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The American Republic

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The conclusion, then, that the General government holds from the
States united, not from the States severally, is not invalidated
by the fact that its constitution was completed only by the
ratification of the States in their individual capacity. The
ratification was made necessary by the will of the people in
convention assembled; but the convention was competent to
complete it and put it in force without that ratification, had it
so willed. The general practice under the American system is for
the convention to submit the constitution it has agreed on to the
people, to be accepted or rejected by a plebiscitum; but such
submission, though it may be wise and prudent, is not necessary.
The convention is held to be the convention of the people, and to
be clothed with the full authority of the sovereign people, and
it is in this that it differs from the congress or the
legislature. It is not a congress of delegates or ministers who
are obliged to act under instructions, to report their acts to
their respective sovereigns for approval or rejection; it is
itself sovereign, and may do whatever the people themselves can
do. There is no necessity for it to appeal to a plebiscitum to
complete its acts. That the convention, on the score of
prudence, is wise in doing so, nobody questions; but the
convention is always competent, if it chooses, to ordain the
constitution without appeal. The power competent to ordain the
constitution is always competent to change, modify, or amend it.
That amendments to the constitution of the government can be
adopted only by being proposed by a convention of all the States
in the Union, or by being proposed, by a two-thirds vote of both
houses of Congress, and ratified by three-fourths of the States,
is simply a conventional ordinance, which the convention can
change at its pleasure. It proves nothing as it stands but the
will of the convention.

The term ratification itself, because the term commonly used in
reference to treaties between sovereign powers, has been seized
on, since sometimes used by the convention, to prove that the
constitution emanates from the States severally, and is a treaty
or compact between sovereign states, not an organic or
fundamental law ordained by a single sovereign will; but this
argument is inadmissible, because, as we have just seen, the
convention is competent to ordain the constitution without
submitting it for ratification, and because the convention uses
sometimes the word adopt instead of the word ratify. That the
framers of the constitution held it to be a treaty, compact, or
agreement among sovereigns, there is no doubt, for they so held
in regard to all constitution of government; and there is just as
little doubt that they intended to constitute, and firmly
believed that they were constituting a real government.
Mr. Madison's authority on this point is conclusive. They
unquestionably regarded the States, prior to the ratification of
the constitution they proposed, as severally sovereign, as they
were declared to be by the old Articles of Confederation, but
they also believed that all individuals are sovereign prior to
the formation of civil society. Yet very few, if any, of them
believed that they remained sovereign after the adoption of the
constitution; and we may attribute to their belief in the
conventional origin of all government,--the almost universal
belief of the time among political philosophers,--the little
account which they made of the historical facts that prove that
the people of the United States were always one people, and that
the States never existed as severally sovereign states.

The political philosophers of the present day do not generally
accept the theory held by our fathers, and it has been shown in
these pages to be unsound and incompatible with the essential
nature of government. The statesmen of the eighteenth century
believed that the state is derived from the people individually,
and held that sovereignty is created by the people in convention.
The rights and powers of the state, they held, were made up of
the rights held by individuals under the law of nature, and which
the individuals surrendered to civil society on its formation.
So they supposed that independent sovereign states might meet in
convention, mutually agree to surrender a portion of their
rights, organize their surrendered rights into a real government,
and leave the convention shorn, at least, of a portion of their
sovereignty. This doctrine crops out everywhere in the writings
of the elder Adams, and is set forth with rare ability by
Mr. Webster, in his great speech in the Senate against the State
sovereignty doctrine of General Hayne and Mr. Calhoun, which won
for him the honorable title of Expounder of the Constitution--and
expound it he, no doubt, did in the sense of its framers. He
boldly concedes that prior to the adoption of the constitution,
the people of the United States were severally sovereign states,
but by the constitution they were made one sovereign political
community or people, and that the States, though retaining
certain rights, have merged their several sovereignty in the
Union.

