The American Commonwealth. Viscount James Bryce
over the citizens of every state is direct and immediate, not exerted through the state organization, and not requiring the cooperation of the state government. For most purposes the national government ignores the states; and it treats the citizens of different states as being simply its own citizens, equally bound by its laws. The federal courts, revenue officers, and post office draw no help from any state officials, but depend directly on Washington. Hence, too, of course, there is no local self-government in federal matters. No federal official is elected by the people of any local area. Local government is purely a state affair.
On the other hand, the state in no wise depends on the national government for its organization or its effective working. It is the creation of its own inhabitants. They have given it its constitution. They administer its government. It goes on its own way, touching the national government at but few points. That the two should touch at the fewest possible points was the intent of those who framed the federal Constitution, for they saw that the less contact, the less danger of collision. Their aim was to keep the two mechanisms as distinct and independent of each other as was compatible with the still higher need of subordinating, for national purposes, the state to the central government.
VIII. It is a further consequence of this principle that the national government has but little to do with the states as states. Its relations are with their citizens, who are also its citizens, rather than with them as ruling commonwealths. In the following points, however, the Constitution does require certain services of the states:
It requires each state government to direct the choice of, and accredit to the seat of the national government, two senators and so many representatives as the state is entitled to send.
It requires similarly that presidential electors be chosen, meet, and vote in the states, and that their votes be transmitted to the national capital.
It requires each state to organize and arm its militia, which, when duly summoned for active service, are placed under the command of the president.
It requires each state to maintain a republican form of government. (Conversely, a state may require the national government to protect it against invasion or domestic violence.)
Note in particular that the national government does not, as in some other federations:
Call upon the states, as commonwealths, to contribute funds to its support;
Issue (save in so far as may be needed in order to secure a republican form of government) administrative orders to the states, directing their authorities to carry out its laws or commands;
Require the states to submit their laws to it, and veto such as it disapproves.
The first two things it is not necessary for the national government to do, because it levies its taxes directly by its own collectors, and enforces its laws, commands, and judicial decrees by the hands of its own servants. The last can be dispensed with because the state laws are ipso jure invalid, if they conflict with the Constitution or any treaty or law duly made under it (art. VI, § 2), while if they do not so conflict they are valid, any act of the national government notwithstanding.
Neither does the national government allow its structure to be dependent on the action of the states. “To make it impossible for a State or group of States to jeopardize by inaction or hostile action the existence of the central government,” was a prime object with the men of 1787, and has greatly contributed to the solidity of the fabric they reared. The de facto secession of eleven states in 1860–61 interfered with the regular legal conduct neither of the presidential election of 1864 nor of the congressional elections from 1861 to 1865. Those states were not represented in Congress; but Congress itself went on diminished in numbers yet with its full legal powers, as the British Parliament would go on though all the peers and representatives from Scotland might be absent.
IX. A state is, within its proper sphere, just as legally supreme, just as well entitled to give effect to its own will, as is the national government within its sphere; and for the same reason. All authority flows from the people. The people have given part of their supreme authority to the national, part to the state governments. Both hold by a like title, and therefore the national government, although superior wherever there is a concurrence of powers, has no more right to trespass upon the domain of a state than a state has upon the domain of federal action. That the course which a state is following is pernicious, that its motives are bad and its sentiments disloyal to the Union, makes no difference until or unless it infringes on the sphere of federal authority. It may be thought that however distinctly this may have been laid down as a matter of theory, in practice the state will not obtain the same justice as the national government, because the court which decides points of law in dispute between the two is in the last resort a federal court, and therefore biased in favour of the federal government. In fact, however, little or no unfairness has arisen from this cause.12 The Supreme Court may, as happened for twenty years before the War of Secession, be chiefly composed of states’ rights men. In any case the court cannot stray far from the path which previous decisions have marked out.
X. There are several remarkable omissions in the Constitution of the American federation.
One is that there is no grant of power to the national government to coerce a recalcitrant or rebellious state. Another is that nothing is said as to the right of secession. Anyone can understand why this right should not have been granted. But neither is it mentioned to be negatived.
There is no abstract or theoretic declaration regarding the nature of the federation and its government, nothing as to the ultimate supremacy of the central authority outside the particular sphere allotted to it, nothing as to the so-called sovereign rights of the states. As if with a prescience of the dangers to follow, the wise men of 1787 resolved to give no opening for abstract inquiry and metaphysical dialectic.13 But in vain. The human mind is not to be so restrained. If the New Testament had consisted of no other writings than the Gospel of St. Matthew and the Epistle of St. James, there would have been scarcely the less a crop of speculative theology. The dryly legal and practical character of the Constitution did not prevent the growth of a mass of subtle and, so to speak, scholastic metaphysics regarding the nature of the government it created. The inextricable knots which American lawyers and publicists went on tying, down till 1861, were cut by the sword of the North in the Civil War, and need concern us no longer. It is now admitted that the Union is not a mere compact between commonwealths, dissoluble at pleasure, but an instrument of perpetual efficacy,14 emanating from the whole people, and alterable by them only in the manner which its own terms prescribe. It is “an indestructible Union of indestructible States.”
It follows from the recognition of the indestructibility of the Union that there must somewhere exist a force capable of preserving it. The national government is now admitted to be such a force. It can exercise all powers essential to preserve and protect its own existence and that of the states, and the constitutional relation of the states to itself, and to one another.
“May it not,” someone will ask, “abuse these powers, abuse them so as to extinguish the states themselves, and turn the federation into a unified government. What is there but the federal judiciary to prevent this catastrophe? And the federal judiciary has only moral and not also physical force at its command.”
No doubt it may, but not until public opinion supports it in so doing—that is to say, not until the mass of the nation which now maintains, because it values, the federal system, is possessed by a desire to overthrow that system. Such a desire may express itself in proper legal form by carrying amendments to the Constitution which will entirely change the nature of the government. Or if the minority be numerous enough to prevent the passing of such amendments, and if the desire of the majority be sufficiently vehement, the majority which sways the national government may disregard legal sanctions and effect its object by a revolution. In either event—and both are improbable—the change which will have passed upon the sentiments of the American people will be a sign that federalism has done its work, and that the time has arrived for new forms of political life.