Federal power : its growth and necessity

II

COPYRIGHT. 1918, BY GEORGE H. DORAN COMPANY

PRINTED IN THE UNITED STATES OF AMERICA

TO

MARY HOPE WEST ^

Preface

An epoch in our national history occurred on April 6, 19 1 7, when the people of the United States, through their representatives in Congress, declared the existence of a state of war with Germany. Since that eventful date we have wit- / nessed a most remarkable and unprecedented exercise of Federal power. We have, withput protest and even with satisfaction, accorded to the government a control over corporate and individual existence which infinitely transcends the wildest dreams of those who advocate centralized authority.

This being the case, it is worth while to review, briefly and concisely, the history of the growth of Federal power. There is a prevalent idea that the acceptance of Federal control is a matter of recent development. Nothing could be further from the truth. The belief in the necessity of nationalization had its beginning nearly three centuries ago and its persistent progress can be clearly traced through all the succeeding years.

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Its course is as well-defined as that of the trickling mountain stream which deepens and widens until it is a resistless force sweeping onward to the sea. In other words, the Federal power now witnessed in unparalleled extent is the evolution of a principle to which we have grown accustomed and which we now recognize as essential to our national welfare. If we seem to be advancing with rapid and overwhelming strides, it is because the momentum has been gathering for many years. Long before the war with Germany was declared, the doctrine of States' rights had vanished and the doctrine of paramount necessity had taken its place.

Because of the vital truth underlying this doctrine, the growth of Federal power will be unchecked. Its continued manifestation upon a constantly enlarging scale is as inevitable as fate. It is easier, however, to review and analyze the past than to predict the future. We know that the character of our government, as designed by its founders, is already rapidly changing and that we are less prone than heretofore to regard our Constitution as a sacred and inviolable instrument. There is a possibility, with the integrity of the State as an essential unit disappearing, that we

PREFACE ix

may be brought face to face with a one-man, bureaucratic autocracy. There is still further danger of drifting into Socialism, which cannot develop in a republic composed of independent sovereignties, but which will thrive exceedingly under the aegis of a strong centralized government. The power to determine the destiny of the nation rests with the people. It is for them to solve the problem of reconciling a democratic system of government with the exercise of Federal power. The fact that they have in the past proven their capacity for self-government is the ba*is for the hope that they will wisely and safely cope with the grave situation which already confronts them.

H. L. W.

Contents

CHAPTER - FACE

I. The Beginnings of Federalism 15

IL The First Triumph of FederaHsm. ... 30

Chapter I THE BEGINNINGS OF FEDERALISM

MANY were the causes which led our forefathers to sail westward toward the American shores. Some came with the love of adventure, others in the hope of securing wealth. The largest proportion was dominated, unquestionably, by the desire to escape the petty annoyances of trammeled! existence under tyrannical rule. They sought freedom and liberty of action. The conditions under which they lived, while not altogether unbearable, restricted private endeavor. The yoke of surveillance galled their necks, and for the privilege of governing themselves they willingly endured privation in a wilderness. To-day the American people accept without protest under a centralized government a regulation of their private conduct which makes the conditions which induced the first immigration to this country seem trivial by comparison. Small and isolated communities may be governed with the least possible effort because they present a minimum of problems. Thus during the second half of the seventeenth century, when Massachusetts Bay was far removed in point of time from Jamestown, each American settlement governed itself, or was governed, with little difficulty. Maryland, Virginia, North Carolina and even Pennsylvania accepted a governor appointed by the English king, while in rugged New England a democratic form of government had been instituted. Peacefully and separately each colony might have pursued its way had not the Increase of population and the dangers from without compelled union. In this junction of interests, made necessary by the very force of circumstances, we find the beginnings of Federalism. The people realized fully 250 years ago that there was a strength In the mass which the unit did not possess. To-day they invest the Federal government with extraordinary powers because they know that it Is a far more effective agency In the accomplishment of results than any Individual State can possibly be. This realization has not been suddenlyacquired. It comes as the culmination of nearly three centuries of experience. Perhaps just now it is expressed more emphatically than ever before in our history but the seed was planted long ago. And because ideas which persist through long periods take firm possession of the human mind and are then difficult to eradicate, the Federalistic sentiment so prevalent to-day warrants the most serious consideration.

