Federal Usurpation (1908)

Franklin Pierce (1853-19XX)

CHAPTER 1
The Birth of the Constitution

“Though small in their mere dimensions, the events here summarized were in a remarkable degree germinal events, fraught with more tremendous alternatives of future welfare or misery for mankind than it is easy for the imagination to grasp.”

John Fiske

“The Constitution has found many learned and intelligent commentators; but they have all considered its excellence to be an undoubted and universally admitted fact. What should have been only the result of their investigation they made the premises of their arguments. . . . The historical fact is that it was ‘extorted from the grinding necessity of a reluctant people.'”

von Holst

“The English Constitution, in a word, is framed on the principle of choosing a single sovereign authority, and making it good; the American, upon the principle of having many sovereign authorities, and hoping that their multitude may atone for their inferiority.”

Bagehot

A CONSIDERABLE proportion of our American people have ever deprecated any criticism of the Constitution of the United States. Any suggestion that the constitutional adjustment of Congress, the President, and the Supreme Court is defective is considered unpatriotic and un-American. They appear to think that it is the duty of the true patriot to ignore imperfections lest they throw discredit upon the sacred provisions of the Constitution. No free government can exist long unless there are a considerable number of men ready for unsparing examination and criticism of its weaknesses.

It is uncommon to see the laws and constitution of a state openly disregarded. It is the silent and gradual attacks that the citizen should watch with jealous care. When government inspectors supervised the elections for representatives in Congress in the reconstruction days, and counted ballots for state candidates as well as for members of Congress, the citizen felt the indignity and assailed it with resentment. When, however, usurpations may be hidden behind a government so complicated by checks and balances that the citizen cannot perceive them, the nature of the government may entirely change and the spirit of the original constitution be lost before he awakes to the danger. Such a form of government, which hides usurpation and is a constant temptation to usurpation, we certainly have.

Prior to the formation of our National Government the people imposed limitations upon the monarch or upon some centralized power of the government. Magna Charta, the Petition of Right, the Bill of Rights, all were imposed as limitations upon the power of the English king. In all modern parliamentary governments the power of the people in the representative body of the government is supreme. We alone have limited the power of our House of Representatives to such an extent as to cripple effective action on their part. A bill introduced in the House of Representatives and there passed must receive the assent of the Senate, a body elected not by the people but by the State Legislatures, before becoming a law. If the Senate does assent, it then goes to the President, who can reject the same giving his reasons therefor. If passed a second time by a two-thirds majority of each House, the Supreme Court of the United States may still hold it unconstitutional.

The chief value of a constitution in a democratic form of government, such as we are supposed to have, is to afford ready means for the expression in laws of the will of the people through responsive legislative action. The best form of party government is found where two parties espouse conflicting principles and fight out the question of their value in the open. The Constitution of the United States does not give such free and effective play to public opinion in government.

The checks and balances which it has created make the free expression of the convictions of the people by a political party almost impossible. In eleven different Congresses since the adoption of the Constitution both the President and the Senate have been of a different political faith from the House of Representatives. During a period of eighty-four years of our constitutional history a majority in the House of Representatives has not been supported by all the other branches of the Government. Between 1874 and 1896 there were but two years, the Fifty-first Congress, during which the same party had a majority in all the branches of the Government.1

Clean-cut issues between parties upon principles of government are impossible with such a Constitution, whereby the President and the Senate may represent one party, and the House of Representatives another party, and where both parties, hidden behind Congressional committees, may be acting collusively. If public opinion upon national questions is to be made effective in government, the House of Representatives, elected directly by the people, must eventually become the governing power in this country. Its decay during the last thirty years is an omen of great danger.

We hear much said in these days about the extension of the powers of the National Government by judicial construction, but no appeal is made by the President and Mr. Root to the people or to Congress for an amendment conferring such extension. And why not? Such an amendment cannot be considered by the people unless two thirds of both Houses of Congress shall deem it necessary and shall propose the amendment to the People for their adoption, or two thirds of the several states shall call a convention for proposing the amendment, and in each case it must be ratified by the legislatures of three fourths of the several states. We are fold that during the fifteen years from 1889 to 1904 435 amendments to the Constitution were proposed in Congress,2 and not one passed both Houses. No force less than the force of revolution can be expected to move this cumbrous machinery. The President and Mr. Root well know this. They know the difficulties of bringing about an amendment, and so we are told that the results will be accomplished by the exercise of judicial discretion in the construction of the Constitution.

Such a constitution, with so many checks and balances, with so many difficulties of amendment, is a constant temptation to President and Secretary, to Senate and House, to usurp power. Unless the American People awaken to the danger of usurpation and make one supreme struggle to modify the conditions on which the Constitution may be amended, we are in imminent danger of an entire change in our institutions through gradual encroachments upon the power of the states. Our state constitutions are amended with ease. Many of them provide for constitutional conventions each twenty years to consider the changes which new conditions have made necessary. But our National Constitution continued from early in the nineteenth century for over sixty years without a single amendment, and from the Reconstruction Period until the present time without another.

