The American constitutional system

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Contents

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Cases Cited . « » . o o , . o . . o . xiii

CHAPTER

Chapter I

The Definition of a State. In its form of governmental organization the American State represents a very complex political type. For this reason, in order to determine satisfactorily its exact legal character it will be necessary first to consider the essential attributes of a State in the abstract.

An aggregate of men living together in a single community, and united by mutual interests and relationships, we term a Society. When there is created a supreme authority to which all the individuals of this society yield a general obedience, a State is said to exist. The social body becomes, in other words, a body politic. The instrumentalities through which this superior authority formulates its will and secures its enforcement is termed a Government; the commands it issues are designated Laws ; the persons that

^ In this chapter the author has drawn liberally from an earlier work entitled " The Nature of the State : A Study in Political Philosophy."

administer them, public officials, or, collectively, a Magistracy; the whole body of individuals, viewed as a political unit, is called a People ; and, finally, the aggregate of rules or maxims, whether written or unwritten, that define the scope and fix the manner of exercise of the powers of the State, is known as the Constitution. The State itself, then, is neither the Peoplcyfthe Government, the Magistracy, nor the Constitution. Nor is it, indeed, the territory over which its authority extends. It is the given community of individuals viewed in a certain aspect— namely, as a political unity.

The one characteristic that is essential to the State, and serves to distinguish it in toto genere from all other human associations, is its possession of political sovereignty. By political sovereignty is meant, on the one hand, complete freedom from the legal control of any other power whatsoever, and, on the other hand, absolute and exclusive control over the legal rights and obligations of its citizens, individually considered or grouped into larger or smaller associations. The State is thus supreme not only as giving the ultimate validity to all laws, but as itself determining the scope of its own legal powers and the manner of their exercise.

In every politically organized community that is entitled to be termed a State, there must exist, then, an authority to which, from the legal standpoint, all interests are potentially subject. In the entire body of laws of a State are summed up the powers of that State as actually exercised. In the constitutional laws are declared the powers legally exercisable by the ordinary governmental organs. Thus at any one time the domain of the legal and political liberties of the individual is simply that which neither public officials nor private persons may legally enter. From possible control by the State, however, through the enactment of new constitutional or statutory laws, these liberties are not and cannot be removed. Professor Burgess puts this very clearly when he says: * ' The individual is defended in this sphere against the government by the power that makes and maintains and can destroy the government; and by the same power, through the government, against encroachments from any other quarter. Against that power itself, however, he has no defence. ' ' ^

In the eyes of political theory the State is a legal person. It has its rights and duties and possesses a supreme will which it expresses through its law-making organs in authoritative commands. Sovereignty, as thus expressing the State's supreme will, is necessarily a unity and indivisible. That there cannot be in the same being two wills, each supreme, is obvious. But though the sovereign will of the State may not be divided, it may find expression through several legislative mouthpieces, and the execution of its commands may be delegated to a variety of governmental organs. Theoretically, indeed, the State may go to any extent in the delegation of exercise of its powers not only to governmental organs of its own creation, but even to those of other States. Thus a given State may, in fact, retain under its own immediate direction only a ]nost meager complement of activities, and 1" Political Science and Constitutional Law," I, 176.

yet preserve ■animpaired its sovereignty ; for in such a case the public bodies or States to which the' exercise of the powers has been granted, act as the agents of the State in question, and this State still possesses the legal, if not the actual, power of again drawing to itself the exercise of the powers it has delegated. Thus mother-countries may concede to colonies the most complete autonomy of government, and reserve to themselves a control of so slight and negative a character as to make its exercise a rare occurrence; yet, so long as such control exists, the sovereignty of the mother-country is not released, and such colony is therefore to be considered as possessing no independent political powers. Again, as we shall later see, in the so-called Confederate State, the member Commonwealths may yield to the Central Government the exercise of their most important powers and yet retain their sovereignty; and, on the other hand, a national Federal State may, without destroying its sovereignty, yield to particular territorial authorities an extent of power sufficient to endow them, apparently, with almost all the characteristics of independent bodies politic.

A State cannot be Created by an Agreement between States. A State owes its existence to the fact that, in the individuals over whom its authority extends, there is a sentiment of unity sufficiently strong to lead them to surrender themselves to the control of a single political power for the sake of realizing the desires to which such a sentiment gives rise. In other words, this subjective condition first comes into being, and, when sufficiently powerful, finds objective manifestation in the creation of a political organization.

