Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
§ 457. Having disposed of these preliminary inquiries, we are now arrived at that part of our labours, which involves a commentary upon the actual provisions of the constitution of the United States. It is proposed to take up the successive clauses in the order in which they stand in the instrument itself, so that the exposition may naturally flow from the terms of the text.
§ 458. We begin then with the preamble of the constitution. It is in the following words:
“We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America.”
§ 459. The importance of examining the preamble, for the purpose of expounding the language of a statute, has been long felt, and universally conceded in all juridical discussions. It is an admitted maxim in the ordinary course of the administration of justice, that the preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute. We find it laid down in some of our earliest authorities in the common law; and civilians are accustomed to a similar expression, cessante legis praemio, cessat et ipsa lex.1 Probably it has a foundation in the exposition of every code of written law, from the universal principle of interpretation, that the will and intention of the legislature is to be regarded and followed. It is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the preamble.
§ 460. There does not seem any reason why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble. And accordingly we find, that it has been constantly referred to by statesmen and jurists to aid them in the exposition of its provisions.2
§ 461. The language of the preamble of the constitution was probably in a good measure drawn from that of the third article of the confederation, which declared, that “The said states hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare. And we accordingly find, that the first resolution proposed, in the convention which framed the constitution, was, that the articles of the confederation ought to be so corrected and enlarged, as to accomplish the objects proposed by their institution, namely, common defence, security of liberty, and general welfare.3
§ 462. And, here, we must guard ourselves against an error, which is too often allowed to creep into the discussions upon this subject. The preamble never can be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the constitution. Its true office is to expound the nature, and extent, and application of the powers actually conferred by the constitution, and not substantively to create them. For example, the preamble declares one object to be, “to provide for the common defence.” No one can doubt, that this does not enlarge the powers of congress to pass any measures, which they may deem useful for the common defence.4 But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one would promote, and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation to be adopted? Are we at liberty, upon any principles of reason, or common sense, to adopt a restrictive meaning, which will defeat an avowed object of the constitution, when another equally natural and more appropriate to the object is before us? Would not this be to destroy an instrument by a measure of its words, which that instrument itself repudiates?
§ 463. We have already had occasion, in considering the nature of the constitution, to dwell upon the terms, in which the preamble is conceived, and the proper conclusion deducible from it. It is an act of the people, and not of the states in their political capacities.5 It is an ordinance or establishment of government and not a compact, though originating in consent; and it binds as a fundamental law promulgated by the sovereign authority, and not as a compact or treaty entered into and in fieri, between each and all the citizens of the United States, as distinct parties. The language is, “We, the people of the United States,” not, We, the states, “do ordain and establish;” not, do contract and enter into a treaty with each other; “this constitution for the United States of America,” not this treaty between the several states. And it is, therefore, an unwarrantable assumption, not to call it a most extravagant stretch of interpretation, wholly at variance with the language, to substitute other words and other senses for the words and senses incorporated, in this solemn manner, into the substance of the instrument itself. We have the strongest assurances, that this preamble was not adopted as a mere formulary; but as a solemn promulgation of a fundamental fact, vital to the character and operations of the government. The obvious object was to substitute a government of the people, for a confederacy of states; a constitution for a compact.6 The difficulties arising from this source were not slight; for a notion commonly enough, however incorrectly, prevailed, that, as it was ratified by the states only, the states respectively, at their pleasure, might repeal it; and this, of itself, proved the necessity of laying the foundations of a national government deeper than in the mere sanction of delegated power. The convention determined, that the fabric of American empire ought to rest and should rest on the solid basis of the consent of the people. The streams of national power ought to flow and should Dow immediately from the highest original fountain of all legitimate authority.7 And, accordingly, the advocates of the constitution so treated it in their reasoning in favour of its adoption. “The constitution,” said the Federalist, “is to be founded on the assent and ratification of the people of America, given by deputies elected for that purpose; but this assent and ratification is to be given by the people, not as individuals composing a whole nation, but as composing the distinct and independent states, to which they belong.”8 And the uniform doctrine of the highest judicial authority has accordingly been, that it was the act of the people, and not of the states; and that it bound the latter, as subordinate to the people. “Let us turn,” said Mr. Chief Justice Jay, “to the constitution. The people therein declare, that their design in establishing it comprehended six objects: (1.) To form a more perfect union; (2.) to establish justice; (3.) to insure domestic tranquillity; (4.) to provide for the common defence; (5.) to promote the general welfare; (6.) to secure the blessings of liberty to themselves and their posterity. It would,” he added, “be pleasing and useful to consider and trace the relations, which each of these objects bears to the others; and to show, that, collectively, they comprise every thing requisite, with the blessing of Divine Providence, to render a people prosperous and happy.”9 In Hunter v. Martin, (1 Wheat. R. 305, 324,) the Supreme Court say, (as we have seen,) “the constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by the people of the United States;” and language still more expressive will be found used on other solemn occasions.10
§ 464. But this point has been so much dwelt upon in the discussion of other topics,11 that it is wholly unnecessary to pursue it further. It does, however, deserve notice, that this phraseology was a matter of much critical debate in some of the conventions called to ratify the constitution. On the one hand, it was pressed, as a subject of just alarm to the states, that the people were substituted for the states; that this would involve a destruction of the states in one consolidated national government; and would terminate in the subversion of the public liberties. On the other hand, it was urged, as the only safe course for the preservation of the Union and the liberties of the people, that the government should emanate from the people, and not from the states; that it should not be, like the confederation, a mere treaty, operating by requisitions on the states; and that the people, for whose benefit it was framed, ought to have the sole and exclusive right to ratify, amend, and control its provisions.12
§ 465. At this distance of time, after all the passions and interests, which then agitated the country have passed away, it cannot but be matter of surprise, that it should have been urged, as a solid objection to a government intended for the benefit of the people, and to operate directly on them, that it was required to be ratified by them, and not by bodies politic created by them for other purposes, and having no implied authority to act on the subject.
§ 466. The constitution having been in operation more than forty years, and being generally approved, it may, at first sight, seem unnecessary to enter upon any examination of the manner and extent, to which it is calculated to accomplish the objects proposed in the preamble, or the importance of those objects, not merely to the whole, in a national view, but also to the individual states. Attempts have, however, been made at different times, in different parts of the Union, to stir up a disaffection to the theory, as well as the actual exercise of the powers of the general government; to doubt its advantages; to exaggerate the unavoidable inequalities of its operations; to accustom the minds of the people to contemplate the consequences of a division, as fraught with no dangerous evils; and thus to lead the way, if not designedly, at least insensibly, to a separation, as involving no necessary sacrifice of important blessings, or principles, and, on the whole, under some circumstances, as not undesirable or improbable.
§ 467. It is easy to see, how many different, and even opposite motives may, in different parts of the Union, at different times, give rise to, and encourage such speculations. Political passions and prejudices, the disappointments of personal ambition, the excitements and mortifications of party strife, the struggles for particular systems and measures, the interests, jealousies, and rivalries of particular states, the unequal local pressure of a particular system of policy, either temporary or permanent, the honest zeal of mere theorists and enthusiasts in relation to government, the real or imaginary dread of a national consolidation, the debasive and corrupt projects of mere demagogues; these, and many other influences of more or less purity and extent, may, and we almost fear, must, among a free people, open to argument, and eager for discussion, and anxious for a more perfect organization of society, for ever preserve the elements of doubt and discord, and bring into inquiry among many minds, the question of the value of the Union.
§ 468. Under these circumstances it may not be without some use to condense, in an abridged form, some of those reasons, which became, with reflecting minds, the solid foundation, on which the adoption of the constitution was originally vested, and which, being permanent in their nature, ought to secure its perpetuity, as the sheet anchor of our political hopes. Let us follow out, then, the suggestion of Mr. Chief Justice Jay, in the passage already cited.13
§ 469. The constitution, then, was adopted first “to form a more perfect union.” Why this was desirable has been in some measure anticipated in considering the defects of the confederation. When the constitution, however, was before the people for ratification, suggestions were frequently made by those, who were opposed to it, that the country was too extensive for a single national government, and ought to be broken up into several distinct confederacies, or sovereignties; and some even went so far, as to doubt, whether it were not, on the whole, best, that each state should retain a separate, independent, and sovereign political existence.14 Those, who contemplated several confederacies, speculated upon a dismemberment into three great confederacies, one of the northern, another of the middle, and a third of the southern states. The greater probability, certainly, then was of a separation into two confederacies; the one composed of the northern and middle states, and the other of the southern. The reasoning of the Federalist on this subject seems absolutely irresistible.15 The progress of the population in the western territory, since that period, has materially changed the basis of all that reasoning. There could scarcely now, upon any dismemberment, exist, with a new to local interests, political associations, or public safety, less than three confederacies, and most probably four. And it is more than probable, that the line of division would be traced out by geographical boundaries, which would separate the slave-holding from the non-slaveholding states. Such a distinction in government is so fraught with causes of irritation and alarm, that no honest patriot could contemplate it without many painful and distressing fears.
