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.