This being the manner in which a State comes into being, it follows that it is improper, in any instance, to ascribe to it a juristic or conventional origin. A State is not created by the formal adoption of a written Constitution. The acceptance by a People of such an instrument is necessarily the political act of a community already transformed into a body politic, and its provisions derive their force as law from that fact. In fine, the Constitution is but the law which definitely determines the organs through which the State, already in existence, is henceforth to exercise its powers. That the adoption of a formal instrument of government is not a politically creative act is shown by the fact that such a Constitution is by no means essential to the existence of a State. Written Constitutions are, indeed, of comparatively recent origin, and their raison d'etre goes no deeper than political expediency.

Another conclusion following from the fact that a formal or juristic origin cannot be ascribed a State, is that no State can obtain its sovereignty by a simple transfer of authority from other States. A new State can take its origin only after the entire withdrawal of a People from the civic bonds in which they have before been living. Not until the old State (or States) has (or have) been destroyed, peaceably or by force, can the new State take its rise, for a People cannot live under two sovereign powers at the same time. In other words, however peaceably the transition may be effected, the erection of a new sovereignty over a

People already politically organized, is necessarily an illegal, revolutionary act when viewed from the standpoint of the old State. It may, indeed, be the case that in adopting the new Constitution the governmental machinery of the old State is employed; but, in SQch a case, those governmental organs, when so utilized, are to be conceived as no longer the agencies of the old State, but as implements employed by the new body politic for the execution of its own legal will.

In fine, then, it must be held that, though an existing State, so long as it acts through the forms prescribed for constitutional amendment, may wholly change the character of its governmental organization, or may delegate the exercise of its most important powers, it cannot by its own act create a new sovereignty.^

The Nature of a Federal State. Applying the foregoing conclusions to the apparent creation of a new Federal State by the union of a number of States, we are necessarily led to hold that though the birth of the new sovereignty is practically synchronous with the adoption of the written articles of union, it cannot be said that such Federal State owes its creation to that act. If it be admitted that, as a matter of fact, a single sovereign State has come into being, its con-

1 The author realizes that this fundamental principle of political theory is by no means adequately treated in the foregoing paragraphs. Requirements of space compel him, however, to refer the unsatisfied or unconvinced reader to his " Nature of the State," Chapters vi and x, where the topic is more fully discussed.

ditioning basis must be considered to have been the feeling of national unity that first created it a single political body oat of a number of sovereign Peoples, and then gave to it an objective organization. The new State cannot, in other words, be held to have derived its sovereignty by grant from the formerly existing sovereignties, nor can such sovereignties be held to continue to exist after the new national sovereignty becomes a fact.

We are thus irresistibly led to the conclusions that not only cannot a so-called Federal State be based upon an agreement or compact between preexistent States, but that it cannot be itself, in any strict sense, composed of constituent States. In all exactness, the term "Federal State" is thus an improper one.^ A federal form of Government we may have, but not a Federal State; for a State is by its very nature a unity in that its essential attribute, its sovereignty, is necessarily a unity. There cannot be, therefore, any such thing as a State composed of States. Strictly speaking, therefore, the only correct manner in which the term "Federal State" may be employed is to designate a State in which a very considerable degree of administrative autonomy is given to the several districts into which the State 's territory is divided. Conversely, we must hold that in all composite political organizations in which the individual members still retain their sovereignty, and therefore continue to exist as States, no National State is created. A Cen-

1 Though thus technically incorrect, the author has felt himself constrained, by general usage, at times to employ the term "Federal State."

tral Government ^dth very considerable powers may indeed exist, but only as the common agent of the several associated States, not as the organ of a distinct central sovereignty. Furthermore, the written articles of union, if such there be, cannot be regarded as a law or Constitution, but only as an international compact or treaty.

The foregoing analysis of the nature of sovereignty and the State enables us to say that the distinction between a National State with a federal form of government and a Confederacy of sovereign States is not based upon the quantum of powers, the exercise of which is vested in the Central Government ; nor, necessarily, upon whether the commands emanating from the central legislature operate directly upon individuals or upon the individual Commonwealths; nor, finally, upon the difference between a Central Government with enumerated and one with unenumerated powers. The one absolute and finally determining criterion is : What authority has, in the last instance, the legal power of fixing its own legal competence, and, as a result, that of the others 1

In the sovereign State of the federal governmental form, the legal right of secession on the part of the individual Commonwealths is of course excluded. From the strictly juristic standpoint, the Commonwealths derive their existence from the will of the national State. They have, therefore, no control over their own political status.

