The American Democrat/On the Republick of the United States of America
ON THE REPUBLICK OF THE UNITED STATES OF AMERICA.
The government of the United States, differs from all others that have preceded it, though some imitations have been attempted in the southern parts of this continent. Its novelty, no less than its complicated nature, arising from its double system, has given birth to many errors in relation to its principles and its action, even among its own citizens, as well as among strangers.
The polity of the United States is that of a confederated republick, but the power of the federal government acting in most instances on the body of the community, without the intervention of the several states, it has been better styled a Union. This word, which is original as applied to a political system, was first given to this form of confederation, and is intended to express the greater intimacy of the relations of the parties, than those of all previous examples. It exists in the constitution, however, only as it is used in setting forth the motives for substituting that instrument for the old articles of confederation: the constitution being silent as to the particular polity of the country, except as it recognizes the general term of a republick.
The word constitution, of itself, properly implies a more identified form of government, than that which is usually understood to exist under a confederation; the first inferring a social compact, fundamental and predominant, the last a league between independent sovereignties. These distinctions have a certain weight, though they are rather arbitrary than logical, since men may create any degree of allegiance, or of liability they may deem expedient, under any form, or modes of government. To deny this is to deny to bodies of human beings the right of self-government, a gift of nature. Though possessing a common end, governments are, in reality, subject to no laws but those of their own establishing.
The government of the United States was formed by the several states of the Union, as they existed at the period when the constitution was adopted, and one of its leading principles is, that all power which is not granted to the federal authority, remain in the states themselves, or what is virtually the same thing, in the people of the states. This principle follows as a necessary consequence from the nature of the grants to the federal government, but it has been clearly expressed in a clause of the instrument, that was introduced by way of amendment, in 1801. This feature distinguishes this federal government from all the federal governments that have gone before it, as it was the general and ancient rule that liberty existed as a concession from authority; whereas, here, we find authority existing as a concession from the ruled. Something like the same principle exists in the governments of the several states, and it once existed in the ancient democracies, though, in no other known system perhaps, as clearly and as unequivocally as in this, since it is a general maxim that governments should have all power, however much they may restrain themselves in its exercise.
In the conflict of parties, the question by whom the federal government was formed, has been agitated with more seriousness than the point at issue merited, since, the fact admitted that the power which framed it did not exceed its authority, it is much more essential to know what was done, than to ascertain who did it. The notion that the people of the United States, in the popular signification of the word, framed the government, is contrary to fact, and leads to a wrong interpretation of many of the distinctive features of the system. The constitution of the United States was formed by a convention composed of delegates elected by the different states, in modes prescribed by their several laws and usages. These delegates voted by states, and not as individuals, and the instrument was referred back to conventions in the respective states for approval, or ratification. It is a governing principle of political maxims, that the power to ratify, is the power that possesses the authority in the last resort. Thus, treaties between independent sovereignties, are never valid until ratified by the high treaty-making powers of the respective countries. As the several states of this Union first acted through delegates of their own appointing, and then ratified their acts, in conventions also chosen by constituencies of their own selection, it is not easy to establish any thing more plainly than the fact, that the constitution of the United States was framed by the states then in existence, as communities, and not by the body of the people of the Union, or by the body of the people of the states, as has been sometimes contended.
In favor of the latter opinion, it is maintained that the several states were an identified nation previously to the formation of the government, and the preamble of the constitution itself, has been quoted to prove that the compact was formed by the people, as distinct from the states. This preamble commences by saying that "We the people of the United States," for reasons that are then set forth, have framed the instrument that follows; but in respecting a form of phraseology, it, of necessity, neither establishes a fact, nor sets up a principle, and when we come to examine the collateral circumstances, we are irresistably led to regard it merely as a naked and vague profession.
That the several states were virtually parts of one entire nation previously to the formation of any separate general government, proves nothing in the premises, as the very circumstance that a polity distinct from that of Great Britain was established by our ancestors, who were members of the great community that was then united in one entire nation, sufficiently shows that these parts can separate, and act independently of each other. Such a circumstance might be, and probably it was, a strong motive for forming a more identified government, but it cannot properly be quoted as authority for, or against any of its provisions. The latter are a mere question of fact, and as such their construction must depend on their intention as explained in language.
