Part 6 (2/2)

This view of the Const.i.tution 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 Const.i.tution 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 Const.i.tution. 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 Const.i.tution after its adoption to accomplish their end.

The omission from the Const.i.tution 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 Const.i.tution, 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 const.i.tutional struggle which lasted for three-quarters of a century and finally convulsed the country in the greatest civil war of modern times. Had the Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 p.r.o.nounced 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 cla.s.ses, he framed a policy which was calculated to gain their support by appealing to their material interests. The a.s.sumption by the general government of the state debts incurred during the Revolutionary war was designed and had the effect of detaching the creditor cla.s.s 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 cla.s.s 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 Const.i.tution as we have seen to establish the supremacy of the so-called upper cla.s.s. 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 cla.s.s 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 Const.i.tution, 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 a.s.signed to the state, it was to be supreme, which would naturally seem to imply adequate const.i.tutional power in the state to defend itself against federal aggression. This view of the Const.i.tution, if not actually encouraged, was allowed to go unchallenged in order not to endanger its adoption.

The Const.i.tution 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 Const.i.tution 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 accomplis.h.i.+ng at the outset.

Amendment by judicial interpretation was merely a means of conferring indirectly on the minority a power which the Const.i.tution expressly denied to the majority. No hint of this method of minority amendment, however, was contained in the Const.i.tution itself. But, on the contrary, any such view of the Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution, 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 a.s.signed 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 Const.i.tution set to its authority, the states naturally looked for some means of making the checks imposed upon the general government effective. True, the Const.i.tution 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 Const.i.tution 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 Const.i.tution to suit itself. If the general government should have the right to interpret and enforce the const.i.tutional limitations on the powers of the states, it would for a like reason follow that the states should interpret and enforce the const.i.tutional limitations on the authority of the general government itself. To carry out in good faith what appeared to be the purpose of the Const.i.tution, _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 Const.i.tution 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 const.i.tutional authority. Those who believed in a federal as opposed to a national government and who therefore wished to enforce the const.i.tutional 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 Const.i.tution 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 circ.u.mstances of the time, and the Const.i.tution was the living expression of these actual circ.u.mstances.”[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 embarra.s.sments 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 pa.s.sages 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 Const.i.tution the states would have no difficulty in defending their const.i.tutional 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 a.s.sumes 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 a.s.sumption 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 a.s.sumption 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 Const.i.tution of the United States.”[137]

The general a.s.sembly 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 Const.i.tution] ... 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 a.s.sumes 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 Const.i.tution, 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 Const.i.tution], 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_.”

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