§ 470. But the material consideration, which should be kept steadily in view, is, that under such circumstances a national government, clothed with powers at least equally extensive with those given by the constitution, would be indispensable for the preservation of each separate confederacy. Nay, it cannot be doubted, that much larger powers, and much heavier expenditures would be necessary. No nation could long maintain its public liberties, surrounded by powerful and vigilant neighbours, unless it possessed a government clothed with powers of great efficiency, prompt to act, and able to repel every invasion of its rights. Nor would it afford the slightest security, that all the confederacies were composed of a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, and possessing similar manners, habits, and customs. If it be true, that these circumstances would not be sufficient to hold them in a bond of peace and union, when forming one government, acting for the interests, and as the representatives of the rights of the whole; how could a better fate be expected, when the interests and the representation were separate; and ambition, and local interests, and feelings, and peculiarities of climate, and products, and institutions, and imaginary or real aggressions and grievances, and the rivalries of commerce, and the jealousies of dominion, should spread themselves over the distinct councils, which would regulate their concerns by independent legislation?16 The experience of the whole world is against any reliance for security and peace between neighbouring nations, under such circumstances The Abbe Mably has forcibly stated in a single passage the whole result of human experience on this subject. “Neighbouring states,” say he, are naturally enemies of each other, unless their common weakness forces them to league in a confederative republic; and their constitution prevents the differences, that neighbourhood occasions, extinguishing that secret jealousy, which disposes all states to aggrandize themselves at the expense of their neighbours.” This passage, as has been truly observed, at the same time points out the evil, and suggests the remedy.17
§ 471. The same reasoning would apply with augmented force to the case of a dismemberment, when each state should by itself constitute a nation. The very inequalities in the size, the revenues, the population, the products, the interests, and even in the institutions and laws of each, would occasion a perpetual petty warfare of legislation, of border aggressions and violations, and of political and personal animosities, which, first or last, would terminate in the subjugation of the weaker to the arms of the stronger.18 In our further observations on this subject, it is not proposed to distinguish the case of several confederacies from that of a complete separation of all the states; as in a general sense the remarks apply with irresistible, if not with uniform, force to each.
§ 472. Does, then, the extent of our territory form any solid objection against forming “this more perfect union?” This question, so far as respects the original territory included within the boundaries of the United States by treaty of peace of 1783, seems almost settled by the experience of the last forty years. It is no longer a matter of conjecture, how far the government is capable (all other things being equal) of being practically applied to the whole of that territory. The distance between the utmost limits of our present population, and the diversity of interests among the whole, seem to have presented no obstacles under the beneficent administration of the general government, to the most perfect harmony and general advancement of all. Perhaps it has been demonstrated, (so far as our limited experience goes,) that the increased facilities of intercourse, the uniformity of regulations and laws, the common protection, the mutual sacrifices of local interests, when incompatible with that of all, and the pride and confidence m a government, in which all are represented, and all are equal in rights and privileges; perhaps, we say, it has been demonstrated, that these effects of the Union have promoted, in a higher degree, the prosperity of every state, than could have been attained by any single state, standing alone, in the freest exercise of all its intelligence, its resources, and its institutions, without any check or obstruction during the same period. The great change, which has been made in our internal condition, as well as in our territorial power, by the acquisition of Louisiana and Florida, have, indeed, given rise to many serious reflections, whether such an expansion of our empire may not hereafter endanger the original system. But time alone can solve this question; and to time it is the part of wisdom and patriotism to leave it.
§ 473. When, however, the constitution was before the people for adoption, objections, as has been already suggested, were strenuously urged against a general government, founded upon the then extent of our territory. And the authority of Montesquieu was relied on in support of the objections.19 It is not a little surprising, that Montesquieu should have been relied on for this purpose. He obviously had in view, when he recommends a moderate extent of territory, as best suited to a republic, small states, whose dimensions were far less than the limits of one half of those in the Union; so that upon strictly following out his suggestions, the latter ought to have been divided. But he suggests the appropriate remedy of a confederate republic, (the very form adopted in the constitution,) as the proper means of at once securing safety and liberty with extensive territory.20 The truth is, that what size is safe for a nation, with a view to the protection of its rights and liberties, is a question, which admits of no universal solution. Much depends upon its local position, its neighbours, its resources, the facilities of invasion, and of repelling, invasion, the general state of the world, the means and weapons of warfare, the interests of other nations in preserving or destroying it, and other circumstances, which scarcely admit of enumeration. How far a republican government can, in a confederated form, be extended, and be at once efficient abroad and at home, can ensure general happiness to its own citizens, and perpetuate the principles of liberty, and preserve the substance of justice, is a great problem in the theory of government, which America is now endeavouring, to unfold, and which, by the blessing of God, we must all earnestly hope, that she may successfully demonstrate.
§ 474. In the mean time, the following considerations may serve to cheer our hopes, and dispel our fears. First, (1.) that extent of territory is not incompatible with a just spirit of patriotism; (2.) nor with a general representation of all the interests and population within it; (3.) nor with a due regard to the peculiar local advantages or disadvantages of any part; (4.) nor with a rapid and convenient circulation of information useful to all, whether they are rulers or people. On the other hand, it has some advantages of a very important nature. (1.) It can afford greater protection against foreign enemies. (2.) It can give a wider range to enterprise and commerce. (3.) It can secure more thoroughly national independence to all the great interests of society, agriculture, commerce, manufactures, literature, learning, religion. (4.) It can more readily disarm and tranquillize domestic factions in a single state. (5.) It can administer justice more completely and perfectly. (6.) It can command larger revenues for public objects without oppression or heavy taxation. (7.) It can economise more in all its internal arrangements, whenever necessary. In short, as has been said, with equal truth and force: “One government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the Union they may be found. It can move on uniform principles of policy. It can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each. In the formation of treaties, it will regard the interests of the whole, and the particular interests of the parts, as connected with that of the whole. It can apply the revenues of the whole to the defence of any particular part, and that more easily and expeditiously, than state governments or separate confederacies can possibly do, for want of concert, and unity of system.”21 Upon some of these topics, we may enlarge hereafter.