The term "people," like most other substantives, has its general and its specific significations. In its general signification, the people of a country, means the population of a country; as the population of a country includes the women and children, nothing can be clearer than that the "people," in this signification, did not form the American constitution. The specific significations of this word are numerous, as rich, poor, wise, silly, good and bad people. In a political sense, the people means those who are vested with political rights, and, in this particular instance, the people vested with political rights, were the constituencies of the several states, under their various laws, modifications and constitutions, which is but another name for the governments of the states themselves. "We the people," as used in the preamble of the constitution, means merely, "We the constituencies of the several states."
It follows, that the constitution of the United States was formed by the states, and not by the people of the entire country, as contended; the term used in the preamble being used in contra-distinction to the old divine right of sovereigns, and as a mode of expressing the general republican character of the government. The states, by a prescribed majority, can also amend the constitution, altering any of its provisions, with the exception of that which guaranties the equal representation of the states in the senate. It might be shown, that states possessing a minority of all the people of the Union can alter the constitution, a fact, in itself, which proves that the government of the United States, though a republick, is not necessarily a popular government, in the broadest meaning of the word. The constitution leaves the real character of the institutions of the country, with the exception that it prohibits monarchies, to be settled by the several states themselves.
On the other hand, too much importance is attached to what is called the reserved sovereignties of the several states. A community can hardly be termed sovereign at all, which has parted with all the great powers of sovereignty, such as the control of foreign relations, the authority to make war and peace, to regulate commerce, to coin money, keep fleets and armies, with all the other powers that have been ceded by the states to the federal government. But, admitting that the rights reserved are sovereign in their ordinary nature, they are scarcely so in the conditions under which they are enjoyed, since, by an amendment of the constitution, a state may be deprived of most of them, without its own consent. A community so situated can scarcely be deemed sovereign, or even independent.
The habit of drawing particular inferences from general theories, in matters as purely practical as those of government, is at all times dangerous, and the safest mode of construing the constitution of the United States, is by looking only at the instrument itself, without adverting to other systems, except as they may serve to give the proper signification of the terms of that instrument, as these terms were understood at the time it was framed.
Many popular errors exist on the subject of the influence of the federal constitution on the rights and liberties of the citizen. The rights and liberties of the citizen, in a great degree, depend on the political institutions of the several states, and not on those of the Union. Many of these errors have arisen from mistaking the meaning of the language of the constitution. Thus, when the constitution says that no laws shall be passed abridging the rights of the citizen in any particular thing, it refers to the power which, under that particular constitution, has the authority to pass a law at all. This power, under the government of the United States, is Congress, and no other.
An example will better show the distinction. In art. 6th of the amendments to the constitution, we find the following clause: "In all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial, by an impartial jury," &c. &c. &c. It is not the meaning of this provision of the constitution, that, under the laws of the several states, the citizen shall be entitled to a public trial by a jury, but that these privileges shall be assured to those who are accused of crimes against the laws of the United States. It is true, that similar privileges, as they are deemed essential to the liberties of their citizens, are assured to them by the constitutions of the several states, but this has been done by voluntary acts of their own, every state having full power, so far as the constitution of the United States has any control over it, to cause its accused to be tried in secret, or without the intervention of juries, as the people of that particular state may see fit.
There is nothing in the constitution of the United States, to prevent all the states, or any particular state, from possessing an established religion, from putting the press under the control of censors, from laying restrictions and penalties on the rights of speech, or from imposing most of the political and civil restraints on the citizen, that are imposed under any other form of government.
