CHAPTER VI

THE CHECKS AND BALANCES OF THE CONSTITUTION

Two features of this system, the difficulty of amendment and the

extraordinary powers of the judiciary have been discussed at some

length. Both, as we have seen, were designed to limit the power of the

popular majority. This purpose is no less evident when we view the

Constitution as a whole.

The members of the Federal Convention had little sympathy with the

democratic trend of the Revolutionary movement. It was rapidly carrying

the country, they thought, to anarchy and ruin. To guard against this

impending evil was the purpose of the Constitution which they framed. It

was their aim to eliminate what they conceived to be the new and false

and bring the government back to old and established principles which

the Revolutionary movement had for the time being discredited. They

believed in the theory of checks and balances in so far as the system

implied the limitation of the right of popular control, and made the

Constitution to this extent as complete an embodiment of the theory as

the circumstances of the time permitted.

In any evolutionary classification of governments the American system

occupies an intermediate position between the old type of absolute

monarchy on the one hand and thoroughgoing democracy on the other.

Following in a general way the course of political development in

England, we may say that there was an early stage in the growth of the

state when the power of the king was predominant. Neither the nobility

nor the common people exercised any effective control over him. He was

what we may call an absolute monarch. His power was unlimited in the

sense that there were no recognized checks imposed upon it. He was

irresponsible, since no one could call him to account for what he did.

The upper classes, however, were anxious to share with the king the

control of the state. Their efforts were directed first toward limiting

his power by making their own consent necessary before he could enact

any law, carry out any policy, or do any thing of a positive nature. But

even after they had been admitted to this share in the government the

negative power of the king remained unlimited. The veto power acquired

by the upper classes might prevent him from enacting a particular law,

or enforcing a given policy, but no one had a veto on his inaction. He

might be unable to do what the classes having a voice in the management

of the government forbade, but he could decline to do what they wished.

The appearance of a House of Commons did not change essentially the

character of the scheme, nor would it have done so, had this body been

truly representative of the people as a whole. It placed an additional

check on both King and Lords by giving to the representative body the

power to negative their positive acts. Both the King and the Lords

retained, however, their negative authority unimpaired and could use it

for the purpose of defeating any measure which the Commons desired. This

is what we may call the check and balance stage of political

development. Here all positive authority is limited, since its exercise

may be prevented by the negative power lodged for this purpose in the

other branches of the government. This negative power itself, however,

is absolute and unlimited. The government is in no true sense

responsible to the people, or any part of them, since they have no

positive control over it.

This complex system of restrictions which is the outgrowth and

expression of a class struggle for the control of the government must

necessarily disappear when the supremacy of the people is finally

established. This brings us to the next and for our present purpose, at

least, the last stage of political evolution.

Here the authority of the people is undisputed. Their will is law. The

entire system of checks has been swept away. No irresponsible and

insignificant minority is longer clothed with power to prevent reform.

The authority of the government is limited only by its direct and

complete responsibility to the people.

Corresponding to these three stages of political evolution we have three

general types of government:

1. Unlimited and irresponsible.

2. Positively limited, negatively unlimited and irresponsible.

3. Unlimited and responsible.

As shown in a previous chapter, the Revolutionary movement largely

destroyed the system of checks. It abolished the veto power, centralized

authority and made the government in a measure responsible to the

electorate. The Constitution, however, restored the old order in a

modified form. In this sense it was reactionary and retrogressive. It

went back to the old doctrine of the separation of powers, ostensibly to

limit the authority of the government and thereby make it responsible to

the people as Hamilton argued in _The Federalist_. That this could not

have been the real object is evident to any one who has carefully

studied the situation. The unthinking reader may accept Hamilton's

contention that the system of checks and balances was incorporated in

the Constitution to make the government the servant and agent of the

people; but the careful student of history can not be so easily misled.

He knows that the whole system was built up originally as a means of

limiting monarchical and aristocratic power; that it was not designed to

make government in any true sense responsible, but to abridge its powers

because it was irresponsible. The very existence of the system implies

the equal recognition in the Constitution of antagonistic elements. As

it could not possibly exist where monarchy or aristocracy was the only

recognized source of authority in the state, so it is likewise

impossible where all power is in the people. It is to be observed, then,

that what originally commended the system to the people was the fact

that it limited the positive power of the king and aristocracy, while

the framers of the Constitution adopted it with a view to limiting the

power of the people themselves.

There is no essential difference between the viewpoint of the framers of

the American Constitution and that of their English contemporaries.

Lecky says: "It is curious to observe how closely the aims and standard

of the men who framed the memorable Constitution of 1787 and 1788

corresponded with those of the English statesmen of the eighteenth

century. It is true that the framework adopted was very different....

The United States did not contain the materials for founding a

constitutional monarchy or a powerful aristocracy.... It was necessary

to adopt other means, but the ends that were aimed at were much the

same. To divide and restrict power; to secure property; to check the

appetite for organic change; to guard individual liberty against the

tyranny of the multitude...."[103]

Our Constitution was modeled in a general way after the English

government of the eighteenth century. But while the English system of

constitutional checks was a natural growth, the American system was a

purely artificial contrivance. James Monroe called attention to this

fact in the Virginia convention. He observed that the division of power

in all other governments ancient and modern owed its existence to a

mixture of monarchy, aristocracy, and democracy.[104] This artificial

division of power provided for in the Constitution of the United States

was intended as a substitute for the natural checks upon the people

which the existence of king and nobility then supplied in England.

This idea of government carried out to its logical conclusion would

require that every class and every interest should have a veto on the

political action of all the others. No such extended application of the

theory has ever been made in the actual working of government, nor is it

practicable, since no class can acquire, or having acquired, retain a

veto on the action of the government unless it is large and powerful

enough to enforce its demands. The attempt on the part of a small class

to acquire a constitutional right of this character must of necessity

fail. This is why the system which theoretically tends toward a high

degree of complexity has not in practice resulted in any very complex

constitutional arrangements.

Poland is the best example of the practical working of a system of

checks carried to an absurd extreme. The political disintegration and

final partition of that once powerful country by its neighbors was due

in no small degree to its form of government, which invited anarchy

through the great power which it conferred upon an insignificant

minority.

The fact that this system can not be carried far enough in practice to

confer upon every distinct interest or class the veto power as a means

of self defence, has given rise to the doctrine of _laissez faire_. No

class in control of the government, or even in possession of the power

to negative its acts, has any motive for advocating the let-alone

theory. Its veto power affords it adequate protection against any

harmful exercise of political authority. But such is not the case with

those smaller or less fortunate classes or interests which lack this

means of self-protection. Since they do not have even a negative control

over the government, they naturally desire to limit the scope of its

authority. Viewed in this light we may regard the _laissez faire_

doctrine as merely supplementary to the political theory of checks and

balances.

It is easy to see that if the idea of checks were carried out in

practice to its extreme limits, it would lead inevitably to the

destruction of all positive authority by vesting a veto in each class

and ultimately in each individual. In fact, John C. Calhoun, the ablest

and most consistent expounder of this doctrine, defines a perfect

popular government as "one which would embrace the consent of every

citizen or member of the community."[105] When this last stage is

reached we would have no government in any proper sense; for each

individual would be clothed with constitutional power to arrest its

action. Indeed the theory of checks and balances, if taken without any

qualification and followed out consistently, leads naturally to the

acceptance of anarchy as the only scientific system.