The subtle mind of Mr. Calhoun, who did not hold that a state can
originate in compact, proved to Mr. Webster that his theory could
not stand; that, if the States went into the convention sovereign
States, they came out of it sovereign States; and that the
constitution they formed could from the nature of the case be
only a treaty, compact, or agreement between sovereigns. It
could create an agency, but not a government. The sovereign
States could only delegate the exercise of their sovereign
powers, not the sovereign powers themselves. The States could
agree to exercise certain specific powers of sovereignty only in
common, but the force and vitality of the agreement depended on
the States, parties to the agreement retaining respectively their
sovereignty. Hence, he maintained that sovereignty, after as
before the convention, vested in the States severally. Hence
State sovereignty, and hence his doctrine that in all cases that
cannot come properly before the Supreme Court of the United
States for decision, each State is free to decide for itself, on
which he based the right of nullification, or the State veto of
acts of Congress whose constitutionality the State denies.
Mr. Calhoun was himself no secessionist, but he laid down the
premises from which secession is the logical deduction; and large
numbers of young men, among the most open, the most generous, and
the most patriotic in the country, adopted his premises, without
being aware of this fact any more than he himself was, and who
have been behind none in their loyalty to the Union, and in their
sacrifices to sustain it, in the late rebellion.

The formidable rebellion which is now happily suppressed, and
which attempted to justify itself by the doctrine of State
sovereignty, has thrown, in many minds, new light on the subject,
and led them to re-examine the historical facts in the case from
a different point of view, to see if Mr. Calhoun's theory is not
as unfounded as be had proved Mr. Webster's theory to be. The
facts in the case really sustain neither, and both failed to see
it: Mr. Calhoun because be had purposes to accomplish which
demanded State sovereignty, and Mr. Webster because he examined
them in the distorting medium of the theory or understanding of
the statesmen of the eighteenth century. The civil war has
vindicated the Union, and defeated the armed forces of the State
sovereignty men; but it has not refuted their doctrine, and as
far as it has had any effect, it has strengthened the tendency to
consolidation or centralism.

But the philosophy, the theory of government, the understanding
of the framers of the constitution, must be considered, if the
expression will be allowed, as obiter dicta, and be judged on
their merits. What binds is the thing done, not the theory on
which it was done, or on which the actors explained their work
either to themselves or to others. Their political philosophy,
or their political theory, may sometimes affect the phraseology
they adopt, but forms no rule for interpreting their work. Their
work was inspired by and accords with the historical facts in the
case, and is authorized and explained by them. The American
people were not made one people by the written constitution, as
Mr. Jefferson, Mr. Madison, Mr. Webster, and so many others
supposed, but were made so by the unwritten constitution, born
with and inherent in them.




CHAPTER XI.

THE CONSTITUTION--CONTINUED.


Providence, or God operating through historical facts,
constituted the American people one political or sovereign
people, existing and acting in particular communities,
organizations, called states. This one people organized as
states, meet in convention, frame and ordain the constitution of
government, or institute a general government in place of the
Continental Congress; and the same people, in their respective
State organizations, meet in convention in each State, and frame
and ordain a particular government for the State individually,
which, in union with the General government, constitutes the
complete and supreme government within the States, as the General
government, in union with all the particular governments,
constitutes the complete and supreme government of the nation or
whole country. This is clearly the view taken by Mr. Madison in
his letter to Mr. Everett, when freed from his theory of the
origin of government in compact.

The constitution of the people as one people, and the
distinction at the same time of this one people into particular
States, precedes the convention, and is the unwritten
constitution, the Providential constitution, of the American
people or civil society, as distinguished from the constitution
of the government, which, whether general or particular, is the
ordination of civil society itself. The unwritten constitution
is the creation or constitution of the sovereign, and the
sovereign providentially constituted constitutes in turn the
government, which is not sovereign, but is clothed with just so
much and just so little authority as the sovereign wills or
ordains.

