The German reader who hears of the Supreme Court sitting at the Capitol,

must not turn back in his mind to the Imperial Court at Leipzig. The

Supreme Court is by no means the sole court of highest instance, for the

suits in single states which properly fall within the jurisdiction of a

state can go no higher than the highest court of appeal of that state.

The Supreme Court in Washington is the court of last instance for

federal cases; but in order to disburden the judges in Washington, there

are large classes of civil cases pertaining to the federal courts, which

can be carried no higher than the federal court of appeals of a given

circuit. Much more important than the cases in which the Supreme Court

is really the court of highest instance for federal suits, are those

others in which it is at once the court of first and last instance;

these are the processes which the Constitution assigns immediately to

the Supreme Court. They are chiefly suits in which a single state, or in

which the United States is itself a party, for the Supreme Bench alone

can settle disagreements between states and decide whether the federal

or state laws conflict with the Constitution. In this sense the Supreme

Court is higher than both President and Congress. If it decides that a

treaty which the Executive has concluded, or a law which has been passed

by the Legislative, violates the Constitution, then the doings of both

Congress and the President are annulled. There is only one way by which

a decision of the Supreme Court can be set aside—namely, by the vote of

a three-fourths majority of all the states; that is, by an amendment of

the Constitution. There are some instances of this in the history of the

United States; but virtually the decision of the nine judges of the

Supreme Court is the highest law of the land.

The Supreme Court has annulled Congressional measures twenty-one times

and state statutes more than two hundred times, because these were at

variance with the Constitution. Many of these have been cases of the

greatest political importance, long and bitterly fought out in the

legislatures, and followed with excitement by the public. The whole

country has often been divided in its opinion on a legal question, and

even the decision itself of the nine judges has sometimes been handed

down with only a small majority. Nevertheless, for many years the

country has every time submitted to the oracle of the Supreme Court, and

considered the whole issue definitely closed.

One is not to suppose that the Supreme Court occupies itself with

handing down legal verdicts in the abstract and in a way declaring its

veto whenever Congress or some legislature infringes the Constitution.

Such a thing is out of the question, since theoretically the Supreme

Court, although the equal is not the superior of Congress; most of all,

it is a court and not a legislature. The question of law does not come

up then before this tribunal until there is a concrete case which has to

be decided, and the Supreme Court has always declined to hand down a

theoretical interpretation in advance of an actual suit. As early as the

eighteenth century, Washington was unable to elicit from the Supreme

Court any reply to a hypothetical question. Even when the actual case

has come up, the Supreme Court does not say that a certain law is

invalid, but decides strictly on the one case before it, and announces

on what principle of the law it has based its decision. If there is a

disagreement between two laws, the decision of the Court simply lays the

practical emphasis on one rather than on the other. It is true that in

this way nothing but one single case is decided; but here the principle

of common law comes in—one decision establishes a point of law, and the

Supreme Court and all lower courts likewise must in future hand down

verdicts conformable thereto. The legislative law so superseded is thus

practically annulled and made non-existent. In the Supreme Court one

sees again that the security of national justice rests on the binding

force of former decisions.

It will be enough to point out two decisions which have been given in

recent years and which have interested the whole country. In the year

1894 Congress passed a new tax law; one clause of this law taxed every

income which was larger than a certain amount. It was taxation of the

wealthy. So far as income was obtained by actual labour the tax was

undoubtedly valid. But New York barristers doubted the constitutionality

of this tax in so far as it was laid on the interest from securities or

on rents; because the Constitution expressly says that direct taxation

for the country must be levied by the separate states, and in such a way

that the whole sum to be raised shall be apportioned among the different

states according to their population. The counsels of the wealthy New

Yorkers said this provision ought to apply here. The difference would be

for every rich man in thickly populated states a very considerable one.

If the tax was to be apportioned according to population, the poor

states must also bear their share. While it came to be levied on the

individuals the largest part of the burden would fall to the

millionaires, who are grouped in a few states. The Supreme Court would

say nothing so long as the discussion was theoretical. Finally, a case

was tested; when the lawyers were prepared, a certain citizen refused to

pay the income tax and let the matter go to court. The first barristers

in the country were divided on the question, as was also the Supreme

Court. The majority decided in favour of the citizen who refused to pay

the tax, because in its opinion the tax was a direct one, and therefore

the constitutional provision relating to direct taxation was in force.