Let us now inquire how this undemocratic Constitution came into existence. Who conceived all these checks and balances upon the representatives of the people in the lower House, and what considerations impelled the making of such a Constitution? That the people had no such fear of their representatives is shown by the fact that the first constitutions of the thirteen states in nearly every case gave almost unlimited power to the popular branch of the Legislature. In nine states the judges were appointed by the state legislatures, either with or without the consent of the Council. The appointing power of the governor was largely restricted in nearly all these states. In six of them this power was given to the Legislature or to the Legislature and Council. The veto power was given the governor in only two states, Massachusetts and New York. The Assembly in each state was hampered but little by executive veto or by the courts. Madison, speaking in the convention which framed the Constitution, said: “Experience shows a tendency in our government to throw all power into the legislative vortex. The executives of the states are little more than ciphers; the legislatures are omnipotent.”

England had parliamentary government with Pitt as Prime Minister at the time when our Constitution was framed, but the English Government of that time was by no means so popular in form as the governments of the thirteen states. The masses of the people were just as strong then in the sincerity of their belief in liberty as we are today in the cynicism of our single-hearted faith in riches. They had staked everything in the world for the vindication of the principles of liberty. No people in the world at that time would have been so quick to resent and so ready to scrutinize and so brave to fight attacks upon their liberties. They took alarm at once at a Constitution which they feared would imperil those liberties. The fear of kings might be a reason why they should erect barriers against the encroachments of the President, but why they should place limitation after limitation on the powers conferred upon the House of Representatives elected by their direct vote is not so easily explained. That explanation, however, is found in the opinions of the men who drafted the Constitution. They had great fear of popular government, and their fear would seem to have had considerable ground at that time for its existence.

We shall not appreciate why the limitations in the Constitution upon popular action were created if we do not understand clearly the conditions of the people in the thirteen states at the time of its formation. John Fiske, in his book entitled “The Critical Period of American History,” has described fully those conditions. The characteristic feature of the Constitution, putting limitation after limitation upon popular action, was a direct result of the reaction which came from popular tumult and popular abuses during that critical period.

During their seven years’ war the 2,500,000 people of the thirteen states had placed nearly 300,000 troops in the field, and had raised $170,000,000. The army, however, had dwindled from 46,901 toward the middle of the war to 13,832 in 1781, and the revenue had dwindled from $22,000,000 to $2,000,000 annually. But for the timely aid of France the Revolution could never have been successful. At the end of the war the resources of the country were so exhausted that no money was left to pay the arrears of the soldiers in the field nor the running expenses of government.

The treaty between the Confederation and England in 1783, while it terminated the war, at the same time destroyed the foreign commerce of the states. Prior to the Revolution the New England States had been largely engaged in the carrying trade between the colonies and the West Indies. The building of ships and the sailing of ships was the great industry of New England. The treaty of 1783 closed the ports of every English colony to New England ships. The English Navigation Act impaired very greatly the ability of the Southern and Middle States to export their products. The result was that New England and the South, without money in gold and silver, with only their continental currency, and with their trade destroyed, were crippled in all their industries. Suffering intensely from these conditions, a large body of the people, heavily indebted, subject to judgments and imprisonment for debt, developed such bitter feelings as to cause the reaction shown by the framers of the Constitution.

By the Articles of Confederation the central government had no power to impose taxes upon the people of the several states, but depended entirely upon requisitions made upon the states for their proportion of the supply necessary to meet the demands of government. New Hampshire, North Carolina, and New Jersey refused to respond to these requisitions. New York, Pennsylvania, and Connecticut were the only states which responded in full. Of the continental taxes assessed in 1783 only a fifth part had been paid by the middle of 1785. The Government had become so helpless that it was actually forced to make loans abroad, not only to pay the interest upon the public debt, but to pay the actual current expenses of government.

The several states imposed direct taxes as they do today, and also laid duties upon exports and imports, each according to its own view of its local interests. Connecticut imposed duties upon goods coming from Massachusetts and from New York, Pennsylvania upon goods coming from Delaware, and New York upon goods coming from Connecticut and New Jersey. The State of New York raised from £60,000 to £80,000 by duties upon foreign imports. Connecticut consumed probably one third of these goods imported, consequently she paid one third of this amount of duties in enhanced prices for the goods which she purchased from New York. Pennsylvania, Virginia, and South Carolina were each importing states. Madison quaintly describes the condition of the times as follows: “Some of the states had no convenient ports for foreign commerce and were subject to be taxed by their neighbors through whose ports their commerce was carried on. New Jersey placed between Philadelphia and New York was likened to a ‘cask tapped at both ends,’ and North Carolina between Virginia and South Carolina, to a ‘patient bleeding at both arms.'”

The states shared with Congress the powers of coining money, of emitting bills, and of making promissory notes legal tender for debts. This power left to the states was the one which brought untold evil. With little or no gold or silver in the country, with no medium of exchange, bending under their indebtedness, their commerce destroyed, no markets for their products, exhausted by the great burdens of the Revolutionary War, and disappointed because liberty had not brought blessings to them, the people in all the states but Connecticut and Delaware provided for the issue of paper money.

