Page:The Green Bag (1889–1914), Volume 18.pdf/93

 THE GREEN BAG

THE THREE DEPARTMENTS OF GOVERNMENT AND THEIR RELATION TO EACH OTHER BY HON. CHARLES E. LITTLEFIEL'D. EIGHTY millions of people in the United States govern themselves, and some eight million other people, by three great coordinate, independent, and each within its legitimate constitutional sphere, supreme departments, the legislative, execu tive, and judicial. Perhaps it would be more accurate to say that fourteen millions, as, in round numbers, that was all that participated in the last general election, dis charge that important function. While, theoretically and rhetorically, ours is a "government of the people, by the people, and for the people," in fact, it is a govern ment of all the people by less than one fifth of the people. In these three great departments is vested all the power delegated to the United States by the Constitution. All other inherent governmental power not "prohibited by it to the States" is "re served to the States respectively, or to the people." Any discussion of these exclusive factors of government involves to some extent a construction of the instrument from which they derive their power and by which they are created. The rules for such construc tion are perfectly familiar. It must be uniform; the intent must govern; the whole instrument must be examined; the common law is to be kept in view; its operation is to be prospective; necessary implication must be observed; the purpose to be accomplished will afford light; proceedings of the consti tutional convention, antecedent history, and contemporaneous and practical construction. in cases of doubt, are legitimate considera tions. There is, however, one broad, uni versal rule, which leads all in its importance. "On this subject, also, the Supreme Court has taken such frequent occasion to declare its opinion, as to make it unnecessary, at

least, to enter again into an elaborate dis cussion of it. To say that the intention of the instrument must prevail; that this inten tion must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contem plated by its framers, is to repeat what has been already said more at large, and is all that can be necessary. " (12 Wheaton, 332.) "The framers of the Constitution em ployed words in their natural sense, and where they are plain and clear, resort to col lateral aids to interpretation is unnecessary and cannot be indulged in to narrow or enlarge the text; but where there is ambig uity or doubt, or where two views may well be entertained, contemporaneous and sub sequent practical construction are entitled to the greatest weight." (146 U. S., 27.) This has become axiomatic, and Mr. Justice Harlan well said in a recent case (1900), "Cases almost without number could be referred to in which the same principles of constitutional construction are announced." (181 U.S., 321.) It is not proposed in this address to discuss the Constitution with the technical accuracy of a brief, as its purpose lies along broader and more general lines than those of nice and fine distinctions. Its scope is to be suggestive rather than exhaustive. In the light of experience and existing con ditions we may consider these departments as great factors in practical government. To this end historical research, comparisons with other systems afford no light that is commensurate with the learned and labo rious plodding involved. Beyond it, except in cases of doubt, we have no occasion to