§ 475. The union of these states, “the more perfect union” is, then, and must for ever be invaluable to all, in respect both to foreign and domestic concerns. It will prevent some of the causes of war, that scourge of the human race, by enabling the general government, not only to negotiate suitable treaties for the protection of the rights and interests of all, but by compelling a general obedience to them, and a general respect for the obligations of the law of nations. It is notorious, that even under the confederation, the obligations of treaty stipulations, were openly violated, or silently disregarded; and the peace of the whole confederacy was at the mercy of the majority of any single state. If the states were separated, they would, or might, form separate and independent treaties with different nations, according to their peculiar interests. These treaties would, or might, involve jealousies and rivalries at home, as well as abroad, and introduce conflicts between nations struggling for a monopoly of the trade with each state. Retaliatory or evasive stipulations would be made, to counteract the injurious system of a neighbouring or distant state, and thus the scene be again acted over with renewed violence, which succeeded the peace of 1783, when the common interests were forgotten in the general struggle for superiority. It would manifestly be the interest of foreign nations to promote these animosities and jealousies, that, in the general weakness, the states might seek their protection by an undue sacrifice of their interests, or fall an easy prey to their arms.22
§ 476. The dangers, too, to all the states, in case of division, from foreign wars and invasion, must be imminent, independent of those from the neighbourhood of the colonies and dependencies of other governments on this continent. Their very weakness would invite aggression. The ambition of the European governments, to obtain a mastery of power in colonies and distant possessions, would be perpetually involving them in embarrassing negotiations or conflicts, however peaceable might be their own conduct, and however inoffensive their own pursuits, and objects. America, as of old, would become the theater of warlike operations, in which she had no interests; and with a view to their own security, the states would be compelled to fall back into a general colonial submission, or sink into dependencies of such of the. great European powers, as might be most favourable to their interests, or most commanding over their resources.23
§ 477. There are also peculiar interests of some of the states, which would, upon a separation, be wholly sacrificed, or become the source of immeasurable calamities. The New England states have a vital interest in the fisheries with their rivals, England and France; and how could New England resist either of these powers in a struggle for the common right, if attempted to be restrained or abolished? What would become of Maryland and Virginia, if the Chesapeake were under the dominion of different foreign powers de facto, though not in form? The free navigation of the Mississippi and the lakes, and it may be added, the exclusive navigation of them, seems indispensable to to the security, as well as the prosperity of the western states. How otherwise, than by a general union, could this be maintained or guarantied?24
§ 478. And again, as to commerce, so important to the navigating states, and so productive to the agricultural states, it must be at once perceived, that no adequate protection could be given to either, unless by the strong and uniform operations of a general government. Each state by its own regulations would seek to promote its own interests, to the ruin or injury of those of others. The relative situation of these states; the number of rivers, by which they are intersected, and of bays, that wash their shores; the facility of communication in every direction; the affinity of language and manners; the familiar habits of intercourse; all these circumstances would conspire to render an illicit trade between them matter of little difficulty, and would insure frequent evasions of the commercial regulations of each other.25 All foreign nations would have a common interest in crippling us; and all the evils of colonial servitude, and commercial monopoly would be inflicted upon us, by the hands of our own kindred and neighbours.26 But this topic, though capable of being presented in detail from our past experience in such glowing colours, as to startle the most incredulous into a conviction of the ultimate poverty, wretchedness, and distress, which would overwhelm every state, does not require to be more than hinted at. We have already seen in our former examination of the defects of the confederation, that every state was ruined in its revenues, as well as in its commerce, by the want of a more efficient government.27
§ 479. Nor should it be imagined, that however injurious to commerce, the evils would be less in respect to domestic manufactures and agriculture. In respect to manufactures, the truth is so obvious, that it requires no argument to illustrate it. In relation to the agricultural states, however, an opinion has, at some times and in some sections of the country, been prevalent, that the agricultural interests would be equally safe without any general government. The following, among other considerations, may serve to show the fallacy of all such suggestions. A large and uniform market at home for native productions has a tendency to prevent those sudden rises and falls in prices, which are so deeply injurious to the farmer and the planter. The exclusive possession of the home market against all foreign competition gives a permanent security to investments, which slowly yield their returns, and encourages the laying out of capital in agricultural improvements. Suppose cotton, tobacco, and wheat were at all times admissible from foreign states without duty, would not the effect be permanently to check any cultivation beyond what at the moment seems sure of a safe sale? Would not foreign nations be perpetually tempted to send their surplus here, and thus, from time to time, depress or glut the home market?
§ 480. Again, the neighbouring states would often engage in the same species of cultivation; and yet with very different natural, or artificial means of making the products equally cheap. This inequality would immediately give rise to legislative measures to correct the evil, and to secure, if possible, superior advantages over the rival state. This would introduce endless crimination and retaliation, laws for defence, and laws for offence. Smuggling would be every where openly encouraged, or secretly connived at. The vital interests of a state would lie in many instances at the mercy of its neighbours, who might, at the same time, feel, that their own interests were promoted by the ruin of their neighbours. And the distant states, knowing, that their own wants and pursuits were wholly disregarded, would become willing auxiliaries in any plans to encourage cultivation and consumption elsewhere. Such is human nature! Such are the infirmities, which history severely instructs us belong to neighbours and rivals; to those, who navigate, and those, who plant; to those, who desire, and those, who repine at the prosperity of surrounding states.28
§ 481. Again; foreign nations, under such circumstances, must have a common interest, as carriers, to bring to the agricultural states their own manufactures at as dear a rate as possible, and to depress the market of the domestic products to the minimum price of competition. They must have a common interest to stimulate the neighbouring states to a ruinous jealousy; or by fostering the interests of one, with whom they can deal upon more advantageous terms, or over whom they have acquired a decisive influence, to subject to a corresponding influence others, which struggle for an independent existence.29 This is not mere theory. Examples, and successful examples of this policy, may be traced though the period between the peace of 1783 and the adoption of the constitution.
§ 482. But not to dwell farther on these important inducements “to form a more perfect union,” let us pass to the next object, which is to “establish justice.” This must for ever be one of the great ends of every wise government; and even in arbitrary governments it must, to a great extent, be practiced, at least in respect to private persons, as the only security against rebellion, private vengeance, and popular cruelty. But in a free government it lies at the very basis of all its institutions. Without justice being freely, fully, and impartially administered, neither our persons, nor our rights, nor our property, can be protected. And if these, or either of them, are regulated by no certain laws, and are subject to no certain principles, and are held by no certain tenure, and are redressed, when violated, by no certain remedies, society fails of all its value; and men may as well return to a state of savage and barbarous independence. No one can doubt, therefore, that the establishment of justice must be one main object of all our state governments. Why, then, may it be asked, should it form so prominent a motive in the establishment of the national government?
§ 483. This is now proposed to be shown in a concise manner. In the administration of justice, foreign nations, and foreign individuals, as well as citizens, have a deep stake; but the former have not always as complete means of redress as the latter; for it may be presumed, that the state laws will always provide adequate tribunals to redress the grievances and sustain the rights of their own citizens. But this would be a very imperfect view of the subject. Citizens of contiguous states have a very deep interest in the administration of justice in each state; and even those, which are most distant, but belonging to the same confederacy, cannot but be affected by every inequality in the provisions, or the actual operations of the laws of each other. While every state remains at full liberty to legislate upon the subject of rights, preferences, contracts, and remedies, as it may please, it is scarcely to be expected, that they will all concur in the same general system of policy. The natural tendency of every government is to favour its own citizens; and unjust preferences, not only in the administration of justice, but in the very structure of the laws, may reasonably be expected to arise. Popular prejudices, or passions, supposed or real injuries, the predominance of home pursuits and feelings over the comprehensive views of a liberal jurisprudence, will readily achieve the most mischievous projects for this purpose. And these, again, by a natural reaction, will introduce correspondent regulations, and retaliatory measures in other states.
§ 483.* Now, exactly what this course of reasoning has led us to presume as probable, has been demonstrated by experience to be true in respect to our own confederacy during the short period of its existence, and under circumstances well calculated to induce each state to sacrifice many of its own objects for the general good. Nay, even when we were colonies, dependent upon the authority of the mother country, these inequalities were observable in the local legislation of several of the states, and produced heart-burnings and discontents, which were not easily appeased.
§ 484. First, in respect to foreign nations. After the confederacy was formed, and we had assumed the general rights of war as a sovereign belligerent nation, authority to make captures, and to bring in ships and cargoes for adjudication naturally flowed from the proper exercise of these rights by the law of nations. The states respectively retained the power of appointing prize tribunals, to take cognizance of these matters in the first instance; and thus thirteen distinct jurisdictions were established, which acted entirely independent of each other. It is true, that the articles of confederation had delegated to the general government the authority of establishing courts for receiving and determining, finally, appeals in all cases of captures. Congress accordingly instituted proper appellate tribunals, to which the state courts were subordinate, and, upon constitutional principles, were bound to yield obedience. But it is notorious, that the decisions of the appellate tribunals were disregarded, and treated as mere nullities, for no power to enforce them was lodged in congress. They operated, therefore, merely by moral influence and requisition, and, as such, soon sunk into insignificance. Neutral individuals, as well as neutral nations, were left wholly without any adequate redress for the most inexcusable injustice, and the confederacy subjected to imminent hazards. And until the constitution of the United States was established, no remedy was ever effectually administered.30 Treaties, too, were formed by congress with various nations; and above all, the treaty of peace of 1783, which gave complete stability to our indepedence against Great Britain. These treaties were, by the theory of the confederation, absolutely obligatory upon all the states. Yet their provisions were notoriously violated both by state legislation and state judicial tribunals. The nonfulfilment of the stipulations of the British treaty on our part more than once threatened to involve the whole country again in war. And the provision in that treaty for the payment of British debts was practically disregarded in many, if not in all, the state courts. These debts never were enforced, until the constitution gave them a direct and adequate sanction, independently of state legislation and state courts.31
§ 485. Besides the debts due to foreigners, and the obligations to pay the same, the public debt of the United States was left utterly unprovided for; and the officers and soldiers of the revolution, who had achieved our independence, were, as we have had occasion to notice, suffered to languish in want, and their just demands evaded, or passed by with indifference.32 No efficient system to pay the public creditors was ever carried into operation, until the constitution was adopted; and, notwithstanding the increase of the public debt, occasioned by intermediate wars, it is now on the very eve of a total extinguishment.