The absence of king and aristocracy did not deter the members of the

Convention from seeking to follow the English model. In doing this,

however, it was necessary to find substitutes for the materials which

were lacking. The constitutional devices adopted to accomplish this

purpose form the system of checks and are the most original and

interesting feature of our government.

The English model was followed, however, only so far as it served their

purpose. In the case of the judiciary, for instance, they declined to

follow it; but the reason for this as explained in the preceding chapter

was their desire to establish a more effective check on the people. They

showed no special preference for the English form where some other

method would better accomplish the desired purpose. Hence in many

instances they deliberately rejected English precedent, but always with

the view of providing something that would impose a more effective check

on the public will. An apparent exception to this may be found in the

limited term of President and United States senators. But these were the

very instances in which lack of king and nobility made departure from

the English model a matter of necessity. Moreover, any avowed attempt to

provide an effective substitute for the hereditary branches of the

English model would have been distasteful to the people generally and

for that reason would have ensured the rejection of the Constitution.

Theoretically, the nearest approach to the English system possible would

have been life tenure, and there were not wanting those who, like

Hamilton, contended for it; but the certainty of popular disapproval was

an unanswerable argument against it.

It was thought that substantially the same result could be obtained by

indirect election for moderately long periods. Hence we notice a marked

departure from the practice of the state constitutions in term of office

and mode of election. In every state the governor was elected either by

the legislature or directly by the voters, usually for one year and

nowhere for as long a period as four years.[106] With only two

exceptions[107] the members of the upper legislative chamber were

directly elected by the qualified voters, generally for one year and in

no state for as long a term as six years.[108]

The desire of the Convention to secure to the President and United

States Senators more freedom from popular control than was enjoyed by

the corresponding state officials is most clearly seen in the mode of

election prescribed.[109] They adopted what Madison called "the policy

of refining popular appointments by successive filtrations." They

provided that the President should be chosen by an electoral college,

the members of which were not required to be elected by the people.

This, it was thought, would guard against the choice of a mere popular

favorite and ensure the election of a President acceptable to the

conservative and well-to-do classes. It was taken for granted that the

indirect method would enable the minority to control the choice. For a

like reason they provided that United States senators should be chosen

by the legislatures instead of by the people of the several states.

The system as originally adopted did not contemplate, and made no

provision for the selection of candidates in advance of a popular

election. But this is not surprising when we reflect that it was the

very thing they were trying to prevent. They intended that the electoral

college should be such in fact as well as in name, that it should have

and exercise the power of independent choice instead of merely

registering a popular selection already made as if has come in practice

to do. They recognized very clearly that there was a distinct line of

cleavage separating the rich from the poor. They believed with Hamilton

that in this respect "all communities divide themselves into the few and

the many,"[110] that the latter will tend to combine for the purpose of

obtaining control of the government; and having secured it, will pass

laws for their own advantage. This, they believed, was the chief danger

of democracy--a danger so real and imminent that it behooved the few to

organize and bring about, if possible, such changes in the government as

would "protect the minority of the opulent against the majority."[111]

This was the purpose of the system of checks by which they sought to

give the former a veto on the acts of the latter. In thus depriving the

masses of the power to advance their interests through combination, they

thought that the organization of a political party representing the many

as opposed to the few would be discouraged. On the other hand, the few

while co-operating for a common purpose, could best accomplish it

without any visible party organization or any appearance of concerted

action. Hence the Constitution as originally adopted made no provision

for the party candidate.

In view of the fact that the Constitution was intended to limit the

power of the majority, it is perfectly natural that it should have

attempted to assign to the popular branch of the government a position

of minor importance. This was, of course, in direct opposition to what

had been the uniform tendency during the Revolutionary period in the

various states. In the latter the lower house had been raised to

coordinate rank with the upper and in Massachusetts, Gerry tells us, the

people were for abolishing the senate and giving all the powers of

government to the other branch of the legislature.[112]

In the Federal Constitution we see a strong reaction against this policy

of enlarging the authority of the lower, and what was assumed to be the

more popular branch of the legislative body. The House of

Representatives was, it is true, given equal power with the Senate in

the matter of ordinary legislation. But here its equality ends. The

treaty-making and the appointing power were given to the President and

Senate, where, it was thought, they would be safe from popular

interference. The effect of this was to make the influence of these two

branches of the government greatly preponderate over that of the

directly elected House. Through the treaty-making power the President

and Senate could in a most important sense legislate without the consent

of the popular branch of Congress. They could enter into agreements with

foreign countries which would have all the force and effect of laws

regularly enacted and which might influence profoundly our whole social,

political, and industrial life. The only semblance of a popular check on

the exercise of this power was to be found in those cases where

appropriations were required to carry treaties into effect. Here the

House of Representatives, in theory at least, could defeat the treaty by

refusing its assent to the necessary appropriation. In practice,

however, the House has surrendered this power. A treaty is at no stage

"submitted to or referred to the House of Representatives, which has no

more right to be informed about it than ordinary citizens. The President

and the Senate may, for example, cede or annex territories, and yet

nothing of the fact will appear in the discussions of the House of

Representatives unless the cession involves expenditure or receipt of

money. Besides, I must add that even if the treaty contains clauses

imposing a charge on the public revenue, it is the rule, since

Washington's time, that the House of Representatives should not discuss

the terms of the treaty adopted by the Senate, but accept it in silence

as an accomplished fact, and simply vote the necessary funds."[113]

The appointing power was in many respects even more important. It meant

the right to select those who were to interpret and enforce the laws,

and this really involved the power to mold the spirit and character of

the government. That this was fully appreciated by those who framed the

Constitution we saw in the preceding chapter.

The statement contained in the Constitution that all legislative

authority is vested in Congress is far from accurate, not only for the

reason above indicated that a portion of it under the guise of

treaty-making power is conferred on the President and Senate, and the

further reason that the Supreme Court exercises legislative authority of

great importance, but for the additional reason that the President,

aside from his control over treaties, possesses legislative power

co-extensive and co-equal with that of either house. He has been

expressly given by the Constitution only a qualified veto, but it is so

difficult for Congress to override it by the necessary two-thirds

majority that it is in most cases as effective as an absolute

negative.[114] Attention has been called to the fact that a two-thirds

majority is difficult to secure even under the most favorable

circumstances; but here the situation is such as to place practically

insurmountable obstacles in the way of its attainment. As an

illustration let us suppose that each state is solidly for or against

the measure which the President has vetoed and that both Senators and

Representatives accurately reflect the sentiment of their respective

states. Then taking the population of the forty-five states in 1900 as

the basis of our calculation, the smallest popular majority which would

ensure the required two-thirds vote in both houses would be obtained by

taking enough of the smaller states to make the necessary majority in

the House. But this would mean a popular majority of over 65 per cent.

and an eight-ninths majority in the Senate. To obtain the necessary vote

in both houses by taking the larger states would require a popular

majority of over 93 per cent. and a nine-tenths majority in the House.

This gives us some, but by no means an adequate, idea of the President's

control over legislation. He may use in support of his veto all the

other powers which the Constitution has placed in his hands; and when we

consider the immense influence which he can bring to bear upon Congress,

especially through his control over appointments, we can readily see the

practical impossibility of enacting any measure which he opposes with

all the powers at his command. Moreover, the President and Senate would,

it was expected, belong to the same class, represent the same interests,

and be equally faithful in guarding the rights of the well-to-do. They

were to be, therefore, not so much a check on each other, as a double

check on the democratic House; and as against the latter, it was the

intention that the qualified negative of the President should, in all

important matters concerning which the radical and conservative classes

disagreed, be fully equivalent to an absolute veto. This follows from

the fact that the Senate would in such cases sympathize with the action

of the President and refuse to co-operate with the House in overriding

it.