Three problems confronted the early colonists. The first and most important was the necessity of mutual protection against their common enemies, the Indians, Dutch and French. The second was the relation which the citizens of one colony should bear to the other. The third was the disposition to be made of fugitives from justice who fled beyond the border line of the territory in which their offense was committed. It was these factors which led to the confederation of the New England colonists in 1643. There was no hint, however, of any real union In this agreement of mutual help. On the contrary, the terms of the articles of confederation expressly reserved to each colony Its own local rights and jurisdiction. They did agree, It is true, not to make war without permission of their co-partners unless suddenly mvaded and also that no two colonies should join In one jurisdiction without the consent of the others, but beyond this each colony was a law unto Itself. The very fact that they came together, however, with a definite Idea underlying their joint action, Is Important. It Is the fact Itself, rather than the manner or the method, which Is significant.

This union In 1643 between Massachusetts, New Plymouth, Connecticut and New Haven was described as a league of friendship, the identical phrase used by the thirteen colonies in 178 1 when they adopted the Articles of Confederation which were the precursor of the Constitution. The details of the union were very simple. Each colony was to name two Commissioners, and if six of the eight agreed upon any question, their decision was to stand; otherwise, it was to be referred back to the colonial assemblies. In which case the agreement of all four was to be required. Provision was made In the agreement for the return of runaway slaves and fugitives from justice, but the vital principle Incorporated was the recognition of intercltizenship, the Inhabitants of each colony being accorded equal rights In the other colonies. It seems very absurd nowadays to read of a solemn compact which assured an equality of citizenship, but at that time it was an absolute necessity. In the early history of the Pennsylvania colony the people were highly indignant because a Delaware sheriff crossed their border in pursuit of a thief and the feeling between Massachusetts and Rhode Island was so bitter that it was dangerous for the citizen of one colony to be found within the confines of the other.

Although this particular agreement became obsolete within forty-five years and accomplished little or nothing, the germ of Federalism had been planted. As the years advanced, the people of the colonies became more and more impressed with the desirability as well as the necessity of cooperation and consolidation. In 1690 the New England colonies, together with New York, Virginia, and Maryland, made an effort to combine and, although the attempt was not successful, it gave evidence of the existence of a sentiment for union. The capture of the French fortress Louisburg, on the coast of Cape Breton, by a New England force under General Pepperell in I745» was signahzed by the '^hoisting of a Union flag." William Penn, shrewd and farsighted, should, perhaps, be designated as the father of Federalism, because his plan of combination as drawn up in 1696 was a very distinct advance in the way of definite suggestion. It was unique in that, for the first time, all the colonies were included, and because it provided that the assembly of the delegates should be called *'the Congress,'^ to be presided over by a Commissioner appointed by the King. More than this, however, was the provision for the regulation of commerce between the colonies. This was the crux then, as it is now, of the Federalistic movement. It had been easy to give citizens equal consideration everywhere and to combine in self-protection against a common enemy, but experience was to prove that agreements which failed to take into consideration the very practical and material regulation of commerce by a central organization would be neither effective nor lasting. Penn's plan, although widely discussed, was not ardopted, but its vital principle of union, instead of dying out, became more and more alive. Robert Livingstone in 1 70 1 suggested combining the colonies into three distinct governments, while twenty years later the Earl of Stair proposed a union of all the American colonies and the West Indies, with local self-government guaranteed to each. Many other thinkers came forward with similar schemes of consolidation, all of them expressing more and more the spirit of ultimate concentration of a Federalistic power. Finally, in 1754, in the Albany Congress, Benjamxin Franklin evolved a plan which was a tremendous stride forward. It went too far, as a matter of fact, and was rejected; but its details are worthy of consideration as showing, even at that remote day, a realization of the eventual necessity of a centralized government.

Franklin proposed a grand council of the colonies with members proportioned roughly^:o population, presided over by a President-General, who was to be invested with power to execute the acts of the council. This idea of an authoritative head over all the colonies was not as startling, however, as the provision that the grand council should "lay and le\y general duties, imposts and taxes" proportionately upon each colony. The thought embodied in this proposition was revolutionary. It confronted the colonies with a power superior to themselves. They were to govern themselves independently, of course, but they were also to be subject to paying assessments — nobody knew how much or how little — which might be laid upon them. The assembly to which this plan was submitted, although it unanimously agreed that union was absolutely necessary for preservation, would not agree to being taxed by a central body, even though in that body the colonies were fully represented. But the inevitable was merely postponed. Less than half a century later they were to agree to a Constitution into which, through the agency of taxation and the regulation of commerce, the supremacy of Federal power was to be breathed and the nation made a living soul.

