American citizens and their government

Front matter

GQKRIGHT DEPOSm

American Citizens and Their Government

BY

Contents

I. Origin of the American Government 13

English origins — Union of the original States was inevitable — The constitutional convention of 1787 — The Fathers of the constitution — The compromises of the convention — Severe struggle to create the new Union — The accomplishment of the Fathers — Unjust criticism of the Fathers — Personal sacrifices of our early Presidents — Stability of the constitution.

II. The National and State Constitutions 27

Preface

This book owes its immediate origin to a series of conferences or private lectures given to the group of public spirited women in Chicago whose names appear in the dedication. The material has, however, been worked over with a view to its presentation to the general public. In the rewriting, I have freely drawn upon my classroom lectures at Northwestern University. The aim is to present in brief compass a general view of American government. The needs and interests of the average American citizen and voter have been kept in mind. While the work cannot go into complete detail, nevertheless, it attempts to give a broad survey of the vital factors in our national, state, city, and town government.

In the preparation of the text I have received the generous aid of David Maydole Matteson of Cambridge, Massachusetts; Theodore Wesley Koch, librarian of Northwestern University; John Henry Wigmore, Dean of the Law School of Northwestern University; Chauncey Peter Colegrove, President of Upper Iowa University; of my colleague, Professor P. Orman Ray and of Professor Norman E. Richardson, editor of the series in which this book appears.

Evanston, Illinois, July 22, 192 1.

Chapter I Origin Of The American Government

The United States is a group of commonwealths united in a federal government. These commonwealths, and the Union, are the product of many centuries of political experience. The original thirteen States were not the instantaneous creation of the American Revolution of 1776; and the federal constitution did not originate solely in the Constitutional Convention which met in Philadelphia in 1787. Gladstone once enthusiastically called the American constitution "the most wonderful work ever struck off at a given time by the brain and purpose of man." But when the Fathers of 1787 patiently labored throughout a sultry summer in Independence Hall to draft a constitution which would bind the thirteen sovereign States into a more perfect Union, a century and a half of political experience in the art of colonial self-government, and more than ten centuries of English constitutional development entered into their deliberations. The constitution was a practical document. It produced no sudden break with the past. The new government was the logical outcome of previous political lessons.

ENGLISH ORIGINS

The American Revolution of 1776 was in no sense a political upheaval such as the French Revolution. It was rather a civil war, Englishmen against Englishmen. The English liberals in Parliament opposed the colonial policy of King George III and his party almost as bitterly as did the Americans. When the thirteen States declared their independence there was no sweeping abolition of existing political institutions. The new State governments were modeled upon colonial precedents. Connecticut and Rhode Island actually kept their royal constitutions until 1818 and 1842.

The colonists had carried to America the rights of Englishmen. They had considered themselves as entitled to these rights even when residing in a land across the seas, and the English law had recognized their claim. The great constitutional documents of British liberty, such as Magna Charta, the Petition of Right, the Habeas Corpus Act, and the Bill of Rights, are in a very large measure the foundations of our democracy. The framers of our State constitutions copied in many cases the exact wording of these charters of freedom.

Under the colonial rule the government of the colonies had been similar to that of Great Britain. The governors were the representatives of the crown; the colonial legislatures had a popular assembly like the British House of Commons; and the colonial courts administered the Common Law of England. After the break with England the new States retained these institutions almost intact; and even after the Declaration of Independence the English Common Law continued to be administered in our courts. In fact, English Common Law is the basis of the legal system which is practiced in our courts even in the present day.