The doctrine of nullification, which concedes to the Commonwealth members of a federal union, individually or acting in concert, a right to refuse obedience to, and prevent the enforcement within their respective limits of, such federal laws as to them seem unwarranted by the articles of union, is also clearly inapplicable in a true federal State. Even in a Confederacy of sovereign States the right to "nullify" general laws cannot be spoken of as a legal right. Each member of such a union being completely sovereign, may govern its action by its own will, and no other member may legally say nay. It is hardly conceivable that the assertion of such a power on the part of a particular confederated State will not lead to disruption of the union. For it can scarcely be imagined that the other members will consent to the avoidance by such State of the execution of a part of the general law, while they hold themselves bound to it. Such a condition of affairs would, in fact, result ipso facto in a destruction of the union to that extent, the sole end of the confederation being to secure a concert of action in matters of general interest. It would, indeed, be a just casus belli against the State so refusing obedience to the agreement in which it bound itself to common action. Jefferson, the author of the Kentucky Resolutions, himself asserted the propriety of a confederate government coercing a State when he wrote to Cartwright advising the Congress of the old Confederacy to send a frigate and compel a State to pay its quota of taxes ; and in general those who in 1861 asserted that secession on the part of the individual States violated no legal obligation expressly repudiated the idea that States might refuse obedience to such federal laws as they objected to and still remain in the Union.

Chapter II

We are now in a position to consider the validity of the various views that have been held regarding the nature of the American State.

In the controversies which have been had as to the nature of our Union, the States' Rights school have held a single and logical theory, according to which it has been declared that the Constitution is, and was intended to be, the creation in 1789 of the several States acting as individual and sovereign political entities. Granting this premise, the conclusions which have been drawn from it as to the confederate nature of the Union and the legal right of secession have followed as logical and necessary consequences. All agreements between sovereign States necessarily partaking of a contractual character, a Constitution created by the union of the wills of several States cannot be other than of a non-legal or conventional nature. The States, therefore, which are united under it, it has been asserted by members of this school, are bound to abide by its provisions or to continue under it, only by practical or moral considerations. They are not, it has been declared, subject to it as to a legal superior, for that would be to make the creature superior to its creators.

THE NATURE OP THE AMERICAN STATE

To meet this argument, the advocates of national supremacy in this country have been led to propound a variety of theories and statements of fact. By some it has been alleged that, even if it be admitted that at the time of the adoption of the Constitution the States were severally sovereign, and were, in fact, the parties by which that instrument was established, still the record which we have of the intentions of those who drafted it, and of those who were influential in its ratification, reinforced by a rational interpretation of its own words, demonstrates that the States intended to, and actually did, in that agreement, surrender up and forever quit-claim every right or title to future sovereignty; which sovereignty was henceforth to be vested in the government and State therein provided for. This, to our surprise, is substantially the position assumed by one of the latest commentators upon our constitutional law, Mr. Roger Foster.^

The illogical character of this theory is sufficiently obvious. In the first place, it assumes what we have seen to be an impossibility, the voluntary subjection of a State to an absolute legal control of another power by an agreement between itself and other sovereign powers. In the second place, it considers the adoption of a written Constitution as creative of a State, whereas, in fact, as we have learned, a Constitution is necessarily the creation of a preexistent State, and is merely the instrument wherein that State provides for its governmental organization and for the distribution of its political power.

1 " Commentaries on the Constitution of the United States " (1895), Vol. I, $ 15.

A second and more logical manner in which the position of the States' Rights school has been met has been by the assertion, either that the individual members of onr Union never were severally sovereign and independent States, or that, if they ever were, they were not such in the years 1787-89, or that if they were then sovereign, it was not they, but the people of all the States as a single sovereign aggregate, who established our present Federal State.

That the States never were severally sovereign and independent bodies politic has been widely asserted by public men, as well as confidently stated by such constitutional-law writers as Story, Pomeroy, Von Hoist, and Lieber, and, though less explicitly, by Cooley and Hare. Finally, in the comparatively recent work of Professor Burgess on "Political Science and Constitutional Law," we find taken substantially the same position. On page 100 of the first volume he says of the First Continental Congress that it "was the first organization of the American State. " " From the first moment of its existence, ' ' he continues, ' ' there was something more upon this side of the Atlantic than thirteen local governments. There was a sovereignty, a State, not in idea simply or upon paper, but in fact and organization."

