three weeks of secret session, issued a report declaring that “it is as much the duty of the State authorities to watch over the rights reserved as of the United States to exercise the powers delegated,” laying down doctrines substantially similar to those of the Kentucky resolutions, and advising certain amendments to the federal Constitution, with a menace as to further action in case these should be rejected. Massachusetts and Connecticut adopted the report; but before their commissioners reached Washington, peace with Great Britain had been concluded. In 1828–30 Georgia refused to obey an act of Congress regarding the Cherokee Indians, and to respect the treaties which the United States had made with that tribe and the Creeks. The Georgian legislature passed and enforced acts in contempt of federal authority, and disregarded the orders of the Supreme Court, President Jackson, who had an old frontiersman’s hatred to the Indians, declining to interfere.
Finally, in 1832, South Carolina, first in a state convention and then by her legislature, amplified while professing to repeat the claim of the Kentucky resolutions of 1798, declared the tariff imposed by Congress to be null and void as regarded herself, and proceeded to prepare for secession and war. In none of these cases was the dispute fought out either in the courts or in the field;22 and the questions as to the right of a state to resist federal authority, and as to the means whereby she could be coerced, were left over for future settlement. Settled they finally were by the Civil War of 1861–65, since which time the following doctrines may be deemed established:
No state has a right to declare an act of the federal government invalid.23
No state has a right to secede from the Union.
The only authority competent to decide finally on the constitutionality of an act of Congress or of the national executive is the federal judiciary.24
Any act of a state legislature or state executive conflicting with the Constitution, or with an act of the national government done under the Constitution, is really an act not of the state government, which cannot legally act against the Constitution, but of persons falsely assuming to act as such government, and is therefore ipso jure void.25 Those who disobey federal authority on the ground of the commands of a state authority are therefore insurgents against the Union who must be coerced by its power. The coercion of such insurgents is directed not against the state but against them as individual though combined wrongdoers. A state cannot secede and cannot rebel. Similarly, it cannot be coerced.
This view of the matter, which seems on the whole to be that taken by the Supreme Court in the cases that arose after the Civil War, disposes, as has been well observed by Judge Hare,26 of the difficulty which President Buchanan felt (see his message of December 3, 1860) as to the coercion of a state by the Union. He argued that because the Constitution did not provide for such coercion, a proposal in the Convention of 1787 to authorize it having been ultimately dropped, it was legally impossible. The best answer to this contention is that such a provision would have been superfluous, because a state cannot legally act against the Constitution. All that is needed is the power, unquestionably contained in the Constitution (art. III, § 3), to subdue and punish individuals guilty of treason against the Union.27
Except in the cases hereinbefore specified, the national government has no right whatever of interfering either with a state as a commonwealth or with the individual citizens thereof, and may be lawfully resisted should it attempt to do so.
“What then?” the European reader may ask. “Is the national government without the power and the duty of correcting the social and political evils which it may find to exist in a particular state, and which a vast majority of the nation may condemn? Suppose widespread brigandage to exist in one of the states, endangering life and property. Suppose contracts to be habitually broken, and no redress to be obtainable in the state courts. Suppose the police to be in league with the assassins. Suppose the most mischievous laws to be enacted, laws, for instance, which recognize polygamy, leave homicide unpunished, drive away capital by imposing upon it an intolerable load of taxation. Is the nation obliged to stand by with folded arms while it sees a meritorious minority oppressed, the prosperity of the state ruined, a pernicious example set to other states? Is it to be debarred from using its supreme authority to rectify these mischiefs?”
The answer is, yes. Unless the legislation or administration of such a state transgresses some provision of the federal Constitution (such as that forbidding ex post facto laws, or laws impairing the obligation of a contract), the national government not only ought not to interfere but cannot interfere. The state must go its own way, with whatever injury to private rights and common interests its folly or perversity may cause.
Such a case is not imaginary. In the slave states before the war, although the Negroes were not, as a rule, harshly treated, many shocking laws were passed, and society was going from bad to worse. Even now it sometimes happens that in one or two Western states the roads and even the railways are infested by robbers, there are parts of the country where justice is uncertain and may be unattainable when popular sentiment does not support the law, so that homicide often goes unpunished by the courts, though sometimes punished by Judge Lynch. There are districts where armed bands occasionally appear, perpetrating nocturnal outrages which no state police has been provided to check. So, too, in a few of these states statutes opposed to sound principles of legislation have been passed, and have brought manifold evils in their train. But the federal government looks on unperturbed, with no remorse for neglected duty.
The obvious explanation of this phenomenon is that the large measure of independence left to the states under the federal system makes it necessary to tolerate their misdoings in some directions. As a distinguished authority28 observes to me, “The Federal Constitution provided for the protection of contracts, and against those oppressions most likely to result from popular passion and demoralization; and if it had been proposed to go further and give to the Federal authority a power to intervene in still more extreme cases, the answer would probably have been that such cases were far less likely to arise than was the Federal power to intervene improperly under the pressure of party passion or policy, if its intervention were permitted. To have authorized such intervention would have been to run counter to the whole spirit of the Constitution, which kept steadily in view as the wisest policy local government for local affairs, general government for general affairs only. Evils would unquestionably arise. But the Philadelphia Convention believed that they would be kept at a minimum and most quickly cured by strict adherence to this policy. The scope for Federal interference was considerably enlarged after the Civil War, but the general division of authority between the States and the nation was not disturbed.”
So far from lamenting as a fault, though an unavoidable fault, of their federal system, the state independence I have described, the Americans are inclined to praise it as a merit. They argue, not merely that the best way on the whole is to leave a state to itself, but that this is the only way in which a permanent cure of its diseases will be effected. They are consistent not only in their federal principles but in their democratic principles. “As laissez aller,” they say, “is the necessary course in a federal government, so it is the right course in all free governments. Law will never be strong or respected unless it has the sentiment of the people behind it. If the people of a state make bad laws, they will suffer for it. They will be the first to suffer. Let them suffer. Suffering, and nothing else, will implant that sense of responsibility which is the first step to reform. Therefore let them stew in their own juice: let them make their bed and lie upon it. If they drive capital away, there will be less work for the artisans; if they do not enforce contracts, trade will decline, and the evil will work out its remedy sooner or later. Perhaps it will be later rather than sooner; if so, the experience will be all the more conclusive. Is it said that the minority of wise and peaceable citizens may suffer? Let them exert themselves to bring their fellows round to a better mind. Reason and experience will be on their side. We cannot be democrats by halves; and where self-government
