The American Commonwealth. Viscount James Bryce

races and faiths, as the gods of Epicurus listened to the murmurs of the unhappy earth spread out beneath their golden dwellings,

      “Sejuncta a rebus nostris semotaque longe.”

      Had Canada or Mexico grown to be a great power, had France not sold Louisiana, or had England, rooted on the American continent, become a military despotism, the United States could not indulge the easy optimism which makes them tolerate the faults of their government. As it is, that which might prove to a European state a mortal disease is here nothing worse than a teasing ailment. Since the War of Secession ended, no serious danger has arisen either from within or from without to alarm transatlantic statesmen. Social convulsions from within, warlike assaults from without, seem now as unlikely to try the fabric of the American Constitution, as an earthquake to rend the walls of the Capitol. This is why the Americans submit, not merely patiently but hopefully, to the defects of their government. The vessel may not be any better built, or found, or rigged than are those which carry the fortunes of the great nations of Europe. She is certainly not better navigated. But for the present at least—it may not always be so—she sails upon a summer sea.

      It must never be forgotten that the main object which the framers of the Constitution set before themselves has been achieved. When Siéyès was asked what he had done during the Reign of Terror, he answered, “I lived.” The Constitution as a whole has stood and stands unshaken. The scales of power have continued to hang fairly even. The president has not corrupted and enslaved Congress; Congress has not paralyzed and cowed the president. The legislative may have sometimes appeared to be gaining on the executive department; but there are also times when the people support the president against the legislature, and when the legislature is obliged to recognize the fact. Were George Washington to return to earth, he might be as great and useful a president as he was more than a century ago. Neither the legislature nor the executive has for a moment threatened the liberties of the people. The states have not broken up the Union, and the Union has not absorbed the states. No wonder that the Americans are proud of an instrument under which this great result has been attained, which has passed unscathed through the furnace of civil war, which has been found capable of embracing a body of commonwealths more than three times as numerous, and with thirty-fold the population of the original states, which has cultivated the political intelligence of the masses to a point reached in no other country, which has fostered and been found compatible with a larger measure of local self-government than has existed elsewhere. Nor is it the least of its merits to have made itself beloved. Objections may be taken to particular features, and these objections point, as most American thinkers are agreed, to practicable improvements which would preserve the excellences and remove some of the inconveniences. But reverence for the Constitution has become so potent a conservative influence, that no proposal of fundamental change seems likely to be entertained. And this reverence is itself one of the most wholesome and hopeful elements in the character of the American people.

CHAPTER 27

       The Federal System

      Having examined the several branches of the national government and the manner in which they work together, we may now proceed to examine the American commonwealth as a federation of states. The present chapter is intended to state concisely the main features which distinguish the federal system, and from which it derives its peculiar character. Three other chapters will describe its practical working, and summarize the criticisms that may be passed upon it.

      The contests in the Convention of 1787 over the framing of the Constitution, and in the country over its adoption, turned upon two points: the extent to which the several states should be recognized as independent and separate factors in the construction of the national government, and the quantity and nature of the powers which should be withdrawn from the states to be vested in that government. It has been well remarked that “the first of these, the definition of the structural powers, gave more trouble at the time than the second, because the line of partition between the powers of the States and the Federal government had been already fixed by the whole experience of the country.” But since 1791 there has been practically no dispute as to the former point, and little as to the propriety of the provisions which define the latter. On the interpretation of these provisions there has, of course, been endless debate, some deeming the Constitution to have taken more from the states, some less; while still warmer controversies have raged as to the matters which the instrument does not expressly deal with, and particularly whether the states retain their sovereignty, and with it the right of nullifying or refusing to be bound by certain acts of the national government, and in the last resort of withdrawing from the Union. As these latter questions (nullification and secession) have now been settled by the Civil War, we may say that in the America of today there exists a general agreement:

      

      That every state on entering the Union finally renounced its sovereignty, and is now forever subject to the federal authority as defined by the Constitution;

      That the functions of the states as factors of the national government are satisfactory, i.e., sufficiently secure its strength and the dignity of these communities;

      That the delimitation of powers between the national government and the states, contained in the Constitution, is convenient, and needs no fundamental alteration.¹

      The ground which we have to tread during the remainder of this chapter is therefore no longer controversial ground, but that of well-established law and practice.

      I. The distribution of powers between the national and the state governments is effected in two ways: positively, by conferring certain powers on the national government; negatively, by imposing certain restrictions on the states. It would have been superfluous to confer any powers on the states, because they retain all powers not actually taken from them. A lawyer may think that it was equally unnecessary and, so to speak, inartistic, to lay any prohibitions on the national government, because it could ex hypothesi exercise no powers not expressly granted. However, the anxiety of the states to fetter the master they were giving themselves caused the introduction of provisions qualifying the grant of express powers, and interdicting the national government from various kinds of action on which it might otherwise have been tempted to enter.² The matter is further complicated by the fact that the grant of power to the national government is not in all cases an exclusive grant; i.e., there are matters which both, or either, the states and the national government may deal with. “The mere grant of a power to Congress does not of itself, in most cases, imply a prohibition upon the States to exercise the like power. . . . It is not the mere existence of the National power but its exercise which is incompatible with the exercise of the same power by the States.” ³ Thus we may distinguish the following classes of governmental powers:

      Powers vested in the national government alone

      Powers vested in the states alone

      Powers exercisable by either the national government or the states

      Powers forbidden to the national government

      Powers forbidden to the state governments

      It might be thought that the two latter classes are superfluous, because whatever is forbidden to the national government is permitted to the states, and conversely, whatever is forbidden to the states is permitted to the national government. But this is not so. For instance, Congress can grant no title of nobility (art. I, § 9). But neither can a state do so (art. I, § 10). The national government cannot take private property for public use without just compensation (amendment V). Apparently neither can any state do so (amendment XIV, as interpreted in several cases). So no state can pass any law impairing the obligation of a contract (art. I, § 10). But the national government, although not subject to a similar direct prohibition, has received no general power to legislate as regards ordinary contracts, and might therefore in some cases find itself equally unable to pass a law which a state legislature, though for a different reason, could not pass.⁴ So no state can pass any ex post facto law. Neither can Congress.

      What the Constitution has done