The difficulty experienced by all these writers who maintain the sovereignty of the National Government from the time of the severance of our colonial connection with England, is to explain the status of. the Union during the period when the Articles of Confederation were in force. The non-sovereign character of the Central Government established by these Articles is practically beyond dispute. It is not only apparent by their phraseology, but was so conclusively demonstrated by the logic of events, as to admit of no contradiction. This period is therefore usually spoken of, by those who hold the theory we have just been considering, as one during which the individual States had "usurped" the legitimate national sovereignty, but that, nevertheless, underneath, as a submerged but yet existent political entity, the National State still existed. Thus says Pomeroy: "However much the States may have exercised 'usurped' attributes of sovereignty during the unhappy confederation ; however much the conception of one people acting as a unit may have been forgotten or abandoned amid the jealousies and destructive rivalries of the commonwealths claiming substantial independence; the people had now [1789] arisen, reasserted the original idea, repudiated the assumption of local supremacy and uttered their organic will in terms which we hope will have a meaning and power to the end of time." Von Hoist says that the Continental Congress "exhorted the legislatures, by an act of public usurpation against the legal consequences of historical facts, to transform the Union into a league of States, and the legislatures recklessly responded to this demand." Professor Burgess maintains that during this confederate period "the American State ceased to exist in objective organization. It returned to its subjective condition merely, as idea in the consciousness of the people;" that "from the standpoint of political science, what existed now, as objective institutions, was a central government and thirteen local governments. From the standpoint of public law, on the other hand, what existed as objective institutions, was thirteen States, thirteen local governments, and one central government. This was a perfectly unbearable condition of things in theory, and was bound to become so in fact. . . . There was here simply a struggle between the central government and the local governments about the distribution of governmental powers, which could only be settled by the word of the sovereign— the State. The State, however, was not organized in the confederate constitution; i. e., it could not legally speak the sovereign command. . . . The State had no legal organization in the system."

It must be apparent that such reasoning as is contained in the above quotations is a playing fast and loose with political theory, and a vain attempt to uphold an untenable position. How can we speak of a government as a usurping one which had an admitedly de facto position, and was voluntarily established and maintained by the people organized under it? The condition of affairs under the Articles was undoubtedly an unsatisfactory one, but there was certainly no question of usurpation. But aside from the question of fact, how can Professor Burgess conceive of a State as ceasing to exist objectively and still maintaining a subjective existence, when the two are necessarily but different aspects of the same thing, which can be disassociated in thought only ? Or, aside from this inherent impossibility, how can he conceive of such a state of affairs, when the unequivocal, voluntary, objective act of the people in adopting and maintaining the Articles affords conclusive evidence that the subjective sentiment of national unity had ceased to exist, if, indeed, up to that time, it had ever existed ?

We have usually been taught that the adoption of the Articles was a step— albeit an insufficient step — toward union ; yet this school of thinkers which we have been considering would have us believe that the adoption of that instrument was a step backward,— the objective destruction of a union which had preexisted.

As to that part of the argument of the writers we have just been considering which denies that the effect of the separation of the thirteen colonies from Great Britain was to transform them into thirteen severally sovereign States, it may simply be said that the testimony of history is overwhelmingly to the effect that, with practical unanimity, the people of those times held the contrary view, and that a reasonable interpretation of the facts supports them in their opinion. Concert of action there of course was, but cooperation did not create constitutional union any more than did the concert of action of the Allies in the Napoleonic wars operate to fuse into one political sovereignty the participating States. So evident, indeed, was the original sovereignty of the several thirteen States after 1776, that it was conceded by Webster, Madison, and Hamilton, and was, in fact, not once questioned, so far as we know, for nearly half a century after our present government was established.

However, the maintenance of the assertion that the States were sovereign prior to the adoption of the 2 17

Articles of Confederation, is, after all, of no great significance, for if it be true that the States were individually sovereign between 1781 and 1789, then, whether they became such in an illegal and usurping manner or not, the fact would still be that, at the time of the adoption of our present Constitution, they were the only bodies politic vested with the sovereign power. The fact, therefore, even if it could rightly be alleged, that there had been a prior sovereignty of the Nation, would have only a moral or argumentative effect in justifying the right of the people to act as a unit in 1789, and as demonstrating that, as a matter ^ of fact, they did do so.

