THE CHECKS AND BALANCES OF THE CONSTITUTIONTwo 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 coÖrdinate 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 coÖrdinate 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 coÖrdinate 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 coÖrdinate 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 coÖrdinate 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 coÖrdinate 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 coÖrdinate. "The idea of coÖrdinates," 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 coÖrdinate, 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 coÖrdinate, 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 coÖrdinate. 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]