“take courage from American freedom, and find augury of better days for themselves from American prosperity. But America is not so much an example in her liberty as in the covenanted and enduring securities which are intended to prevent liberty degenerating into licence, and to establish a feeling of trust and repose under a beneficent government, whose excellence, so obvious in its freedom, is still more conspicuous in its careful provision for permanence and stability.” Those faults on which I have laid stress, the waste of power by friction, the want of unity and vigour in the conduct of affairs by executive and legislature, are the price which the Americans pay for the autonomy of their states, and for the permanence of the equilibrium among the various branches of their government. They pay this price willingly, because these defects are far less dangerous to the body politic than they would be in a European country. Take for instance the shortcomings of Congress as a legislative authority. Every European country is surrounded by difficulties which legislation must deal with, and that promptly. But in America, where those relics of mediæval privilege and injustice that still cumber most parts of the Old World either never existed, or were long ago abolished, where all the conditions of material prosperity exist in ample measure, and the development of material resources occupies men’s minds, where nearly all social reforms lie within the sphere of state action, in America there is less need and less desire than in Europe for a perennial stream of federal legislation. People have been contented if things go on fairly well as they are. Political philosophers, or philanthropists, perceive not a few improvements which federal statutes might effect, but the mass of the nation has not greatly complained, and the wise see Congress so often on the point of committing mischievous errors that they do not deplore the barrenness of session after session.
Every European state has to fear not only the rivalry but the aggression of its neighbours. Even Britain, so long safe in her insular home, has lost some of her security by the growth of steam navies, and has in her Indian and colonial possessions given pledges to Fortune all over the globe. She, like the powers of the European continent, must maintain her system of government in full efficiency for war as well as for peace, and cannot afford to let her armaments decline, her finances become disordered, the vigour of her executive authority be impaired, sources of internal discord continue to prey upon her vitals. But America lives in a world of her own, ipsa suis pollens opibus, nihil indiga nostri. Safe from attack, safe even from menace, she hears from afar the warring cries of European races and faiths, as the gods of Epicurus listened to the murmurs of the unhappy earth spread out beneath their golden dwellings,
“Sejuncta a rebus nostris semotaque longe.”
Had Canada or Mexico grown to be a great power, had France not sold Louisiana, or had England, rooted on the American continent, become a military despotism, the United States could not indulge the easy optimism which makes them tolerate the faults of their government. As it is, that which might prove to a European state a mortal disease is here nothing worse than a teasing ailment. Since the War of Secession ended, no serious danger has arisen either from within or from without to alarm transatlantic statesmen. Social convulsions from within, warlike assaults from without, seem now as unlikely to try the fabric of the American Constitution, as an earthquake to rend the walls of the Capitol. This is why the Americans submit, not merely patiently but hopefully, to the defects of their government. The vessel may not be any better built, or found, or rigged than are those which carry the fortunes of the great nations of Europe. She is certainly not better navigated. But for the present at least—it may not always be so—she sails upon a summer sea.
It must never be forgotten that the main object which the framers of the Constitution set before themselves has been achieved. When Siéyès was asked what he had done during the Reign of Terror, he answered, “I lived.” The Constitution as a whole has stood and stands unshaken. The scales of power have continued to hang fairly even. The president has not corrupted and enslaved Congress; Congress has not paralyzed and cowed the president. The legislative may have sometimes appeared to be gaining on the executive department; but there are also times when the people support the president against the legislature, and when the legislature is obliged to recognize the fact. Were George Washington to return to earth, he might be as great and useful a president as he was more than a century ago. Neither the legislature nor the executive has for a moment threatened the liberties of the people. The states have not broken up the Union, and the Union has not absorbed the states. No wonder that the Americans are proud of an instrument under which this great result has been attained, which has passed unscathed through the furnace of civil war, which has been found capable of embracing a body of commonwealths more than three times as numerous, and with thirty-fold the population of the original states, which has cultivated the political intelligence of the masses to a point reached in no other country, which has fostered and been found compatible with a larger measure of local self-government than has existed elsewhere. Nor is it the least of its merits to have made itself beloved. Objections may be taken to particular features, and these objections point, as most American thinkers are agreed, to practicable improvements which would preserve the excellences and remove some of the inconveniences. But reverence for the Constitution has become so potent a conservative influence, that no proposal of fundamental change seems likely to be entertained. And this reverence is itself one of the most wholesome and hopeful elements in the character of the American people.
Having examined the several branches of the national government and the manner in which they work together, we may now proceed to examine the American commonwealth as a federation of states. The present chapter is intended to state concisely the main features which distinguish the federal system, and from which it derives its peculiar character. Three other chapters will describe its practical working, and summarize the criticisms that may be passed upon it.
The contests in the Convention of 1787 over the framing of the Constitution, and in the country over its adoption, turned upon two points: the extent to which the several states should be recognized as independent and separate factors in the construction of the national government, and the quantity and nature of the powers which should be withdrawn from the states to be vested in that government. It has been well remarked that “the first of these, the definition of the structural powers, gave more trouble at the time than the second, because the line of partition between the powers of the States and the Federal government had been already fixed by the whole experience of the country.” But since 1791 there has been practically no dispute as to the former point, and little as to the propriety of the provisions which define the latter. On the interpretation of these provisions there has, of course, been endless debate, some deeming the Constitution to have taken more from the states, some less; while still warmer controversies have raged as to the matters which the instrument does not expressly deal with, and particularly whether the states retain their sovereignty, and with it the right of nullifying or refusing to be bound by certain acts of the national government, and in the last resort of withdrawing from the Union. As these latter questions (nullification and secession) have now been settled by the Civil War, we may say that in the America of today there exists a general agreement:
That every state on entering the Union finally renounced its sovereignty, and is now forever subject to the federal authority as defined by the Constitution;
That the functions of the states as factors of the national government are satisfactory, i.e., sufficiently secure its strength and the dignity of these communities;
That the delimitation of powers between the national government and the states, contained in the Constitution, is convenient, and needs no fundamental alteration.1
The ground which we have to tread during the remainder of this chapter is therefore no longer controversial ground, but that of well-established law and practice.
I.