It was believed by the framers of the Constitution that the veto power

of the President would be seldom used. This was true until after the

Civil War. Washington used the power only twice; John Adams, Jefferson,

J.Q. Adams, Van Buren, Taylor, and Fillmore did not make use of it at

all. During the first seventy-six years of our history under the

Constitution the power was exercised only fifty-two times. Andrew

Johnson was the first President to use it freely, vetoing as many acts

as were vetoed by the first eight Presidents. The largest use of the

veto power was by President Cleveland who, during his first term,

exercised it three hundred and one times.[115]

In conferring the veto power on the President the members of the

Convention were actuated by the desire to strengthen a conservative

branch of the government rather than by any desire to copy the English

Constitution, or the constitutions of the American states. As a matter

of fact, the veto power of the Crown was then obsolete, Hamilton himself

remarking in the Convention that it had not been used since the

Revolution of 1688,[116] while in all but two states the last vestige

of it had been destroyed.[117]

The position of the President was still further strengthened by

discarding the executive council which then existed in every state as a

check upon the governor and which was a prominent feature of the English

government of that time. In England this council, forming the Ministry

or Cabinet, had not, it is true, definitely assumed the form which

characterizes it now; but it had deprived the King of all power to act

except through ministers who were responsible and could be impeached by

Parliament. This, of course, had greatly weakened the executive, a fact

which fully explains why the framers of the Constitution rejected it and

went back to the earlier English king whose veto power was unimpaired

for their model.

As their plan contemplated a strong independent executive who would not

hesitate to use the far-reaching powers placed in his hands to defeat

measures which he disapproved of, it was necessary to guarantee him

against popular removal. In this respect again we see both English and

American constitutional practice disregarded, since neither afforded the

desired security of tenure. In the various states the governor was

liable to be impeached by the lower branch of the legislature and

expelled from office when convicted by the senate, which was usually the

court before which impeachment cases were tried. A mere majority in

each house was usually sufficient to convict,[118] and as both houses

were directly elected,[119] it virtually gave the majority of the voters

the power to remove. This was simply an adaptation of the English

practice which allowed a majority of the Commons to impeach and a

majority of the Lords to convict. That this had a strong tendency to

make the legislative body supreme is evident, since the power, if freely

used, would overcome all opposition on the part of either the executive

or the judiciary. Any combination of interests that could command a

majority in both houses of Parliament could thus enforce its policy.

This practically destroyed the executive check in the English

Constitution and for that very reason the founders of our government

rejected it. They clearly saw that to make the President's veto

effective, he would have to be protected in its exercise. To have

adopted the English practice and allowed a mere majority of the Senate

to convict in impeachment cases would have given Congress power to

destroy the President's veto by impeaching and removing from office any

executive who dared to use it. This was guarded against by making, a

two-thirds majority in the Senate necessary to convict any official

impeached by the House. And since this two-thirds majority is one which

in practice can not be obtained, the power to impeach may be regarded,

like the power to amend, as practically non-existent. Only two

convictions have been obtained since the Constitution was adopted. John

Pickering, a Federal district judge, was convicted March 12, 1803, and

removed from office, and at the outbreak of the Civil War a Federal

district judge of Tennessee, West H. Humphreys, who joined the

Confederacy without resigning, was convicted. William Blount was

acquitted in 1798 on the ground that, as a United States senator, he was

not a "civil officer" within the meaning of the impeachment provision of

the Constitution, and so not liable to impeachment. Samuel Chase,

Associate Justice of the United States Supreme Court, President Andrew

Johnson, and Secretary of War, William W. Belknap, would have been

convicted but for the extraordinary majority required in the Senate.

The practical impossibility of removing a public official by means of

impeachment proceedings has made the executive and the judicial veto

thoroughly effective, since it has deprived Congress of all power to

punish by removing from office those officials who thwart its purpose.

It has made the President and the Supreme Court much stronger than the

House of Representatives--a result which the framers of the Constitution

no doubt desired.

In addition to the President's qualified veto on laws about to be

passed, which, as we have seen, amounts in practice to an unlimited

negative, he has what may be called an absolute veto on their execution.

This is the necessary consequence of his complete independence, taken in

connection with his power of appointment and removal. Controlling the

administrative arm of the government, he can execute the laws of

Congress or not as he may see fit. He may even fail to enforce an act

which he himself signed, inasmuch as his approval in a legislative

capacity does not bar his subsequent disapproval as an executive. Of

course, it does not follow that this power is openly and avowedly

exercised. Usually it is not. An easier and more effective method is the

one which obscures the real intention of the executive by a sham attempt

at enforcement.

It may be contended that the Constitution makes it his duty to enforce

all laws without regard to his own views of their wisdom or expediency.

This contention, however, does not appear to be borne out by the purpose

of the Constitution itself. It was not the intention of the framers of

that instrument to make the President a mere administrative agent of

Congress, but rather to set him over against that body and make him in a

large measure the judge of his own authority. If it be claimed that it

is his duty to enforce all laws that have been regularly enacted, it

must at the same time be conceded that the Constitution permits their

non-enforcement, since it has given neither to Congress nor to the

people any effective power to remove him for neglect of duty. Moreover,

his oath of office does not expressly bind him to enforce the laws of

Congress, but merely to "execute the office of President ... and

preserve, protect, and defend the Constitution of the United

States."[120]

This omission can not be satisfactorily explained as a mere oversight.

The Massachusetts constitution of 1780, from which the fathers copied

the qualified veto power, required the governor to take an oath in which

he obligated himself to perform the duties of his office "agreeably to

the rules and regulations of the constitution and the laws of the

commonwealth." There was no precedent in any then existing state

constitution for expressly binding the executive in his oath of office

to defend the Constitution without mentioning his duty to enforce the

laws. It is a reasonable inference that the framers of the Constitution

intended to impress the President with the belief that his obligation to

defend the Constitution was more binding upon him than his duty to

enforce the laws enacted by Congress.

In the foregoing discussion it has been shown that political authority

was unequally divided between the various branches of the government;

to the extent that this was the case the framers of the Constitution

did not adhere consistently to the theory of checks. But in this, as in

other instances where they departed from precedents which they professed

to be following, they were actuated by a desire to minimize the direct

influence of the people. If the Constitution had been framed in complete

accord with the doctrine of checks and balances, the lower house of

Congress as the direct representative of the people would have been

given a veto on the entire policy of the government. But this, as we

have seen, was not done. The more important powers were placed under the

exclusive control of the other branches of the government over which it

was believed public opinion would have but little influence. This

deprived the people of the unlimited negative to which they were

entitled even according to the theory of checks. Richard Henry Lee did

not greatly exaggerate then when he said: "The only check to be found in

favor of the democratic principle, in this system, is the House of

Representatives, which, I believe, may justly be called a mere shred or

rag of representation."[121] Nor was Mason entirely mistaken when he

referred to the House of Representatives as "the shadow only" and not

"the substance of representation."[122]

It may be thought, even though the Constitution does not give the House

of Representatives a direct negative on all the important acts of the

government, that it does so indirectly through its control over the

purse. An examination of the system with reference to this question,

however, reveals the fact that the control of the House over taxation

and expenditure is narrowly limited. A revenue law is subject to no

constitutional limitation, and when once enacted remains in force until

repealed by subsequent legislation. Assuming that a revenue system has

been established which is sufficient for the needs of the government,

the House can exercise no further control over income. It can not repeal

it, or modify it in any way without the consent of the President and

Senate.