In Rhode Island the farmers gave mortgages on their land for the loan of paper money issued by the State, and when they tendered the money to a storekeeper in payment for goods he refused to accept it. Then laws were passed in Rhode Island and in many other states requiring creditors to accept the money in payment of debts, and, in case of refusal, permitting debtors to go before any magistrate and tender this money in payment of a debt, whereupon a certificate was given by the magistrate as evidence of payment. In North Carolina the money was used by the State to purchase tobacco, the State paying twice the value of it in order to get the people to take the money. Finally, South Carolina, Georgia, and Rhode Island were driven to pass penal statutes punishing those who would not accept the money in full payment. So little of currency was there in the country that the people reverted to the practice of barter, whisky in North Carolina and tobacco in Virginia doing duty as money. Some states even passed laws permitting their products to be given in payment of debts at a certain price. The result was mobs in Rhode Island that attempted to intimidate the court in passing upon the constitutionality of its Legal Tender Act, and an insurrection in Massachusetts which broke up courts and was finally put down by armed troops.

That this turbulence and passion naturally inspired a very grave distrust of the people in the men who framed the Constitution is well established. More than fifty years after the formation of the Constitution the notes of Madison, giving the sentiments of the men who drafted the Constitution, were published. Then for the first time the world knew what these men thought of the people and why they created so many limitations upon the action of the House of Representatives. Governor Randolph of Virginia said in the convention:

“In tracing these evils to their sources every man has found it in the turbulence and follies of democracy.”

George Mason of the same State said: “The injustice and oppression experienced among us arises from democracy.” Roger Sherman of Connecticut thought “that the people would never be sufficiently informed to vote intelligently on all candidates that might be presented.” Elbridge T. Gerry of Massachusetts declared that “the follies which we experience flow from the excess of democracy.” Hamilton, Gouverneur Morris, and many of the other delegates made like expressions.

Reading Madison’s notes (the only complete statement of what occurred in the National Convention), there can be but one conclusion: that the limitations upon the popular branch of Congress were created because of the deep-seated distrust of democratic government on the part of the men who framed the Constitution. They believed that a popular majority was a menace to liberty and feared the people, so they created the Constitution with the idea of making control by the people ineffective. Governor Clinton, before the convention in New York called for the purpose of considering the adoption of the Constitution, well said: “I ever lamented the feebleness of the Confederation, for this reason, among others, that the experience of its weakness would one day drive the people into an adaption of a constitution dangerous to our liberties. I know the people are too apt to vibrate from one extreme to another.”3

The conditions resulting from the control by the states of commerce, as permitted by the Articles of Confederation, were simply intolerable. The National Assembly in 1785 requested the several states to allow the Confederation to impose duties upon imports of tea, coffee, sugar, and other like articles, to provide for the current expenses of government. Ten states consented, but attached such conditions to their consent as made them of no value.

Finally, at a meeting at Mount Vernon, in 1785, of commissioners from the States of Maryland and Virginia to define their respective jurisdiction, a suggestion was made that a general convention of the states should be held to provide plans for the common control of all foreign and interstate commerce. The Legislature of Virginia thereupon sent to the Legislatures of the states an invitation to send representatives to Annapolis in 1786 to devise common commercial regulations of foreign and interstate trade. Only the States of Virginia, Pennsylvania, New York, and Delaware responded. With so few states present the convention at Annapolis deferred action, but through Alexander Hamilton drafted a report to Congress. Hamilton prepared this report with careful reference to a convention of all the states, not to amend the Articles of Confederation, but to create an entirely new government, urging Congress to call a convention to devise “such further provisions as shall appear to them necessary to render the Constitution of the Federal Government adequate to the exigencies of the Union, and to report to Congress such an act as, when agreed to by them and confirmed by the Legislature of every state, would effectually provide for the same.” Congress neglected to act until a culmination of evils forced them to issue an address to the different states asking that commissioners be sent, and adopting the language of Hamilton in his report of the Annapolis convention.

In May, 1787, fifty-five delegates, representing all the states but Rhode Island, assembled in Philadelphia. Mr. Fiske tells us that twenty-nine of these delegates were university men, graduates of Yale, Harvard, Princeton, Columbia, William and Mary, Oxford, Glasgow, and Edinburgh. Among the twenty-six who were not university men were Washington and Franklin. John Adams and Thomas Jefferson were in Europe. Samuel Adams, Patrick Henry, and Richard Henry Lee disapproved of the convention, and remained at home. The convention selected George Washington for its president.

The first resolution passed by the convention is in the following words: “Resolved, That it is the opinion of this committee that a national government should be established, consisting of a supreme, legislative, executive, and judiciary.” Six states, Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina, and South Carolina, voted for this resolution. Connecticut voted no; New York was divided. It often has been claimed that the separation of these departments of government in our Constitution was the result of the teachings of Montesquieu, who had published his “Spirit of the Laws” about thirty years before the Constitution was adopted. Montesquieu was a great admirer of the English Constitution, and attributed its success to the fact that there was a division of the government into executive, legislative, and judicial departments. He held this up to his readers as a model form of government, and described at great length the advantages to be derived from this separation. From time to time, later in the debates of the convention, the writings of Montesquieu were referred to, but no reference to them was made in connection with the passage of this resolution. Certainly Montesquieu was mistaken as to the real condition of the English Government at the time when he wrote. The men who framed the Constitution were probably better acquainted with its actual workings than was the author of the “Spirit of the Laws.” They well knew that Lord North, as Prime Minister during the Revolutionary War, had been controlled by George III. They appreciated that the subservient parliaments of the administration of Lord North represented the estates and the money of the peers and the influence of the king rather than the great body of the English people, and there is much more reason to believe that they had in mind the tyranny of George III in providing for this separation rather than the teachings of Montesquieu.

