that nothing is said as to the right of secession. Any one 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. 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 drily 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,1 1 This view received judicial sanction in the famous case of Texas v. White (7 Wall. 700), decided by the Supreme court after the war. It is there said by ChiefJustice Chase, "The Union of the States never was a purely artificial and arbitrary relation. . . . It received definite form and character and sanction by the Articles of Confederation. By these the Union was solemnly declared to be 'perpetual.' And where these articles were found to be inadequate to the exigencies of the country, the Constitution was ordained to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual union, made more perfect, is not? But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. . . . It may be not unreasonably said that the preservation of the States and the maintenance of their governments are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the national government. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States. When, therefore, Texas became one of the United States she entered into an indissoluble relation. There was no place for reconsideration or revocation except through revolution or through consent of the States. Considered therefore as transactions under the Constitution, the ordinance of secession adopted by the Convention, and ratified by a majority of the citizens of Texas, was absolutely null and utterly without operation in law. The obligations of the State as a member of the Union, and of every citizen of the State as a citizen of the United States, remained perfect and unimpaired." The State did not cease to be a State, 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.' 66 1 May it not," some one 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 governOr if the minority be numerous enough to prevent the ment. See also the cases of White v. Hart nor her citizens to be citizens of the Union. As respects the argument that the Union established by the Constitution of 1789 must be perpetual, because it is declared to have been designed to make a previous perpetual Union more perfect, it may be remarked, as matter of history, that this previous Union (that resting on the Articles of Confederation) had not proved perpetual, but was in fact put an end to by the acceptance in 1788 of the new Constitution by the nine States who first ratified that instrument. After that ratification the Confederation was dead, and the States of North Carolina and Rhode Island, which for some months refused to come into the new Union, were clearly out of the old one, and stood alone in the world. May it not then be said that those who destroyed a Union purporting to be perpetual were thereafter estopped from holding it to have been perpetual, and from founding on the word 'perpetual' an argument against those who tried to upset the new Union in 1861, as the old one had been upset in 1788. The answer to this way of putting the point seems to be to admit that the proceedings of 1788 were in fact revolutionary. In ratifying their new Constitution in that year, the nine States broke through and flung away their previous compact which purported to have been made for ever. But they did so for the sake of forming a better and more enduring compact, and their extra-legal action was amply justified by the necessities of the case. An elaborate discussion of the legal relation of the States to the Union will be found in the learned treatise of Mr. Hurd, The Theory of our National Existence: Boston, 1881. 1 Venable, ut supra. 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. CHAPTER XXVIII 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 had not been made supreme and omnipotent. It was itself the creature of the Constitution. It 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, thirteen States now allow aliens (i.e. foreigners not yet naturalized) to vote; and any State which should admit women to vote at its own State elections would 1 Congress may, if it pleases, regulate by statute the times, places, and manner of holding elections for representatives (Const., Art. i. § 4). |