautious, timid writing. It is an agreeable shock to hear once more the old confident phrase, " I have demonstrated.”You may not agree, but you may possibly admire the boldness of temperament which makes such phrases possible.

Mr. Burgess will not have done a bad thing if he hearten us once more to get clear ideas and put muscle into their defense. That is one way to rouse truth, though it may not be the gentlest or the best way.