Turning now to the matter of expenditure, we find that the Constitution

allows permanent provision to be made for the needs of the government,

with the single exception of the army, for the support of which no funds

can be appropriated for a longer period than two years. The policy of

permanent appropriations has not yet been applied to the full extent

permitted by the Constitution, but it has been carried much further than

a consistent adherence to the doctrine of popular control over the

budget would warrant. The practice could easily be extended until every

want of the government except the expenses of the army, even including

the maintenance of the navy, had been provided for by permanent

appropriations. And it may be added that with the increasing desire for

stability which comes with the development of vast business interests,

the tendency is strongly in that direction.

Let us suppose that some political party, for the time being in control

of the law-making power of the government, should extend the practice of

making permanent appropriations to the extreme limit allowed by the

Constitution. This would relieve the administration of all financial

dependence upon public sentiment except in the management of the army.

And if, as the framers of the Constitution contemplated, the President

and the Senate should represent the minority, the administration might

for years pursue a policy to which public opinion had come to be

strongly opposed. For with the system once adopted its repeal could not

be effected without the concurrence of all branches of the law-making

authority. The President and Congress could, in anticipation of an

adverse majority in the House, guard against the withdrawal of financial

support from their policy by simply making permanent provision for their

needs. Our present system would permit this to be done even after the

party in power had been overwhelmingly defeated at the polls, since the

second session of the old congress does not begin until after the

members of the new House of Representatives have been elected.[123]

This would tie the hands of any adverse popular majority in a succeeding

congress and effectually deprive it of even a veto on the income and

expenditure of the government, until such time as it should also gain

control of the Presidency and the Senate. But this last could never have

happened if the practical working of the Constitution had been what its

framers intended. Whatever control, then, the majority may now exercise

over taxation and public expenditure has thus been acquired less through

any constitutional provisions intended to secure it, than in spite of

those which seemingly made it impossible.

Equally significant was the failure of the Convention to make any

adequate provision for enforcing publicity. The Constitution says "a

regular statement of the receipts and expenditures of public money shall

be published from time to time," and also that "each House shall keep a

journal of its proceedings, and from time to time publish the same,

except such parts as may in their judgment required secrecy."[124] That

these provisions were of little practical value is evident from the fact

that they contain no definite statement as to when and how often the

accounts and journals are to be published. The phrase _from time to

time_ was susceptible of almost any interpretation that either house of

Congress or the President might wish to give it, and could easily have

been so construed as to justify a method of publication which gave the

people but little information concerning the present state of public

affairs. The framers of the Constitution did not believe that the

management of the government was in any proper sense the people's

business; yet they realized that the people themselves took a different

view of the matter, which made some constitutional guarantee of

publicity necessary. It was, however, the form rather than the substance

of such a guarantee which the Constitution contained.

Neither house of Congress is required by the Constitution to hold open

sittings or publish its speeches and debates.[125] Until 1799 the Senate

exercised its constitutional right to transact public business in

secret; and during that period preserved no record of its debates. This

policy did not win for it the confidence of the people, and until after

it was in a measure abandoned, the Senate, notwithstanding the important

powers conferred on it by the Constitution, was not a very influential

body.

To deny the right of the people to control the government leads

naturally to denial of their right to criticise those who shape its

policy; since if free and unrestricted discussion and even condemnation

of official conduct were allowed, no system of minority rule could long

survive. This was well understood in the Federal Convention. The members

of that body saw that the constitutional right of public officials to

disregard the wishes of the people was incompatible with the right of

the latter to drag them before the bar of public opinion. Hence some

limitation of the right to criticise public officials was necessary to

safeguard and preserve their official independence. This seems to have

been the purpose of the Constitution in providing with reference to

members of Congress that "for any speech or debate in either House they

shall not be questioned in any other place."[126]

This provision may be traced to the English Bill of Rights where it was

intended as a means of protecting members of Parliament against

imprisonment and prosecution for opposing the arbitrary acts of the

Crown. It was at first merely an assertion of the independence of the

Lords and Commons as against the King, and a denial of the right of the

latter to call them to account for anything said or done in their

legislative capacity. But after it had accomplished its original purpose

and the tyrannical power of the King had been overthrown, it was found

to be serviceable in warding off attacks from another direction. It thus

came about that the means devised and employed by Parliament to shield

its members against intimidation and oppression at the hands of the King

was later turned against the people; for Parliament in divesting the

King of his irresponsible authority was desirous only of establishing

its own supremacy. It jealously guarded its own prerogatives, claimed

the right to govern independently, and just as formerly it had resisted

the encroachments of royal authority, it now resented the efforts of the

people to influence its policy by the publication and criticism of its

proceedings.

A standing order passed by the House of Commons in 1728 declared "that

it is an indignity to, and a breach of, the privilege of this House for

any person to presume to give in written or printed newspapers, any

account or minute of the debates or other proceedings; that upon

discovery of the authors, printers, or publishers of any such newspaper

this House will proceed against the offenders with the utmost

severity."[127]

This was the attitude of Parliament down to 1771, when, after a

prolonged and bitter struggle, the House of Commons was finally driven

by the force of an overwhelming public sentiment to acquiesce in the

publication of its proceedings.

There was, however, a small minority in the House that opposed the

policy of prosecuting the representatives of the press. The following

extract from the Annual Register for 1771 describes the attitude of this

minority.

"Some gentlemen however did not rest their opposition on the points of

decorum and prudence, but went so far as to deny the authority of the

House in this respect, and said that it was an usurpation assumed in bad

times, in the year 1641; that while their privileges and authority were

used in defense of the rights of the people, against the violence of the

prerogative, all men willingly joined in supporting them, and even their

usurpations were considered as fresh securities to their independence;

but now that they saw their own weapons converted to instruments of

tyranny and oppression against themselves, they would oppose them with

all their might, and, however they may fail in the first efforts, would

finally prevail, and assuredly bring things back to their first

principles. They also said that the practice of letting the constituents

know the parliamentary proceedings of their representatives was founded

upon the truest principles of the Constitution; and that even the

publishing of supposed speeches was not a novel practice, and if

precedent was a justification, could be traced to no less an authority

than Lord Clarendon."[128]

"In the early years of the colonial era the right of free speech was not

always well guarded. There was frequent legislation, for example,

against 'seditious utterances,' a term which might mean almost anything.

In 1639 the Maryland assembly passed an act for 'determining enormous

offences,' among which were included 'scandalous or contemptuous words

or writings to the dishonor of the lord proprietarie or his lieutenant

generall for the time being, or any of the council.' By a North Carolina

act of 1715 seditious utterances against the government was made a

criminal offence, and in 1724 Joseph Castleton, for malicious language

against Governor Burrington and for other contemptuous remarks, was

sentenced by the general court to stand in the pillory for two hours and

on his knees to beg the governor's pardon. A New Jersey act of 1675

required that persons found guilty of resisting the authority of the

governor or councillors 'either in words or actions ... by speaking

contemptuously, reproachfully, or maliciously, of any of them,' should

be liable to fine, banishment, or corporal punishment at the discretion

of the court. In Massachusetts even during the eighteenth century the

right of free political discussion was denied by the House of

Representatives as well as by the royal governor, though often

unsuccessfully."[129]

"The general publication of parliamentary debates dates only from the

American Revolution, and even then it was still considered a technical

breach of privilege.