Granting then that the individual States were severally sovereign in 1789, how, if at all, is the national character of our present Constitution to be maintained ? . The best-known answer to this question is that rendered classic in the speeches of Webster, that, though the States existed in 1789 as thirteen sovereign bodies politic, and though the Constitution was formally ratified by the people acting through conventions convened for that purpose in and by each of such States, yet the act of adopting the Constitution was, after all, not the act of the several States, but of the whole people united into a political unity by that subjective feeling of nationality which is the ultimate foundation of every sovereign State. In other words, this theory is that at this time the National State existed subjectively in the minds of the people and was made objectively manifest in the creation of a National Government ; and that existing state organs and political machinery were used merely for convenience for the realization of that object. This view, it will be seen, differs from the one which holds that the individual States were not at that time sovereign, in that it makes the adoption of the Constitution a revolutionary act as regards the then de facto state governments.

The point to be observed in regard to this theory is, that, as ordinarily argued, it puts the controversy upon a plane where absolute demonstration, either for or against, is rendered impossible. The allegation that, though the people ratified in state conventions, they yet believed themselves to be acting and intended to act as a single national unit, is one which can be proved or disproved only by searching the minds of the people of that time. The question is thus made to turn upon the existence or non-existence of a mental state, a subjective condition purely. Now the only evidence which, in general, has been adduced upon this point is the records which we have of nationalistic and particularistic expressions of the statesmen of the time, together with what other written evidence may be produced to show what the people themselves thought was the character of the constitutive act which they were performing. Had there but been a substantial agreement of opinions at the time, or had the people been skilled in logical and legal distinctions in political philosophy, and gifted with a foresight as to the necessity of rendering the character of their acts perfectly explicit, and, lastly, had their intentions, as finally contained in the instrument of government which was adopted, been so unequivocally stated as to admit of but one construction, then, and only then, such evidence might possibly be so exhaustively collected as to afford ground for a satisfactory, if not absolutely certain, decision in the matter. But it is scarcely necessary to say that such conditions did not exist. So long, therefore, as the argument is conducted along these lines, both sides are abundantly able to cite facts as well as expressions of opinion favorable to their views, without either of them being ever able conclusively to satisfy either their opponents or the impartial student.

From some sources the view has been advanced that the framers of our Constitution were well aware of the logical dilemma that, in any federal State, the sovereignty when traced to its final source is to be found in its entirety either in the central power or in the constituent States, but that they purposely avoided giving an explicit statement in the instrument which they drafted as to which horn of this dilemma they accepted. This is a view taken by Professor A. W. Small in his essay entitled ''The Beginnings of American Nationality," in which he says, ''The people of the United States simply dodged the responsibility of formulating their will upon the distinct subject of National sovereignty until the legislation of the sword began in 1861." This is also the view of the late President Francis A. Walker, as expressed in an article entitled "The Growth of American Nationality," published in 1895. In this he writes, "The issue was one which, if not purposely made doubtful, was purposely left doubtful, because any attempt to force the issue at that time would have meant nothing more or less than the immediate and complete failure of any scheme of Union."

This theory is thus, it will be observed, a frank non possumus, as to whether or not a National State did actually exist or was created in 1789.

Attractive as is this theory in its solution, or rather avoidance, of the difficulties inherent in the analysis of the constituent act of 1789, it is, unfortunately almost, if not quite, unsupported by historical evidence. Surely if the real nature and importance of the distinction between a Confederation of States and a single, absolutely sovereign National State had been clearly perceived by those taking the leading part in the framing of the new federal instrument of government, and if, with this distinction in mind, a conscious, deliberate attempt was made to leave the matter unsettled, some one of them would have avowed it, or at least have made a note of it in his private writings. That there may have been a few prescient minds that saw that there was lacking in the proposed Constitution a decisive answer to the question as to where the ultimate sovereignty in the United States was henceforth to lie, we may admit. But that this fact was generally recognized by the leaders of the people in the constitutional and state-ratifying conventions, and that there was an agreement between these leaders to remain silent upon this point, is, considering the bitterness of the debates preceding the final ratification of the Constitution, practically inconceivable.

Some more satisfactory answer to this all-important question than the one just considered is, therefore, needed. This more satisfactory answer is the following :