resort a federal court, and therefore biased in favour of the federal government. In fact, however, little or no unfairness has arisen from this cause.12 The Supreme Court may, as happened for twenty years before the War of Secession, be chiefly composed of states’ rights men. In any case the court cannot stray far from the path which previous decisions have marked out.
X. There are several remarkable omissions in the Constitution of the American federation.
One is that there is no grant of power to the national government to coerce a recalcitrant or rebellious state. Another is that nothing is said as to the right of secession. Anyone can understand why this right should not have been granted. But neither is it mentioned to be negatived.
There is no abstract or theoretic declaration regarding the nature of the federation and its government, nothing as to the ultimate supremacy of the central authority outside the particular sphere allotted to it, nothing as to the so-called sovereign rights of the states. As if with a prescience of the dangers to follow, the wise men of 1787 resolved to give no opening for abstract inquiry and metaphysical dialectic.13 But in vain. The human mind is not to be so restrained. If the New Testament had consisted of no other writings than the Gospel of St. Matthew and the Epistle of St. James, there would have been scarcely the less a crop of speculative theology. The dryly legal and practical character of the Constitution did not prevent the growth of a mass of subtle and, so to speak, scholastic metaphysics regarding the nature of the government it created. The inextricable knots which American lawyers and publicists went on tying, down till 1861, were cut by the sword of the North in the Civil War, and need concern us no longer. It is now admitted that the Union is not a mere compact between commonwealths, dissoluble at pleasure, but an instrument of perpetual efficacy,14 emanating from the whole people, and alterable by them only in the manner which its own terms prescribe. It is “an indestructible Union of indestructible States.”
It follows from the recognition of the indestructibility of the Union that there must somewhere exist a force capable of preserving it. The national government is now admitted to be such a force. It can exercise all powers essential to preserve and protect its own existence and that of the states, and the constitutional relation of the states to itself, and to one another.
“May it not,” someone will ask, “abuse these powers, abuse them so as to extinguish the states themselves, and turn the federation into a unified government. What is there but the federal judiciary to prevent this catastrophe? And the federal judiciary has only moral and not also physical force at its command.”
No doubt it may, but not until public opinion supports it in so doing—that is to say, not until the mass of the nation which now maintains, because it values, the federal system, is possessed by a desire to overthrow that system. Such a desire may express itself in proper legal form by carrying amendments to the Constitution which will entirely change the nature of the government. Or if the minority be numerous enough to prevent the passing of such amendments, and if the desire of the majority be sufficiently vehement, the majority which sways the national government may disregard legal sanctions and effect its object by a revolution. In either event—and both are improbable—the change which will have passed upon the sentiments of the American people will be a sign that federalism has done its work, and that the time has arrived for new forms of political life.
Working Relations of the National and the State Governments
The characteristic feature and special interest of the American Union is that it shows us two governments covering the same ground yet distinct and separate in their action. It is like a great factory wherein two sets of machinery are at work, their revolving wheels apparently intermixed, their bands crossing one another, yet each set doing its own work without touching or hampering the other. To keep the national government and the state governments each in the allotted sphere, preventing collision and friction between them, was the primary aim of those who formed the Constitution, a task the more needful and the more delicate because the states had been until then almost independent and therefore jealous of their privileges, and because, if friction should arise, the national government could not remove it by correcting defects in the machinery. For the national government, being itself the creature of the Constitution, was not permitted to amend the Constitution, but could only refer it back for amendment to the people of the states or to their legislatures. Hence the men of 1787, feeling the cardinal importance of anticipating and avoiding occasions of collision, sought to accomplish their object by the concurrent application of two devices. One was to restrict the functions of the national government to the irreducible minimum of functions absolutely needed for the national welfare, so that everything else should be left to the states. The other was to give that government, so far as those functions extended, a direct and immediate relation to the citizens, so that it should act on them not through the states but of its own authority and by its own officers. These are fundamental principles whose soundness experience has approved, and which will deserve to be considered by those who in time to come may have in other countries to frame federal or quasi-federal constitutions. They were studied, and to a large extent, though in no slavish spirit, adopted by the founders of the present constitution of the Swiss Confederation, a constitution whose success bears further witness to the soundness of the American doctrines.
The working relations of the national government to the states may be considered under two heads, viz., its relations to the states as corporate bodies, and its relations to the citizens of the states as individuals, they being also citizens of the Union.
The national government touches the states as corporate commonwealths in three points. One is their function in helping to form the national government; another is the control exercised over them by the federal Constitution through the federal courts; the third is the control exercised over them by the federal legislature and executive in the discharge of the governing functions which these latter authorities possess.
I. The states serve to form the national government by choosing presidential electors, by choosing senators, and by fixing the franchise which qualifies citizens to vote for members of the House of Representatives.1 No difficulty has ever arisen (except during the Civil War) from any unwillingness of the states to discharge these duties, for each state is eager to exercise as much influence as it can on the national executive and Congress. But note how much latitude has been left to the states. A state may appoint its presidential electors in any way it pleases. All states now do appoint them by popular vote. But during the first thirty years of the Union many states left the choice of electors to their respective legislatures. So a state may, by its power of prescribing the franchise for its state elections, prescribe whatever franchise it pleases for the election of its members of the federal House of Representatives, and may thus admit persons who would in other states be excluded from the suffrage, or exclude persons who would in other states be admitted. For instance, at least nine states now allow aliens (i.e., foreigners not yet naturalized) to vote; and nine2 states admit women to vote at all state elections, thereby admitting them to vote also at congressional and presidential elections.3 The only restriction imposed on state discretion in this respect is that of the Fifteenth Amendment, which forbids any person to be deprived of suffrage, on “account of race, colour, or previous condition of servitude.” 4
II. The federal Constitution deprives the states of certain powers they would otherwise enjoy. Some of these, such as that of making treaties, are obviously unpermissible, and such as the state need not regret.5 Others, however, seriously restrain their daily action. They are liable to be sued in the federal courts by another state or by a foreign power.6 They cannot, except with the consent of Congress, tax exports or imports, or in any case pass a law impairing the obligation of a contract. They must surrender fugitives from the justice