"The American colonies followed the practice of the parent country. Even

the laws were not at first published for general circulation, and it

seemed to be thought desirable by the magistrates to keep the people in

ignorance of the precise boundary between that which was lawful and that

which was prohibited, as more likely to avoid all doubtful actions....

"The public bodies of the united nation did not at once invite publicity

to their deliberations. The Constitutional Convention of 1787 sat with

closed doors, and although imperfect reports of the debates have since

been published, the injunction of secrecy upon its members was never

removed. The Senate for a time followed this example, and the first open

debate was had in 1793, on the occasion of the controversy over the

right of Mr. Gallatin to a seat in that body. The House of

Representatives sat with open doors from the first, tolerating the

presence of reporters,--over whose admission, however, the Speaker

assumed control,--and refusing in 1796 the pittance of two thousand

dollars for full publication of its debates.

"It must be evident from these historical facts that liberty of the

press, as now understood and enjoyed, is of very recent origin."[130]

Both the original purpose of this parliamentary privilege and its

subsequent abuse not only in England but also in the Colonies, were

facts well known by those who framed the Constitution. There was no King

here, from whose arbitrary acts Congress would need to be protected, but

there was a power which the framers of the Constitution regarded as no

less tyrannical and fully as much to be feared--the power of the people

as represented by the numerical majority. How to guard against this new

species of tyranny was the problem that confronted them. The majority

was just as impatient of restraint, just as eager to brush aside all

opposition as king or aristocracy had ever been in the past. Taking this

view of the matter, it was but natural that they should seek to protect

Congress against the people as Parliament had formerly been protected

against the Crown. For exactly the same reason as we have seen, they

made the judges independent of the people as they had been made

independent of the King in England. In no other way was it possible to

limit the power of the majority.

That this provision concerning freedom of speech and debate in the

legislative body was not regarded as especially important during the

Revolutionary period is shown by its absence from most of the early

state constitutions. When the Federal Constitution was framed only three

of the original states[131] had adopted constitutions containing such a

provision. There was, as a matter of fact, no real need for it in the

state constitutions of that time. The controlling influence exerted by

the legislature in the state government, and the dependence of the

courts upon that body, precluded the possibility of any abuse of their

powers in this direction.

The Articles of Confederation contained the provision that "Freedom of

speech and debate in Congress shall not be impeached or questioned in

any court or place out of Congress."[132] This was designed to protect

members of Congress against prosecution in the state courts. Here, as in

the English Bill of Rights and in the state constitutions containing a

similar provision, reference is made in express terms to prosecution in

the courts. The framers of the Constitution, however, left out all

reference to the courts. If, as constitutional writers have generally

assumed, the framers of the Constitution intended by this provision to

protect members of Congress against prosecution in the courts, it is

difficult to understand why they should have omitted what had been the

main feature and purpose of this provision, not only in the original

Bill of Rights, but also in the state constitutions copying it and in

the Articles of Confederation. If what they had in mind was the danger

of prosecution in the state or Federal courts, why should they have

changed completely the wording of this provision by omitting all

reference to the very danger which they wished to guard against?

The checks thus far described were intended as a substitute for king and

aristocracy; but to make the Constitution acceptable to the people,

additional checks were required which the English government did not

contain. The division of authority in the latter was solely between

different classes or orders, each of which was supposed to represent

interests co-extensive with the realm. But while the power of each class

was thus limited, their joint and combined action was subject to no

constitutional check or limitation whatever. Any policy upon which they

agreed could be enforced in any part of the realm, since the

Constitution, recognizing no local interests, gave no political

subdivision a negative on the acts of the whole. The government of

England, then, was purely _national_ as opposed to _federal_, that is to

say the general government was supreme in all respects and the local

government merely its creature.

This was the type of government for which Hamilton contended and which a

majority of the delegates in the Federal Convention really favored. But

the difficulty of securing the adoption of a Constitution framed on this

plan made it impracticable. To merge the separate states in a general

government possessing unlimited authority would place all local

interests at the mercy of what the people regarded as virtually a

foreign power. Practical considerations, then, required that the

Constitution should in appearance at least conform to the _federal_

rather than to the _national_ type. Accordingly the powers of government

were divided into two classes, one embracing only those of an admittedly

general character, which were enumerated and delegated to the general

government, while the rest were left in the possession of the states. In

form and appearance the general government and the governments of the

various states were coordinate and supplementary, each being supreme and

sovereign within its respective sphere. By this arrangement any

appearance of subordination on the part of the state governments was

carefully avoided; and since the state retained sovereign authority

within the sphere assigned to it by the Constitution, the protection of

local interests was thereby guaranteed. This understanding of the

Constitution seems to have been encouraged by those who desired its

adoption and was undoubtedly the only interpretation which would have

found favor with the people generally. Moreover, it was a perfectly

natural and logical development of the theory of checks. If the

President, Senate, House of Representatives and the Supreme Court were

coordinate branches of the general government, and each therefore a

check on the authority of the others, a like division of authority

between the general government as a whole on the one hand, and the

states on the other, must of necessity imply a defensive power in the

state to prevent encroachment on the authority reserved to it. And since

the government was _federal_ and not _national_, and since the state

government was coordinate with and not subordinate to the general

government, the conclusion was inevitable that the former was a check on

the latter in exactly the same way that each branch of the general

government was a check on the others.

This view of the Constitution while allowed to go unchallenged for the

time being to secure its adoption by the states, was not accepted,

however, by those who framed it. For although in outward appearance the

Constitution did not provide for a national government, it at least

contained the germs out of which a national government might in time be

developed. The complete supremacy of the general government was one

important result which the members of the Convention desired to bring

about. Several plans were proposed by which this supremacy should be

expressly recognized in the Constitution. Both Randolph and Charles

Pinckney favored giving a negative on state laws to Congress.[133]

Madison suggested giving it to the Senate. Hamilton, as we have seen,

proposed giving an absolute veto to the governors of the various states,

who were to be appointed by the President. According to another plan

this power was to be given jointly to the President and the judges of

the Supreme Court. All of these proposals to give the general government

in express terms the power to annul state laws were finally rejected by

the Convention, no doubt for the reason that they indicated too clearly

their intention to subordinate the state governments. But while

declining to confer this power in express terms, it was not their

intention to withhold it. As in the case of the judicial veto on

congressional legislation, they relied upon control over the

Constitution after its adoption to accomplish their end.

The omission from the Constitution of any provision which clearly and

unequivocally defined the relation of the general government to the

governments of the various states was not a mere oversight. The members

of the Convention evidently thought that to ensure the acceptance of the

Constitution, it was necessary to submit it in a form least likely to

excite the opposition of the states. They expected by controlling its

interpretation to be able after its adoption to mold it into a shape

more in accord with their own views. The choice of this method, though

the only one by which it was possible to attain their end, involved

consequences more serious and far-reaching than they imagined. It paved

the way for a constitutional struggle which lasted for three-quarters of

a century and finally convulsed the country in the greatest civil war of

modern times. Had the Constitution in so many words expressly declared

that the Federal judiciary should have the power to annul state laws, or

had it given this power to some other branch of the Federal government

in accordance with some one of the suggestions above mentioned, and had

it at the same time expressly withheld from the states the power to

negative acts of Congress, there would have been no room for doubt that

the general government was the final and exclusive judge in all cases of

conflict between Federal and state authority.