§ 486. These evils, whatever might be their magnitude, did not create so universal a distress, or so much private discontent, as others of a more domestic nature, which were subversive of the first principles of justice. Independent of the unjustifiable preferences, which were fostered in favour of citizens of the state over those belonging to other states, which were not few nor slight, there were certain calamities inflicted by the common course of legislation in most of the states, which went to the prostration of all public faith and all private credit. Laws were constantly made by the state legislatures violating, with more or less degrees of aggravation, the sacredness of private contracts. Laws compelling the receipt of a depreciated and depreciating paper currency in payment of debts were generally, if not universally, prevalent. Laws authorizing the payment of debts by instalments, at periods differing entirely from the original terms of the contract; laws suspending, for a limited or uncertain period, the remedies to recover debts in the ordinary course of legal proceedings, laws authorizing the delivery of any sort of property, however unproductive or undesirable, in payment of debts upon an arbitrary or friendly appraisement; laws shutting up the courts for certain periods and under certain circumstances, were not infrequent upon the statute books of many of the states now composing the Union. In the rear of all these came the systems of general insolvent laws, some of which were of a permanent nature, and others again were adopted upon the spur of the occasion, like a sort of gaol delivery under the Lords’ acts in England, which had so few guards against frauds of every kind by the debtor, that in practice they amounted to an absolute discharge from any debt, without any thing more than a nominal dividend; and sometimes even this vain mockery was dispensed with.33 In short, by the operations of paper currency, tender laws, installment laws, suspension laws, appraisement laws, and insolvent laws, contrived with all the dexterous ingenuity of men oppressed by debt, and popular by the very extent of private embarrassments, the states were almost universally plunged into a ruinous poverty, distrust, debility, and indifference to justice. The local tribunals were bound to obey the legislative will; and in the few instances, in which it was resisted, the independence of the judges was sacrificed to the temper of the times.34 It is well known, that Shays’s rebellion in Massachusetts took its origin from this source. The object was to prostrate the regular administration of justice by a system of terror, which should prevent the recovery of debts and taxes.35
§ 487. The Federalist speaks on this subject with unusual emphasis. “The loss, which America has sustained from the pestilent effects of paper money on the necessary confidence between man and man, on the necessary confidence in the public councils, on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the states, chargeable with this unadvised measure, which must long remain unsatisfied; or rather an accumulation of guilt, which can be expiated no otherwise than by a voluntary sacrifice on the altar of justice of the power; which has been the instrument of it.”36 “Laws impairing the obligation of contracts are contrary to the first principles of the social compact, and to every principle of sound legislation.”37 And the Federalist dwells on the suggestion, that as such laws amount to an aggression on the rights of the citizens of those states, whose citizens are injured by them, they must necessarily form a probable source of hostilities among the states. Connecticut retaliated in an exemplary manner upon enormities of this sort, which she thought had been perpetrated by a neighbouring state upon the just rights of her citizens. Indeed, war constitutes almost the only remedy to chastise atrocious breaches of moral obligations, and social justice in respect to debts and other contracts.38
§ 488. So, that we see completely demonstrated by our own history the importance of a more effectual establishment of justice under the auspices of a national government.39
§ 489. The next clause in the preamble is “to ensure domestic tranquillity.” The illustrations appropriate to this head have been in a great measure anticipated in our previous observations. The security of the states against foreign influence, domestic dissensions, commercial rivalries, legislative retaliations, territorial disputes, and the petty irritations of a border warfare for privileges, exemptions, and smuggling, have been already noticed.40 The very habits of intercourse, to which the states were accustomed with each other during their colonial state, would, as has been justly remarked, give a keener edge to every discontent excited by any inequalities, preferences, or exclusions, growing out of the public policy of any of them.41 These, however, are not the only evils. In small communities domestic factions may well be expected to arise, which, when honest, may lead to the most pernicious public measures; and when corrupt, to domestic insurrections, and even to an overthrow of the government. The dangers to a republican government from this source have been dwelt upon by the advocates of arbitrary government with much exultation; and it must be confessed, that the history of free governments has furnished but too many examples to apologize for, though not to justify their arguments, drawn not only against the forms of republican government, but against the principles of civil liberty. They have pointed out the brief duration of republics, the factions, by which they have been rent, and the miseries, which they have suffered from distracted councils, and time-serving policy, and popular fury, and corruption, in a manner calculated to increase the solicitude of every well-wisher to the cause of rational liberty. And even those, who are most favourable in their views, seem to have thought, that the experience of the world had never yet furnished any conclusive proofs in its support.42 We know but too well, that factions have been the special growth of republics. By a faction, we are to understand a number of citizens, whether amounting to a minority or majority of the whole, who are united by some common impulse of passion, or interest, or party, adverse to the rights of the other citizens, or to the permanent and aggregate interests of the community.43
§ 490. The latent causes of faction seem sown in the nature of man. A zeal for different opinions concerning religion, and government, and many other points, both of speculation and practice; an attachment to different leaders; mutual rivalries and animosities; the restlessness of ambition; the pride of opinion; the desire for popular favour; commonly supply a ready origin to factions. And where deeper causes are not at work, the most trivial differences, and the most accidental circumstances, occasionally excite the most severe conflicts. But the most durable, as well as the most alarming form, in which faction has displayed itself, has grown out of the unequal distribution of property. Those, who have, and those, who have not property, have, and must for ever have, distinct interests in society. The relation of debtor and creditor, at all times delicate, sometimes assumes a shape, which threatens the overthrow of the government itself.44
§ 491. There are but two methods of curing the mischiefs of faction; the one, by removing its causes, which, in a free government, is impracticable without the destruction of liberty; the other, by controlling its effects. If a faction be a minority, the majority may apply the proper corrective, by defeating or checking the violence of the minority in the regular course of legislation. In small states, however, this is not always easily attainable, from the difficulty of combining in a permanent form sufficient influence for this purpose. A feeble domestic faction will naturally avail itself, not only of all accidental causes of dissatisfaction at home, but also of all foreign aid and influence to carry its projects. And, indeed, in the gradual operations of factions, so many combinations are formed and dissolved, so many private resentments become embodied in public measures, and success and triumph so often follow after defeat, that the remnants of different factions, which have had a brief sway, however hostile to each other, have an interest to unite in order to put down their rivals. But if the faction be a majority, and stand unchecked, except by its own sense of duty, or its own fears, the dangers are imminent to all those, whose principles, or interests, or characters stand in the way of their supreme dominion.45
§ 492. These evils are felt in great states; but it has been justly observed, that in small states they are far more aggravated, bitter, cruel, and permanent. The most effectual means to control such effects seem to be in the formation of a confederate republic, consisting of several states.46 It will be rare, under such circumstances, if proper powers are confided to the general government, that the state line does not form the natural, as it will the jurisdictional boundary of the operations of factions. The authority of the general government will have a natural tendency to suppress the violence of faction, by diminishing the chances of ultimate success; and the example of the neighbouring states, who will rarely, at the same time, partake of the same feelings, or have the same causes to excite them into action, will mitigate, if it does not wholly disarm, the violence of the predominant faction.47
§ 493. One of the ordinary results of disunion among neighbouring states is the necessity of creating and keeping up standing armies, and other institutions unfavourable to liberty. The immediate dangers from sudden inroads and invasions, and the perpetual jealousies and discords incident to their local position, compel them to resort to the establishment of armed forces, either disproportionate to their means, or inadequate for their defence. Either alternative is fraught with public mischiefs. If they do not possess an adequate military force to repel invasion, they have no security against aggression and insult. If they possess an adequate military force, there is much reason to dread, that it may, in the hands of aspiring or corrupt men, become the means of their subjugation.48 There is no other refuge in such cases, but to seek an alliance always unequal, and to be obtained only by important concessions to some powerful nation, or to form a confederacy with other states, and thus to secure the cooperation and the terror of numbers. Nothing has so strong a tendency to suppress hostile enterprises, as the consciousness, that they will not be easily successful. Nothing is so sure to produce moderation, as the consciousness, that resistance will steadily maintain the dictates of justice. Summary, nay, even arbitrary authority, must be granted, where the safety of a state cannot await the slow measures of ordinary legislation to protect it. That government is, therefore, most safe in its liberties, as well as in its domestic peace, whose numbers constitute a preventive guard against all internal, as well as external attacks.