The first necessity for cohesion had been protection against the Indians. In the last quarter of the eighteenth century another danger threatened. The English government, with fatuous persistency, had not only laid undue burdens upon the colonies but had done so in a manner calculated to arouse bitter resentment. The Stamp Act, which made the colonists contribute to the revenues of the British crown although without representation in the British Parliament, was especially odious. The closing of the port of Boston and other restrictions upon navigation bore heavily upon the population, while the fact that citizens of the colonies had been denied trial by jury and had even been transported to England for trial was repugnant to every sense of justice and fair play. It became essential, if these impositions were to be removed and the colonies left in the enjoyment of their peace and liberty, that there should be concerted action. In other words, the day of individual existence was passed and the colonies were to be transformed, as some one expressed it, into a bundle of sticks which could neither be bent nor broken. The bundle was, however, rather insecurely bound. The twine — for the material did not reach the stoutness nor dignity of rope — was the Continental Congress, a body of delegates with no authority behiiM them except public sentiment and who conducted a war against Great Britain in a hap-hazard arrangement with the colonies. It was while this war was in progress that the Articles of Confederation were adopted.

They declared that the States severally entered into "a firm league of friendship with each other for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon, them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.*' The States were not allowed to send or receive foreign embassies nor to make treaties with each other, but they could maintain war vessels *'in such number as might be deemed necessary by the United States in Congress assembled, for defense of such State or its trade," while the land force could be large enough to garrison all the forts within the State. These Articles of Confederation are not so important for what they contain, however, as for what they omit. The former colonies, still tenacious of their individual rights, even though willing to be associated together under the title of "The United States of America," would not yield to Congress the right to make them pay taxes. Such powers as the Continental Congress possessed without written authority were not much increased by the document creating "the league of friendship." The Congress could modestly suggest what sum might be needed to maintain the central government but it had neither power nor machinery to enforce payment. The respect, not to say reverence, shown to the State as an entity was very marked. Congress itself declared that it could not negotiate a treaty of commerce which interfered with the legislative power of the State "in imposing such imposts and duties on foreigners as their own people are subjected to." The prerogatives of the State were still further jealously guarded by a provision which gave one vote to each State and compelled the assent of nine out of the thirteen States to practically every measure which might be imposed.

Weak and disorderly, inefficient and unsatisfactory, was the government under the Articles of Confederation, and simply because the people in the new States could not appreciate fully the necessity of surrendering sovereignty and putting force behind laws. It seems ridiculous to-day that New York should have possessed the authority to pass laws — and actually did enact laws — to keep out firewood from Connecticut and garden truck from New Jersey. No wonder that the bundle of sticks began to fall apart. Separation seemed imminent. Congress, declining daily in public esteem because of its confessed impotence, was too weak to exercise any authority, and was equally helpless in the matter of raising revenues to meet current expenses. Then came the trouble with Spain over the navigation of the lower Mississippi River, which interfered with the effort to secure a commercial treaty with that country, and for the settlement of which no authority seemed to exist anywhere. Meanwhile, the rag money Issued by the States was practically worthless and the lack of a secure currency occasioned great distress. Different States enacted different tariff and tonnage acts; State jealousies were easily aroused and frequently expressed. Massachusetts, for instance, although disturbed by serious internal troubles, declared that it was beneath its dignity to allow Congressional troops to set foot upon its soil. There was no such thing as national credit, while national authority was absolutely nonexistent.

Under these circumstances, it was more and more borne in upon the American people that their system of self-government was vitally wrong. The very conditions under which they lived convinced them that they had not solved the problem. Fortunately there were men like George Washington to courageously point out the defect and suggest the remedy. These men appealed to what might be called the Federal spirit in the people — the spirit which, manifested in various forms during the preceding century and a half, was now to be stimulated into accomplishment. Washington insisted that there should be a central government which, in addition to possessing the power to make war and peace and conclude treaties,

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should also have authority to levy taxes and regulate commerce, and should completely control the executive and judicial departments. He felt, as he expressed it later, that It was impracticable to secure all the rights of independent sovereignty to each State and yet provide for the Interest and safety of all. Pelatiah Webster, stating the idea more definitely, proposed ''a new system of government which should act not on the States but directly upon individuals and vest in Congress full power to carry its laws into eifect." The fullness of time had come; but even so, It was necessary for the men who foresaw that only in united and not divided power could the union survive, to move with caution. The famous convention of 1787, which framed the Constitution, was the outgrowth of a conference called to consider the relations between Maryland and Virginia growing out of the extension of navigation in the upper Potomac. Merely as a secondary consideration for the gathering at Annapolis was it suggested that the delegates should take up the task of amending the Articles of Confederation. The path to Federalism, while proving less arduous, was not unopposed. There were still some people who argued that the principle Involved in the prog8 FEDERAL POWER: ITS GROWTH

test against the Stamp Act, viz., that no authority to levy taxes existed outside of the State itself, was now proposed to be violated by the creation of a central government which would exercise this power. They asked why they had fought the war of the Revolution if the independence which they had gained was thus to be ruthlessly sacrificed. This discontent found expression in the insurrection in Western Massachusetts in 1786-87, known as Shays's rebellion. Happily, however, these voices were in the minority. The great mass of people, as John Fiske so plainly shows, were more afraid of anarchy than of centralization; and anarchy was staring them in the face.

