The American Democrat/On Distinctive American Principles
ON DISTINCTIVE AMERICAN PRINCIPLES.
Distinctive American principles as properly refer to the institutions of the states as to those of the Union. A correct notion of the first cannot be formed without keeping the latter constantly in view.
The leading distinctive principle of this country, is connected with the fact that all political power is strictly a trust, granted by the constituent to the representative. These representatives possess different duties, and as the greatest check that is imposed on them, while in the exercise of their offices, exists in the manner in which the functions are balanced by each other, it is of the last importance that neither class trespass on the trusts that are not especially committed to its keeping.
The machinery of the state being the same in appearance, in this country and in that from which we are derived, inconsiderate commentators are apt to confound their principles. In England, the institutions have been the result of those circumstances to which time has accidentally given birth. The power of the king was derived from violence, the monarch, before the act of succession, in the reign of Queen Anne, claiming the throne in virtue of the conquest by William, in 1060. In America, the institutions are the result of deliberate consultation, mutual concessions, and design. In England, the people may have gained by diminishing the power of the king, who first obtained it by force; but, in America, to assail the rightful authority of the executive, is attacking a system framed by the constituencies of the states, who are virtually the people, for their own benefit. No assault can be made on any branch of this government, while in the exercise of its constitutional duties, without assaulting the right of the body of the nation, which is the foundation of the whole polity.
In countries, in which executive power is hereditary, and clothed with high prerogatives, it may be struggling for liberty to strive to diminish its influence; but, in this republick, in which the executive is elective, has no absolute authority in framing the laws, serves for a short period, is responsible, and has been created by the people, through the states, for their own purposes, it is assailing the rights of that people, to attempt in any manner to impede its legal and just action.
It is a general law in politics, that the power most to be distrusted, is that which, possessing the greatest force, is the least responsible. Under the constitutional monarchies of Europe, (as they exist in theory, at least,) the king, besides uniting in his single person all the authority of the executive, which includes a power to make war, create peers, and unconditionally to name to all employments, has an equal influence in enacting laws, his veto being absolute; but, in America, the executive, besides being elective, is stripped of most of these high sources of influence, and is obliged to keep constantly in view the justice and legality of his acts, both on account of his direct responsibilities, and on account of the force of public opinion.
In this country, there is far more to apprehend from congress, than from the executive, as is seen in the following reasons:—Congress is composed of many, while the executive is one, bodies of men notoriously acting with less personal responsibilities than individuals; congress has power to enact laws, which it becomes the duty of the executive to see enforced, and the really legislative authority of a country is always its greatest authority; from the decisions and constructions of the executive, the citizen can always appeal to the courts for protection, but no appeal can lie from the acts of congress, except on the ground of unconstitutionality; the executive has direct personal responsibilities under the laws of the land, for any abuses of his authority, but the member of congress, unless guilty of open corruption, is almost beyond personal liabilities.
It follows that the legislature of this country, by the intention of the constitution, wields the highest authority under the least responsibility, and that it is the power most to be distrusted. Still, all who possess trusts, are to be diligently watched, for there is no protection against abuses without responsibility, nor any real responsibility, without vigilance.
Political partisans, who are too apt to mistake the impulses of their own hostilities and friendships for truths, have laid down many false principles on the subject of the duties of the executive. When a law is passed, it goes to the executive for execution, through the executive agents, and, at need, to the courts for interpretation. It would seem that there is no discretion vested in the executive concerning the constitutionality of a law. If he distrust the constitutionality of any law, he can set forth his objections by resorting to the veto; but it is clearly the intention of the system that the whole legislative power, in the last resort, shall abide in congress, while it is necessary to the regular action of the government, that none of its agents, but those who are especially appointed for that purpose, shall pretend to interpret the constitution, in practice. The citizen is differently situated. If he conceive himself oppressed by an unconstitutional law, it is his inalienable privilege to raise the question before the courts, where a final interpretation can be had. By this interpretation the executive and all his agents are equally bound to abide. This obligation arises from the necessity of things, as well as from the nature of the institutions. There must be somewhere a power to decide on the constitutionality of laws, and this power is vested in the supreme court of the United States, on final appeal.
When called on to approve a law, even though its principle should have been already pronounced on by the courts, the executive is independent. He is now a legislator, and can disregard all other constructions of the constitution, but those dictated by his own sense of right. In this character, to the extent of his veto-power, he is superior to the courts, which have cognizance of no more than each case as it is presented for their consideration. The president may approve of a law that the court has decided to be unconstitutional in principle, or he may veto a law that the court has decided to be constitutional in principle. The legislator himself, is compelled to submit to the interpretation of the court, however different his own views of the law may have been in passing it, but as soon as he comes to act again as a legislator, he becomes invested with all his own high duties and rights. The court cannot make the constitution, in any case; it only interprets the law. One court may decide differently from another, and instances often occur in which the same judges see reason to change their own decisions, and it would be, to the last degree, inexpedient, to give the court an authority beyond the necessity of the circumstances.