§ 494. We now proceed to the next clause in the preamble, to “provide for the common defence.” And many of the considerations already stated apply with still greater force under this head. One of the surest means of preserving peace is said to be, by being always prepared for war. But a still more sure means is the power to repel, with effect, every aggression. That power can scarcely be attained without a wide extent of population, and at least a moderate extent of territory. A country, which is large in its limits, even if thinly peopled, is not easily subdued. Its variety of soil and climate, its natural and artificial defences, nay, its very poverty and scantiness of supplies, make it difficult to gain, or to secure a permanent conquest. It is far easier to overrun, than to subdue it. Armies must be divided, distant posts must be maintained, and channels of supplies kept constantly open. But where the territory is not only large, but populous, permanent conquest can rarely occur, unless (which is not our case) there are very powerful neighbours on every side, having a common interest to assist each other, and to subjugate their enemy. It is far otherwise, where there are many rival and independent states, having no common union of government or interests. They are half subdued by their own dissensions, jealousies, and resentments before the conflict is begun. They are easily made to act a part in the destruction of each other, or easily fall a prey for want of proper concert and energy of operations.
§ 495. Besides; – The resources of a confederacy must be far greater than those of any single state belonging to it, both for peace and war. It can command a wider range of revenue, of military power, of naval armaments, and of productive industry. It is more independent in its employments, in its capacities, and in its influences. In the present state of the world, a few great powers possess the command of commerce, both on land and at sea. In war, they trample upon the rights of neutrals who are feeble; for their weakness furnishes an excuse both for servility and disdain. In peace, they control the pursuits of the rest of the world, and force their trade into every channel by the activity of their enterprise, their extensive navigation, and their flourishing manufactures. They little regard the complaints of those, who are subvided into petty states with varying interests; and use them only as instruments to annoy or check the enterprise of each other. Such states are not formidable in peace or in war. To secure their rights and maintain their independence they must become a confederated nation, and speak with the force of numbers, as well as the eloquence of truth.49 The navy or army, which could be maintained by any single state in the Union, would be scarcely formidable to any second rate power in Europe. It would be a grievous public burthen, and exhaust the whole resources of the state. But a navy or army for all the purposes of home defence, or protection upon the ocean, is within the compass of the resources of the general government, without any severe exaction. And with the growing strength of the Union must be at once more safe for us, and more formidable to foreign nations. The means, therefore, to provide for the common defence are ample; and they can only be rendered inert and inadequate by a division among the states, and a want of unity of operations.50
§ 496. We pass, in the next place, to the clause to “promote the general welfare.” And it may be asked, as the state governments are formed for the same purpose by the people, why should this be set forth, as a peculiar or prominent object of the constitution of the United States? To such an inquiry two general answers may be given. The states, separately, would not possess the means. If they did possess the means, they would not possess the power to carry the appropriate measures into operation.
§ 497. First, in respect to means. It is obvious, that from the local position and size of several of the states, they must for ever possess but a moderate revenue, not more than what is indispensable for their own wants, and, in the strictest sense, for domestic improvements. In relation to others more favourably situated for commerce and navigation, the revenues from taxation may be larger; but the main reliance must be placed upon the taxation by way of imposts upon importations. Now, it is obvious, from the remarks already made, that no permanent revenue can be raised from this source, when the states are separated. The evasions of the laws, which will constantly take place from the rivalries, and various interests of the neighbouring states; the facilities afforded by the numerous harbours, rivers, and bays, which indent and intersect our coasts; the strong interest of foreigners to promote smuggling; the want of uniformity in the duties laid by the different states; the means of intercourse along the internal territorial boundaries of the commercial states; these, and many other causes, would inevitably lead to a very feeble administration of any local revenue system, and would make its returns moderate and unsatisfactory. What could New York do with a single sea port, surrounded on each side by jealous maritime neighbours with numerous ports? What could Massachusetts, or Connecticut do with the intermediate territory of RhodeIsland, running into the heart of the states by water communications admirably adapted for the security of illicit trade? What could Maryland or Virginia do with the broad Chesapeake between them with its thousand landing places? What could Pennsylvania oppose to the keen resentments, or the facile policy of her weaker neighbour, Delaware? What could any single state on the Mississippi do to force a steady trade for itself with adequate protecting duties? In short, turn to whichever part of the continent we may, the difficulties of maintaining an adequate system of revenue would be insurmountable, and the expenses of collecting it enormous. After some few struggles for uniformity, and cooperation for mutual support, each state would sink back into listless indifference or gloomy despondency; and rely, principally, upon direct taxation for its ordinary supplies.51 The experience of the few years succeeding the peace of 1783 fully justifies the worst apprehensions on this head.
§ 498. On the other hand, a general government, clothed with suitable authority over all the states, could easily guard the whole Atlantic coast, and make it the interest of all honourable merchants to assist in a regular and punctilious payment of duties. Vessels arriving at different ports of the Union would rarely choose to expose themselves to the perils of seizure, not in a single state only, but in every state, into which the goods might be successively imported. The dangers upon the coast, from the vigilant operations of the revenue officers and revenue vessels, would be great; and they would be much enhanced by the expenses of concealment after the goods were landed.52 And the fact has corresponded with the theory. Since the establishment of the national government, there has been comparatively little smuggling on our coasts; and the revenue from the duties upon importations has steadily increased with the development of the other resources of the country.
§ 499. And this leads us to remark, in the next place, that the establishment of a general government is not only beneficial, as a source of revenue, but as a means of economy in its collection, distribution, and expenditure. Instead of a large civil list for each state, which shall be competent of itself to discharge all the functions applicable to a sovereign nation, a comparatively small one for the whole nation will suffice to carry into effect its powers, and to receive and disburse its revenues. Besides the economy in the civil department, we have already seen, how much less actual expenditures will be necessary for the military and naval departments, for the security of all the states, than would be, if each were compelled to maintain at all points its independent sovereignty. No fortifications, no commanding posts, no naval flotilla will be necessary to guard the states against each other; nor any corps of officers to protect the frontiers of each against invasion, or smuggling. The exterior boundary of the whole Union will be that alone, which will require to be protected at the national expense.53 Besides; there will be a uniformity of operations and arrangements upon all subjects of the common welfare under the guidance of a single head; instead of multifarious, and often conflicting systems by distinct states.
§ 500. But if the means were completely within the power of the several states, it is obvious, that the jurisdiction would be wanting to carry into effect any great or comprehensive plan for the welfare of the whole. The idea of a permanent and zealous cooperation of thirteen (and now of twenty-four) distinct governments in any scheme for the common welfare, is of itself a visionary notion. In the first place, laying aside all local jealousies and accidental jars, there is no plan for the benefit of the whole, which would not bear unequally upon some particular parts. Is it a regulation of commerce or mutual intercourse, which is proposed? Who does not see, that the agricultural, the manufacturing, and the navigating states, may have a real or supposed difference of interest in its adoption. If a system of regulations, on the other hand, is prepared by a general government, the inequalities of one part may, and ordinarily will, under the guidance of wise councils, correct and meliorate those of another. The necessity of a sacrifice of one for the benefit of all may not, and probably will not, be felt at the moment by the state called upon to make it. But in a general government, representing the interests of all, the sacrifice, though first opposed, will, in the end, be found adequately recompensed by other substantial good. Agriculture, commerce, manufactures, may, each in turn, be compelled to yield something of their peculiar benefits, and yet, on the whole, be still each a gainer by the general system. The very power of thus redressing the evils, felt by each in its intercourse with foreign nations, by prohibitory regulations, or countervailing duties, may secure permanent privileges of an incalculable value.54 And the fact has been, as theoretical reasoning would lead us to suppose. The navigation and commerce, the agriculture and manufactures of all the states, have received an advancement in every direction by the union, which has far exceeded the most sanguine expectation of its warmest friends.