The sovereign in the republican order is the organic people, or
State, and is with us the United States, for with us the organic
people exist only as organized into States united, which in their
union form one compact and indissoluble whole. That is to say,
the organic American people do not exist as a consolidated people
or state; they exist only as organized into distinct but
inseparable States. Each State is a living member of the one
body, and derives its life from its union with the body, so that
the American state is one body with many members; and the
members, instead of being simply individuals, are States, or
individuals organized into States. The body consists of many
members, and is one body, because the members are all members of
it, and members one of another. It does not exist as separate
or distinct from the members, but exists in their solidarity or
membership one of another. There is no sovereign people or
existence of the United States distinguishable from the people
or existence of the particular States united. The people of the
United States, the state called the United States, are the
people of the particular States united. The solidarity of the
members constitutes the unity of the body. The difference
between this view and Mr. Madison's is, that while his view
supposes the solidarity to be conventional, originating and
existing in compact, or agreement, this supposes it to be real,
living, and prior to the convention, as much the work of
Providence as the existence in the human body of the living
solidarity of its members. One law, one life, circulates
through all the members, constituting them a living organism,
binding them in living union, all to each and each to all.

Such is the sovereign people, and so far the original unwritten
constitution. The sovereign, in order to live and act, must
have an organ through which be expresses his will. This organ
under the American system, is primarily the Convention. The
convention is the supreme political body, the concrete sovereign
authority, and exercises practically the whole sovereign power
of the people. The convention persists always, although not in
permanent session. It can at any time be convened by the
ordinary authority of the government, or, in its failure, by a
plebiscitum.

Next follows the Government created and constituted by the
convention. The government is constituted in such manner, and
has such and only such powers, as the convention ordains. The
government has, in the strict sense, no political authority
under the American system, which separates the government from
the convention. All political questions proper, such as the
elective franchise, eligibility, the constitution of the several
departments of government, as the legislative, the judicial, and
the executive, changing, altering, or amending the constitution
of government, enlarging, or contracting its powers, in a word,
all those questions that arise on which it is necessary to take
the immediate orders of the sovereign, belong not to the
government, but to the convention; and where the will of the
sovereign is not sufficiently expressed in the constitution, a
new appeal to the convention is necessary, and may always be had.
The constitution of Great Britain makes no distinction between
the convention and the government. Theoretically the
constitution of Great Britain is feudal, and there is, properly
speaking, no British state; there are only the estates, king,
lords, and commons, and these three estates constitute the
Parliament, which is held to be omnipotent; that is, has the
plenitude of political sovereignty. The British Parliament,
composed of the three estates, possesses in itself all the
powers of the convention in the American constitution, and is at
once the convention and the government. The imperial
constitution of France recognizes no convention, but clothes the
senate with certain political functions, which, in some
respects, subjects theoretically the sovereign to his creature.
The emperor confessedly holds his power by the grace of God and
the will of the nation, which is a clear acknowledgment that the
sovereignty vests in the French people as the French state; but
the imperial constitution, which is the constitution of the
government, not of the state, studies, while acknowledging the
sovereignty of the people, to render it nugatory, by transferring
it, under various subtle disguises, to the government, and
practically to the emperor as chief of the government. The
senate, the council of state, the legislative body, and the
emperor, are all creatures of the French state, and have properly
no political functions, and to give them such functions is to
place the sovereign under his own subjects! The real aim of the
imperial constitution is to secure despotic power under the
guise of republicanism. It leaves and is intended to leave the
nation no way of practically asserting its sovereignty but by
either a revolution or a plebiscitum, and a plebiscitum is
permissible only where there is no regular government.

The British constitution is consistent with itself, but imposes
no restriction on the power of the government. The French
imperial constitution is illogical, inconsistent with itself as
well as with the free action of the nation. The American
constitution has all the advantages of both, and the
disadvantages of neither. The convention is not the government
like the British Parliament, nor a creature of the state like
the French senate, but the sovereign state itself, in a
practical form. By means of the convention the government is
restricted to its delegated powers, and these, if found in
practice either too great or too small, can be enlarged or
contracted in a regular, orderly way, without resorting to a
revolution or to a plebiscitum. Whatever political grievances
there may be, there is always present the sovereign convention
competent to redress them. The efficiency of power is thus
secured without danger to liberty, and freedom without danger to
power. The recognition of the convention, the real political
sovereign of the country and its separation from and
independence of the ordinary government, is one of the most
striking features of the American constitution.

