Page images
PDF
EPUB

Jefferson and the Rights of Man

in its sanity. His conception of government was one based on experience and "adapted to such a country as ours." The import of Franklin's emphasis of the administrative test is seen in the constitutions adopted after 1850, in which the administrative gradually appears as a separate article. After 1876 it begins to be recognized as the fourth department of government, ranking with the legislative, the executive, and the judiciary. The history of this new department is one of civil adjustments. To ascertain, readily, the important changes in our political institutions since 1776, one must turn to the administrative provisions of State constitutions last adopted and trace their growth from constitution to constitution during the intervening years.

In later years, when the very form of a State constitution became a party question, the influence of Jefferson largely dominated American thought. He stood for the rights of man as these were expressed in the Declaration of Independence, or were read into it by party interpretation. During the eighteenth century his influence fell far short of what it became after the party he was instrumental in organizing obtained possession of the national government. During the half century following his death, when in one form or another slavery and State sovereignty were national issues, and the extension of the franchise and the change from property to persons as the basis of representation were State issues, Jefferson was idealized as the political philosopher and reformer,

and his ideas, as interpreted by a powerful party, were of paramount influence in many States. But his influence was always strongest in the newer parts of the country. The Declaration of Independence was almost immediately accepted as a national bill of rights; it was cited in several State constitutions, and was prefixed without change to the constitution of New York of 1777.

The Revolution was a reconstruction of the theory of the state. Henceforth the rights of men should be considered to be natural and inherent, and not, as before, a grant from the Crown. In England, the Revolution of 1688 resolved the state into a constitutional monarchy; in America, a century later, it was resolved into a representative democracy. The change implied a far-reaching reorganization. The concept of sovereignty was shifted to new ground. The common law was inapplicable to the new order. Written constitutions and statutes were necessary to give legality to the new concept. Had there been no change in the idea of sovereignty, there would have been no written constitutions in America. The bills of rights settled the question of sovereignty. The will of a majority of the electors became the American sovereign. The written constitution was devised to secure the new dynasty and prevent an interregnum. Primarily the purpose was to preserve the authority of the majority, and constitutions prescribed the conditions for belonging to the new sovereignty by defining the electorate; they also regulated the general conduct of the

When All Were for the State

sovereign by defining the basis of representation and the function of the executive and the judiciary.

The change from monarchy to democracy involved the adoption of legal fictions as dynastic facts. It compelled the adoption of what was familiarly called, in the eighteenth century, the system of checks and balances. The government -the state-must be secured against the folly, the designs, the passions of those who compose it. As was said the people must be protected against themselves. The twenty-six constitutions of the eighteenth century were made, therefore, to be independent of political parties. They should be administrable with advantage to the state whatever party might be in power. This accounts for the silence as to parties in all the eighteenth-century conventions. We know little of what was done and less of what was said in the State conventions of that time. The debates in the federal convention, as they have come down to us, contain scarcely a reference to political parties. But there is abundant evidence that all the conventions sought to conserve government by an elaborate system of checks and balances in a written constitution. John Adams, in his exhaustive discussion of the American constitutions, makes the device of checks and balances the chief merit of the American system of government. Hamilton, Madison, and Jay, in The Federalist, exalt the device as the guarantee of republican government. The same idea is elaborated later by Marshall,

Webster, and Calhoun. After 1850 less is heard of checks and balances in our government, and in our day the phrase is not in use among the people and has dropped out of the vocabulary of politics. The men who made the first constitutions emphasized the device because they were compelled to adopt a substitute for administrative experience. The new constitutions were at best only experiments. None of them worked wholly as was anticipated. It is only necessary to cite in illustration the electoral college and the original, unlimited grant of power to the State Legislatures. But even the exception proved the rule, and the constitutions proved on the whole administrable and satisfactory. The State has been conserved, and the purposes for which the constitutions were framed - typically set forth in the preamble to the national Constitution-have been fairly well realized. Statesmen of the eighteenth century would impute this to the efficacy of the system of checks and balances. By this they meant the distinct functions of the executive, the legislative, and the judiciary; the different ways in which they are chosen; the different times when they hand over their power to their successors; the peculiar combination of the legislative and the executive in the administration of government, and the ultimate responsibility of all public servants to the electors.

This correlation of parts and functions is the peculiarity of the American system. Though arbitrary and ever subject to modification at the

Present Concepts of American Institutions

will of the people, the system has been tried with success, has never departed from the principles on which it was founded, and has strengthened the conservatism which ever underlies American poli

tics.

One commenting on government in America to-day would not be likely to call attention to, much less to emphasize, the system of checks and balances. He would attribute the virtue of our institutions to economic and sociological causes. He would dwell on the people, not on the system. He would analyze political parties, public opinion, and our social institutions. He would not be likely even to use the term checks and balances. In the eighteenth century government was conceived as a device; in our times it is thought of rather as an organism. It is the content, not the language, of the Constitution that has changed. The supreme law, as time goes on, is given more and more an economic interpretation. If adapted to the wants of the country, such interpretation becomes a party doctrine, and if adopted by the majority, it becomes an administrative measure. If it is believed to involve essential rights, it may become a part of a revised constitution. Thus, at last, the constitutions become the depository of settled politics and the register of the growth of the State.

The basis for legal defence of the Revolution was the claim by the Americans that King George had violated the compact to which he and the colonies were parties. It was first broached in 1774

« PreviousContinue »