ARTICLE IX. of Amendments to the Constitution declares that “The
enumeration in the Constitution of certain rights shall not be construed
to deny or disparage others retained by the people.”
ART. X.—“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.”
SECTION 1 of Article IV. of the Constitution says, “Full faith and
credit shall be given in each State to the public acts, records and
judicial proceedings of every other State. And the Congress may by
general laws prescribe the manner in which such acts, &c., shall be
proved, and the effect thereof.”
SEC. 2.—“The citizens of each State shall be entitled to all privileges
and immunities of citizens of the several States.”
SEC. 8.—“That Congress shall have power to provide for the general
welfare of the United States,” which last is tantamount to saying, the
general welfare of the people as a whole.
It seems from these quotations, made in inverse order, that it was the
intention of the framers of the Constitution, to make such provisions as
would permit and compel harmonious action throughout the States, but
that subsequently it became a part of party policy to maintain that the
States had rights reserved, and while not defining what these rights
were, to declare that such as were not distinctly and positively
delegated constituted this reservation.
Under this interpretation it is possible for serious difficulties to
arise between the general government and the States, as they have. It
seems from the general tenor of the original Constitution that these
amendments are nugatory, because the inference to be drawn from them is
inconsistent therewith. One of the most prominent, as well as the first
declaration, is to the effect that nothing shall exist in any State
injurious to the general welfare of the whole. While it is within the
scope of Congress to determine what is for or against the general
welfare of the whole, no State can set up its rights against such
judgment. When it is further made the duty of the United States to
guarantee a republican form of government to every State, and to protect
each State in such against all others, there can be no limit set upon
the general powers of Congress.
The only fault, if fault it may be called, in the original Constitution,
lies in this—that while the power to do is vested in the United States,
it is not made an imperative duty to perform, though the duty is to be
inferred by the vesture of the power. In failing to exercise this power
in its fullest sense and to perform this inferred duty, lies the cause
of all the disturbances within the limits of the country.
We can now proceed to the consideration of what duties Congress is
invested with the power to perform, which have not been exercised, and
which, being exercised, would contribute to the general welfare of the
people, and thereby promote the public good. It will also be considered
whether there are any additional powers Congress should possess which
can be conferred, and which the Constitution neither directly nor
inferentially vests. This consideration will proceed without regard
being given to separating what comes within the limits already possessed
from that which should be conferred.
First in importance, because of general application, stand the common
laws of the country. Of these it is asserted, with the utmost directness
and force, that when a general condition is to be provided for in the
country, it should be the sphere of the government to make the same law
applicable everywhere, so that the citizens of the United States shall,
at all times and places within its limits, be subject to the same
controlling and guiding rule. There should be no such possibility as an
Indiana divorce under Indiana law, differing so much from those of other
States as not to be recognizable by them. There should be only United
States divorces, under a general law that could not be questioned
anywhere, and by which the parties to it, should stand in the same
relations to each other, in whatever part of it they might chance to be,
also in such relations to every one, that they may remarry without
becoming liable to the charge of bigamy.
Within the last few years, many States have found it necessary to so
reconstruct their general systems of law as to cut off all special
legislation. This course is eminently judicious in every respect it can
be viewed, and has proved excellent in practice, by relieving
legislation and procuring uniformity. If this is a desirable result, so
far as a State is concerned, why should not the application be made
general for the United States, with prospect of proportional benefit?
All people would then be subject to the same rule of action and
responsibility. To illustrate: A State has a general law under which
joint stock and other companies can become incorporate. Before this,
each proposed company was obliged to make direct application to the
State government for an act of incorporation. After it, any proposed
organization could become incorporated by conforming to the regulations
prescribed, and thereby obtain all the power that could be conferred by
the Legislature direct.
No one having knowledge of the tedious processes of legislation will
question the advantage of this general law, both as regards legislation
and the people. This admitted, it must be further admitted, that the
advantage would be still greater, were this a general law of the United
States, applying in every State, instead of a mere State law, with the
probabilities that each State having it would provide different steps
and regulations, so that a person familiar with that of one State, finds
he knows nothing of it in the State he removes to.
The same line of reasoning applies with more or less force to every
branch of legislation. Especially is it pointed regarding the Criminal
Code, for here very great distinction exists in the several States. The
penalty for a specified crime is scarcely the same in any two States;
while some have abolished the taking of life for life, others still
imprison for debt, which shows a degree of divergence entirely
incompatible in a country that professes unity of purpose and practice.
In civil practice it is utterly impossible for the most studious and
profound jurist to acquire and retain accurate knowledge of it, in even
a small proportion of the States. Every lawyer can testify to the
difficulties he encounters at every turn when the laws of another State
have any bearing in the case he is engaged upon.
Some States require that deeds executed in another State for property
within itself, shall be acknowledged before a notary, while another
requires a commissioner of deeds; and still another the certificate of
some Court of Record that the notary is duly appointed, &c. The
difficulties that arise from this condition of things are of such
magnitude as scarcely to be conceived of by those who have never
experienced them; nor can they be adequately presented in the limited
space of this article. It is, however, held to be apparent, that if a
general bankrupt and election law is to be preferred to thirty-seven
different ones, general laws upon all other subjects are also
preferable. It is a logical conclusion that the “public welfare” would
be promoted if Congress should pass general laws for the whole country,
to cover all cases and causes that are general to the whole country,
leaving for the States such legislation only as can have no application
outside of their individual limits.
It is not surprising that well instructed jurists of foreign countries
have no faith in our existence as a consolidated nation. They argue,
that it is impossible of a country containing so many internal sources
of discord and differences. “A house divided against itself cannot
stand” they hold to equally apply to nations. If this has stood thus
long and prospered, it by no means follows that it will always stand and
prosper; but the inference is, that sectional interests will be the
source of continual disturbances and revolutions, until some great
sectional interest shall become powerful enough to separate itself from
the rest of the country and to defy its power successfully. In view of
that consideration, should not the attention of Congress be called to
the fact that it is its inferred duty, at least, to enact all laws that
will promote the public welfare? And to this end it should inquire how
the public welfare is suffering from the neglect thus far practised,
that the remedy may be applied.
If it is found that its power under the Constitution to remedy such
evils is doubtful, amendments granting it should be at once proposed and
submitted. Whatever opposition there might be on the part of present
State Legislatures and officials the people will welcome any measure
looking to the eradication of the cause of internal agitation. It cannot
be that patriotism is to pass away entirely, though it appears to be
nearly submerged by the rising tide of individual selfishness. Let it
arouse itself and consider whether there be not room for exercise in the
direction indicated, and whether it is not better to prevent disaster
than to repair damages. The example of Louis Napoleon is an excellent
one to follow. Nor should patriotism be blinded by the mere name of
freedom and justice, sounded so loudly to cover the deformities
practised under their shelter.
In many directions, this is eminently an analytic age. Let the fruits of
government be submitted to the crucible. Many of them would be found not
only hollow, but basely deceptive. It is well enough to cry peace when
war rages, but the crying will not bring it. It is well enough to laud
the freedom of the land, but why not make the direct inquiry to find how
much of it is real, and how much is fancied freedom, not to say genuine
slavery? It is well to assert that justice holds sway everywhere, but
those who have had most occasion to find it, must hold their peace lest
the fair delusion be dispelled. Let the peace that is cried, the freedom
that is lauded and the justice that is asserted, be subjected to the
test of analysis, that it may be really known what principles enter into
their composition. It is much to be feared that when all the dross and
foreign substances are separated, and the pure residuum only left, its
proportion to the mass submitted would be lamentably small. Still let us
have the analysis.