§ 501. But the fact alone of an unlimited intercourse, without duty or restriction, between all the states, is of itself a blessing of almost inconceivable value. It makes it an object with each permanently to look to the interests of all, and to withdraw its operations from the narrow sphere of its own exclusive territory. Without entering here into the inquiry, how far the general government possesses the power to make, or aid the making of roads, canals, and other general improvements, which will properly arise in our future discussions, it is clear, that if there were no general government, the interest of each state to undertake, or to promote in its own legislation any such project, would be far less strong, than it now is; since there would be no certainty, as to the value or duration of such improvements, looking beyond the boundaries of the state. The consciousness, that the union of the states is permanent, and will not be broken up by rivalries, or conflicts of policy, that caprice, or resentment, will not divert any state from its proper duties, as a member of the Union, will give a solid character to all improvements. Independent of the exercise of any authority by the general government for this purpose, it was justly foreseen, that roads would be every where shortened and kept in better order; accommodations for travellers would be multiplied and meliorated; an interior navigation on our eastern side would be opened throughout the whole extent of our coast; and, by canals and improvements in river navigation, a boundless field opened to enterprise and emigration, to commerce and products, through the interior states, to the farthest limits of our western territories.55
§ 502. Passing from these general considerations to those of a direct practical nature, let us see, how far certain measures, confessedly promotive of the general welfare, have been, or would be, affected by a disunion of the states. Take, for example, the post-office establishment, the benefits of which can scarcely be too strongly stated in respect to the public interests, or to private convenience. With what a wonderful facility it now communicates intelligence, and transmits orders and directions, and money and negotiable paper to every extremity of the Union. The government is enabled to give the most prompt notice of approaching dangers, of its commands, its wishes, its duties, its interests, its laws, and its policy, to the most distant functionaries with incredible speed. Compare this with the old course of private posts, and special expresses. Look to the extensive advantages to trade, navigation, and commerce, to agriculture and manufactures, in the ready distribution of news, of knowledge of markets, and of transfers of funds, independent of the inestimable blessings of communication between distant friends, to relieve the heart from its oppressive anxieties. In our colonial state it took almost as long a period of time to convey a letter (independent of the insecurity and uncertainty of its transmission) from Philadelphia to Boston, as it now takes to pass from the seat of government to the farthest limits of any of the states. Even under the confederation, from the want of efficient funds and an efficient government, the post moved on with a tardy indifference and delay, which made it almost useless. We now communicate with England, and the continents of Europe, within periods not essentially different from those, which were then consumed in passing from the centre to the eastern and southern limits of the Union. Suppose the national government were now dissolved, how difficult would it be to get the twenty-four states to agree upon any uniform system of operations, or proper apportionment of the postage to be paid on the transmission of the mail. Each state must act continually by a separate legislation; and the least change by any one would disturb the harmony of the whole system. It is not at all improbable, that before a single letter could reach NewOrleans from Eastport, it would have to pay a distinct postage in sixteen independent states, subject to no common control or appointment of officers. The very statement of such a case amounts to a positive prohibition upon any extensive internal intercourse by the mail, as the burthens and the insecurity of the establishment would render it intolerable. With what admirable ease, and expedition, and noiseless uniformity of movement, is the whole now accomplished through the instrumentality of the national government!
§ 503. Let us take another example, drawn from the perils of navigation; and ask ourselves, how it would be possible, without an efficient national government, to provide adequately for the erection and support of lighthouses, monuments, buoys, and other guards against shipwreck. Many of these are maintained at an expense wholly disproportionate to their advantage to the state, in which they are situate. Many of them never would be maintained, except for the provident forecast of a national government, intent on the good of the whole, and possessing powers adequate to secure it. The same considerations apply to all measures of internal improvement, either to navigation by removing obstructions in rivers and inlets, or by erecting fortifications for purposes of defence, and to guard our harbours against the inroads of enemies.
§ 504. Independent of these means of promoting the general welfare, we shall at once see, in our negotiations with foreign powers, the vast superiority of a nation combining numbers and resources over states of small extent, and divided by different interests. If we are to negotiate for commercial or other advantages, the national government has more authority to speak, as well as more power to influence, than can belong to a single state. It has more valuable privileges to give in exchange, and more means of making those privileges felt by prohibitions, or relaxations of its commercial legislation. Is money wanted; how much more easy and cheap to borrow upon the faith of a nation competent to pay, than of a single state of fluctuating policy. Is confidence asked for the faithful fulfilment of treaty stipulations; how much more strong the guaranty of the Union with suitable authorities, than any pledge of an individual state. Is a currency wanted at once fixed on a solid basis, and sustained by adequate sanctions to enlarge public or private credit; how much more decisive is the legislation of the Union, than of a single state with a view to extent, or uniformity of operations.
§ 505. Thus we see, that the national government, suitably organized, has more efficient means, and more extensive jurisdiction to promote the general welfare, than can belong to any single state of the confederacy. And there is much truth in the suggestion, that it will generally be directed by a more enlightened policy, a more liberal justice, and more comprehensive wisdom, in the application of its means and its powers to their appropriate end. Generally speaking, it will be better administered; because it will command higher talents, more extensive experience, more practical knowledge, and more various information of the wants of the whole community, than can belong to smaller societies.56 The wider the sphere of action, the less reason there is to presume, that narrow views, or local prejudices will prevail in the public councils. The very diversities of opinion in the different representatives of distant regions will have a tendency, not only to introduce mutual concession and conciliation, but to elevate the policy, and instruct the judgment of those, who are to direct the public measures.
§ 506. The last clause in the preamble is to “secure the blessings of liberty to ourselves and our posterity.” And surely no object could be more worthy of the wisdom and ambition of the best men in any age. If there be any thing, which may justly challenge the admiration of all mankind, it is that sublime patriotism, which, looking beyond its own times? and its own fleeting pursuits, aims to secure the permanent happiness of posterity by laying the broad foundations of government upon immovable principles of justice. Our affections, indeed, may naturally be presumed to outlive the brief limits of our own lives, and to repose with deep sensibility upon our own immediate descendants. But there is a noble disinterestedness in that forecast, which disregards present objects for the sake of all mankind, and erects structures to protect, support, and bless the most distant generations. He, who founds a hospital, a college, or even a more private and limited charity, is justly esteemed a benefactor of the human race. How much more do they deserve our reverence and praise, whose lives are devoted to the formation of institutions, which, when they and their children are mingled in the common dust, may continue to cherish the principles and the practice of liberty in perpetual freshness and vigour.
§ 507. The grand design of the state governments is, doubtless, to accomplish this important purpose; and there can be no doubt, that they are, when well administered, well adapted to the end. But the question is not so much, whether they conduce to the preservation of the blessings of liberty, as whether they of themselves furnish a complete and satisfactory security. If the remarks, which have been already offered, are founded in sound reasoning and human experience, they establish the position, that the state governments, per se, are incompetent and inadequate to furnish such guards and guaranties, as a free people have a right to require for the maintenance of their vital interests, and especially of their liberty. The inquiry then naturally presents itself, whether the establishment of a national government will afford more effectual and adequate securities.
§ 508. The fact has been already adverted to, that when the constitution was before the people for adoption, it was generally represented by its opponents, that its obvious tendency to a consolidation of the powers of government would subvert the state sovereignties, and thus prove dangerous to the liberties of the people.57 This indeed was a topic dwelt on with peculiar emphasis; and it produced so general an alarm and terror, that it came very nigh accomplishing the rejection of the constitution.58 And yet the reasoning, by which it was supported, was so vague and unsatisfactory; and the reasoning, on the other side, was so cogent and just, that it seems difficult to conceive, how, at that time, or at any later time, (for it has often been resorted to for the same purpose,) the suggestion could have had any substantial influence upon the public opinion.
§ 509. Let us glance at a few considerations, (some of which have been already hinted at,) which are calculated to suppress all alarm upon this subject. In the first place, the government of the United States is one of limited powers, leaving all residuary general powers in the state governments, or in the people thereof. The jurisdiction of the general government is confined to a few enumerated objects, which concern the common welfare of all the states. The state governments have a full superintendence and control over the immense mass of local interests of their respective states, which connect themselves with the feelings, the affections, the municipal institutions, and the internal arrangements of the whole population.59 They possess, too, the immediate administration of justice in all cases, civil and criminal, which concern the property, personal rights, and peaceful pursuits of their own citizens. They must of course possess a large share of influence; and being independent of each other, will have many opportunities to interpose checks, as well as to combine a common resistance, to any undue exercise of power by the general government, independent of direct force.60
§ 510. In the next place, the state governments are, by the very theory of the constitution, essential constituent parts of the general government. They can exist without the latter, but the latter cannot exist without them. Without the intervention of the state legislatures, the president of the United States cannot be elected at all; and the senate is exclusively and absolutely under the choice of the state legislatures. The representatives are chosen by the people of the states. So that the executive and legislative branches of the national government depend upon, and emanate from the states. Every where the state sovereignties are represented; and the national sovereignty, as such, has no representation.61 How is it possible, under such circumstances, that the national government can be dangerous to the liberties of the people, unless the states, and the people of the states, conspire together for their overthrow? If there should be such a conspiracy, is not this more justly to be deemed an act of the states through their own agents, and by their own choice, rather than a corrupt usurpation by the general government?
