Civil Government in the United States Considered with Some Reference to Its Origins Part 30

Section 4. _The Nation and the States._

We have left our Federal Convention sitting a good while at Philadelphia, while we have thus undertaken to give a coherent account of our national executive organization, which has in great part grown up since 1789 with the growth of the nation. Observe how wisely the Const.i.tution confines itself to a clear sketch of fundamentals, and leaves as much as possible to be developed by circ.u.mstances. In this feature lies partly the flexible strength, the adaptableness, of our Federal Const.i.tution. That strength lies partly also in the excellent part.i.tion of powers between the federal government and the several states.

[Sidenote: Difference between confederation and federal union.]

We have already remarked upon the vastness of the functions retained by the states. At the same time the powers granted to Congress have proved sufficient to bind the states together into a union that is more than a mere confederation. From 1776 to 1789 the United States _were_ a confederation; after 1789 it was a federal nation. The pa.s.sage from plural to singular was accomplished, although it took some people a good while to realize the fact. The German language has a neat way of distinguis.h.i.+ng between a loose confederation and a federal union. It calls the former a _Staatenbund_ and the latter a _Bundesstaat_. So in English, if we liked, we might call the confederation a _Band-of-States_ and the federal union a _Banded-State_.

There are two points especially in our Const.i.tution which transformed our country from a Band-of-States into a Banded-State.

[Sidenote: Powers granted to Congress.]

The first was the creation of a federal House of Representatives, thus securing for Congress the power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common welfare of the United States. Other powers are naturally attached to this,--such as the power to borrow money on the credit of the United States; to regulate foreign and domestic commerce; to coin money and fix the standard of weights and measures; to provide for the punishment of counterfeiters; to establish post-offices and post-roads; to issue copyrights and patents; to define and punish felonies committed on the high seas, and offences against the law of nations; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support an army and navy, and to make rules for the regulation of the land and naval forces; to provide for calling out the militia to suppress insurrections and repel invasions, and to command this militia while actually employed in the service of the United States.

The several states, however, train their own militia and appoint the officers. Congress may also establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies. It also exercises exclusive control over the District of Columbia,[23]

as the seat of the national government, and over forts, magazines, a.r.s.enals, dockyards, and other needful buildings, which it erects within the several states upon land purchased for such purposes with the consent of the state legislature.

[Footnote 23: Ceded to the United States by Maryland and Virginia.]

[Sidenote: The "Elastic Clause."]

Congress is also empowered "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Const.i.tution in the government of the United States, or in any department or office thereof." This may be called the Elastic Clause of the Const.i.tution; it has undergone a good deal of stretching for one purpose and another, and, as we shall presently see, it was a profound disagreement in the interpretation of this clause that after 1789 divided the American people into two great political parties.

[Sidenote: Powers denied to the states.]

[Sidenote: Paper currency.]

The national authority of Congress is further sharply defined by the express denial of sundry powers to the several states. These we have already enumerated.[24] There was an especial reason for prohibiting the states from issuing bills of credit, or making anything but gold and silver coin a tender in payment of debts. During the years 1785 and 1786 a paper money craze ran through the country; most of the states issued paper notes, and pa.s.sed laws obliging their citizens to receive them in payment of debts. Now a paper dollar is not money, it is only the government's promise to pay a dollar. As long as you can send it to the treasury and get a gold dollar in exchange, it is worth a dollar. It is this exchangeableness that makes it worth a dollar.

When government makes the paper dollar note a "legal tender." i.e., when it refuses to give you the gold dollar and makes you take its note instead, the note soon ceases to be worth a dollar. You would rather have the gold than the note, for the mere fact that government refuses to give the gold shows that it is in financial difficulties.

So the note's value is sure to fall, and if the government is in serious difficulty, it falls very far, and as it falls it takes more of it to buy things. Prices go up. There was a time (1864) during our Civil War when a paper dollar was worth only forty cents and a barrel of flour cost $23. But that was nothing to the year 1780, when the paper dollar issued by the Continental Congress was worth only a mill, and flour was sold in Boston for $1,575 a barrel! When the different states tried to make paper money, it made confusion worse confounded, for the states refused to take each other's money, and this helped to lower its value. In some states the value of the paper dollar fell in less than a year to twelve or fifteen cents. At such times there is always great demoralization and suffering, especially among the poorer people; and with all the experience of the past to teach us, it may now be held to be little less than a criminal act for a government, under any circ.u.mstances, to make its paper notes a legal tender. The excuse for the Continental Congress was that it was not completely a government and seemed to have no alternative, but there is no doubt that the paper currency damaged the country much more than the arms of the enemy by land or sea. The feeling was so strong about it in the Federal Convention that the prohibition came near being extended to the national government, but the question was unfortunately left undecided.[25]

[Footnote 24: See above, p.175]

[Footnote 25: See my _Critical Period of American History_, pp.

168-186, 273-276.]

[Sidenote: Powers denied to Congress.]

[Sidenote: Bills of attainder.]

