CHAPTER XI.

THE line of demarcation between the two great political organizations, existing mainly in the North and in the South, or, more accurately, dividing the political opinions of the North and South, may be drawn on the cardinal question of construing the Constitution of the United States. The one has ab initio sought to enlarge the powers of the General Government, to consolidate power and authority in Washington, to reduce the States to a position of inferiority and subordination. This end has been sought by magnifying the dignity and powers of the one Government and minifying those of the others. By construing liberally all granted powers, by covering under implication whatever was desired or needed, by making "general welfare and common defence," which were designed as terms of description or limitation, substantive and distinct grants, by denying to the States all right of ultimate interpretation or resistance, by making the Supreme Court-a mere part or agency of the Federal Government—the final arbiter not merely of judicial cases, but of all matters of constitutional controversy, by successive and

repeated usurpations, by unforgetting, unremitting purpose to draw into the vortex or grasp of Federal power all powers incident to any Government, by such means, the Constitution has practically ceased to be any restraint upon executive, legislative, or judicial action. In common parlance and in falsification of all previous history, the Government at Washington is spoken of and regarded as the creator of the States, as the fountain of all political authority, as the protector of all rights of person, property, and liberty.' The Union is worshiped as antedating the States, as a fetich, the object of supreme idolatry, a distinct substantive thing, instead of a consequence; and Wolsey speaks of it, "as something higher and greater than the separate States created by the Constitution." Sectionalism, self-aggrandizement, avarice, cupidity, ambition, use of government partnership in business, appropriation of national revenues for individual benefit, and for doing what legitimately belongs to States, municipalities, and local communities, have helped to delude patriotic and unsuspecting people, and to pervert utterly the character and original purposes of the Union. Fallacies and false

2

1 Reconstruction, by Charles G. Loring, published in 1866, has these novel statements: "The people of the United States was the grantor, and the several States respectively were the grantees, of that right,” that is, the right of representation in Congress. "State rights and powers are such, and such only, as were granted, defined, or recognized by the Constitution.' 2 Page 251.

hoods have been interwoven into party platforms and political theories, and substituted for incontrovertible historical facts. A member of Congress, in 1891, gravely proclaims to a party convention: "“We took the old Constitution, defective as it was-made away back, more than a hundred years ago, made in the dim light of that age, made out of the compromises of those days of political turmoil and anxiety,— and have built upon that foundation the magnificent structure that we now call the Constitution of the United States." Flexibility and pliancy of organic law, adaptation to historic life, may be desirable, as the admirers of the British Constitution contend, but that is not the theory of our written Constitution. That the organic law should be the true expression of the organic life, the prompt reflection of the deliberate will of the people, may be true, but the question is, How is that will to find authorized expression? By the prescribed mode of amendment, or by a departmental interpretation of the supposed utterance of a popular election? There are grave treatises on the unwritten Constitution, as if such an absurdity could exist under our form of Government. Constitutional rights are gravely asserted to be the result of a process of political evolution, and limitations are occasioned, or removed, by the influence of public opinion, or the demands of private interests. There has been a silent expansion of the powers of Congress, the Executive, and the

Judiciary, through which checks and balances of the written instrument have been destroyed; and these usurpations are justified by a supposed or an asserted harmony with public sentiment. Sovereign power is defined by one author, a professor in a law school, as "the aggregation of individuals who now possess the supreme power of the land." "The people possess the political power, and powers prohibited to the States, but neither prohibited nor delegated to the General Government, may be justly exercised by the latter." Dorrism finds sanction in such treatises, and lynch law, if it have the sanction of the multitude, is put on the same plane with formal legal enactments, and the Constitution becomes the embodiment of all possible powers. Our fathers committed to writing the organic law, put it into definite form at a given time and place, and it was adopted as a distinct repudiation, both of the British system and of unlicensed democracy. It was a care. ful attempt to curb popular passion, to restrain within defined limitations the irresponsible action of the multitude, to keep the Government within narrow and prescribed limits, and at the same time to provide expedients for meeting the needs of an advancing civilization, of an expanding national life, and to apply correctives for any demonstrated defects. Our Constitution may be satirized by the German von Holst and some American imitators, as a divinity for the worship of the masses who fall

down and adore it, but it was not the improvisation of a moment, a hasty contrivance to meet an emergency; it was the careful embodiment of principles long sacred to the lovers of liberty, the re-enactment of antecedent institutions which had become almost American by usage and precedent.

The other party adhered to the historical fact that the constituent members, the creators, of the American Union were distinct political corporations, that the Constitution was an instrument of Government, a compact between the States, that it contains the full grant of surrendered powers, and to that extent is supreme, and that it unambiguously declares that the great mass of undelegated powers were retained by the States. There are no vagrant powers seeking a resting-place. What was not in terms, or by necessary implication, granted to the General Government, was not in nubibus, or without a lodging-place, or floating in uncertainty, but had a certain home in the people of each State. Hence, in all controversies, at the threshold of the introduction of every measure, the first question confronting the legislators, the President, the Court, after looking into the Constitution for an express grant, is: Is this constitutional? Is this within the constitutional competency of this department of a limited Government? This habit, this principle, this right of a State, of the South, has elicited much satirical comment, much contemptuous