By this one decision the income tax was set aside, and instead of ten

thousand new suits being brought, of which the outcome was already

clear, the excess taxes were everywhere paid back. At bottom this was

the victory, over both President and Congress, of a single eminent

barrister, who is to-day the ambassador to England.

A still more important decision, because it involved the whole political

future of the United States, was that on the island possessions. By the

treaty with Spain, Porto Rico had become a possession of the United

States, and was therefore subject to United States law; but Congress

proceeded to lay a tariff on certain wares which were imported from the

island. There were two possible views. On the one hand, the Constitution

prescribes that there shall be no customs duties of any sort between the

states which belong to the Union; and since Porto Rico is a part of the

Union the rest of the states may not levy a tariff on imports from the

island. On the other hand, the Constitution empowers Congress to

regulate at its discretion the affairs of such territory as belongs to

the United States, but has not yet been granted the equal rights of

states; thus the other provision of the Constitution would not

immediately apply to this island. The question had never before been

decided, because the Indian territories, the Mexican accessions, and

Alaska had never been treated as Porto Rico now was. Congress had

previously taken for granted that the Constitution was in force for

these territories, but now the imperialistic tendencies of politics had

created a new situation, and one which had to be settled.

Here too, of course, the Supreme Court did not try to settle the

theoretical question which was stirring the whole country; but presently

came the action of Downes vs. Bidwell, a simple suit in which a New York

commercial house was the complainant, and the New York Customs the

defendant. In case the provisions of the Constitution were to hold for

the entire domain of the United States, the tariff which Congress had

enacted was unconstitutional, but if the Constitution was to hold only

for the states, while Congress was sovereign over all other possessions,

the tariff was constitutional. The Supreme Court decided for this latter

interpretation by five votes against four, and the commercial house paid

its tax. Therewith the principle was decided for all time, and if

to-morrow the United States should get hold of Asia and Africa, it is

assured from the outset that the new domain would not be under the

Constitution, but under the authority of Congress—simply because Downes

lost his case against Customs Inspector Bidwell, and had to pay six

hundred dollars in duty on oranges.

This last case shows clearly that the decisions by no means always

support the Constitution against legislative bodies; and statistics show

that although in two hundred cases the verdict has been against the

legislatures, it has been more often decided in their favour. The entire

history of the Supreme Court shows that in a conservative spirit it has

always done full justice to both the centralizing and particularizing

tendencies. It has shown this conciliatory attitude especially by the

firm authority with which it has decided the hazardous disputes over

boundaries and other differences, between the several states, so that

such disputes really come up no longer. For a century the Supreme Court

has been a shining example of a federal tribunal.

Such complete domination of the national life could not have been

attained by the Supreme Bench if it had not remained well above all the

doings of the political parties, and that it does so may seem surprising

when one considers the conditions under which the judges are appointed.

The President selects the new judge whenever, by death or retirement, a

vacancy occurs among the nine judges; and the Senate confirms the

selection. Party factors, therefore, determine the appointment, and in

point of fact Democratic Presidents have always appointed judges

belonging to their own party, and Republicans have done the same. The

result is that both parties are represented in the Supreme Court. That

in political questions, such as the case of Porto Rico, which we have

mentioned, party conceptions figure somewhat in the decision of the

judges is undoubted. Yet they figure only in the sense that allegiance

to one or the other party involves certain fundamental convictions, and

these necessarily come into play in the judicial verdict. On the other

hand, there is never the least suspicion that the judges harbour

political schemes or seek in their decision to favour either political

party. This results from the fact that it is a matter of honour with

both parties to place really the most distinguished jurists in these

highest judicial offices—jurists who will be for all time an honour to

the administration which appointed them. They are almost exclusively men

who have never taken part in technical politics, but who have been

either distinguished judges elsewhere or else leading barristers, and

who, from the day of their appointment on, will be only judges. Their

position is counted among the most honourable which there is, and it

would almost never happen that a jurist would decline his appointment,

although the position, like all American official positions, is

inadequately rewarded; the salary is ten thousand dollars, while any

great lawyer is able to earn many times that sum. At the present moment

there sits on the Supreme Bench a group of men, every one of whom

represents the highest kind of American spirit. The bustle and

confusion, which prevail in the two wings of the Capitol, does not

invade the hall where the nine judges hold their sessions. These men

are, in the American public mind, the very symbol of conscience.