It seems strange nowadays, when we are so thoroughly accustomed to appeals for the larger exercise of Federal power, to read how the people of little over a century ago stood with anxious faces under the shadow of an impending Federal government. They accepted it with trepidation because it seemed to be their only salvation, and because there had been visible demonstration of its efficiency during the preceding one hundred and fifty years. They had learned by experience the value of united action against enemies from without, the Indians and the English. They had an Idea that what had proven efficacious yesterday might be equally so to-day. What they did not foresee was that a century later the people would unite to make the strong arm of the government still stronger so as to fight enemies from within / — corporate domination and the monopoly of trusts — as well as to insure the largest degree of benefit to each individual citizen of the United States.

Chapter II THE FIRST TRIUMPH OF FEDERALISM

THE fate of the union now hung in the balance. If the States would agree to abandon their Idea of independent sovereignty in order that centralized government might be established there was hope for future solidity and progress.

In selecting George Washington as the president of the Constitutional Convention the friends of Federalism gained a decided victory. It is true that as the presiding officer Washington could not participate in the debates, but he was a Federalist at heart and his influence was strong with delegates of wavering opinions. The theory of the sovereign character of the States was still uppermost in many minds and it was no easy matter for the Federalists to convince these doubters that the Federal government must possess the power to levy taxes and regulate commerce. These were the crucial points at issue. Questions as to how the representatives of the people were to be chosen; how the President should be elected and the length of his term ; and whether the Federal judiciary should be elected or appointed, were mere details. The future of the government was settled when a dozen words had been written into the Constitution — "general welfare," "lay and collect taxes," and "regulate commerce among the several States." When, in addition, It was declared that all laws of the United States made in pursuance of the Constitution "shall be the supreme law of the land, and the judges in every State shall be bound thereby, anyljiing in the constitution or laws of any States to the contrary not^^ithstanding," the growth of Federalism was as inevitable as fate. The seed was planted and the day of full fruition was merely a question of time. The tenth amendment to the Constitution, which prescribes that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," was merely a sop to Cerberus. It eased the minds of the opponents of a centralized government and to that extent accomplished the purpose for which it was intended.

The victory for Federalism in the Constitution came as the outcome of a skillfully managed contest. The States, unaware of the tremendous issues to come before the convention, sent their delegates with perfunctory credentials. New Hampshire stood practically alone in its declaration that it would not circumscribe its views *'to the narrow and selfish objects of the partial convenience," and in its avowal of readiness to make every concession for the safety and happiness of the whole. When Edmund Randolph, delegate from Virginia, introduced a series of resolutions as a basis for action, he carefully avoided all reference to the levying of taxes or the regulation of commerce, although he was willing that Congress should "legislate in all cases to which the separate States are Incompetent or in which the harmony of the United States may be Interrupted by the exercise of individual legislation." Charles Pinckney, of South Carolina, went further and boldly proposed that Congress "shall have the power to lay and collect taxes, duties, imposts and excises." While this vital principle was being gradually Impressed upon the minds of the delegates the debate proceeded. The tender sensibilities of those who still manifested some regard for the rights of the States were rudely shocked by the unqualified expressions of Alexander Hamilton. *'I am convinced,'^ he said, "that no amendment of the Confederation can answer the purpose of a good government so long as the State sovereignties in any way exist." He declared further that State distinctions and State operations must be annihilated, '*and unless we do this," he added, "no good purpose can be secured." One of his reasons for electing Representatives by the people was a belief that there might come a time when State legislatures would cease and he thought that "such an event ought not tc^ embarrass the national government." It must not be understood, however, that these radical views were uttered without arousing protest. On the contrary, Robert Yates and John Lansing, jr., delegates from New York, withdrew from the convention when they tound the Federal spirit so strongly expressed and saw it being embodied in the Constitution. They hastened home to pour out their grievances into the sympathetic ear of Governor Clinton and then gave publicity to their fears. They asserted that the principles incorporated into the Constitution were destructive to civil liberty, argued that the United States could never govern the wide expanse of territory ineluded within its borders, spoke timorously of the great cost which the national legislature would entail upon the people, and strenuously objected to New York being deprived of its most essential rights of sovereignty and placed in a dependent position.