Such a provision would have left no room for the doctrine of state

rights, or its corollary--the power of a state to nullify a Federal law.

It would have settled the question of Federal supremacy beyond the

possibility of controversy by relegating the states to a strictly

subordinate place in our political system. But inasmuch as the

Constitution contained no provision of this character it left the states

in a position to defend their claim to coordinate rank with the general

government.

The adoption of the Constitution was merely the first step in this

program of political reconstruction. To carry through to a successful

issue the work undertaken by the Federal Convention, it was necessary

that the same influences that dominated the latter should also control

the new government by which the Constitution was to be interpreted and

applied. How well they succeeded may be seen in the impress left upon

our system by the twelve years of Federalist rule which followed its

adoption. During this period the Constitution was in the hands of those

who were in full sympathy with the purpose of its framers, and who

sought to complete the work which they had begun.

In shaping the policy of the government during this period the influence

of Hamilton was even more pronounced than it had been in the Federal

Convention. As Secretary of the Treasury he proposed and brought about

the adoption of a financial policy in harmony with his political views.

Believing that the government must have the confidence of the

conservative and well-to-do classes, he framed a policy which was

calculated to gain their support by appealing to their material

interests. The assumption by the general government of the state debts

incurred during the Revolutionary war was designed and had the effect

of detaching the creditor class from dependence upon the governments of

the various states and allying them to the general government. The

protective tariff system also had far-reaching political significance.

It was expected to develop an influential manufacturing class who would

look to the general government as the source of their prosperity, and

who would therefore support its authority as against that of the states.

To unite the moneyed interests and identify them with the general

government was one of the reasons for chartering the bank of the United

States. The internal revenue system which enabled the general government

to place its officials in every community and make its authority

directly felt throughout all the states was a political as well as a

financial measure. It was prompted partly by the desire to appropriate

this field of taxation before it was laid hold of by the states and

partly by the desire to accustom the people to the exercise of Federal

authority. All these measures which were formulated by Hamilton and

carried through largely by his influence were intended to lay a solid

basis for the development of national as opposed to state authority.

It was the purpose of the Constitution as we have seen to establish the

supremacy of the so-called upper class. To consolidate its various

elements and bring the government under their control was the aim of the

Federalist party.

That such a policy should have aroused much popular opposition and

provoked bitter criticism was to be expected. Criticism, however, was

especially irritating to those who accepted the Federalist theory of

government. For if the few had a right to rule the many, then the

latter, as a matter of course, ought to treat the former with respect;

since otherwise the power and influence of the minority might be

overthrown.

The Alien and Sedition laws by which the governing class sought to

repress criticism were the logical culmination of this movement to limit

the power of the majority. This attempt, however, to muzzle the press

and overthrow the right of free speech instead of silencing the

opposition only strengthened and intensified it. It merely augmented the

rising tide of popular disapproval which was soon to overwhelm the

Federalist party.

The Constitution, as we have seen, did not expressly subordinate the

states. Although framed by those who wished to make the general

government supreme, it contained no provision which could not be so

construed as to harmonize with the widely accepted doctrine of state

rights. It was represented by its framers and understood by the people

generally as dividing sovereignty between the general government on the

one hand and the states on the other. Within the province assigned to

the state, it was to be supreme, which would naturally seem to imply

adequate constitutional power in the state to defend itself against

federal aggression. This view of the Constitution, if not actually

encouraged, was allowed to go unchallenged in order not to endanger its

adoption.

The Constitution is and was intended to be rigid only in the sense that

it effectually limits the power of the majority. The founders of our

government were not averse to such changes in the system which they

established as would promote or at least not interfere with their main

purpose--the protection of the minority against the majority. Indeed,

they intended that the Constitution as framed should be modified,

amended and gradually molded by judicial interpretation into the form

which they desired to give it, but which the necessity of minimizing

popular opposition prevented them from accomplishing at the outset.

Amendment by judicial interpretation was merely a means of conferring

indirectly on the minority a power which the Constitution expressly

denied to the majority. No hint of this method of minority amendment,

however, was contained in the Constitution itself. But, on the contrary,

any such view of the Constitution would have been negatived by the

general theory of checks and balances which, consistently applied, would

limit the power of the minority as well as that of the majority. It was

not reasonable to suppose that the Constitution contemplated placing in

the hands of the minority a power which it was so careful to withold

from the majority. In fact, the language of the Constitution warranted

the belief that it was intended as a means of checking the general

government itself by protecting the states in the exercise of all those

powers not expressly denied to them. And since the Constitution, as we

have seen, merely marked off the limits of federal and state

jurisdiction, without specifying how the general government on the one

hand, or the state government on the other, was to be kept within the

territory assigned to it, it was natural to suppose that it contemplated

giving to each the same means of protecting itself against the

encroachments of the other.

Accordingly, when Congress appeared to overstep the limits which the

Constitution set to its authority, the states naturally looked for some

means of making the checks imposed upon the general government

effective. True, the Constitution itself did not specify how this was to

be done; but neither could one find in it any provision for enforcing

the limitations on the authority of the states. The general government,

however, had supplied itself with the means of self-protection by

calling into existence the veto power of the Federal judiciary. This

made the checks upon the authority of the states operative. But how were

those imposed by the Constitution on the general government itself to be

enforced? Not by the Federal government or any of its organs, since

this would allow it to interpret the Constitution to suit itself. If the

general government should have the right to interpret and enforce the

constitutional limitations on the powers of the states, it would for a

like reason follow that the states should interpret and enforce the

constitutional limitations on the authority of the general government

itself. To carry out in good faith what appeared to be the purpose of

the Constitution, _i.e._, to limit the authority of the general

government as well as that of the states, it would seem to be necessary

to make each the judge of the other's powers. It would devolve then on

the state governments to keep the general government within the bounds

which the Constitution set to its authority.

This could be accomplished, however, in no other way than by a veto on

such acts of the general government as, in the opinion of the state,

exceeded its constitutional authority. Those who believed in a federal

as opposed to a national government and who therefore wished to enforce

the constitutional checks on the general government, were irresistibly

impelled toward the doctrine of nullification as the sole means of

protecting the rights of the states.

As Von Holst says, "Calhoun and his disciples were not the authors of

the doctrine of nullification and secession. That question is as old as

the Constitution itself, and has always been a living one, even when it

has not been one of life and death. Its roots lay in the actual

circumstances of the time, and the Constitution was the living

expression of these actual circumstances."[134]

Madison, in _The Federalist_, refers in a vague and indefinite manner to

the power of a state to oppose an unjustifiable act of the Federal

government.

"Should an unwarrantable measure of the Federal government," he says,

"be unpopular in particular states ... the means of opposition to it are

powerful and at hand. The disquietude of the people; their repugnance,

and perhaps refusal, to co-operate with the officers of the union; the

frowns of the executive magistracy of the state; the embarrassments

created by legislative devices, which would often be added on such

occasions, would oppose, in any state, difficulties not to be despised;

would form in a large state, very serious impediments; and where the

sentiments of several adjoining states happened to be in unison, would

present obstructions which the Federal government would hardly be

willing to encounter."[135]

Again he says, "The state government will have the advantage of the

Federal government, whether we compare them in respect to the immediate

dependence of the one on the other; to the weight of personal influence

which each side will possess; to the powers respectively vested in them;

to the predilection and probable support of the people; to the

disposition and faculty of resisting and frustrating the measures of

each other."[136]

It is doubtful whether Madison, in writing the passages above quoted,

had in mind any thing more than a general policy of opposition and

obstruction on the part of the states. He certainly intended, however,

to convey the idea that under the proposed Constitution the states would

have no difficulty in defending their constitutional rights against any

attempted usurpation at the hands of the Federal government. We can

trace the gradual development of this idea of state resistance to

Federal authority until it finally assumes a definite form in the

doctrine of nullification.

