Section 4. _The Nation and the States._

We have left our Federal Convention sitting a good while at

Philadelphia, while we have thus undertaken to give a coherent account

of our national executive organization, which has in great part grown

up since 1789 with the growth of the nation. Observe how wisely the

Constitution confines itself to a clear sketch of fundamentals, and

leaves as much as possible to be developed by circumstances. In this

feature lies partly the flexible strength, the adaptableness, of our

Federal Constitution. That strength lies partly also in the excellent

partition of powers between the federal government and the several

states.

[Sidenote: Difference between confederation and federal union.]

We have already remarked upon the vastness of the functions retained

by the states. At the same time the powers granted to Congress have

proved sufficient to bind the states together into a union that is

more than a mere confederation. From 1776 to 1789 the United States

_were_ a confederation; after 1789 it was a federal nation. The

passage from plural to singular was accomplished, although it took

some people a good while to realize the fact. The German language

has a neat way of distinguishing between a loose confederation and a

federal union. It calls the former a _Staatenbund_ and the latter

a _Bundesstaat_. So in English, if we liked, we might call the

confederation a _Band-of-States_ and the federal union a _Banded-State_.

There are two points especially in our Constitution which transformed

our country from a Band-of-States into a Banded-State.

[Sidenote: Powers granted to Congress.]

The first was the creation of a federal House of Representatives, thus

securing for Congress the power to lay and collect taxes, duties,

imposts, and excises, to pay the debts and provide for the common

welfare of the United States. Other powers are naturally attached to

this,--such as the power to borrow money on the credit of the United

States; to regulate foreign and domestic commerce; to coin money

and fix the standard of weights and measures; to provide for

the punishment of counterfeiters; to establish post-offices and

post-roads; to issue copyrights and patents; to define and punish

felonies committed on the high seas, and offences against the law of

nations; to declare war, grant letters of marque and reprisal, and

make rules concerning captures on land and water; to raise and

support an army and navy, and to make rules for the regulation of

the land and naval forces; to provide for calling out the militia

to suppress insurrections and repel invasions, and to command this

militia while actually employed in the service of the United States.

The several states, however, train their own militia and appoint

the officers. Congress may also establish a uniform rule of

naturalization, and uniform laws on the subject of bankruptcies. It

also exercises exclusive control over the District of Columbia,[23]

as the seat of the national government, and over forts, magazines,

arsenals, dockyards, and other needful buildings, which it erects

within the several states upon land purchased for such purposes with

the consent of the state legislature.

[Footnote 23: Ceded to the United States by Maryland and Virginia.]

[Sidenote: The "Elastic Clause."]

Congress is also empowered "to make all laws which shall be necessary

and proper for carrying into execution the foregoing powers and all

other powers vested by this Constitution in the government of the

United States, or in any department or office thereof." This may be

called the Elastic Clause of the Constitution; it has undergone a

good deal of stretching for one purpose and another, and, as we shall

presently see, it was a profound disagreement in the interpretation of

this clause that after 1789 divided the American people into two great

political parties.

[Sidenote: Powers denied to the states.]

[Sidenote: Paper currency.]

The national authority of Congress is further sharply defined by the

express denial of sundry powers to the several states. These we have

already enumerated.[24] There was an especial reason for prohibiting

the states from issuing bills of credit, or making anything but gold

and silver coin a tender in payment of debts. During the years 1785

and 1786 a paper money craze ran through the country; most of the

states issued paper notes, and passed laws obliging their citizens to

receive them in payment of debts. Now a paper dollar is not money, it

is only the government's promise to pay a dollar. As long as you can

send it to the treasury and get a gold dollar in exchange, it is worth

a dollar. It is this exchangeableness that makes it worth a dollar.

When government makes the paper dollar note a "legal tender." i.e.,

when it refuses to give you the gold dollar and makes you take its

note instead, the note soon ceases to be worth a dollar. You would

rather have the gold than the note, for the mere fact that government

refuses to give the gold shows that it is in financial difficulties.

So the note's value is sure to fall, and if the government is in

serious difficulty, it falls very far, and as it falls it takes more

of it to buy things. Prices go up. There was a time (1864) during our

Civil War when a paper dollar was worth only forty cents and a barrel

of flour cost $23. But that was nothing to the year 1780, when the

paper dollar issued by the Continental Congress was worth only a mill,

and flour was sold in Boston for $1,575 a barrel! When the different

states tried to make paper money, it made confusion worse confounded,

for the states refused to take each other's money, and this helped to

lower its value. In some states the value of the paper dollar fell in

less than a year to twelve or fifteen cents. At such times there is

always great demoralization and suffering, especially among the poorer

people; and with all the experience of the past to teach us, it may

now be held to be little less than a criminal act for a government,

under any circumstances, to make its paper notes a legal tender. The

excuse for the Continental Congress was that it was not completely a

government and seemed to have no alternative, but there is no doubt

that the paper currency damaged the country much more than the arms of

the enemy by land or sea. The feeling was so strong about it in the

Federal Convention that the prohibition came near being extended to

the national government, but the question was unfortunately left

undecided.[25]

[Footnote 24: See above, p.175]

[Footnote 25: See my _Critical Period of American History_, pp.