Two plans of government were presented to the convention, one known as the Virginia plan and the other as the New Jersey plan. The Virginia plan had been carefully drafted by James Madison and given to Governor Edmund Randolph for presentation as the leading representative of the State of Virginia. The Virginia plan went at once to the root of the whole evil of the Confederation by creating a new government with power to enforce its decrees upon the people of the states. In the convention in New York for the adoption of the Constitution, Lansing said: “I know not that history furnishes an example of a Federated Republic coercing the states composing it by the mild influence of laws operating on the individuals of those states.” James Madison states that Noah Webster, in the winter of 1784-85, first proposed “A new system of government which should act, not on the states, but directly on individuals, and vest in Congress full power to carry its laws into effect.”4 The New Jersey plan proposed to leave the states instead of the people of the states as the basis of government, thus permitting the very causes of the existing evils to continue.

The great contest before the convention was over the questions of the control of commerce and of the institution of slavery in the Southern States. New Hampshire, Massachusetts, and Rhode Island had united in passing in the Legislatures of each of those states what were known as Navigation Acts, providing that no goods should be shipped in English vessels, with other provisions tending to destroy English commerce in our ports. The ships of the New England States transported most of the exported products of the South. So exceedingly fertile and profitable were the lands of South Carolina that, in the single port of Charleston, a hundred large ships were loaded yearly with rice and indigo. The annual exports of tobacco from Virginia alone were 700,000 or 800,000 pounds.

The imposition of duties upon foreign commerce being left with Congress, the South feared that New England and the Middle States would unite and control commerce against her interests, imposing heavy freight charges upon her exports and obstructing the importation of goods to her ports by protective tariffs. Massachusetts was the only state in the nation at that time which did not own slaves, and though slaves were held in all the other Northern States the system of slavery was rapidly dying out in the North. The Massachusetts delegates, as well as the delegates from Virginia, favored limitations upon the importation of slaves. The result was that a committee consisting of one delegate from each state was appointed to adjust the questions of slavery and the control of foreign commerce. The Southern men insisted that no Navigation Act or act controlling commerce should be passed without a majority vote of two thirds of the members of each branch of the Congress. The Northern men, on the other hand, urged that limitations should be put upon the existence of slavery, and that the evil should be gradually destroyed. The result was a compromise permitting the importation of slaves until the year 1808, and consenting that commerce should be controlled by Congress upon a mere majority vote. This compromise was baleful seed for the new nation, producing two of the greatest evils which this country has ever known. We destroyed slavery by the sacrifice of the blood of a million men and of billions of treasure, but we continue to allow Congress, by a mere majority vote, to pass navigation and high tariff acts that obstruct commerce for the profit of manufacturing interests, and thus we prolong an all-pervasive source of corruption. “By an inevitable chain of causes and effects Providence punishes national sins with national calamities.”

When James Wilson and Charles Pinckney suggested that the executive power should be intrusted in the hands of one man, it is said that a profound stillness fell upon the convention and no one spoke for several minutes, until Washington from the chair asked if he should put the question. Sherman and other members of the convention spoke of the executive as “nothing more than an institution for carrying the will of the legislature into effect.” After it had been determined that the executive power should be intrusted to one man, the question of the time of office was discussed and terms of one, two, three, four, ten, and fifteen years were suggested, but Rufus King of Massachusetts remarked: “Better call it twenty, it is the average reign of princes.”

After four or five weeks of constant sittings of the convention grave doubt existed as to whether any agreement could be reached. Dr. Franklin, who was not conspicuous for his religious fervor, seeing the danger and lamenting it, arose and said: “Mr. President: The progress we have made after four or five weeks’ close attendance and continual reasoning with each other — our different sentiments on almost every question, several of the last producing as many ‘noes ‘ as ‘ayes’ — is methinks a melancholy proof of the imperfection of the human understanding — in this situation of this Assembly groping, as it were, in the dark to find political truth, scarcely able to distinguish it when presented to us, how has it happened, sir, that we have not hitherto once thought of applying to the Father of Lights to illuminate our understandings?” He then moved that each session of the convention be opened with prayer. Hamilton and several of the other members suggested that it was too late a day for this innovation, and after several unsuccessful attempts to adjourn the convention without acting upon the proposition, it was at length carried.5

Madison’s notes show that again and again expressions were made by members of the convention to the effect that such language must be used in the Constitution as would not arouse apprehension on the part of the people that their liberties were being affected lest they reject it. A single instance of the spirit of many of the men of the convention is shown by a letter written by Gouverneur Morris in Jefferson’s administration. Our country had just secured the great Louisiana Territory from France by a treaty which provided that the territory should be divided up into states and eventually made part of the Union. While the right to acquire territory by treaty was conceded, Jefferson believed that it could not be divided into states and received into the Union without an amendment to the Constitution, as his letters written at the time to Breckinridge, Gallatin, Dunbar, and Nicholas clearly establish. The final draft of the Constitution was made by Gouverneur Morris, and he, more than any other member of the convention, was responsible for the wording of each section. Article 4, Section 3, provides: “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; nothing in this Constitution shall be so construed as to prejudice any claim of the United States or of any particular State.”