Union of the original States was inevitable. — The union of the thirteen States was inevitable. Common birth, common ideals, common language and institutions made such a union easy and convenient ; and national efficiency demanded it. Even in colonial times, attempts at confederation had been earnestly undertaken, and on one occasion actually consummated. As early as 1643 tne colonies of Massachusetts Bay, Plymouth, Connecticut, and New Haven had entered into a "league of friendship" for protection against the Indians. In 1696 William Penn urged a Congress for all the colonies; and Robert Livingston proposed a union in 170 1. In 1754 the celebrated Albany Congress proposed an elaborate plan for colonial union drawn up by Benjamin Franklin. The quarrel with the motherland led to the Stamp- Act Congress in 1765 and the two Continental Congresses of 1774 and 1775. Finally in 178 1, the Articles of Confederation and Perpetual Union were adopted and a loose confederacy of the States was thereby created. The central organ of government was Congress, in which each State, great and small, had an equal voice.

THE CONSTITUTIONAL CONVENTION OF 1 787

The events leading up to the call of the Convention of 1787 are a familiar story in American history. As John Adams said, the federal constitution was wrung from the hearts of a reluctant people by the grinding necessities of the times. There were thirteen practically separate and independent States. They were proud of their individuality, and they were excessively jealous of each other. The Revolutionary War had held them together when the enemy was in our land; but after victory was won political chaos began. The economic system was demoralized. New York and Connecticut were engaged in a tariff struggle, and

Virginia and Maryland were quarreling over the navigation of the Potomac. In 1786 Massachusetts was disturbed by Shays' s Rebellion, when an armed band of radicals defied the commonwealth.

The Congress of the Confederation was deplorably weak. It lacked power to levy revenue. The central government was dependent upon contributions from the States. It lacked credit to borrow money. It had no power to regulate commerce and thus was unable to end the tariff disputes between the States. It had no efficient military power. In general, as Washington said, Congress was wanting in coercive power — the power to operate upon individuals.

Washington, Hamilton, Madison, and other leading men were convinced that the financial and political disorder could be cured only by the creation of a stronger union. Their efforts in this direction resulted in the calling of a convention to meet in the month of May, 1787, in Philadelphia, for the purpose of proposing amendments to the Articles of Confederation. All the States save Rhode Island appointed delegates.

The Fathers of the constitution. — The delegates from the States came tardily to Philadelphia. Many of them were of the opinion that little good could be accomplished. All told there were fifty-five delegates. They were the ablest group of statesmen who had ever assembled upon American soil. Virginia sent the strongest delegation, including Washington, Madison, and Edmund Randolph.

General Washington, who was chosen president of the convention, was at this time the foremost man in America, the undisputed leader, "first in war, first in peace, and first in the hearts of his countrymen.".

ORIGIN OF AMERICAN GOVERNMENT ly

Throughout the Revolutionary War he had served as commander-in-chief of the American army, without one cent of pay. With the coming of peace he had retired to his Virginia plantation and devoted his time to agriculture. Now, after scarcely three years of private life, he again was constrained by the critical condition of his country to sacrifice his personal inclination to the service of the public. Although a man of few words, lacking in oratorical expression, and rather cold in bearing, Washington commanded an almost unparalleled respect from his contemporary fellow citizens. Older men trusted his sagacity and honesty, younger men delighted to place themselves under his orders, while all men, of every degree of intelligence and station in life, were irresistibly attracted by qualities in his character which no biographer has been able adequately to analyze.

After a modest speech Washington took the chair. Close by the rostrum, in a seat where he could distinctly hear all that was said, sat James Madison, who not only took a leading part in the debates, but also made full notes of the proceedings from day to day. Many years later these notes were published by order of Congress, as Madison's Journal, and they now supply us with our best information upon the deliberations of the convention. Madison was a supporter of Washington. He belonged to the younger generation of men who were proud to serve under their great chief, and yet whose learning, political sense, and rhetoric were indispensable contributions to the constitutional movement. In the construction of the great document which the convention gave to the American people Madison probably exerted more effective direction than any other man in the convention.