§ 511. Besides; the perpetual organization of the state governments, in all their departments, executive, legislative, and judicial; their natural tendency to cooperation in cases of threatened danger to their common liberties; the perpetually recurring right of the elective franchise, at short intervals, must prevent the most formidable barriers against any deliberate usurpation, which does not arise from the hearty cooperation of the people of the states. And when such a general cooperation for usurpation shall exist, it is obvious, that neither the general, nor the state governments, can interpose any permanent protection. Each must submit to that public will, which created, and may destroy them.
§ 512. Another not unimportant consideration is, that the powers of the general government will be, and indeed must be, principally employed upon external objects, such as war, peace, negotiations with foreign powers, and foreign commerce. In its internal operations it can touch but few objects, except to introduce regulations beneficial to the commerce, intercourse, and other relations, between the states, and to lay taxes for the common good. The powers of the states, on the other hand, extend to all objects, which, in the ordinary course of affairs, concern the lives, and liberties, and property of the people, and the internal order, improvement, and prosperity of the state. The operations of the general government will be most extensive and important in times of war and danger; those of the state governments, in times of peace and security.62 Independent of all other considerations, the fact, that the states possess a concurrent power of taxation, and an exclusive power to regulate the descents, devise, and distribution of estates, (a power the most formidable to despotism, and the most indispensable in its night exercise to republicanism,) will for ever give them an influence, which will be as commanding, as, with reference to the safety of the Union, they could deliberately desire.63
§ 513. Indeed, the constant apprehension of some of the most sincere patriots, who by their wisdom have graced our country, has been of an opposite character. They have believed, that the states would, in the event, prove too formidable for the Union. That the tendency would be to anarchy in the members, and not to tyranny in the head.64 Whether their fears, in this respect, were not those of men, whose judgments were misled by extreme solicitude for the welfare of their country, or whether they but too well read the fate of our own in the history of other republics, time, the great expounder of such problems, can alone determine.65 The reasoning on this subject, which has been with so much profoundness and ability advanced by the Federalist, will, in the mean time, deserve the attention of every considerate man in America.66
§ 514. Hitherto our experience has demonstrated the entire safety of the states, under the benign operations of the constitution. Each of the states has grown in power, in vigour of operation, in commanding influence, in wealth, revenue, population, commerce, agriculture, and general efficiency. No man will venture to affirm, that their power, relative to that of the Union, has been diminished, although our population has, in the intermediate period, passed from three to more than twelve millions. No man will pretend to say, that the affection for the state governments has been sensibly diminished by the operations of the general government. If the latter has become more deeply an object of regard and reverence, of attachment and pride, it is, because it is felt to be the parental guardian of our public and private rights, and the natural ally of all the state governments, in the administration of justice, and the promotion of the general prosperity. It is beloved, not for its power, but for its beneficence; not because it commands, but because it protects; not because it controls, but because it sustains the common interests, and the common liberties, and the common lights of the people.
§ 515. That there have been measures adopted by the general government, which have not met with universal approbation, must be admitted. But was not this difference of opinion to be expected? Does it not exist in relation to the acts of the state governments? Must it not exist in every government, formed and directed by human beings of different talents, characters, passions, virtues, motives, and intelligence? That some of the measures of the general government have been deemed usurpations by some of the states is also true. But it is equally true, that those measures were deemed constitutional by a majority of the states, and as such, received the most hearty concurrence of the state authorities. It is also true, that some measures, whose constitutionality has been doubted or denied by some states, have, at other times, upon reexamination, been approved of by the same states. Not a single measure has ever induced three quarters of the states to adopt any amendment to the constitution founded upon the notion of usurpation.67 Wherever an amendment has taken place, it has been to clear a real doubt, or obviate an inconvenience established by our experience. And this very power of amendment, at the command of the states themselves, forms the great balance-wheel of our system; and enables us silently and quietly to redress all irregularities, and to put down all practical oppressions. And what is not a little remarkable in the history of the government, is, that two measures, which stand confessedly upon the extreme limits of constitutional authority, and carry the doctrine of constructive power to the last verge, have been brought forward by those, who were the opponents of the constitution, or the known advocates for its most restricted construction. In each case, however, they received the decided support of a great majority of all the states of the Union; and the constitutionality of them is now universally acquiesced in, if not universally affirmed. We allude to the unlimited embargo, passed in 1807, and the purchase and admission of Louisiana into the Union, under the treaty with France in 1803.68 That any act has ever been done by the general government, which even a majority of the states in the Union have deemed a clear and gross usurpation, may be safely denied. On the other hand, it is certain, that many powers positively belonging to the general government, have never yet been put into full operation. So that the influence of state opinions, and state jealousies, and state policy, may be clearly traced throughout the operations of the general government, and especially in the exercise of the legislative powers. This furnishes no just ground of complaint or accusation. It is right, that it should be so. But it demonstrates, that the general government has many salutary checks, silently at work to control its movements; and, that experience coincides with theory in establishing, that it is calculated to secure “the blessings of liberty to ourselves and our posterity.”
§ 516. If, upon a closer survey of all the powers given by the constitution, and all the guards upon their exercise, we shall perceive still stronger inducements to fortify this conclusion, and to increase our confidence in the constitution, may we not justly hope, that every honest American will concur in the dying expression of Father Paul, “Esto perpetua,” may it be perpetual.
1. Bac. Abridg. Statute 1.; 2 Plowden R. 369; 1 Inst. 79.
2. See Chisholm v. Georgia, Chief Justice Jay’s opinion, 2 Dall. 419; 2 Cond. Rep. 635, 671.
3. Journal of Convention, 67; Id. 83.
4. Yet, strangely enough, this objection was urged very vehemently against the adoption of the constitution; 1 Elliot’s debates, 293, 300.
5. See 2 Lloyd’s Debates, 1789, p. 178,180,181.
6. By a constitution, is to, be understood (says Mr. Justice Wilson) a supreme law, made and ratified by those, in whom the sovereign power of the state resides, which prescribes the manner, in which that sovereign power wills that the government should be instituted and administered.a
It contributed not a little to the infirmities of the articles of the confederation, that it never had A ratification by the people. The Federalist, 22.
a. 1 Wilson’s Lect. 417.
7. The Federalist, No. 22; see also No. 43; 4 Elliot’s Debates, 75; ante, p. 248.
8. The Federalist, No. 39; Id. No. 84.
9. Chisholm v. Georgia, 2 Dall. 419; 2 Cond. R. p. 635, 671.
10. See McCulloh v. Maryland, 4 Wheat. R. 316, 404, 405; Cohens v. Virginia, 6 Wheat. R. 264, 413, 414; see also 1 Kent’s Comm. Lect. 10, p. 189.
11. Ante, p. 318 to 322.
12. The debates in the Virginia Convention are very pointed on this subject. Mr. Henry, in an especial manner, urged these objections against it in a very forcible manner; (2 Elliot’s Virginia Debates, 47, 61, 131;) and he was replied to, and the preamble vindicated with great ability by Mr. Randolph, Mr. Pendleton, Mr. Lee, Mr. Nicholas, and Mr. Corbin. 2 Elliot’s Virginia Debates, 51, 57, 97, 98. The subject is also discussed in the North Carolina Debates, 3 Elliot’s Deb. 134,145,) and in the Massachusetts Debates. 1 Elliot’s Deb. 72, 110. See also 2 Pitk. Hist. 270; 3 Amer. Museum, 536, 546.
13. Chisholm v. Georgia, 2 Dall. R. 419. — We shall freely use the admirable reasoning of the Federalist on the subject of the Union, without in every instance quoting the particular citations, as they would incumber the text.
14. The Federalist, No. 1, 2, 9,13,14; 3 Wilson’s Works, 285, 286; Paley’s Moral and Political Philosophy, B. 4, ch. 6.
15. The Federalist, No. 13,14.
16. The Federalist, No. 2, 5, 6, 7; 3 Wilson’s Works, 286; Paley’s Moral and Political Philosophy, B. 4, ch. 6.
17. The Federalist, No. 6.
18. The Federalist, No. 5, 6, 7.
19. 1 Montesquieu’s Spirit of Laws, B. 9, ch. 1. See also Beccaria, ch. 26.
20. The Federalist, No. 9; 1 Wilson’s Works, 347 to 350; 3 Wilson’s Works, 276 to 278.
21. The Federalist, No. 4. — The following passages from the Federalist, No. 51, present the subject of the advantages of the Union in a striking light:
“There are, moreover, two considerations particularly applicable to the federal system of America, which place it in a very interesting point of view.
“First: In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate. departments. Hence a double security arises to the rights of the people. The different governments will control each other; at the same time that each will be controlled by itself.
