Constitutional history -- United States -- Sources; Constitutional law -- United States
One of the precautions which he proposes, and on which he appears
ultimately to rely as a palladium to the weaker departments of power
against the invasions of the stronger, is perhaps altogether his own,
and as it immediately relates to the subject of our present inquiry,
ought not to be overlooked. His proposition is, “that whenever any two
of the three branches of government shall concur in opinion, each by
the voices of two thirds of their whole number, that a convention is
necessary for altering the constitution, or CORRECTING BREACHES OF IT,
a convention shall be called for the purpose. “As the people are the
only legitimate fountain of power, and it is from them that the
constitutional charter, under which the several branches of government
hold their power, is derived, it seems strictly consonant to the
republican theory, to recur to the same original authority, not only
whenever it may be necessary to enlarge, diminish, or new-model the
powers of the government, but also whenever any one of the departments
may commit encroachments on the chartered authorities of the others.
The several departments being perfectly co-ordinate by the terms of
their common commission, none of them, it is evident, can pretend to an
exclusive or superior right of settling the boundaries between their
respective powers; and how are the encroachments of the stronger to be
prevented, or the wrongs of the weaker to be redressed, without an
appeal to the people themselves, who, as the grantors of the
commissions, can alone declare its true meaning, and enforce its
observance? There is certainly great force in this reasoning, and it
must be allowed to prove that a constitutional road to the decision of
the people ought to be marked out and kept open, for certain great and
extraordinary occasions. But there appear to be insuperable objections
against the proposed recurrence to the people, as a provision in all
cases for keeping the several departments of power within their
constitutional limits. In the first place, the provision does not reach
the case of a combination of two of the departments against the third.
If the legislative authority, which possesses so many means of
operating on the motives of the other departments, should be able to
gain to its interest either of the others, or even one third of its
members, the remaining department could derive no advantage from its
remedial provision. I do not dwell, however, on this objection, because
it may be thought to be rather against the modification of the
principle, than against the principle itself. In the next place, it may
be considered as an objection inherent in the principle, that as every
appeal to the people would carry an implication of some defect in the
government, frequent appeals would, in a great measure, deprive the
government of that veneration which time bestows on every thing, and
without which perhaps the wisest and freest governments would not
possess the requisite stability.
Public-domain text, read in full here on John Shaqi.
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