The fundamental distinction between a constitution and ordinary laws is similar to that between laws in general and their application by the courts to a particular case: as in deciding concrete eases the judge is bound by the more general principles of the constitution. The justification for these distinctions is also similar in both eases: as a judicial decision is regarded as just only if it in conformity with a general law, so particular laws are regarded as just only if they conform to more general principles. And as they want to prevent the judge from infringing the law for some particular reason, so we also want to prevent the legislature from infringing certain general principles for the sake of temporary and immediate aims.
All men in the pursuit of immediate aims are apt―or, because of the limitation of their intellect, in fact bound—to violate rules of conduct which they would nevertheless wish to see generally observed. Because of the restricted capacity of our minds, our immediate purposes will always loom large, and we will tend to sacrifice long-term advantages to them. In individual as in social conduct we can therefore approach a measure of rationality or consistency in making particular decisions only by submitting to general principles, irrespective of momentary needs. Legislation can no more dispense with guidance by principles than any other human activity if it is to take account of effects in the aggregate.
A legislature, like an individual, will be more reluctant to take certain measures for an important immediate aim if this requires the explicit repudiation of principles formally announced. To break a particular obligation or a promise is a different matter from explicitly stating that contracts or promises may be broken whenever such and such general conditions occur. Making a law retroactive or by law conferring privileges or imposing punishments on individuals is a different matter from rescinding the principle that this should never be done. And a legislature’s infringing rights of property or the freedom of speech in order to achieve some great objective is quite a different thing from its having to state the general conditions under which such rights can be infringed.
The stating of those conditions under which such actions by the legislature are legitimate would probably have beneficial effects, even if only the legislature itself were required to state them, much as the judge is required to state the principles on which he proceeds. But it will clearly be more effective if only another body has the power to modify these basic principles, especially if the procedure of this body is lengthy and thus allows time for the importance of the particular objective that has given rise to the demand for modification to be seen in the proper proportion. It is worth noting here that, in general, constitutional conventions or similar bodies set up to lay down the most general principles of government are regarded as competent to do only this, and not to pass any particular laws.
The expression “appeal from the people drunk to the people sober”, which is often used in this connection, stresses only one aspect of a much wider problem and, by the levity of its phrasing, has probably done to veil than to clarify the very important issues involved. The problem is not merely one of giving time for passions to cool, thought this on occasion may be very important, as that of taking into account man’s general inability to consider explicitly all the probable effects of a particular measure and his dependence on generalizations or principles if he is to fit his individual decisions into a coherent whole. It is “impossible for men to consult their interest in so effectual a manner—as by an universal and inflexible observance of rules of justice.”
It needs hardly be pointed out that a constitutional system does not involve an absolute limitation of the will of the people but merely a subordination of immediate objectives to long-term ones. In effect this means a limitation of the means available to a temporary majority for the achievement of particular objectives by general principles laid down by another majority for a long period in advance. Or, to put it differently—it means that the agreement to submit to the will of the temporary majority on particular issues is based on the understanding that the majority will abide by more general principles laid down beforehand by a more comprehensive body.
This division of authority implies more than may at first be apparent. It implies a recognition of limits to the power of deliberate reason and a preference for reliance on proved principles over ad hoc solutions; furthermore, it implies that the hierarchy of rules does not necessarily end with the explicitly stated rules of constitutional law. Like the forces governing the individual mind, the forces making for social order are a multilevel affair, and even constitutions are based on, or presuppose an underlying agreement on more fundamental principles—principles which may never have been explicitly expressed yet which make possible and precede the consent and the written fundamental laws. We must not believe that, because we have learned to make laws deliberately all laws must be deliberately made by some human agency, share common beliefs which make discussion and persuasion possible and to which the articulated rules conform in order to be accepted as legitimate.
1.For the author, the attitude of those who violate the law to meet their short aims is （ ）.
2.Which of the following is true?
3.What does the italicized expression ad hoc refer to?
4.Which of the following is closer to the truth?
5.Which of the following does not apply to this passage?