Although the court can render a law null, its power does not extend beyond the law already passed. Congress may re-enact it, as often as it please, and the court will still exercise its reason in rejecting it. This is the balance of the constitution, which invites inquiry, the constituencies of the states holding a legal authority to render that constitutional which the courts have declared to be unconstitutional, or vice versa, by amendments to the instrument itself; the supremacy of the court being merely temporary, conditional, and growing out of expediency and necessity.
It has been said that it is a vital principle of this government, that each of its branches should confine itself to the particular duties assigned it by the constitution, and in no manner exceed them. Many grave abuses have already arisen from loosing sight of this truth, and there is danger that the whole system will be perverted from its intention, if not destroyed, unless they are seasonably corrected. Of these, the most prevalent, the one most injurious to the public service, that which has been introduced the most on foreign and the least on American principles, is the practice of using the time and influence of the legislatures, for the purpose of acting on the public mind, with a view to affect the elections. The usage has already gained so much footing, as seriously to impede the course of legislation.
This is one of the cases, in which it is necessary to discriminate between the distinctive principles of our own government, and those of the government of the country from which we are derived. In England, by the mode in which the power of the executive has been curtailed, it is necessary that the ministerial contests should be conducted in the legislative bodies, but, in this country, such a course cannot be imitated, without the legislators' assuming an authority that does not belong to them, and without dispossessing the people, in some measure, of their rights. He who will examine the constitution for the powers of congress, will find no authority to pass resolutions on, or to waste the time, which is the property of the public, in discussing the matters, on which, after all, congress has no power to decide. This is the test of legislative authority. Congress cannot properly even discuss a subject, that congress cannot legally control, unless it be to ascertain its own powers. In cases that do not admit of question, this is one of the grossest abuses of the institutions, and ought to be classed with the usurpations of other systems.
There is a feeling connected with this subject, that it behoves every upright citizen cautiously to watch. He may be opposed to the executive, for instance, as a party-man, and yet have an immediate representative in congress, of his own particular way of thinking; and it is a weakness of humanity, under such circumstances, for one to connect himself most directly with his own immediate candidate, and to look on his political opponent with distrust. The jealousy created by this feeling, induces unreflecting men to imagine that curbing their particular representatives, in matters of this nature, is curtailing their own rights, and disposes them to defend what is inherently wrong, on personal motives.
Political systems ought to be, and usually are, framed on certain great and governing principles. These principles cannot be perverted, or lost sight of, without perverting, or rendering nugatory the system itself; and, under a popular government, in an age like this, far more is to be apprehended from indirect attacks on the institutions, than from those which are direct. It is usual to excuse these departures from the right on the plea of human propensities, but human institutions are framed expressly to curb such propensities, and no truth is more salutary than that which is contained in the homely saying, that "law makers should not be law breakers."
It is the duty of the citizen to judge of all political acts on the great principles of the government, and not according to his own political partialities, or prejudices. His own particular representative is no more a representative of the people, than the representative of any other man, and one branch of the government is no more representative than another. All are to keep within their respective spheres, and it may be laid down as a governing maxim of the institutions, that the representative who exceeds his trusts, trespasses on the rights of the people.
All comparisons between the powers of the British parliament and those of congress are more than useless, since they are bodies differently constituted, while one is absolute, and the other is merely a special trustee for limited and defined objects.
In estimating the powers of congress, there is a rule that may be safely confided in, and which has been already hinted at. The powers of congress are express and limited. That body therefore, can have no right to pass resolutions other than those which affect their own police, or, in a moral sense, even to make speeches, except on subjects on which they have a right to pass laws. The instant they exceed these limits, they exceed the bounds of their delegated authority. By applying this simple test to their proceedings, any citizen may, in ordinary cases, ascertain how far the representatives of the nation abuse their trusts.
Liberty is not a matter of words, but a positive and important condition of society. Its great safeguards, after placing its foundations on a popular base, is in the checks and balances imposed on the public servants, and all its real friends ought to know that the most insidious attacks, are made on it by those who are the largest trustees of authority, in their efforts to increase their power.
The government of the United States has three branches. The executive, the legislative and the judicial. These several branches are independent of each other, though the first is intended to act as a check on the second, no law or resolution being legal that is not first submitted to the president for his approval. This check, however, does not render the first an integral part of the legislature, as laws and resolutions may be passed without his approval, by votes of two thirds.
In most constitutional monarchies, the legislatures, being originally secondary powers, were intended as checks on the action of the crown, which was possessed of the greatest, and, by consequence, of the most dangerous authority; whereas, the case is reversed in America, the executive using his veto as a check on congress. Such is the intention of the constitution, though the tactics of party, and the bitterness of opposition, have endeavored to interpret the instrument differently, by appealing to the ancient prejudices derived from England.