5000 Year Leap (86 page)

But as it was foreseen that, in practice, questions might arise as to the exact limits of this exceptional authority, and that it would be dangerous to submit these questions to the decision of the ordinary courts of justice, established in the States by the States themselves, a high Federal court was created, which was destined, amongst other functions, to maintain the balance of power which had been established by the Constitution between the two rival Governments.
The external relations of a people may be compared to those of private individuals, and they cannot be advantageously maintained without the agency of a single head of a Government. The exclusive right of making peace and war, of concluding treaties of commerce, of raising armies, and equipping fleets, was granted to the Union. The necessity of a national Government was less imperiously felt in the conduct of the internal policy of society; but there are certain general interests which can only be attended to with advantage by a general authority. The Union was invested with the power of controlling the monetary system, of directing the post office, and of opening the great roads which were to establish a communication between the different parts of the country. The independence of the Government of each State was formally recognized in its sphere; nevertheless, the Federal Government was authorized to interfere in the internal affairs of the States in a few predetermined cases, in which an indiscreet abuse of their independence might compromise the security of the Union at large. Thus, whilst the power of modifying and changing their legislation at pleasure was preserved in all the republics, they were forbidden to enact ex post facto laws, or to create a class of nobles in their community. Lastly, as it was necessary that the Federal Government should be able to fulfil its engagements, it was endowed with an unlimited power of levying taxes.
In examining the balance of power as established by the Federal Constitution; in remarking on the one hand the portion of sovereignty which has been reserved to the several States, and on the other the share of power which the Union has assumed, it is evident that the Federal legislators entertained the clearest and most accurate notions on the nature of the centralization of government. The United States form not only a republic, but a confederation; nevertheless the authority of the nation is more central than it was in several of the monarchies of Europe when the American Constitution was formed. Take, for instance, the two following examples.
Thirteen supreme courts of justice existed in France, which, generally speaking, had the right of interpreting the law without appeal; and those provinces which were styled pays d'etats were authorized to refuse their assent to an impost which had been levied by the sovereign who represented the nation. In the Union there is but one tribunal to interpret, as there is one legislature to make the laws; and an impost voted by the representatives of the nation is binding upon all the citizens. In these two essential points, therefore, the Union exercises more central authority than the French monarchy possessed, although the Union is only an assemblage of confederate republics.
In Spain certain provinces had the right of establishing a system of custom-house duties peculiar to themselves, although that privilege belongs, by its very nature, to the national sovereignty. In America the Congress alone has the right of regulating the commercial relations of the States. The government of the Confederation is therefore more centralized in this respect than the kingdom of Spain. It is true that the power of the Crown in France or in Spain was always able to obtain by force whatever the Constitution of the country denied, and that the ultimate result was consequently the same; but I am here discussing the theory of the Constitution.
After having settled the limits within which the Federal Government was to act, the next point was to determine the powers which it was to exert.
The plan which had been laid down beforehand for the Constitutions of the several States was followed, in many points, in the organization of the powers of the Union. The Federal legislature of the Union was composed of a Senate and a House of Representatives. A spirit of conciliation prescribed the observance of distinct principles in the formation of these two assemblies. I have already shown that two contrary interests were opposed to each other in the establishment of the Federal Constitution. These two interests had given rise to two opinions. It was the wish of one party to convert the Union into a league of independent States, or a sort of congress, at which the representatives of the several peoples would meet to discuss certain points of their common interests. The other party desired to unite the inhabitants of the American colonies into one sole nation, and to establish a Government which should act as the sole representative of the nation, as far as the limited sphere of its authority would permit. The practical consequences of these two theories were exceedingly different.
The question was, whether a league was to be established instead of a national Government; whether the majority of the States, instead of the majority of the inhabitants of the Union, was to give the law: for every State, the small as well as the great, would then remain in the full enjoyment of its independence, and enter the Union upon a footing of perfect equality. If, however, the inhabitants of the United States were to be considered as belonging to one and the same nation, it would be just that the majority of the citizens of the Union should prescribe the law. Of course the lesser States could not subscribe to the application of this doctrine without, in fact, abdicating their existence in relation to the sovereignty of the Confederation; since they would have passed from the condition of a co-equal and co-legislative authority to that of an insignificant fraction of a great people. But if the former system would have invested them with an excessive authority, the latter would have annulled their influence altogether. Under these circumstances the result was, that the strict rules of logic were evaded, as is usually the case when interests are opposed to arguments. A middle course was hit upon by the legislators, which brought together by force two systems theoretically irreconcilable.
The principle of the independence of the States prevailed in the formation of the Senate, and that of the sovereignty of the nation predominated in the composition of the House of Representatives. It was decided that each State should send two senators to Congress, and a number of representatives proportioned to its population. It results from this arrangement that the State of New York has at the present day forty representatives and only two senators; the State of Delaware has two senators and only one representative; the State of Delaware is therefore equal to the State of New York in the Senate, whilst the latter has forty times the influence of the former in the House of Representatives. Thus, if the minority of the nation preponderates in the Senate, it may paralyze the decisions of the majority represented in the other House, which is contrary to the spirit of constitutional government.
