De Constitutionis Natura: After Seventy Years
This essay is an attempt to revise an article I wrote for Social Science's April 1948 issue, entitled "De Constitutionis Natura, a play on the Roman poet Lucretius' 'De Rerum Natura.'" The article was as pretentious as the title, promising to explain America's fortunate history through the agency of its Constitution. My judgment grew out of an experience in the Philippine island of Samar in August 1945. I had an opportunity then to look into the city hall where the constitution of the puppet Philippine government installed by the conquering Japanese, hung on a prominent wall. It remained there despite the return with General MacArthur of the Philippines liberated government.
At the time I was a cryptographer in the Signal Corps with the U.S. Eighth Army on the island of Leyte. As a veteran of the invasion of that island in October 1944, I was given interesting assignments. Among them was a two-week visit to a Filipino unit on the neighboring island of Samar to ensure that it was not compromising the primitive cryptographic equipment supplied by the U.S. Army. It was an agreeable mission given the relatively few Japanese soldiers holed up in the hills surrounding the capital city of Calbayog. The presence of armed former guerrillas seemed to have bothered the citizens more than a potential Japanese raid. In this setting I had ample time to wander around the city before settling on the city hall.
There to my surprise was what seemed to be a replication of the U.S. Constitution. It has all the trappings of the American model, arguably influenced by President Jose Laurel's experience as a student at Yale in the 1920s. The same three articles that inform the U.S. Constitution were central to the document--the Executive, Legislature, and Judiciary. The order, however, was rearranged. The Executive was listed first as Article II, which realistically reflected the balance of power in the government. It stated that the President, with the concurrence of two-thirds of all the members of the National Assembly, shall have the power to make war and make peace. The legislature was not only an inferior branch of government but was unicameral without the checks of a bicameral Congress. Nor was there any provision for the impeachment of the President in the 1943 Philippine Constitution.
The basic elements in the U.S. Constitution were the many checks on the powers of any one branch. These were absent from the Philippine Constitution. The importance of competing interests to keep the executive from gaining excessive power was expressed eloquently by James Madison in Federalist No. 10, and one of eighty-five essays written by Alexander Hamilton, Madison, and John Jay in 1788 and 1789 in several New York newspapers to persuade New York voters to ratify the proposed Constitution. These essays were published as the Federalist Papers. The separation of powers was a fundament shared by all the authors, particularly Hamilton in Federalist No. 66, in which he envisioned the House of Representatives limiting the power of the more conservative Senate. As Madison in Federalist No. 51 vividly observed, "if men were angles, no government would be necessary. If angles were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed. And in the next place oblige it to control itself."
There were not the concerns of the Philippine Constitution of 1943. It was obvious that the Japanese wanted a President strong enough to dominate a potentially uncooperative legislature but still under the control of their...