We shall have occasion to consider later on the administration of

justice by the nation, under various points of view. While in many

respects this will appear less conscientious and more especially less

deliberate, it will, nevertheless, recall not a few admirable features

of the Supreme Court.

CHAPTER SIX

_City and State_

The Constitution, the President and his Cabinet, the Senate, the House

of Representatives, and the Supreme Court, in short all of those

institutions which we have so far sketched, belong to the United States

together. The European who pictures to himself the life of an American

will inevitably come to think that these are the factors which most

influence the life of the political individual. But such is not the

case; the American citizen in daily life is first of all a member of his

special state. The organization of the Union is more prominent on the

surface than that of the single state, but this latter is more often

felt by the inhabitants.

The quality of an American state can be more easily communicated to a

German than to an Englishman, Frenchman, or Russian. The resident of

Bavaria or Saxony knows already how a man may have a two-fold

patriotism, allegiance to the state and also to the empire; so that he

can recognize the duties as well as the privileges which are grouped

around two centres. The essentials of the American state, however, are

not described by the comparison with a state in the German Empire, which

is relatively of too little importance; for in comparison with the Union

the American state has more independence and sovereignty than the

German. We have observed before that it has its own laws and its own

court of last appeal; but these are only two of the many indications of

its practical and theoretical independence. The significant organic

importance of the state shows itself not less clearly if one thinks of

the cities subordinate to it, rather than of the Federation which is

superior to it. While the German state is more dependent on the

Federation than is the American, the German city is more independent of

the state than is any city in the United States. The political existence

of the American city is entirely dependent on the legislature of its

state. The Federation on the one hand and the cities on the other, alike

depend for their administrative existence on the separate states.

It is not merely an historical relic of that time when the thirteen

states united, but hesitated to give up their individual rights to the

Federation; a time when there were only six cities of more than eight

thousand inhabitants. Nothing has changed in this respect, and it is not

only the Democratic party to-day which jealously guards state rights;

the state all too often tyrannizes still over the large cities within

its borders. There are some indications, indeed, that the state rights

are getting even more emphasis than formerly—perhaps as a reaction

against the fact that, in spite of all constitutional precautions, those

states which have close commercial relations tend practically to merge

more and more with one another.

On observing the extraordinary tenacity with which the federal laws and

the local patriotism of the individual cling to the independence of each

one of the forty-five states, one is inclined to suppose that it is a

question of extremely profound differences in the customs, ideals,

temperaments, and interests of the different states. But such is not at

all the case. The states are, of course, very unlike, especially in

size; Texas and Rhode Island, for instance, would compare about as

Prussia and Reuss. There are even greater differences in the density of

population; and the general cast of physiognomy varies in different

regions of the country. The Southerner shows the character bred by

plantation life; the citizen of the North-east evinces the culture bred

of higher intellectual interests; while the citizens of the West attest

the differences between their agricultural and mining districts. Yet the

divisions here are not states, but larger regions comprising groups of

states, and it sometimes happens that more striking contrasts are found

within a certain state than would be found between neighbouring states.

The state lines were after all often laid down on paper with a ruler,

while nature has seldom made sharp lines of demarcation, and the

different racial elements of the population are fairly well mixed. For

the last century the pioneers of the nation have carried it steadily

westward, so that in many states the number of those born in the state

is much less than of those who have migrated to it; and of course the

obstinate assertion of the prerogatives of such a state does not arise

from any cherished local traditions to which the inhabitants are

accustomed. The special complexion of any provincial district, moreover,

is assailed from all sides and to a large extent obliterated, in these

days of the telegraph and of extraordinarily rapid commercial

intercourse and industrial organization.

The uniformity of fashions, the wide-spread distribution of newspapers

and magazines, the great political parties, and the intense national

patriotism all work towards the one end—that from Maine to California

the American is very much the same sort of man, and feels himself, in

contrast with a foreigner, to be merely an American. And yet in spite of

all this each single state holds obstinately to its separate rights. It

is the same principle which we have seen at work in the American

individual. The more the individuals or the states resemble one another

the more they seem determined to preserve their autonomy; the more

similar the substance, the sharper must be the distinctions in form.