"A resolution [in the Maryland legislature] declaring the independence

of the state governments to be jeopardized by the assumption of the

state debts by the Union was rejected only by the casting vote of the

speaker. In Virginia the two houses of the legislature sent a joint

memorial to Congress. They expressed the hope that the funding act would

be reconsidered and that the law providing for the assumption of the

state debts would be repealed. A change in the present form of the

government of the union, pregnant with disaster, would, it was said, be

the presumptive consequence of the last act named, which the house of

delegates had formally declared to be in violation of the Constitution

of the United States."[137]

The general assembly of Virginia in 1798 adopted resolutions declaring

that it viewed "the powers of the Federal government ... as limited by

the plain sense and intention of [the Constitution] ... and that, in

case of a deliberate, palpable, and dangerous exercise of other powers,

not granted, ... the states ... have the right, and are in duty bound,

to interpose, for arresting the progress of the evil, and for

maintaining within their respective limits, the authority, rights, and

liberties appertaining to them." These resolutions were drawn by Madison

who had now come to oppose the strong centralizing policy of the

Federalists.

A more explicit statement of this doctrine is to be found in the

Kentucky Resolutions of 1798 which declared "that the several states

composing the United States of America are not united on the principle

of unlimited submission to their general government; ... and that

whenever the general government assumes undelegated powers, its acts are

unauthoritative, void, and of no force; that to this compact each state

acceded as a state, and is an integral party; that this government,

created by this compact, was not made the exclusive or final judge of

the extent of the powers delegated to itself, since that would have made

its discretion, and not the Constitution, the measure of its powers; but

that as in all other cases of compact among parties having no common

judge, _each party has an equal right to judge for itself, as well of

infractions as of the mode and measure of redress_."

The Kentucky resolutions of 1799 go one step farther and give definite

expression to the doctrine of nullification. They declare "that the

several states who formed that instrument [the Constitution], being

sovereign and independent, have the unquestionable right to judge of the

infraction; and, _that a nullification, by those sovereignties, of all

unauthorized acts done under color of that instrument, is the rightful

remedy_."

The first clear and unequivocal statement of the doctrine of

nullification may be traced to Jefferson. In the original draft of the

Kentucky resolutions of 1798, which he wrote, it is asserted that where

the Federal government assumes powers "which have not been delegated, a

nullification of the act is the rightful remedy; that every state has a

natural right in cases not within the compact (_casus non foederis_) to

nullify of their own authority, all assumptions of power by others

within their limits."[138] This was omitted, however, from the

resolutions as finally adopted, although included in substance, as we

have seen, in the Kentucky resolutions of 1799.

Jefferson's authorship of the original draft of the Kentucky resolutions

of 1798 is made the basis of Von Holst's contention that he was the

father of the doctrine of nullification. This, however, is something of

an exaggeration. He is more accurate when he refers to the doctrine as

being as old as the Constitution itself and the outgrowth of the

circumstances of the time. The prevalent conception of the state as a

check upon the Federal government derived support, as we have seen, from

the efforts of the framers of the Constitution themselves to give it an

interpretation that would remove as far as possible the obstacles to its

ratification by allaying the fears and jealousy of the states. The idea

that the state government could oppose and resist an unconstitutional

exercise of authority by the Federal government was widely accepted as a

general principle, although little attention had been given to the

practical application of the doctrine. Jefferson merely gave definite

form to what had been a more or less vague conception by showing how the

constitutional checks upon the Federal government could be made

effective.

The best statement of this doctrine, however, is to be found in the

works of John C. Calhoun, whose Disquisition on Government and

Discourse on the Constitution of the United States are a masterly

defense of the system of checks and balances. He had no sympathy with

what would now be called popular government. His point of view was

essentially aristocratic, and he frankly avowed it.

He recognized the fact that under the existing social organization the

interests of all classes are not the same; that there is a continual

struggle between them; and that any interest or combination of interests

obtaining control of the government will seek their own welfare at the

expense of the rest. This, he claimed, made it necessary to so organize

the government as to give the minority the means of self-protection. To

give to the minority this constitutional power would tend to prevent the

selfish struggle to obtain possession of the government, since it would

deprive the majority of all power to aggrandize themselves at the

expense of the minority. The very essence of constitutional government,

according to his view, was the protection afforded to the minority

through the limitation of the power of the majority. To accomplish the

true end of constitutional government, which is the limitation of the

power of the numerical majority, it is necessary, he contended, that the

various classes or interests should be separately represented, and that

each through its proper organ should have a veto on the acts of the

others. In a government so organized no measure could be enacted into

law and no policy enforced, unless it had received the assent of each

element recognized in the Constitution. This method of taking the sense

of the community, which required the concurrence of its several parts,

he termed that of the concurrent majority.

This principle of class representation, he maintained, was fundamental

in the American Constitution, which recognized for certain purposes the

numerical majority as one of its elements, but only for certain

purposes. For he tells us, and correctly, that "the numerical majority

is, strictly speaking, excluded, even as one of its elements."[139] In

support of this statement he undertakes to show that the numerical

majority could not even prevent the amendment of the Constitution, since

through a combination of the smaller states an amendment desired by the

minority could be forced through in opposition to the wishes of the

majority. He might have added that it was the intention of those who

framed our government to allow the minority a free hand in amending by

the method of constitutional interpretation; and also that they intended

to deny to the numerical majority a veto on treaties and appointments.

This refusal to recognize the numerical majority even as one of the

coordinate elements in the government was as hereinbefore shown

inconsistent with the doctrine of checks, and is to be explained on the

theory that they wished to subordinate the democratic element in the

Constitution.

Calhoun argued that the growth of political parties had broken down our

system of constitutional checks. The Constitution as originally adopted

made no mention of, and allowed no place for these voluntary political

organizations. In fact, the purpose of the political party was

diametrically opposed to and subversive of all that was fundamental in

the Constitution itself, since it aimed at nothing less than the

complete destruction of the system of checks by bringing every branch of

the government under its control. To the extent that it had achieved its

purpose, it had consolidated the powers of the general government and

brought them, he contended, under the direct control of the numerical

majority, which was the very thing that the framers of the Constitution

wished to guard against.

The complete control which the numerical majority had thus obtained over

the Federal government made it supremely important that all

constitutional power vested in the several states to resist Federal

aggression should be actively employed. That the states had the power

under the Constitution to check the general government when it attempted

to overstep the limits set to its authority was necessarily implied in

the fact that our system of government was federal and not national.