168-186, 273-276.]

[Sidenote: Powers denied to Congress.]

[Sidenote: Bills of attainder.]

Some express prohibitions were laid upon the national government. Duties

may be laid upon imports but not upon exports; this wise restriction was

a special concession to South. Carolina, which feared the effect of an

export duty upon rice and indigo. Duties and excises must be uniform

throughout the country, and no commercial preference can be shown to one

state over another; absolute free trade is the rule between the states.

A census must be taken every ten years in order to adjust the

representation, and no direct tax can be imposed except according to the

census. No money can be drawn from the treasury except "in consequence

of appropriations made by law," and accounts must be regularly kept and

published. The privilege of the writ of _habeas corpus_ cannot be

suspended except "when, in case of rebellion or invasion, the public

safety may require it;" and "no bill of attainder, or _ex post facto_

law," can be passed. A bill of attainder is a special legislative act by

which a person may be condemned to death, or to outlawry and banishment,

without the opportunity of defending himself which he would have in a

court of law. "No evidence is necessarily adduced to support it," [26] and

in former times, especially in the reign of Henry VIII., it was a

formidable engine for perpetrating judicial murders. Bills of attainder

long ago ceased to be employed in England, and the process was abolished

by statute in 1870.

[Footnote 26: Taswell-Langmead, _English Constitutional History_,

p. 385.]

[Sidenote: Intercitizenship.]

No title of nobility can be granted by the United States, and no federal

officer can accept a present, office, or title from a foreign state

without the consent of Congress. "No religious test shall ever be

required as a qualification to any office or public trust under the

United States." Full faith and credit must be given in each state to the

public acts and records, and to the judicial proceedings of every other

state; and it is left for Congress to determine the manner in which such

acts and proceedings shall be proved or certified. The citizens of each

state are "entitled to all privileges and immunities of citizens in the

several states." There is mutual extradition of criminals, and, as a

concession to the southern states it was provided that fugitive slaves

should be surrendered to their masters. The United States guarantees to

every state a republican form of government, it protects each state

against invasion; and on application from the legislature of a state, or

from the executive when the legislature cannot be convened, it lends a

hand in suppressing insurrection.

[Sidenote: Mode of making amendments.]

Amendments to the Constitution may at any time be proposed in

pursuance of a two thirds vote in both houses of Congress, or by a

convention called at the request of the legislatures of two thirds of

the states. The amendments are not in force until ratified by three-fourths

of the states, either through their legislatures or through

special conventions, according to the preference of Congress. This

makes it difficult to change the Constitution, as it ought to be; but

it leaves it possible to introduce changes that are very obviously

desirable. The Articles of Confederation could not be amended except

by a unanimous vote of the states; and this made their amendment

almost impossible.

After assuming all debts contracted and engagements made by the United

States before its adoption, the Constitution goes on to declare itself

the supreme law of the land. By it, and by the laws and treaties made

under it, the judges in every state are bound, in spite of anything

contrary in the constitution or laws of any state.

QUESTIONS ON THE TEXT.

1. In what two features of the Constitution does its strength

largely lie?

2. Distinguish between the United States as a confederation and the

United States as a federal union. How does the German language bring out

the distinction?

3. What was the first important factor in transforming our

country from a Band-of-States to a Banded-State?

4. The powers granted to Congress:--

a. Over taxes, money, and commerce.

b. Over postal affairs, and the rights of inventors and authors.

c. Over certain crimes.

d. Over war and military matters.

e. Over naturalization and bankruptcy.

f. Over the District of Columbia and other places.

g. The "elastic clause" and its interpretation.

5. The powers denied to the states:--

a. An enumeration of these powers.

b. The prohibition of bills of credit, in particular.

c. The paper money craze of 1785 and 1786.

d. Paper money as a "legal tender."

e. The depreciation of paper money during the Civil War.

f. The depreciation of the Continental currency in 1780.

g. The demoralization caused by the states making paper money.

h. The lesson of experience.

6. Prohibitions upon the national government:--

a. The imposition of duties and taxes.

b. The payment of money.

c. The writ of _habeas corpus_.

d. _Ex post facto_ laws.

e. Bills of attainder.

f. Titles and presents.

7. Duties of the states to one another:--

a. In respect to public acts and records, and judicial proceedings.

b. In respect to the privileges of citizens.

c. In respect to fugitives from justice.

8. What is the duty of the United States to every state in

respect (1) to form of government, (2) invasion, and (3)

insurrection?

9. Amendments to the Constitution:--

a. Two methods of proposing amendments.

b. Two methods of ratifying amendments,

c. The difficulty of making amendments.

d. Amendment of the Articles of Confederation.

10. What is meant by the Constitution's declaring itself the

supreme law of the land?

Civil Government in the United States Considered with Some Reference to Its Origins · 第 4 / 9 章