“Secondly: It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: The one by creating a will in the community independent of the majority, that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens, as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary, or selfappointed authority. This, at best, is but a precarious security; because a power, independent of the society, may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from, and dependent on the society, the society itself will be broken into many parts, interests, and classes of citizens. that the rights of individuals. or of the minority, will be in little danger from interested combinations of the majority.
In a free government the security for civil rights must be the same, as that for religious rights. It consists, in the one case in the multiplicity of interests and in the other, in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government; since it shows, that in exact proportion, as the territory of the Union may be formed into more circumscribed confederacies, of states, oppressive combinations of a majority will be facilitated; the best security under the republican form, for the rights of every class of citizens, will be diminished; and consequently. the stability and independence of some member of the government, the only other security, must be proportionably increased, Justice is the end of government. It is the end of civil society. It ever has been, and ever will be, pursued, until it be obtained, or until liberty be lost in the pursuit. In a society, under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign, as in a state of nature, where the weaker individual is not secured against the violence of the stronger. And, as in the latter state, even the stronger individuals are prompted by the uncertainty of their condition to submit to a government, which may protect the weak, as well as themselves: so, in the former state, will the more powerful factions be gradually induced, by a like motive, to wish for a government, which will protect all parties, the weaker, as well as the more powerful.
It can be little doubted, that if the state of Rhode Island was separated from the confederacy, and left to itself, the insecurity of rights, under the popular form of government within such narrow limits, would be displayed by such reiterated oppressions of the factious majorities, that some power, altogether independent of the people, would soon be called for by the voice of the very factions, whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place upon any other principles, than those of justice, and the general good; whilst there being thus less danger to a minor, from the will of the major party, there must be less pretext also to provide for the security of the former, by introducing into the government a will not dependent on the latter; or, in other words, a will independent of the society itself. It is no less certain, that it is important, notwithstanding the contrary opinions, which have been entertained, that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self-government. And happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.”
22. The Federalist, No. 2, 3, 4; 3 Wilson’s Works, 291.
23. The Federalist, No. 3, 4, 5.
24. The Federalist. No. 15.
25. The Federalist, No. 12.
26. The Federalist, No. 11, 12.
27. The Federalist, No. 5, 7, 11, 12; 3 Wilson’s Works, 290; I Elliot’s Debates, 74, 144; 1 Tucker’s Black. Comm. App. 248, 249; Brown v. Maryland, 12 Wheat. R. 419, 445, 446.
28. The Federalist, No. 7.
29. Id. No. 4, 5, 11.
* [Ed. Note: So numbered in the original text.] 30. See the Resolves of Congress, Journals of 1779, p. 86; Penhallow v. Doane, 3 Dall. 54; Jennings v. Carson, 4 Cranch, 2; Chisholm v. Georgia, 2 Dall. 418, 474.
31. See 1 Wait’s State Papers, 226 to 388; Ware v. Hylton,3 Dall. R. 199; Hophins v. Bell, 3 Cranch, 454; 3 Wilson’s Works, 290; Chisholm v. Georgia, 2 Dall. 419, 474.
32. 5 Marshall’s Life of Washington, ch. 1, p. 46 to 49; 2 Pitk. Hist. 180 to 183; Journal of Congress, 1783, p. 194 et seq.; 3 Wilson’s Works, 290; 4 Elliot’s Debates, 84.
33. See Chase J. in Ware v. Hylton, 3 Dall. 199; 1 Cond. R. 99,111.
34. The case of Trevett v. Welden, in 1786, in Rhode-Island, is an instance of this sort, which is in point, and illustrates the text, though it would not be difficult to draw others from states of larger extent. The judges in that case decided, that a law making paper money a tender in payment of debts was unconstitutional, and against the principles of magna charta. They were compelled to appear before the legislature to vindicate themselves; and the next year (being chosen annually) they were left out of office for questioning the legislative power.
35. 5 Marshall’s Life of Washington, 111, 112, etc.; 2 Pitk. Hist. 244; Minot’s History of the Insurrection in Massachusetts.
36. The Federalist, No. 44.
38. The Federalist, No. 7.
39. The remarks of Mr. Chief Justice Jay in Chisholm v. Georgia,(2 Dall. R. 419, 474; S. C. 2 Peters’s Cond. R. 635, 670,) illustrate the truth of these reasonings in an interesting manner.
“Prior to the date,” says he,. “of the constitution, the people had not any national tribunal, to which they could resort for justice; the distribution of justice was then confined to state judicatories, in whose institution and organization the people of the other states had no participation, and over whom they had not the least control. There was then no general court of appellate jurisdiction, by whom the errors of state courts, affecting either the nation at large, or the citizens of any other state, could be revised and corrected. Each state was obliged to acquiesce in the measure of justice, which another state might yield to her, or to her citizens; and that, even in cases where state considerations were not always favourable to the most exact measure. There was danger, that from this source ani-mosities would in time result; and as the transition from animosities to hostilities was frequent in the history of independent states, a common tribunal for the termination of controversies became desirable, from motives both of justice and of policy.
“Prior also to that period, the United States had, by taking a place among the nations of the earth, become amenable to the laws of nations; and it was their interest as well as their duty to provide, that those laws should be respected and obeyed. In their national character and capacity, the United States were responsible to foreign nations for the conduct of each state, relative to the laws of nations, and the performance of treaties; and there the inexpediency of referring all such questions to state courts, and particularly to the courts of delinquent states became apparent. While all the states were bound to protect each, and the citizens of each, it was highly proper and reasonable, that they should be in a capacity, not only to cause justice to be done to each, and the citizens of each; but also to cause justice to be done by each, and the citizens of each; and that, not by violence and force, but in a stable, sedate, and regular course of judicial procedure.”
40. The Federalist, No. 6, 7,12.
41. Id. No. 7.
42. The Federalist, No. 9.
43. Id. No. 10.
44. Id. No. 10.
45. The Federalist, No. 10.
46. Id. No. 9.
47. The Federalist, No. 9, 10.
48. Id. No. 41.
49. The Federalist, No. 11.
50. The Federalist, No. 24, 25.
51. The Federalist, No. 12.
52. The Federalist, No. 12.
53. The Federalist, No. 13,14.
54. The Federalist, No. 11.
55. The Federalist, No. 14.
56. The Federalist, No. 27.
57. Elliot’s Debates, 278, 296, 297, 332, 333; 2 Elliot’s Debates, 47, 96, 136; 3 Elliot’s Debates, 243, 257, 291; The Federalist, No. 39, 45, 17, 31.
58. The Federalist, No. 17.
59. The Federalist, No. 14, 45.
60. Id. No. 45.
61. Id. No. 45.
62. The Federalist, No. 45.
63. The Federalist, No. 31.
64. Id. 17, 45, 46, 31.
65. Mr. Turgot appears to have been strongly impressed with the difficulty of maintaining a national government, under such circumstances. In his letter to Dr. Price, he says: “In the general union of the states, I do not observe a coalition, a fusion of all the parts to form one homogeneous body. It is only a jumble of communities too discordant, and which contain a constant tendency to separation, owing to the diversity in their laws, customs, and opinions, to the inequality of their present strength, but still more to the inequality of their advances to greater strength. It is only a copy of the Dutch republic, with this difference, that the Dutch republic had nothing to fear, as the American republic has, from the future possible increase of any one of the provinces. All this edifice has been hitherto supported upon the erroneous foundation of the most ancient and vulgar policy; upon the prejudice, that nations and states, as such, may have an interest distinct from the interest, which individuals have to be free, and defend their property against the attacks of robber and conquerors,” etc. etc. Similar views seem to have occupied the mind of a distinguished American gentleman, who published a pamphlet in 1788, (edit. Worcester,) entitled, ” Thoughs upon the Political Situation of the United States of America,” etc. p. 37, etc.
66. The Federalist, No. 45, 46, 31.
67. If there be any exception, it is the decision, as to the suability of the states. But even this deserves not the name of usurpation, for the case falls clearly within the words of the constitution.
68. 4 Elliot’s Debates, 257. — President Jefferson himself, under whose administration both these measures were passed, which were, in the highest sense, his own measures, was deliberately of opinion, that an amendment of the constitution was necessary, to authorize the general government to admit Louisiana into the Union. Yet he ratified the very treaty, which secured this right; and confirmed the laws, which gave it effect. 4 Jefferson’s Corresp. 1, 2, 3. — A more particular consideration of these subjects will naturally arise in some future discussions.