Gouverneur Morris, writing to his friend Henry Livingston with reference to the right of the United States to purchase this territory and take it into the Union as states, said: “I always thought that when we would acquire Canada and Louisiana it would be proper to govern them as provinces and allow them no voice in our councils. In wording the third section of the fourth article I went as far as circumstances would permit to establish the exclusion. Candor obliges me to add my belief that had it been more pointedly expressed, a strong opposition would have been made.”6 The leading men of the state conventions who adopted the Constitution well knew that a democratic republic could not govern subject races, and that every democracy which had attempted empire had met with disaster. Yet Gouverneur Morris intended, according to his own admission, to draft this section in such a way as not to disclose the intent to hold the people of newly acquired territories as subjects, well knowing that if the intent was understood the Constitution would be defeated.

The Constitution was now sent by Congress to the several states for their consideration and adoption, and with its submission arose one of the most vigorous struggles upon questions of political principles which our country has ever seen. The columns of newspapers were filled with articles by writers, ardent for its adoption or its rejection, who concealed their personalities under such classic and sonorous names as Cassius, Agrippa, Cato, Cæsar, or Aristides. The struggle was carried on most vigorously in Virginia, Massachusetts, and New York, the Constitution being passed in each state only after long discussion and by very small majorities. Those engaged in commerce and residing in the cities were uniformly favorable to the Constitution, while those settled in the remoter parts of the states and engaged in agriculture were quite as uniformly opposed to it. In New York, Albany and Tryon Counties were arrayed against the southern part of the State. In Massachusetts, Boston and the surrounding country was opposed by the central and western part of the State. The Constitution never could have been adopted had it not been for the desperate conditions of the different states at that time. In Virginia, Patrick Henry, George Mason, Benjamin Harrison and John Tyler (the fathers of the two future presidents) and James Monroe each opposed its adoption.

Article 1, Section 1, of the Constitution7 provides that “All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of the Senate and House of Representatives.” The powers referred to as granted to Congress are limited by the words “herein granted,” and they are found enumerated in Section 8 of Article 1. No power is conferred upon Congress except those specified in the seventeen subdivisions of that section. The eighteenth subdivision, providing that Congress shall have power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers,” is the provision in the Constitution over which much of the litigation as to the constitutionality of acts of Congress has arisen. This may seem strange to the reader, because that provision is no more than would be implied from the granting of an express power, since every power carries with it by implication the right to exercise all necessary and proper powers for its execution. These words would therefore seem to be unnecessary. Yet under this last clause have arisen the questions of the constitutionality of the Bank of the United States; of the Legal Tender Acts; of the vast works of internal improvement; of the power to use billions of dollars of the people’s money to foster agriculture and irrigate arid lands; of the power to lay embargoes on shipping, and of enacting protective tariffs and navigation acts.

In Section 9 of Article 1 are the provisions prohibiting acts on the part of Congress, while in Section 10 of Article 1 are gathered the prohibitions upon the actions of the different states. In this connection it is most important to observe that the grants of power found in Section 8 of Article 1 on the part of the states to the National Government are not exclusive in their nature except in those cases where the state is forbidden in Section 10 from doing the same act. Thus the state is forbidden from entering into any treaty, alliance, or confederation, from coining money, emitting bills of credit, making anything but gold or silver coin a payment of debts, passing any bill of attainder, ex post facto law, or impairing the obligation of contracts. Until Congress has exercised these powers of Section 8, the state can continue to exercise such of them as are not thus prohibited to the states and are not national in their nature.8 So for a hundred years after the passage of the Constitution the state governments imposed quarantine against other states, and that power recently has been absorbed by the National Government. Each state may pass bankruptcy laws which exist until the National Government has provided for a system of uniform laws on the subject of bankruptcy throughout the United States. Each state may provide for the punishment of counterfeiting the securities and current coin of the United States, and each state may regulate foreign and interstate commerce upon subjects which are of such a nature that Congressional legislation is not necessary to reach them, such as inspection of pilotage, port regulations, and improvements of harbors.9 In all the cases referred to above, and others not enumerated, the state has what is called “concurrent power” to execute powers which were delegated to the National Government, until Congress has passed a statute controlling the matter.

There is no such thing as an inherent right in Congress to exercise any power not specified in the seventeen subdivisions of Article 1, Section 8.10 When a power is implied by the courts it must be implied as necessary and proper for carrying into execution an express power granted. “The powers affecting the internal affairs of the states not granted to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively, and all powers of a national character which are not delegated to the National Government by the Constitution are reserved to the people of the United States.”11 So all powers not affecting the internal affairs of the states, and at the same time being national in their nature, but not delegated by the people to the National Government, are reserved to the people of the United States and they, if they desire, can confer them, by an amendment to the Constitution, upon the United States.12

Turning now to the executive power in Article 2, Section 1, and to the judicial power, Article 3, Section 1, we find that neither executive power nor judicial power are limited to powers “herein granted.” Section 1 of Article 2 provides that “The executive power shall be vested in a President of the United States of America.” Section 1 of Article 3 provides that “The judicial power of the United States shall be vested in one Supreme Court.” So that notwithstanding each of these general grants of power are followed by an enumeration of special powers granted, the general grant of power we are told to our surprise by the United States Supreme Court is not limited by the enumeration.13