Some express prohibitions were laid upon the national government. Duties may be laid upon imports but not upon exports; this wise restriction was a special concession to South. Carolina, which feared the effect of an export duty upon rice and indigo. Duties and excises must be uniform throughout the country, and no commercial preference can be shown to one state over another; absolute free trade is the rule between the states.

A census must be taken every ten years in order to adjust the representation, and no direct tax can be imposed except according to the census. No money can be drawn from the treasury except "in consequence of appropriations made by law," and accounts must be regularly kept and published. The privilege of the writ of _habeas corpus_ cannot be suspended except "when, in case of rebellion or invasion, the public safety may require it;" and "no bill of attainder, or _ex post facto_ law," can be pa.s.sed. A bill of attainder is a special legislative act by which a person may be condemned to death, or to outlawry and banishment, without the opportunity of defending himself which he would have in a court of law. "No evidence is necessarily adduced to support it," [26] and in former times, especially in the reign of Henry VIII., it was a formidable engine for perpetrating judicial murders. Bills of attainder long ago ceased to be employed in England, and the process was abolished by statute in 1870.

[Footnote 26: Taswell-Langmead, _English Const.i.tutional History_, p. 385.]

[Sidenote: Intercitizens.h.i.+p.]

No t.i.tle of n.o.bility can be granted by the United States, and no federal officer can accept a present, office, or t.i.tle from a foreign state without the consent of Congress. "No religious test shall ever be required as a qualification to any office or public trust under the United States." Full faith and credit must be given in each state to the public acts and records, and to the judicial proceedings of every other state; and it is left for Congress to determine the manner in which such acts and proceedings shall be proved or certified. The citizens of each state are "ent.i.tled to all privileges and immunities of citizens in the several states." There is mutual extradition of criminals, and, as a concession to the southern states it was provided that fugitive slaves should be surrendered to their masters. The United States guarantees to every state a republican form of government, it protects each state against invasion; and on application from the legislature of a state, or from the executive when the legislature cannot be convened, it lends a hand in suppressing insurrection.

[Sidenote: Mode of making amendments.]

Amendments to the Const.i.tution may at any time be proposed in pursuance of a two thirds vote in both houses of Congress, or by a convention called at the request of the legislatures of two thirds of the states. The amendments are not in force until ratified by three-fourths of the states, either through their legislatures or through special conventions, according to the preference of Congress. This makes it difficult to change the Const.i.tution, as it ought to be; but it leaves it possible to introduce changes that are very obviously desirable. The Articles of Confederation could not be amended except by a unanimous vote of the states; and this made their amendment almost impossible.

After a.s.suming all debts contracted and engagements made by the United States before its adoption, the Const.i.tution goes on to declare itself the supreme law of the land. By it, and by the laws and treaties made under it, the judges in every state are bound, in spite of anything contrary in the const.i.tution or laws of any state.

QUESTIONS ON THE TEXT.

1. In what two features of the Const.i.tution does its strength largely lie?

2. Distinguish between the United States as a confederation and the United States as a federal union. How does the German language bring out the distinction?

3. What was the first important factor in transforming our country from a Band-of-States to a Banded-State?

4. The powers granted to Congress:-- a. Over taxes, money, and commerce.

b. Over postal affairs, and the rights of inventors and authors.

c. Over certain crimes.

d. Over war and military matters.

e. Over naturalization and bankruptcy.

f. Over the District of Columbia and other places.

g. The "elastic clause" and its interpretation.

5. The powers denied to the states:-- a. An enumeration of these powers.

b. The prohibition of bills of credit, in particular.

c. The paper money craze of 1785 and 1786.

d. Paper money as a "legal tender."

e. The depreciation of paper money during the Civil War.

f. The depreciation of the Continental currency in 1780.

g. The demoralization caused by the states making paper money.

h. The lesson of experience.

6. Prohibitions upon the national government:-- a. The imposition of duties and taxes.

b. The payment of money.

c. The writ of _habeas corpus_.

d. _Ex post facto_ laws.

e. Bills of attainder.

f. t.i.tles and presents.

7. Duties of the states to one another:-- a. In respect to public acts and records, and judicial proceedings.

b. In respect to the privileges of citizens.

c. In respect to fugitives from justice.

8. What is the duty of the United States to every state in respect (1) to form of government, (2) invasion, and (3) insurrection?

9. Amendments to the Const.i.tution:-- a. Two methods of proposing amendments.

b. Two methods of ratifying amendments, c. The difficulty of making amendments.

d. Amendment of the Articles of Confederation.

10. What is meant by the Const.i.tution's declaring itself the supreme law of the land?

Section 5. _The Federal Judiciary_.

[Sidenote: Need for a federal judiciary.]

The creation of a federal judiciary was the second princ.i.p.al feature in the Const.i.tution, which transformed our country from a loose confederation into a federal nation, from a _Band-of-States_ into a _Banded-State_. We have seen that the American people were already somewhat familiar with the method of testing the const.i.tutionality of a law by getting the matter brought before the courts.[27] In the case of a conflict between state law and federal law, the only practicable peaceful solution is that which is reached through a judicial decision.

The federal authority also needs the machinery of courts in order to enforce its own decrees.

[Footnote 27: See above p. 194.]