The inner similarity of the different states is shown by the fact that,

while each one has its own statute-book and an upper court which

jealously guards its special constitution, nevertheless all of the

forty-five state constitutions are framed very much alike. The

Constitution of the United States would by no means require this, since

it prescribes merely that every state constitution shall be republican

in form; and yet not a single state has taken advantage of its great

freedom. The constitutions of the older states were modelled partly on

the institutions of the English fatherland, partly on those of colonial

days; and when many of these features were finally embodied in the

Federal Constitution, they were reflected back once more in the

constitutions of the states which later came to be. The new states have

simply borrowed the general structure of the older states and of the

Federation, without much statesmanlike imagination; although here and

there is some adaptation to special circumstances. There are indeed some

odd differences at superficial points, and inasmuch as, in contrast to

the Federal Constitution, the state constitutions have frequently been

reshaped by the people, a reactionary tendency or some radical and hasty

innovation has here and there been incorporated.

The principles, however, are everywhere the same. Each state has framed

a reduced copy of the Federal Constitution, and one finds a still more

diminutive representation of the same thing in the American city

charter. Yet we must not forget here that, although theoretically and

constitutionally the state is greater than the city, yet in fact the

city of New York has a population eighty times as large as the State of

Nevada, with its bare 40,000 inhabitants; or, again, that the budget of

the State of Massachusetts is hardly a quarter as large as that of

Boston, its capital city.

Thus, like the Union, both city and state have a charter and an

executive, a dual legislature, and a judiciary, all of which reproduce

on a small scale all the special features of the federal organization.

The city charter is different from that of the state, in that it is not

drawn up by the inhabitants of the city, but, as we have said, has to be

granted by the state legislature. The head of the state executive, the

governor, is in a way a small president, who is elected directly by the

people, generally for a two years’ term of office. In the city

government the mayor corresponds to him, and is likewise elected by the

citizens; and in the larger cities for the same period. A staff of

executive officers is provided for both the mayor and the governor.

Under the city government are ranged the heads of departments, who are

generally chosen by the mayor himself; New York, for instance, has

eighteen such divisions—the departments of finance, taxation, law,

police, health, fire, buildings, streets, water-supply, bridges,

education, charities, penal institutions, park-ways, public buildings,

etc. The most important officials under the state government are always

the state secretary, the state attorney-general, and the treasurer.

Close to the governor stands the lieutenant-governor, who, after the

pattern of the federal government, is president of the upper legislative

chamber. The governor is empowered to convene the legislature, to

approve or to veto all state measures, to pardon criminals, to appoint

many of the lower officials, although generally his appointment must be

confirmed by the upper legislative body, and he is invariably in sole

command of the state militia. The legislature of the state is always,

and that of the cities generally, divided into two chambers. Here again

the membership in the upper chamber is smaller than that of the lower

and more difficult to obtain. Often the state legislature does not meet

in the largest city, but makes for itself a sort of political oasis, a

diminutive Washington. The term of office in the legislature is almost

always two years, and everywhere the same committee system is followed

as at the Capitol in Washington. Only a member of the legislative body

can propose bills, and such propositions are referred at once to a

special committee, where they are discussed and perhaps buried. They can

come to the house only through the hands of this committee. The freedom

given to the state legislature is somewhat less than that given by the

Constitution to Congress. While all the parliamentary methods are

strikingly and often very naïvely copied after those in use at

Washington, the state constitutions were careful from the outset that

certain matters should not be subject to legislative egotism. On the

other hand the state legislature hands down many of its rights to

inferior bodies, such as district, county, and city administrations; but

in all these cases in which there is a real transfer of powers, it is

characteristic that these really pertain to the state as such, and can,

therefore, be withdrawn by the state legislatures from the smaller

districts at any time.

The entire administration of the state falls to the state legislature;

that is, the measures for public instruction, taxation, public works,

and the public debt, penal institutions, the supervision of railroads,

corporations, factories, and commerce. In addition to this there are the

civil and criminal statutes, with the exception of those few cases which

the Constitution reserves for federal legislation; and, finally, there

is the granting of franchises and monopolies to public and industrial

corporations. Of course, within this authority there is nothing which

concerns the relation of one state to other states or to foreign powers,

nor anything of customs revenues or other such matters as are enacted

uniformly for all parts of the country by the federal government. The

state has, however, the right to fix the conditions under which an

immigrant may become a naturalized citizen; and a foreigner becomes an

American citizen by being naturalized under the law of any one of the

forty-five states. All this gives an exceedingly large field of action

to state legislatures, and it is astonishing how little dissimilar are

the provisions which the different states have enacted.

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