The next thing to be noted, after the convention, is the
constitution by the convention of the government. This
constitution, as Mr. Madison well observes, divides the powers
conceded by the convention to government between the General
Government and the particular State governments. Strictly
speaking, the government is one, and its powers only are divided
and exercised by two sets of agents or ministries. This
division of the powers of government could never have been
established by the convention if the American people had not
been providentially constituted one people, existing and acting
through particular State organizations. Here the unwritten
constitution, or the constitution written in the people
themselves, rendered practicable and dictated the written
constitution, or constitution ordained by the convention and
engrossed on parchment. It only expresses in the government the
fact which pre-existed in the national organization and life.

This division of the powers of government is peculiar to the
United States, and is an effective safeguard against both feudal
disintegration and Roman centralism. Misled by their prejudices
and peculiar interests, a portion of the people of the United
States, pleading in their justification the theory of State
sovereignty, attempted disintegration, secession, and national
independence separate from that of the United States, but the
central force of the constitution was too strong for them to
succeed. The unity of the nation was too strong to be
effectually broken. No doubt the reaction against secession and
disintegration will strengthen the tendency to centralism, but
centralism can succeed no better than disintegration has
succeeded because the General government has no subsistentia, no
suppositum, to borrow a theological term, outside or independent
of the States. The particular governments are stronger, if
there be any difference, to protect the States against
centralism than the General government is to protect the Union
against disintegration; and after swinging for a time too far
toward one extreme and then too far toward the other, the public
mind will recover its equilibrium, and the government move on in
its constitutional path.

Republican Rome attempted to guard against excessive centralism
by the tribunitial veto, or by the organization of a negative or
obstructive power. Mr. Calhoun thought this admirable, and
wished to effect the same end here, where it is secured by
other, more effective, and less objectionable means, by a State
veto on the acts of Congress, by a dual executive, and by
substituting concurrent for numerical majorities. Imperial Rome
gradually swept away the tribunitial veto, concentrated all
power in the hands of the emperor, became completely
centralized, and fell. The British constitution seeks the same
end by substituting estates for the state, and establishing a
mixed government, in which monarchy, aristocracy, and democracy
temper, check, or balance each other; but practically the
commons estate has become supreme, and the nobility govern not
in the house of lords, and can really influence public affairs
only through the house of commons. The principle of the British
constitution is not the division of the powers of government,
but the antagonism of estates, or rather of interests, trusting
to the obstructive influence of that antagonism to preserve the
government from pure centralism. Hence the study of the British
statesman is to manage diverse and antagonistic parties and
interests so as to gain the ability to act, which he can do only
by intrigue, cajolery, bribery in one form or another, and
corruption of every sort. The British government cannot be
carried on by fair, honest, and honorable means, any more than
could the Roman under the antagonism created by the tribunitial
veto. The French tried the English system of organized
antagonism in 1789, as a cure for the centralism introduced by
Richelieu and Louis XIV., and again under the Restoration and
Louis Philippe, and called it the system of constitutional
guarantees; but they could never manage it, and they have taken
refuge in unmitigated centralism under Napoleon III., who,
however well disposed, finds no means in the constitution of the
French nation of tempering it. The English system, called the
constitutional, and sometimes the parliamentary system, will not
work in France, and indeed works really well nowhere.