His argument proceeded on the theory encouraged by the framers of the

Constitution that the general government and the state governments were

coordinate. "The idea of coordinates," he tells us, "excludes that of

superior and subordinate, and necessarily implies that of equality. But

to give either the right, not only to judge of the extent of its own

powers, but, also, of that of its coordinate, and to enforce its

decision against it, would be, not only to destroy the equality between

them, but to deprive one of an attribute--appertaining to all

governments--to judge, in the first instance, of the extent of its

powers. The effect would be to raise one from an equal to a superior,

and to reduce the other from an equal to a subordinate."[140]

From this it would follow that neither should have the exclusive right

to judge of its own powers--that each should have a negative on the acts

of the others. That this was the intention of the framers of the

Constitution he argues from the fact that all efforts in the Convention

to give the general government a negative on the acts of the states were

unsuccessful. The efforts to confer this power, he contends, were made

because it was seen that in the absence of such a provision the states

would have a negative on the acts of the general government. The failure

of these efforts in the Convention was due, he claims, to the fact that

the members of that body wished to make the general government and the

state governments coordinate, instead of subordinating the latter to the

former as the advocates of a national government desired. The fact upon

which Calhoun based this contention would seem to justify his

conclusion; but if we consult the debates which took place in that body,

it is easily seen that the refusal of the Convention to incorporate such

a provision in the Constitution can not be ascribed to any hostility on

the part of that body to national government. In fact, as hereinbefore

shown, it was for purely practical reasons that they rejected all

proposals which contemplated the recognition in the Constitution itself

of the supremacy of the general government. While declining to allow a

provision of this character to be incorporated in the Constitution, they

by no means disapproved of a strong supreme central government, but

merely adopted a less direct and therefore easier method of attaining

their end.

While Calhoun maintained that in order to make the limitations on the

authority of the general government effective it was necessary that a

state should have a veto on Federal laws, he did not contend that the

verdict of a state should be final. It would still be possible for the

general government to override the veto of a state by procuring a

constitutional amendment which would remove all doubt as to its right to

exercise the power in question. This method of appeal, he argued, was

always open to the general government, since it represented and was in

the hands of the numerical majority. This would be true, however, only

when the party in power had the requisite two-thirds majority in both

houses of Congress, or at least controlled the legislatures in

two-thirds of the states. Otherwise its control of the general

government would not enable it to propose the desired constitutional

amendment. With this qualification Calhoun's contention was correct. On

the other hand the state could not defend itself against Federal

aggression, since, belonging to the minority, it would have no means of

compelling the submission of a constitutional amendment involving the

point in dispute. The effect of a state veto on an act of Congress would

be to compel the latter to choose between abandoning the law in question

as unconstitutional and appealing to the constitution-making power in

defense of its claim. If it chose the latter alternative and succeeded

in having its authority supported by an appropriate constitutional

amendment, there was nothing for the state to do but submit, provided

that the amendment in question was one clearly within the scope of the

amending power. If, as Calhoun assumed, it was the purpose of the

Constitution to withhold from a mere majority in control of the general

government the power to enact and enforce unconstitutional legislation,

the veto of a state would seem to be the only means by which the

constitutional rights of a minority of the states could be protected.

Calhoun did not question the right of the Supreme Court of the United

States to declare an act of Congress null and void, or its right to pass

judgment upon the Constitution or the laws of a state when they were

attacked as in conflict with the Federal Constitution in a case before

it. This right, he contended, belonged to all courts whether federal or

state. A decision of the Supreme Court of the United States adverse to

the constitution or law of a state was, however, he maintained, binding

only on the general government itself and the parties to the suit. As

against the state it had no power to enforce its decision.

His entire argument rests upon the assumption that the Federal and state

governments are co-equal and not superior and subordinate. This line of

argument naturally led to the conclusion that the Federal and state

courts were coordinate. It was perfectly natural for the advocate of

state rights to take this view of the matter. Moreover there was nothing

in the Constitution which expressly contradicted it. The framers of that

instrument, as hereinbefore shown, did not wish to make an open attack

on the generally accepted doctrine of state sovereignty before the

Constitution was adopted. Their purpose was fully disclosed only after

they had obtained control of the new government under the Constitution.

To carry out their plan of subordinating the states, it was necessary to

establish the supremacy of the Federal judiciary. This was accomplished

by an act of Congress[141] which provided that "a final judgment or

decree in any suit in the highest court ... of a state in which a

decision in the suit could be had, where is drawn in question the

validity of a treaty or statute of, or an authority exercised under, the

United States, and the decision is against their validity; or where is

drawn in question the validity of a statute of, or an authority

exercised under, any state, on the ground of their being repugnant to

the Constitution, treaties, or laws of the United States, and the

decision is in favor of their validity; or where is drawn in question

the construction ... of a treaty, or statute of, or commission held

under, the United States, and the decision is against the title, right,

privilege, or exemption specially set up or claimed by either party,

under such clause of said Constitution, treaty, statute, or Commission,

may be re-examined, and reversed or affirmed in the Supreme Court of the

United States upon a writ of error."

This act, while expressly conferring upon the Supreme Court of the

United States the power to veto a state law, at the same time denied to

a state court the right to treat as unconstitutional a statute, treaty,

or authority exercised under the general government. The question might

properly be asked why this provision was not incorporated in the

Constitution itself. Why did not the framers of that document clearly

define the relation of the Federal to the state courts? To have included

the substance of this act in the Constitution as submitted to the

states, would have precluded the possibility of any future controversy

concerning the relation of the Federal to the state courts. From the

point of view of practical politics, however, there was one unanswerable

argument against this plan. It would have clearly indicated the

intention of the framers of the Constitution, but in doing so, it would

for that very reason have aroused opposition which it would have been

impossible to overcome. This is why the matter of defining the relation

of the Federal to the state courts was deferred until after the

Constitution had been ratified by the states. They chose the only

practicable means of accomplishing their purpose. With all branches of

the Federal government under their control, they were able to enact a

law which virtually amended the Constitution. Calhoun argues that in

passing this act Congress exceeded the powers granted to it by the

Constitution. What he fails to recognize, however, is the fact that this

measure, although at variance with the interpretation placed upon the

Constitution by the people generally, was, nevertheless, in entire

harmony with the general purpose of its framers and necessary to carry

that purpose into effect.

The view of the American Constitution herein presented may not be

familiar to the average reader of our political literature. For

notwithstanding the overwhelming proof of the aristocratic origin of our

constitutional arrangements accessible to the unbiassed student, the

notion has been sedulously cultivated that our general government was

based on the theory of majority rule. Unfounded as an analysis of our

political institutions shows this belief to be, it has by dint of

constant repetition come to be widely accepted. It is beyond question

that the Constitution was not so regarded by the people at the beginning

of our national life. How, then, was this change in the attitude of the

public brought about? There has doubtless been more than one influence

that has contributed to this result. The abundant natural resources of

the country and the material prosperity of the people are a factor that

cannot be ignored. To these must in a measure be ascribed the uncritical

attitude of mind, the prevailing indifference to political conditions,

and the almost universal optimism which have characterized the American

people. This lack of general attention to and interest in the more

serious and profound questions of government has been favorable to the

inculcation and acceptance of ideas of the system utterly at variance

with its true character. Still, with all due allowance for these

favoring conditions, it is hard to find a satisfactory explanation of

the process by which the worshipers of democracy came to deify an

undemocratic constitution. The desire of the conservative classes to

preserve and perpetuate the system by presenting it in the guise of

democracy, and their influence upon the political thought of the people

generally must be regarded as the chief factor in bringing about this

extraordinary change in public opinion. Hostile criticism of the

Constitution soon "gave place to an undiscriminating and almost blind

worship of its principles ... and criticism was estopped.... The divine

right of kings never ran a more prosperous course than did this

unquestioned prerogative of the Constitution to receive universal

homage. The conviction that our institutions were the best in the world,

nay more, the model to which all civilized states must sooner or later

conform, could not be laughed out of us by foreign critics, nor shaken

out of us by the roughest jars of the system."[142]