The guarantees for the liberties of the citizen, given by the constitution of the United States, are very limited, except as against the action of the government of the Union alone. Congress may not pass any law establishing a religion, or abridging the freedom of speech, or of the press, but the provisions of the constitution relating to these subjects, have no reference to the rights of the states. This distinction is very essential to a correct understanding of the institutions of the country, as many are misled on the subject. Some of the states, for example, are rigid in enforcing respect for the sabbath, and a popular notion has prevailed that their laws are unconstitutional, since the federal compact guaranties liberty of conscience. This guarantee, like most of the others of the same nature, is only against the acts of Congress, and not against the acts of the states themselves. A state may pass any law it please to restrain the abuses of the sabbath, provided it do not infringe on the provisions of its own constitution, or invade a right conceded to the United States. It cannot stop the mail for instance, or the passage of troops in the service of the federal government, but it may stop all who are not thus constitutionally protected by the superior power of the Union.
This reading of the constitution is in conformity with all the rules of construction, but that it is right, can be shown from the language of the instrument itself. In article 1st, section 9th, clause 3d, we find this provision—"No bill of attainder, or ex post facto law, shall be passed." In article 1st, section 10th, clause 1st, which section is composed entirely of restraints on the power of the states, we find this provision—"No state shall pass any bill of attainder, ex post facto law, &c. &c." Had the provision of clause 3d, sect. 9th, been intended to limit the powers of the states, clause 1st, sect. 10th, would clearly have been unnecessary. The latter provision therefore, is one of the few instances, in which the power of the states themselves, is positively restrained by the constitution of the United States.
Although the several states have conceded to the United States most of the higher attributes of sovereignty, they have reserved to themselves nearly all of the functions that render governments free, or otherwise. In declaring war, regulating commerce, keeping armies and navies, coining money, which are all high acts of sovereignty, despotisms and democracies are alike; all forms of governments equally controlling these interests, and usually in the same manner.
The characters of institutions depend on the repositories of power, in the last resort. In despotisms the monarch is this repository; in aristocracies, the few; in democracies, the many. By the constitution of the United States, its government is composed of different representations, which are chosen, more or less directly, by the constituencies of the several states. As there is no common rule for the construction of these constituencies, their narrowness, or width, must depend on the fundamental laws of the states, themselves. It follows that the federal government has no fixed character, so far as the nature of its constituency is concerned, but one that may constantly vary, and which has materially varied since the commencement of the government, though, as yet, its changes have always been in the direction of popular rights.
The only distinctive restriction imposed by the constitution of the United States on the character of the state governments, is that contained in article 4th, section 4th, clause 1st, which guaranties to each state a republican form of government. No monarchy, therefore, can exist in this country, as existed formerly, and now exists, in the confederation of Germany. But a republican form of government is not necessarily a free government. Aristocracies are oftener republicks than any thing else, and they have been among the most oppressive governments the world has ever known.
No state can grant any title of nobility; but titles of nobility are oftener the consequence than the cause of narrow governments. Neither Venice, Poland, Genoa, Berne, (a canton of Switzerland,) nor most of the other narrow aristocracies of Europe, had any titular nobles, though some of these countries were afflicted by governments of great oppression. Any state of this Union, by altering its own constitution, may place the power of its own government, and, by consequence, its representation in the government of the United States, in any dozen families, making it perpetual and hereditary. The only guarantee against such an act is to be found in the discretion of the people of the several states, none of whom would probably part with power for such a purpose, and the check which the other states might hold over any one of their body, by amending the constitution. As this instrument now exists, however, there can be no reasonable doubts of the power of any one, or of all the states, so to alter their polities.
By considering these facts, we learn the true nature of the government, which may be said to have both a theoretical character, and one in fact. In theory, this character is vague, and, with the immaterial exception of the exclusion of a monarchy and the maintenance of the representative form, one altogether dependent on the policy of the states, by which it may be made a representative aristocracy, a representative democracy, or a union of the two. The government, in fact, is a near approach to that of a representative democracy, though it is not without a slight infusion from a few mild aristocracies. So long as slavery exists in the country, or, it were better to say, so long as the African race exists, some portion of this aristocratic infusion will probably remain.
Stress is laid on the foregoing distinctions, because the government of the Union is a compact between separate communities, and popular misconceptions on the nature of the institutions, in a nation so much controlled by popular opinion, not only lead to injustice, but may lead to dissension. It is the duty of every citizen to acquire just notions of the terms of the bargain before he pretends to a right to enforce them.