Alexander Hamilton represented New York. Although one of the youngest men in the convention — being then but thirty years of age — Hamilton was the most brilliant thinker and the most eloquent orator among the delegates there assembled. His passionate advocacy of a strong national government, however, was far too extreme for an occasion where unanimity could be obtained only by painstaking compromises. While the convention admired his abounding intelligence and his infallible logic, his words were less effective than the persistent, watchful, unfailing tactics of James Madison. Benjamin Franklin, the most versatile genius of American history, although now feeble and bent with eighty-two years of active life, exerted a marked influence upon the convention. Other members of remarkable attainments were in attendance, whose presence alone in any other assembly would have added distinction. James Wilson, Robert Morris, Gouverneur Morris, besides Benjamin Franklin, represented Pennsylvania. Rufus King of Massachusetts, Roger Sherman of Connecticut, William Paterson of New Jersey, and the Pinckneys of South Carolina were prominent in the debates. Characteristic of all assemblages, there were a few wordy obstructionists like Luther Martin, of Maryland, who caviled and harangued for no other purpose than to delay the proceedings. But the majority of the delegates were, as described by William Pierce, "respectable characters'* who seldom spoke themselves, but who weighed the arguments of the more ready orators and influenced the decision of the issues by their votes.

The compromises of the convention. — The advocates of a strong national government spent many anxious weeks before they were assured of any degree of success. The convention was full of conflicting interests and opinions, and agreement was reached only after the most painstaking compromises. In general, there were two opposing groups or parties. The small States opposed the large States, the one group desiring to keep the central government weak, the other wishing to strengthen it. Another alignment of opposing interests was found between the agriculturists of the South and the commercial interests of the East.

At the opening of the convention the Virginia delegation had presented a plan for a national government in which representation in Congress was to be proportional to the population of the States. In opposition to the Virginia plan, William Paterson introduced the New Jersey plan, which provided in effect for the practical continuance of the old Confederacy with an equal vote for every State. Fortunately, after several weeks of trying debates a compromise was effected between the large and the small States whereby it was agreed that the new Congress should consist of two houses ; in the upper house every State, great or small, would have two votes, while in the lower house representation would be proportional to population.

Then the Southern planters, fearing that the commercial States might use the national legislature to oppress the agricultural States, demanded that slaves be counted in the population for representation in Congress, while the free States opposed this claim of the South for increased political influence. At the same time the Eastern commercial interests demanded that Congress should have exclusive control of commerce with foreign nations and among the several States, while the Southern planters, fearing that the foreign trade in farm products might be injured by hostile interests in Congress, resisted the proposal. In the end, compromises were effected. It was agreed that three fifths of the slave population should be counted in the representation in Congress; and the exclusive control of foreign and interstate trade was given to Congress.

Severe struggle to create the new Union. — These compromises were not easily reached. The conflict of views and interests had been so sharp that at several stages of the business the convention was at the point of breaking up without accomplishing its purpose. At the height of the most depressing deadlock Benjamin Franklin proposed that the convention should open each morning with prayers. Even upon the last day, when the constitution was reported in its final form, it was not certain that a majority of the delegates would be willing to attach their signatures. Washington and Franklin made appeals for unanimity and only three of the delegates then present refused to sign. On this memorable day Madison completed his notes with the following statement, which has become a classic anecdote in American literature:

"Whilst the last members were signing, Doctor Franklin, looking toward the President's chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that painters had found it difficult to distinguish in their art a rising from a setting sun. I have, said he, often and often in the course of the session, and the vicissitudes of my hopes and fears as to the issue, looked at that behind the President without being able to tell whether it was rising or setting: but now at length I have the happiness to know that it is a rising and not a setting sun."

The work of the convention was submitted to the

Congress of the Confederation, and by that body referred to the several States for ratification or rejection. The new constitution had provided that the Union should be automatically established upon ratification by conventions in nine of the thirteen States. During the following year throughout the country the merits and defects of the proposed form of union were sharply debated. Public opinion divided into two parties, the Federalists and the Anti-Federalists, one urging the ratification of the constitution, the other opposing its ratification. In general, the Southern planters and the commercial interests, together with the seaboard districts of the States, favored the constitution, while the Yankee farmers and the back-country districts opposed it. The latter were incensed partly because the Fathers, upon the assumption that the rights of citizens were already adequately safeguarded by the State constitutions, had included no Bill of Rights in the national constitution. This objection was met by the solemn promise of leading Federalists to cooperate in adopting a new Bill of Rights as an amendment to the constitution immediately after the establishment of the Union.

