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?