The American system, sometimes called the Federal system, is not
founded on antagonism of classes, estates, or interests, and is
in no sense a system of checks and balances. It needs and
tolerates no obstructive forces. It does not pit section
against section, the States severally against the General
government, nor the General government against the State
governments, and nothing is more hurtful than the attempt to
explain it and work it on the principles of British
constitutionalism. The convention created no antagonistic
powers; it simply divided the powers of government, and gave
neither to the General government nor to the State governments
all the powers of government, nor in any instance did it give to
the two governments jurisdiction in the same matters. Hence each
has its own sphere, in which it can move on without colliding
with that of the other. Each is independent and complete in
relation to its own work, incomplete and dependent on the other
for the complete work of government.

The division of power is not between a NATIONAL government and
State governments, but between a GENERAL government and
particular governments. The General government, inasmuch as it
extends to matters common to all the States, is usually called
the Government of the United States, and sometimes the Federal
government, to distinguish it from the particular or State
governments, but without strict propriety; for the government of
the United States, or the Federal government, means, in
strictness, both the General government and the particular
Governments, since neither is in itself the complete government
of the country. The General government has authority within
each of the States, and each of the State governments has
authority in the Union. The line between the Union and the
States severally, is not precisely the line between the General
government and the particular governments. As, for instance,
the General government lays direct taxes on the people of the
States, and collects internal revenue within them; and the
citizens of a particular State, and none others, are electors of
President and Vice-President of the United States, and
representatives in the lower house of Congress, while senators
in Congress are elected by the State legislatures themselves.

The line that distinguishes the two governments is that which
distinguishes the general relations and interests from the
particular relations and interests of the people of the United
States. These general relations and interests are placed under
the General government, which, because its jurisdiction is
coextensive with the Union, is called the Government of the
United States; the particular relations and interests are placed
under particular governments, which, because their jurisdiction
is only coextensive, with the States respectively, are called
State governments. The General government governs supremely all
the people of the United States and Territories belonging to the
Union, in all their general relations and interests, or
relations and interests common alike to them all; the particular
or State government governs supremely the people of a particular
State, as Massachusetts, New York, or New Jersey, in all that
pertains to their particular or private rights, relations, and
interests. The powers of each are equally sovereign, and
neither are derived from the other. The State governments are
not subordinate to the General government, nor the General
government to the State governments. They are co-ordinate
governments, each standing on the same level, and deriving its
powers from the same sovereign authority. In their respective
spheres neither yields to the other. In relation to the matters
within its jurisdiction, each government is independent and
supreme in regard of the other, and subject only to the
convention.

The powers of the General government are the power--

To lay and collect taxes, duties, imposts, and excises, to pay
the debts and provide for the general welfare of the United
States; to borrow money on the credit of the United States; to
regulate commerce with foreign nations, among the several
States, and with the Indian tribes; to establish a uniform rule
of naturalization, and uniform laws on the subject of
bankruptcies throughout the United States; to coin money and
regulate the value thereof, and fix the standard of weights and
measures; to provide for the punishment of counterfeiting the
securities and current coin of the United States; to establish
post-offices and post-roads; to promote the progress of science
and of the useful arts, by securing for limited times to authors
and inventors the exclusive right to their respective writings
and discoveries; to define and punish piracies and felonies
committed on the high seas, and offences against the law of
nations; to declare war, grant letters of marque and reprisal,
and make rules concerning captures on land and water; to raise
and support armies; to provide and maintain a navy; to make
rules for the government of the land and naval forces; to
provide for calling forth the militia to execute the laws of the
Union, suppress insurrections, and repel invasions; to provide
for organizing, arming, and disciplining the militia, and of
governing such part of them as may be employed in the service of
the United States; to exercise exclusive legislation in all
cases whatsoever over such district, not exceeding ten miles
square, as may by cession of particular States and the
acceptance of Congress, become the seat of the government of the
United States, and to exercise a like authority over all places
purchased by the consent of the legislature of the State in
which the same shall be, for the erection of forts, magazines,
arsenals, dock-yards, and other needful buildings; and to make
all laws which shall be necessary and proper for carrying into
execution the foregoing powers, and all other powers vested by
this constitution in the government of the United States, or in
any department or office thereof.

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