These facts show how rare and how difficult it is rationally and logically to combine all the several parts of legislation. In the course of time different interests arise, and different principles are sanctioned by the same people; and when a general constitution is to be established, these interests and principles are so many natural obstacles to the rigorous application of any political system, with all its consequences. The early stages of national existence are the only periods at which it is possible to maintain the complete logic of legislation; and when we perceive a nation in the enjoyment of this advantage, before we hasten to conclude that it is wise, we should do well to remember that it is young. When the Federal Constitution was formed, the interests of independence for the separate States, and the interest of union for the whole people, were the only two conflicting interests which existed amongst the Anglo-Americans, and a compromise was necessarily made between them.
It is, however, just to acknowledge that this part of the Constitution has not hitherto produced those evils which might have been feared. All the States are young and contiguous; their customs, their ideas, and their exigencies are not dissimilar; and the differences which result from their size or inferiority do not suffice to set their interests at variance. The small States have consequently never been induced to league themselves together in the Senate to oppose the designs of the larger ones; and indeed there is so irresistible an authority in the legitimate expression of the will of a people that the Senate could offer but a feeble opposition to the vote of the majority of the House of Representatives.
It must not be forgotten, on the other hand, that it was not in the power of the American legislators to reduce to a single nation the people for whom they were making laws. The object of the Federal Constitution was not to destroy the independence of the States, but to restrain it. By acknowledging the real authority of these secondary communities (and it was impossible to deprive them of it), they disavowed beforehand the habitual use of constraint in enforcing the decisions of the majority. Upon this principle the introduction of the influence of the States into the mechanism of the Federal Government was by no means to be wondered at, since it only attested the existence of an acknowledged power, which was to be humored and not forcibly checked.
The Senate not only differs from the other House in the principle which it represents, but also in the mode of its election, in the term for which it is chosen, and in the nature of its functions. The House of Representatives is named by the people, the Senate by the legislators of each State; the former is directly elected, the latter is elected by an elected body; the term for which the representatives are chosen is only two years, that of the senators is six. The functions of the House of Representatives are purely legislative, and the only share it takes in the judicial power is in the impeachment of public officers. The Senate co-operates in the work of legislation, and tries those political offences which the House of Representatives submits to its decision. It also acts as the great executive council of the nation; the treaties which are concluded by the President must be ratified by the Senate, and the appointments he may make must be definitely approved by the same body.
The American legislators undertook a difficult task in attempting to create an executive power dependent on the majority of the people, and nevertheless sufficiently strong to act without restraint in its own sphere. It was indispensable to the maintenance of the republican form of government that the representative of the executive power should be subject to the will of the nation.
The President is an elective magistrate. His honor, his property, his liberty, and his life are the securities which the people has for the temperate use of his power. But in the exercise of his authority he cannot be said to be perfectly independent; the Senate takes cognizance of his relations with foreign powers, and of the distribution of public appointments, so that he can neither be bribed nor can he employ the means of corruption. The legislators of the Union acknowledged that the executive power would be incompetent to fulfil its task with dignity and utility, unless it enjoyed a greater degree of stability and of strength than had been granted to it in the separate States.
The President is chosen for four years, and he may be re-elected; so that the chances of a prolonged administration may inspire him with hopeful undertakings for the public good, and with the means of carrying them into execution. The President was made the sole representative of the executive power of the Union, and care was taken not to render his decisions subordinate to the vote of a council—a dangerous measure, which tends at the same time to clog the action of the Government and to diminish its responsibility. The Senate has the right of annulling certain acts of the President; but it cannot compel him to take any steps, nor does it participate in the exercise of the executive power.
The action of the legislature on the executive power may be direct; and we have lust shown that the Americans carefully obviated this influence; but it may, on the other hand, be indirect. Public assemblies which have the power of depriving an officer of state of his salary encroach upon his independence; and as they are free to make the laws, it is to be feared lest they should gradually appropriate to themselves a portion of that authority which the Constitution had vested in his hands. This dependence of the executive power is one of the defects inherent in republican constitutions. The Americans have not been able to counteract the tendency which legislative assemblies have to get possession of the government, but they have rendered this propensity less irresistible. The salary of the President is fixed, at the time of his entering upon office, for the whole period of his magistracy. The President is, moreover, provided with a suspensive veto, which allows him to oppose the passing of such laws as might destroy the portion of independence which the Constitution awards him. The struggle between the President and the legislature must always be an unequal one, since the latter is certain of bearing down all resistance by persevering in its plans; but the suspensive veto forces it at least to reconsider the matter, and, if the motion be persisted in, it must then be backed by a majority of two-thirds of the whole house. The veto is, in fact, a sort of appeal to the people. The executive power, which, without this security, might have been secretly oppressed, adopts this means of pleading its cause and stating its motives. But if the legislature is certain of overpowering all resistance by persevering in its plans, I reply, that in the constitutions of all nations, of whatever kind they may be, a certain point exists at which the legislator is obliged to have recourse to the good sense and the virtue of his fellow-citizens. This point is more prominent and more discoverable in republics, whilst it is more remote and more carefully concealed in monarchies, but it always exists somewhere. There is no country in the world in which everything can be provided for by the laws, or in which political institutions can prove a substitute for common sense and public morality.