The first eight amendments to the Constitution enumerate popular rights, the origin of which can be traced to some event or series of events in English history where the right was won as the result of years of struggle. The Constitution of the United States creates none of these rights. Every one of these enumerated safeguards exist under the common law or in the Constitution of each state, and the only result of their incorporation by amendment in the Constitution of the United States is as a restraint upon the action of the United States Government.14

Next it is important to observe that the ninth and tenth amendments to the Constitution preserve to the states all powers not delegated to the United States by the Constitution, nor prohibited by it to the states, and that the enumeration of certain rights delegated to the National Government shall not be construed to deny or disparage others retained by the people. These amendments, say the United States Supreme Court in a recent case, were “adopted with prescience” under “fear that the National Government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted.”15 This august court long ago declared “that the maintenance of the state governments are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National Government. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible states.”16

The thirteenth amendment, besides abolishing forever slavery and involuntary servitude, gives power to Congress to protect all persons within the jurisdiction of the United States from being in any way subjected to such slavery or involuntary servitude, except as punishment for crime.

The object of the fourteenth amendment to the Constitution was to secure the negroes from discrimination on the part of the state governments. Before its adoption a Civil Rights Act had been passed seeking to secure that end, but had been declared unconstitutional. The fourteenth amendment was then framed, passed by a two-thirds majority through both Houses of Congress, and approved by three fourths of the States. It recognized, if it did not create, a national citizenship as contra-distinguished from that of the States. It provided that no state should make or enforce any law which should abridge the privileges and immunities of citizens of the United States; and it was contended later with great vigor that these words referred to the first eight amendments of the Constitution, and thus secured to the citizens of every state in the Union all of the privileges and immunities set forth in detail in those amendments.

If this claim had been sustained it would have made the United States Supreme Court a guardian of the personal rights of the citizen of every state. The citizen’s rights would have been measured, not by the guarantees of personal liberty assured by his own state constitution, but by the National Government’s standard as set forth in the first eight amendments; and the United States Supreme Court would have been called upon in thousands of cases to enforce upon the states the observance of these amendments. This contention, however, was not sustained.17 The construction put by the United States Supreme Court upon the words, “nor shall any State deprive any person of life, liberty, or property without due process of law,” in the fourteenth amendment, is a narrow one, securing to the citizen of the state few rights. This provision has been construed to mean simply that liberty and property has not been taken without due process of law when it is taken in the course of the regular administration of the law in established state tribunals. If the regular administration of the law in the established tribunals of the states authorize a particular act, the United States Court will not interfere.18

The fifteenth amendment relates to the right of a citizen to vote. It does not confer the right of suffrage on anyone. It merely invests the authorities of the United States with the constitutional power of protecting citizens in their enjoyment of the elective franchise from discrimination on account of race, color, or previous condition of servitude.19

So the reader will see that although the United States Government, within the last four or five years, has held the attention of the citizen because it promises to rectify great abuses, still his State Government controls him exclusively as to taxes, schools, trades, inheritance, marriage, divorce, courts, police, local boards, and in a hundred other different ways, and that the proper place to rectify evils is at home, where he sees and appreciates them and can apply a direct remedy.

The sources from which the men who framed the Constitution drew their plan and material has ever been a subject of interest. Mr. Gladstone spoke of the Constitution as “the most wonderful work ever struck off at a given time by the brain and purpose of man.” The trouble with this statement is that the Constitution was not struck off at a given time by the brain and purpose of man, but was the result of a progressive growth reaching back to the time of the Anglo-Saxon invasion of England. The Anglo-Saxons had developed in Germany the mark and the hundred and the tribe which present in detail the gradations of local independence and central authority. In England the mark became the town. The federation of Anglo-Saxon townships constituted the Anglo-Saxon kingdom or what later became the shire. The shire possessed a general assembly made up of all the freeholders together with the representative element comprising, like the hundred court, the head men and four chosen men from each town of the shire. The shire assembly elected its own chief magistrate, the earldorman, and its sheriff. The judicial executive exercised an authority over the general affairs of the whole shire quite similar to that exercised by our National Government over the several states. The Norman Conquest impaired these institutions, but their remembrance, and to some extent their existence, continued, and the Pilgrims brought them to this country.

The central government of each of the New England colonies was based partly upon the people and partly upon the towns as integral elements of the colony. The governor, deputy governor, and assistants, who constituted the upper House in the Colonial Assembly, were chosen in a general election by the whole body of freemen when not appointed by the Crown, while the deputies, who constituted the lower House, were chosen by an equal representation from the several towns. Each citizen was responsible to the central government of the colony and to the government of his own town. This form of government was taken into Connecticut by the emigrants from the Massachusetts Bay Colony, and in Connecticut we find the same disposition of general and special powers between the central government of the colonies and the governments of the constituent communities. This relationship was most instrumental in bringing about the peculiar form of our National Government, with its representation by states in the United States Senate and its representation of the people in the House of Representatives. The government of Rhode Island was the same as in Connecticut; and when each of these charter colonies at the time of the Revolution desired to change their form of government they did it by simply declaring that the people had ascended the throne of the deposed king, and this was all that was deemed necessary to change the charter of each into a constitution. Connecticut continued under her old charter as a constitution until 1818, and Rhode Island until 1842.

