The folly of this system may be further elucidated, if further elucidation be necessary, from the following dilemma. Either a people must be governed according to their own apprehensions of justice and truth, or they must not. The last of these assertions cannot be avowed, but upon the unequivocal principles of tyranny. But, if the first be true, then it is just as absurd to say to a nation, 'This government, which you chose nine years ago, is the legitimate government, and the government which your present sentiments approve, the illegitimate'; as to insist upon their being governed by the dicta of their remotest ancestors, even of the most insolent usurper.
It is extremely probable that a national assembly, chosen in the ordinary forms, is just as well entitled to change the fundamental laws as to change any of the least important branches of legislation. This function would never perhaps be dangerous but in a country that still preserved a portion of monarchy or aristocracy; and, in such a country, a principle of permanence would be found a very feeble antidote against the danger. The true principle upon the subject is that no assembly, though chosen with the most unexampled solemnity, is competent to impose any regulations contrary to the public apprehension of right; and a very ordinary authority, fairly originated, will be sufficient to facilitate the harmonious adoption of a change that is dictated by national opinion. The distinction of constitutional and ordinary topics will always appear in practice unintelligible and vexatious.
The assemblies of more frequent recurrence will find themselves arrested in the intention of conferring eminent benefit on their own country, by the apprehension that they shall invade the constitution. In a country where the people are habituated to sentiments of equality, and where no political monopoly is tolerated, there is little danger that any national assembly should be disposed to enforce a pernicious change, and there is still less that the people should submit to the injury, or not possess the means easily and with small interruption of public tranquillity, to avert it. The language of reason on this subject is, 'Give us equality and justice, but no constitution. Suffer us to follow, without restraint, the dictates of our own judgement, and to change our forms of social order, as fast as we improve in understanding and knowledge.'
The opinion upon this head, most popular in France at the time (1792)Chapter hat the national convention entered upon its functions, was that the business of a convention extended only to the presenting the draft of a constitution, to be submitted in the sequel to the approbation of the districts and, subsequently only to that approbation, to be considered as law. This opinion is deserving of a serious examination.
The first idea that suggests itself respecting it is that, if constitutional laws ought to be subjected to the revision of the districts, then all laws ought to undergo the same process, understanding by laws all declarations of a general principle to be applied to particular cases as they may happen to occur, and even including all provisions for individual emergencies that will admit of the delay incident to the revision in question. It is a mistake to imagine that the importance of these articles is in a descending ratio, from fundamental to ordinary, and from ordinary to particular. It is possible for the most odious injustice to be perpetrated by the best constituted legislature that ever was framed. A law rendering it capital to oppose the doctrine of transubstantiation would be more injurious to the public welfare than a law changing the duration of the national representative from two years, to one year, or to three. Taxation has been shown to be an article rather of executive than legislative administration; and yet a very oppressive and unequal tax would be scarcely less ruinous than any single measure that could possibly be devised.
It may further be remarked that an approbation demanded from the districts to certain constitutional articles, whether more or less numerous, will be either real or delusive, according to the mode adopted for that purpose.
If the districts be required to decide upon these articles by a simple affirmative or negative, it will then be delusive. It is impossible for any man or body of men, in the due exercise of their understanding, to decide upon any complicated system in that manner. It can scarcely happen but that there will be some things that they would approve, and some that they would disapprove. On the other hand, if the articles be unlimitedly proposed for discussion in the districts, a transaction will be begun to which it is not easy to foresee termination. Some districts will object to certain articles; and, if these articles be modelled to obtain their approbation, it is possible that the very alteration, introduced to please one part of the community, may tender the code less acceptable to another.
How are we to be assured that the dissidents will not set up a separate government for themselves? The reasons that might be offered to persuade a minority of districts to yield to the sense of a majority are by no means so perspicuous and forcible as those which sometimes persuade the minority of members in a given assembly to that species of concession.