New Hampshire was the ninth State to ratify the constitution. Its convention voted in favor of ratification on June 21,1 788. Virginia also accepted the constitution a few days later, reaching this decision before the action taken by New Hampshire was known in the South, and New York soon followed. The expiring Congress of the Confederation thereupon ordered that the States should choose Presidential Electors to select the President and Vice-President in January, 1 789, and that a new Congress elected under the constitution should meet on the fourth day of March. The

Presidential electors were duly chosen and selected General Washington as the first President. Congressmen were also duly elected, but a quorum of the two houses did not appear in New York, the temporary seat of government, until April, 1789. On the last day of this month Washington was inaugurated in Federal Hall in Wall Street; and the national government was at last established.

THE ACCOMPLISHMENT OF THE FATHERS

The constitution under which the federal government was established in 1 789 was a practical, workable document. In planning for the new government the Fathers had followed methods which experience had tested. As James Russell Lowell has said, they knew better than to commit the folly of breaking with the past. Thus the new constitution, while creating a free and liberal government, was grounded upon principles which commended themselves to sane and levelheaded men, men who had already learned that to govern well is not an easy task.

Unjust criticism of the Fathers. — Of late years a bitter and unrelenting group of agitators have attacked the federal government and in particular the constitution of the United States. One of their methods is to cast opprobrium upon the men who drafted this document in 1787. In attacking the personal character of the Fathers these calumniators hope to prove that our government rests upon a dishonest constitution. They contend that the constitution was adopted not to promote the unalienable rights of man — life, liberty, and the pursuit of happiness — which Jefferson desired, but to safeguard property as the main object of society, as

Gouverneur Morris rather unfortunately remarked on the floor of the convention.

But assaults upon the personal character and interests of the Fathers are not sufficient proof that our constitution is dishonest. Little can be gained by attempting to show that Washington was a haughty, cynical, aristocratic old man, trembling with fears of slave insurrections or radical rebellions in Massachusetts. It is true that he was at that time the richest man in America, having an estate worth $530,000; it is also true that he had speculated in lands in the Ohio wilderness. But the possession of property is not presumptive evidence of dishonesty; and it is interesting to note that at the time of the convention Washington, in spite of his many acres, was in financial embarrassment. In regard to Washington's speculations in Ohio lands, all sensible persons will admit that the growth of the West in population and prosperity was partly due to the willingness of far-sighted men, like Washington, to risk their capital in pioneer developments. As to the insinuations that Washington speculated in continental currency and hoped for a strong national government for the redemption of this paper money, an examination of the Washington Papers preserved in the Library of Congress has proved these charges to be utterly false.

Similar indictments against the character and motives of Madison, Hamilton, and others are likewise worthless. The Convention of Philadelphia was not preeminently an assembly of rich men. It was an assembly of brilliant public leaders, of sound practical men, and of men who had sacrificed much for the common welfare. While some members possessed considerable property, and while some had always been what we may call aristocrats, there were other members, like Roger Sherman of Connecticut, who was a shoemaker in early life, but who diligently applied himself to the study of law and in time became a judge of the superior court, and as a representative of Connecticut had the unique distinction of signing the Declaration of Independence, the Articles of Confederation, and the Constitution of the United States.

Personal sacrifices of our early Presidents. — Far from enhancing their material goods by the creation of the Union, the Virginian planters soon found themselves in financial straits. The adoption of the constitution ruined the personal fortunes of the Southern landowners. The story of the decay of this ancient aristocracy belongs to the realm of economic history. It is sufficient here to say that the commercial powers of Congress under the new constitution were exercised in the manner feared by the Southern agriculturalists in the convention, and partly, although by no means entirely, because of this fact the rich plantations of the seaboard and Piedmont area relapsed into "galled and gullied hillsides and sedgy briary fields."