Our ancestors sought a new country, and they found not only a new country but a new condition of mind. Here, face to face with Nature, they were taught to rely mainly on themselves, and manhood became a fact of prime importance. The neglect of England became their opportunity. Nowhere had local self-government reached so high a degree of efficiency as in New England. They believed it to be all important that people should manage their own affairs instead of having them managed by a strong central government. How different their attitude toward government than was that of their Canadian neighbors. The more the citizen obeys the inclination to rely on help from others, the community or the state, the less is his force of initiative developed, the less is he inclined to exert himself, not alone with the idea of making a living but of attaining the highest development. Never was there a more striking contrast than between the government of the people of New England and the French Canadians of Quebec.

Twelve years before the Pilgrims landed at Plymouth Quebec was founded, and this was only one year after the first permanent settlement in America at Jamestown in Virginia. The colony grew and developed under the benevolent government of Louis XIV. The omnipresent, inquisitorial nose of the French Intendant followed the peasant into every detail of his life. The price of wheat and the price of about every necessary of life were regulated by imperial edicts. The question of race suicide was ever one of great importance. Girls for the colonies were taken from the houses of refuge in Paris and Lyons and sent by shiploads to Quebec. There they were provided husbands with little delay. All single men arriving in the country were obliged to marry within a fortnight after the landing of the prospective brides, and the Intendant Talon forbade them while unmarried to fish, hunt, or go into the woods with the Indians under any pretense whatever. Upon their marriage the governor general gave the newly married couple an ox, or a cow, or a pair of swine, or a pair of fowls, or a few crowns of money.20

Large families were greatly encouraged by the Government. The king, in council, passed a decree that all the heads of families who should have living children to the number of ten born in lawful wedlock should be paid a pension of 300 livres, and those who should have twelve children a pension of 400 livres.21 The king devoted 40,000 livres for the purpose of encouraging the art of shipbuilding, and the Intendant Talon built a ship to show the people how they were built, and to lead them to imitation. Louis XIV trusted the intendant to issue an ordinance having the force of a law whenever he thought necessary and, in the words of his commission, “to order everything as he shall see just and proper.”22 The intendants, under such directions, controlled public meetings, restrained the people from speaking their minds, regulated them in all the details of their life, destroyed individual initiative, and stunted and exhausted the energy of the people. The New Englander learned how to govern himself because he lived in a society in which each man worked as his own master, where he depended on his individual action for promotion, and where he controlled the government in which he lived. These little democracies of New England prided themselves in being sufficient unto themselves, and out of them came the liberties of the states and the greatness of our country.

Most of the provisions of the Constitution can be found in the first constitutions of the states.23 The provision for vesting the legislative power in two chambers finds its counterpart in the constitution of six different states. The term of service of the members of the Maryland Senate suggested the six years’ term in the United States Senate; and the election of the Maryland senators was the model of the provision for electing the President through electors named by the legislatures of the different states. The provision for the impeachment of the President of the United States or of any official is almost identically the same as that existing in the Constitution of 1777 of the State of New York. The provision associating the Senate with the President in the exercise of the appointing power is very similar to a system pursued under the New York Constitution, which provided that the governor should make his appointments “by and with the consent of a select committee of the Senate.” The provision requiring the consent of the President before an act of Congress could become a law and permitting him to veto the same is copied almost word for word from the Constitution of Massachusetts.

In every one of the states, with the exception of New York and North Carolina, the upper House was denied the right of originating money bills, and in Maryland, Virginia, South Carolina, and New Jersey the Senate was denied the right of even amending such bills. The qualification for senators in ten states which had bicameral legislatures was on a distinct basis of taxable property, and a higher qualification was required for electors and members of the Senate in several of the states. Gouverneur Morris and other members of the Constitutional Convention contended that the United States Senate should be regarded as representative of property; while the House of Representatives, immediately elected by the people, should be regarded as representative of the people. From one third to one half of the members of the Federal Convention had been members of the conventions which had framed the several state constitutions. It certainly is not a violent presumption when we find provisions in the state constitutions similar to those in the National Constitution, to assume that the model was found in the state provision.

George Mason, in the Virginia Convention, in discussing the proposed Constitution, said: “Now suppose oppression should arise under this government, and any writer should dare to stand forth and expose to the community at large the abuses of those powers, could not Congress, under the idea of providing for the general welfare and under their own construction, say that this was destroying the general peace, encouraging sedition, and poisoning the minds of the people? And could they not, in order to provide against this, lay a dangerous restriction on the press? Might they not thus destroy the trial by jury?” Just what Mr. Mason apprehended actually occurred. Hardly had Washington left the Presidency when, in July, 1798, a statute was passed by Congress making it a crime to write, print, utter, or publish or cause to be written, printed, uttered, or published, or to knowingly assist in publishing any false, scandalous, and malicious writing against the Government of the United States with intent to defame the said Government, or either House of the said Congress, or the President, or to bring them into contempt.24 The statute made this an offense, subject to prosecution in the national courts, which, under the reserved powers of the states, could be cognizable only in the state courts. Matthew Lyon, of Vermont, was convicted under this statute and sentenced to four months’ imprisonment in jail, and a fine of $1,000, because he declared that the President’s Message to Congress “was a bullying speech which the Senate in a stupid answer had echoed with more servility than ever George III experienced from either House of Parliament.”