Unnecessarily alarmed were Yates and Lansing, as the future demonstrated, and yet they were not alone in their position. The Constitution was finally adopted by the convention because the country was then face to face, as it is to-day, with problems not to be solved except through the exercise of strong Federal power; but out of the sixty-five delegates designated, only thirty-nine remained in their seats to affix their signatures to the immortal document. In Virginia, Patrick Henry denounced the Constitution as a flagrant outrage upon the States and he especially criticized the opening phrase, "We, the people of the United States." He saw in these words the beginning of the end. Many Virginians shared his views — Richard Henry Lee and George Mason among the number. The final ratification by Virginia was accomplished by the narrow margin of ten votes out of a total of 165, and only because the members of the State convention had the wisdom to see that no matter how the States had been treated, the powers granted by the Constitution still remained with the people and had not in any way been abridged. As a mc/'-er of fact, time has demonstrated the accuracy of this point of view. The wide extent of power now enjoyed by the Federal government has been given to it by the people. The government has become, as some one has aptly expressed it, a creature of the masses which compose the sovereignties rather than of the sovereignties themselves. ^

But it was impossible in those days, with a few weak States just emerging from a long and costly war, to secure the acquiescence in Federal supremacy which is now accepted as a matter of course. "Sic transit gloria Americana," wrote Elbridge Gerry, while Samuel Chase, James Monroe, and scores of other leading men joined in the general chorus of criticism. At Albany a copy of the Constitution was publicly burned and in Rhode Island nearly i,ooo armed men, headed by a judge of the State Supreme Court, compelled the speakers at a public gathering to desist from saying anything favorable to the Constitution. To meet this hostile sentiment

Hamilton, Madison and Jay — ^but mainly Hamilton — wrote the Federalist papers. These cogent and logical expositions of the necessity for a Federal government are so familiar that only two observations are requisite to the purposes of this volume. The first is that they have endured. There were innumerable pamphlets in opposition to the scheme outlined in the Constitution but they have perished, save for a few rare copies now preserved in various libraries. The Federalist papers, on the other hand, have been published in many editions and still remain standard literature, a convincing illustration of the trend of the public mind. In the second place, it Is worth while to note how Hamilton's predictions have been completely disproved by the experience of history. "It will always be more easy," he wrote, **for the State governments to encroach upon the national authority than for the National government to encroach upon the State authorities.'* This idea was several times repeated. *'It should not be forgotten," he wrote again, **that a disposition in the State governments to encroach upon the rights of the Union is quite as probable as a disposition in the Union to encroach upon the rights of the State governments." A contest between

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the two, he declared, "will be most apt to end to the disadvantage of the Union." It is difficult to reconcile these statements with Hamilton's admittedly keen political foresight. If he did not realize that the strong central government for which he argued, a government with authority to levy taxes and regulate commerce among the States, would be more powerful than any one State, his political acumen has been over-rated; while if he did appreciate it, he deliberately misled the people in his overwhelming desire to secure the ratification of the Constitution. In either case, history has fully demonstrated the falsity of his position.

Despite much misgiving on the part of the fev/, the great mass of the people pushed ahead under the new Federal government, halting for a moment when they elected Jefferson to succeed Adams, but finding that Jefferson could forget his strict constructionist Ideas and become an expansive nationalist when the opportunity to purchase Louisiana presented Itself. Steadily the spirit of Federalism grew. There were, of course, many problems, and some outward expressions of discontent over the exercise of Federal power at the expense of the rights of the States. The conflicts were frequent and Intense. In 1793, four years after the government was established, the Supreme Court of the United States, in the famous case of Chisholm vs. Georgia, decided that a citizen of one State could sue another State in the Federal courts. This decision laid all the States liable to suits to compel payment of debt obligations and caused much dissatisfaction and even alarm. The Georgia House of Representatives angrily declared that such assumption of Federal authority would ^'effectually destroy the retained sovereignty of the State,'' would render the States nothing but tributary corporations of the United States Government, and added that the State would not be bound by the judgment of the Federal court. More than this, the State legislature passed a law providing that any person attempting to carry out the decree of the Federal court by seizing property within the State should be hung without benefit of clergy. Other States, Including Massachusetts and New Hampshire, also protested, but without immediate result. Five years elapsed before the ratification of the eleventh amendment to the Constitution, which forbids the extension of the judicial power of the United States to any suit commenced or prosecuted against one of the United States by citizens of another State. The remonstrances of one or two States against alleged degradation at the hands of the Federal government were certainly not provocative of swift redress on the part of the people.