Four of our Presidents in the first four decades of our national history came from Virginia and in a measure were victims of this economic decay. Washington retired after his second term in office, disappointed and dejected because of his failure to govern the United States without the bitter strife of political parties, and took up the management of his plantation, already fallen into disrepair. In 1809 Jefferson retired to Monticello, a humiliated and weary man. His lavish hospitality in the White House and neglect of his private estate had brought him to financial ruin, and his friends in pity attempted to induce the legislature of Virginia to permit a lottery in his benefit. James Madison, after eight years service as President of the United States, returned to his plantation, which had fallen into ruin. He vainly attempted to borrow a few thousand dollars at a Philadelphia bank, offering his plantation as security; and he died in straitened circumstances. Monroe at the end of his administration was forced to give up his Virginia home and accept in his old age the hospitality of a relative in New York. The personal sacrifices of these great statesmen is one of the beautiful things in American history.

Stability of the constitution. — Of course the worth of the constitution to-day is not to be measured alone by the character of the men who made it. The constitution as it is interpreted in the present age is a very different document from that created by the Fathers. The essential virtue of the constitution has been its adaptability to changing conditions in our national progress. It has furnished the basis for a progressive and advancing — and hence enduring — government. This stability in our fundamental law has infinitely promoted the happiness and prosperity of our country. Under weak and precarious governments human enterprise is shackled by timidity and uncertainty. But under stable and consistent governments men are free to test the utmost possibilities of human genius in art and industry and social welfare.

Fortunate it is that the Fathers were practical men. In a convention which consumed a little over three months time they drafted a constitution which has endured a hundred and thirty years. In the same year that the federal government was established in New York, Jefferson, our ambassador at Paris, watched the opening debates of the celebrated National Assembly which was attempting to build a constitutional government for France. After two years of excited and impractical debate on theoretical questions a constitution was promulgated. This constitution endured for scarcely a year. Since 1789 France has had a dozen different constitutions ; while Spain, which adopted its first constitution in 18 12, has overturned its constitution upon five different occasions. There is no European constitution, in written form, which has endured as long as that of America.

Colonial and English Origins. — A. B. Hart, Actual Government f pp. 39-48; H. J. Ford, Rise and Growth of American Politics, ch. i ; C. A. Beard, American Government and Politics, ch. i; S. G. Fisher, Evolution of the Constitution of the United States, ch. i ; W. B. Munro, Government of the United States, ch. i.

The Common Law. — C. A. Beard, American Government and Politics, pp. 553-555 ; O. W. Holmes, Common Law, ch. i; Art. on "Common Law" in Bouvier's Law Dictionary.

The Constitutional Convention of 1787. — John Fiske, Critical Period of American History, ch. vi ; Max Farrand, Framing of the Constitution, pp. 68-112; W. M. Meigs, Growth of the Constitution in the Federal Convention of 1787, pp. 1 1 -$5; Writings of James Madison [Edited by Gaillard Hunt], III, pp. 1-22; 164-181 ; IV, pp. 472-483; Jonathan Elliot, Debates on the Federal Constitution, I, pp. 139-145.

Work of the Fathers. — H. C Lodge, George Washington, II, pp. 29-39 ; Jared Sparks, George Washington, ch. xxxiii; Gaillard Hunt, James Madison, pp. 108-136; James Parton, Benjamin Franklin, II, pp. 564-584 ; H. C. Lodge, Alexander Hamilton, pp. 56-64; Theodore Roosevelt, Gouverneur Morris, ch. vi.

Chapter II The National And State Constitutions

In the words of American jurists the constitution of the United States is the "supreme law of the land." It is the fundamental document establishing our form of national government and determining the relations of this government to the State governments. In other words, the constitution creates a political system, and distributes powers between the central government and the State governments. It also defines the rights and obligations of citizens, protecting them on the one side from the federal government and on the other side from the State governments.