At the same time a statute was passed, called the Alien Law, which declared “that it shall be lawful for the President to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable ground to suspect are concerned in any treasonable or secret machinations against the government, to depart,” etc. The President, by this statute, was made judge of what was dangerous to the peace and safety of the United States. He was permitted to determine what was a reasonable ground to suspect a man of secret machinations and, having determined as judge this judicial question, he was permitted to send the man out of the country. Thomas Jefferson, writing to Abigail Adams, wife of John Adams, years after these acts were passed, said of these alien and sedition laws that he considered them “unconstitutional, and a nullity as absolute and palpable as if Congress had ordered us to fall down and worship a graven image.” The result of these acts was that the old Federal Party was swept out of power, and for forty years Jefferson and his successors in the Presidency carried on the government.

The generation that framed the Constitution looked upon the document as most imperfect, but they adopted it after a most bitter experience under the Confederation. Having adopted it, like good Americans, they set out to make the Constitution popular, and they praised it far beyond its merits. The result was so complete a canonization of our Constitution as to form an obstacle to its amendment. The men who framed it were men of the greatest constructive statesmanship which our country has ever produced, and the Constitution which they prepared was indeed a blessing to the people during the eighteenth century, perhaps well along into the nineteenth century.

In those days the people were much more jealous of power than now, and more vigilant in examining the actions of their public servants. George Mason, in giving his reasons for not signing the Constitution, said:

“This government will commence in a moderate aristocracy. It is at present impossible to see whether it will, in its operation, produce a monarchy or a corrupt, oppressive aristocracy. It will probably vibrate some years between the two and then terminate in the one or the other.”

It will never terminate in a monarchy in name. The forms of a democratic government charm the people long after the spirit of democracy has fled. Politicians are wise enough to appreciate this fact, and to continue with scrupulous care the form of a democracy. If the people can be aroused to change the conditions of amendment so that the change in our civil life will be accompanied by changes in our fundamental law, the republic will live on in fact as well as in form for a long period of time. But if our original Constitution is left unamended, if the limitations which it imposes upon popular government are continued to hide the corruption which exists, and the party in power continues irresponsible to the popular will, the days of real liberty to the people are numbered. If consolidation, centralization, and usurpation in the National Government continue, long before we reach the point where Washington rules the United States, as Paris rules France, the spirit of liberty will have ceased.

We will now see to what extent the Constitution has changed with time, to what extent it has bent to the force of circumstances, to what extent the Executive and Congress and the courts have set it aside to meet the supposed necessities of great crises.


NOTES

     1.   Smith, The Spirit of American Government, p. 227.
     2.   Smith, The Spirit of American Government, p. 47, note.
     3.   Elliot’s Deb., vol. ii, p. 359.
     4.   Elliot’s Deb., vol. v, p. 118.
     5.   Elliot’s Deb., vol. v, pp. 253, 254.
     6.   Columbia Law Review, March, 1905, p. 195.
     7.   A copy of the Constitution may be found in the Appendix. [Ed. Note: Omitted.]      8.   Cooley v. Port Wardens, 12 How., 310, 319; Pound v. Truck, 95 U. S. 459; Cardwell v. Am. River Bridge Co., 113 U. S. 205; Leisy v. Hardin, 135 U. S. 100; Louisiana v. Texas, 176 U. S. 1; Compaignie v. Board of Health, 186 U. S. 399.
     9.   Bowman v. Chicago Ry. Co., 125 U. S. 215, 507; Cooley’s Constitutional Lim., pp. 215, 723.
   10.   Kansas v. Colorado, 206 U. S. 89.
   11.   Kansas v. Colorado, 206 U. S. 90.
   12.   Kansas v. Colorado, 206 U. S. 90.
   13.   Kansas v. Colorado, 206 U. S. 82.
   14.   Presser v. Illinois, 116 U. S. 252; Maxwell v. Dow, 176 U. S. 581, Barrington v. Missouri, 205 U. S. 483.
   15.   Kansas v. Colorado, 206 U. S. 90.
   16.   Texas v. White, 7 Wallace, 725; South Carolina v. United States, 199 U. S. 453.
   17.   The Slaughter House Cases, 16 Wallace, 36; Minor v. Happersett, 21 Wallace, 162; Maxwell v. Dow, 176 U. S. 594; Dounce v. Bidwell, 182 U. S. 244, Cooley, Constitutional Lim., 4th ed., p 497, marg , p 387.
   18.   Ballard v. Hunter, 204 U S , 242.
   19.   United States v. Reese, 92 U. S. 214; United States v. Cruikshank, 92 U. S. 542.
   20.   The Old Regime, Parkman, 221, 226.
   21.   The Old Regime, Parkman, 227.
   22.   The Old Regime, Parkman, 275.
   23.   Am. Academy of Political and Social Science, pamphlet No. 9.
   24.   It is interesting to observe that a statute almost identical with the sedition law was passed a few years ago in the Philippines. The statute reads:

“Every person who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the Government of the United States or the insular government of the Philippine Islands, or who shall print, write, publish, utter, or make any statement or speech or do any act which may tend to disturb or obstruct any lawful officer in executing his office, or which may tend to instigate others to cabal or meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the government, or who shall knowingly conceal such evil practices, shall be punished by a fine not exceeding $2,000 or by imprisonment not exceeding two years, or both, at the discretion of the courts.”

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