Our institutional law is like the atmosphere—­impalpable, imperceptible, but all-pervading, and the source of life itself.  Most leading decisions of our courts of last resort, involving great constitutional questions, refer to the spirit of our institutions as interpreting our Constitution.  It is our institutional law which, flowing like our blood through the written Constitution, gives that instrument vitality and power of development.

Institutional law existed before the Constitution.  Our institutions had their beginnings well-nigh with the beginning of time.  They have developed through the ages.  Magna Charta only marked a period in their growth; the assertion of the rights of the Commons marked another; our Revolution marked another; the adoption of our Constitution marked another still.

I have no respect for constitutional learning which deals alone with the written words of the Constitution, or even with the intention of its framers, and ignores the sources and spirit of that great instrument.  The Constitution did not give us free institutions; free institutions gave us our Constitution.  All our progress toward liberty and popular government, made since the adoption of the Constitution, has been the spirit of our institutions working out its sure results, through the Constitution when possible, modifying it when necessary.

Jefferson wrote in the Declaration of Independence a denunciation of slavery, and called it an “execrable commerce.”  It was stricken out at the request of Georgia and South Carolina, and years afterward slavery was recognized in our Constitution.

But slavery was opposed to the spirit of our institutions, and while legalized by our Constitution and defended by armies as brave as ever marched to battle, constitutional slavery went down before institutional liberty; and Appomattox was the capitulation of the word of death in our Constitution to the spirit of life in our institutions.  Every amendment of our Constitution marks the progress of our institutions.

The Constitution contemplated and provided for the election of Presidents by electors, who should select the best man to preside over the Republic, irrespective of the people’s choice.  That was the intention of the fathers.  But in that they did not correctly interpret the spirit and tendency of our institutions, which is toward getting the Government as close to the people as possible.

And so, in spite of the Constitution, in spite of the intention of the fathers, in spite of the fact that this plan was pursued for several elections, the spirit of our institutions prevailed over our Constitution, and no presidential elector now dare cast his ballot against the candidate for whom the people instruct him to vote.

Even outside of the doctrine of implied powers by which our written Constitution has been made to meet many of the emergencies of our history, there are important things in our National life that have all the force of organic law which are unprovided for by the Constitution.  For example, the Constitution does not say that a congressman must live in the district which he represents.  So far as constitutional law is concerned, he might live anywhere.  But no matter—­our institutional law settles that.  The theory of local self-government requires the representative of a locality to live in that locality.