The constitution is the ultimate law of the United States from which there is no appeal. It is the organic expression of the political will of our country. When reading the constitution one may feel that he is face to face with the American people.

THE NATURE OF THE CONSTITUTION

Notwithstanding the fundamental character of the constitution, it is a very short document, being only a few pages in length, and requiring only a few minutes to read. 1 Various European observers have been as- | tounded by the fact that a government so great as ours

* In its most convenient form, perhaps, it can be found in a little pamphlet published by the Government Printing Office, which may be purchased for five cents by sending the amount in coin or a money order to the Superintendent of Public Documents at Washington, D. C.

should rest upon a constitutional document so remarkably brief. But a careful study of American history shows that the brevity of our constitution is one of its most admirable qualities. In concise and logical sentences, gracefully and masterfully expressed, the Fathers outlined the main features of our political system. Whether intentionally or unintentionally, the men of 1787 used words and phrases which permit a liberal construction as to their meaning. The grants of power to Congress and the President are not hedged about with lengthy exceptions and restrictions which would stifle the spirit of progressive interpretation. Hence the constitution has been easily adapted from decade to decade to the needs of the country, with the result that there has been a stability and endurance in our constitutional life which has been beneficial in the highest degree.

Written and unwritten constitutions. — Our constitution, as we have just seen, is a written document. England, on the other hand, has an unwritten constitution. No fundamental state paper sums up the British constitution. It is contained in a vast accumulation of ancient charters, acts of Parliament, and decisions of courts, which if collected together even in part would fill an astonishing number of volumes. The British constitution is an admirable political growth; British freedom, as Tennyson well said, has "broadened down from precedent to precedent" through ten or more centuries of almost uninterrupted continuity. An act of Parliament may change any part of the British constitution at any time.

The constitution is a grant of powers. — Chief Justice Marshall in the case of Gibbons vs. Ogden spoke of the constitution as a grant of powers. This grant of powers was to the central or national government. No grant of powers was made to the State governments. At the time that the Constitutional Convention met, the thirteen original States were sovereign and independent; they possessed all the powers of sovereign and independent nations, save for the few meager powers which had been granted by them to the Congress of the Confederation.

The federal constitution of 1787 granted no new powers to the State governments. On the contrary, it took certain powers away from the States and gave these powers to the central government. For instance, one of the compromises in framing the constitution resulted in the provision giving Congress the power to regulate commerce with foreign nations and among the several States. At the same time the exercise of these powers was prohibited to the States.

It is readily seen in our own day that the sovereign independence of the States was really abrogated by the adoption of the constitution. This fact was not, however, so clearly understood in the first decades of our national history, and it caused considerable confusion, as we shall presently explain. For the moment we must note that the powers not granted in the constitution to the central government were tacitly reserved to either the people of the States or to the States. To clear up any doubt upon this matter, the Tenth Amendment, adopted in 1791, read: "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." Such powers are called "residual powers."

Did the constitution create a national government? — To-day there is no hesitation in saying that the constitution has created a national government. Whenever we speak of the government at Washington we think of a government of the American people and not of a government representing an aggregate of States. But this view was not the prevailing opinion from 1789 to 1865. While Madison and other members in the Constitutional Convention spoke of the national government, the term "federal" came to be more generally used. The theory was that the new constitution created a federal republic, wherein formerly independent States merged their sovereignties in a central government without losing their identities or many of their former powers. It can readily be seen that this theory was always in danger of being upset, on the one hand by the Union-men and on the other hand by the advocates of State's Rights. For nearly seventy years the theory was the battlefield of American politics. Webster and Clay, Calhoun and Haynes debated the question back and forth in the Senate. Not until the end of the Civil War was the dispute finally settled in favor of the Union-men. The term "federal" in reference to our central government continued to be used in preference to the more correct term "national." Thus we speak even to-day of the federal constitution, or the federal powers, although this term has long since lost its original significance.