While both parties also accepted and complied with the requirement of democratic
consent, they diVered radically over how they understood that theXow of inXuence
should move within their ranks and within the electorate, from the top down or
from the bottom up. ‘‘Tory democracy’’ still bore strong traces of premodernnoblesse
obligeand deference. Labour’s sense of working class solidarity was strengthened by
traditions of an organic society which harmonized with trade union dominance.
So the British constitution, as constitutions must be if they are to perform their
coordinating function, was accepted by all participants despite their conXicting
partisan perspectives. And indeed, thanks to its ancient authorization of the
dualism of government vs. opposition, the constitution so framed perceptions
and preferences as to favor a two-party system. As the changing political culture
reshaped the institutions of party and group behavior, the constitution, that
institution of institutions,Wtted them to its enduring contours.
In the American case the democratic thrust of the constitution was dominant,
the preamble of its legal text declaring it to be ordained by that ultimate sovereign,
the People of the United States. Although its norms cannot compete with the
British in antiquity, they display rigidities with notable powers of endurance. There
is that 1787 text of explicit rules of law establishing and empowering our institu-
tions of government. To be sure, in the course of constitutional development, this
body of law has been changed by amendment, as in the case of theWrst ten, the Bill
of Rights, and the three massive amendments occasioned by the Civil War. Few in
number, however, the amendments have done little to oVset the popular impres-
sion, often conWrmed by the rhetoric of editorial writers and even judges, that we
enjoy a wise and unchanging code bequeathed to the ages by our Founding Fathers.
Actually and, on balance, fortunately, that amended text is being continually
transformed by its reinterpretation by the Supreme Court exercising its power of
judicial review. The constitution’s ‘‘ambiguous libertarian generalities,’’ to use
Justice Frankfurter’s phrase, such as ‘‘due process of law’’ and ‘‘equal protection
of the laws,’’ have been something of a palimpsest for profound rewriting of the
verbal texts. In performing this function, the Court, it has been said, follows the
election returns, sometimes, however, lagging far behind, sometimes forging far
ahead. For instance, the words that were held to justify racial segregation in 1896
were not held to prohibit it until 1954. In those postwar years, the Warren–Burger
Court served as the most active agency of American government in pressing
forward the liberalizing of public policy. Given the ambiguity of the general
language of the constitutional text, the Court cannot help being a law-making
rather than a mere law applying institution.
Our constitutional norms, however, depend not only on the amended text
and judicial interpretation, but also, in the British manner, on conventions, old
or new. By convention the two-term rule on the presidency prevailed from the
encounters with modernity 707