1787] A Government of Checks and Balances 239 trade. The third great compromise also turned on the question Compromise of slavery: the New Englanders, largely interested in on the slave commerce, were anxious that Congress should be given Fiske's Criti power to protect American shipping interests against for- cal Period, eign competition by means of discriminating duties, navi- 262-267. gation acts, or other similar measures; the Southerners, fearful lest this power would be used to prohibit the slave trade, resisted. The South Carolinians were especially sensitive and Rutledge even declared that the question of whether "the Southern States shall or shall not be parties to the union" depended upon the mode in which this matter was arranged. In the end, Congress was given power over commerce, but was forbidden to prohibit the slave trade before 1808, though it might levy a tax of ten dollars on each slave imported. This qualification proved to be valueless, as no tax of the kind was ever voted by Congress (p. 270). These compromises were on vital points; but the element of compromise entered into the settlement of nearly every section of the Constitution. It will be well now to glance at a few of the leading features of that great instrument. American History Leaflets, 183. A Government of Checks and Balances. The only The Conway to grasp the real meaning of the Constitution is to stitution. read it carefully several times and to memorize the more important sections of it. An analysis of the document is inadequate, for the Constitution is itself only a summary. In this section and in those which follow, a few only of the more important considerations which have affected its life will be stated. No. 8. be mem- Guide, § 47 j "Checks and One of the first things to strike the reader is the endeavor of its framers to establish "a government of balances." checks and balances." Three great departments are provided the legislative, the judicial, and the executive. Each is given power to defend itself against the encroachments of the other two, and each acts as a check on the others. The Constitution framers had good reason to attempt the accomplishment of this difficult purpose; The legislative powers. *Bryce's Commonwealth (abd. ed.), chs. ix-xx; Fiske's Civil Government, 212-222. in the old colonial days, which most of them remembered, the governors of the royal provinces had exercised all three functions, greatly to the dissatisfaction of the colonists; and the legislative body of Great Britain had held the supreme power. To avoid establishing a government which could develop into either of these forms, the framers of the Constitution sought to give each department its due share of power, and to prevent any one department from making itself supreme. For instance, the executive power is vested in the President; but he also exercises important legislative functions in his veto, and judicial power in his right to pardon. The legislative power is lodged in Congress, but the Senate acts as an advisory council to the President, without its consent no important appointment can be made and no treaty ratified. The judicial power is intrusted to the Supreme Court and inferior courts; but, as no law can be enforced which the Supreme Court declares to be unconstitutional, the Supreme Court, in fact, exercises supreme legislative functions. Finally, the House of Representatives, by means of its initiative in taxation, exercises a most effectual control over the executive department. 184. The Legislative Power. The legislative power is confined to certain subjects enumerated in the Constitution, and is further restricted by the first ten amendments, especially by the tenth, which declares that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." The Supreme Court is the authorized interpreter of the fundamental law, and it has construed the Constitution in the broadest possible way; following these decisions, Congress has exercised powers, many of which were probably never dreamed of by the framers of that instrument or by the members of the ratifying conventions, whose votes gave it the force of law. Acts of Congress are "the supreme law of the land," unless the Supreme Court declares them unconstitutional, and 1787] The Supreme Court 241 hence null and void. In the exercise of this extensive grant of power, Congress can pass no ex post facto laws, but the prohibition to enact legislation "impairing the obligation of contracts" applies only to the states and does not affect the Congress of the United States. power of the states. The states, on the other hand, are forbidden (Art. i, Limited § 10) to enter into negotiations with foreign states, to coin money, emit bills of credit, make anything except gold and silver a tender in payment of debts, pass any law impairing the obligation of contracts, grant titles of nobility, lay imposts, except to secure the enforcement of inspection laws, maintain an army or navy in time of peace, or engage in war unless actually invaded. the Supreme Court. Bryce's Common(abd. ed.), ch. xxi; wealth Fiske's Civil 185. The Supreme Court. In place of long, detailed Functions of descriptions of the powers granted, the framers of the Constitution used general descriptive phrases and then gave Congress (Art. i, § 8) power to pass laws "necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the United States, or in any department or officer thereof." Among other things, Congress is authorized "to regulate 250-254 commerce with foreign nations and among the several states," and "to lay taxes, duties, imposts, and excises to pay the debts and provide for the common defence and general welfare of the United States." It must be evident to every student that when such general phrases are used in the organic law, the body which has the final decision ast to their meaning possesses the most important and weighty functions in the state. This tribunal is the Supreme Court, whose members are protected from molestation, as they hold their offices during good behavior, and receive salaries "which shall not be diminished during their continuance in office." The Supreme Court, too, unlike other federal courts exists by virtue of the Constitution, and cannot be abolished by act of Congress. Its judges, therefore, are independent of all men to an extent not known elsewhere. The court has no initiative, and is not consulted before Position of the Supreme Court. Importance of the inter- Winsor's America, VII, 251 Common the passage of a law; its functions are confined to cases "arising under the Constitution"; and it has no common-law criminal jurisdiction. Following the precedent set by the Rhode Island judges in the case of Trevett vs. Weeden, the Supreme Court has always regarded the Constitution in the light of a fundamental law, to be interpreted according to the mode sanctioned by the law. Upon these decisions the development of the country has depended to a much greater extent than would at first sight appear. Recurring to the phrases given at the beginning of this section, it will at once be seen that upon the interpretation of such a phrase as "commerce between the states," Constitution. "Congress shall have power," and "necessary and proper,' the whole framework of government depends. Does the third of these limit the function of Congress to the pas255; *Bryce's sage of such laws only as are absolutely essential to the carrying out of the powers granted by the Constitution, or does the phrase "necessary and proper" mean convenient? Does the clause "Congress shall have power to tax" mean only that Congress may levy a tax, or does it mean that Congress may legislate on any subject connected with taxation, for instance, establish a national bank because such an establishment conduces to the easy collection of taxes? Or, to take another case, does the authority "to regulate commerce" mean simply that Congress can secure for the commerce of one state free entrance into another state, or does it mean that Congress may regulate railway fares and determine what kind of couplings for freight cars shall be used by railroads which run through more than one state? The Supreme Court has generally adopted the broadest views on questions of this kind; and thus has arisen the doctrine of "implied powers," conferring on the government of the United States every function which may be convenient for the exercise of any power that the Constitution has conferred on the general government. wealth (abd. ed.), chs. xxiixxiii, xxxi. 186. Political Parties. — Around this question of constitutional interpretation there was waged a political controversy 1787] Political Parties 243 parties. which lasted from the formation of the government to the Genesis of outbreak of the Civil War. The party which has been in political the minority in the country, as a whole, has been strong in Schouler's separate states, and usually has been strong in a group of United states in some one section. For example, the Republicans States, 1, 60; were predominant in the Southern states in 1798, the Fed- Orations, eralists, in New England in 1814, and the Democrats, in the 1, 77. Southern states in the time of the contest over the extension 66 Johnston's of slavery. The party which has been in a minority for States' rights any length of time has usually adopted that theory of con- doctrine. stitutional interpretation which would confer on one state the right to block the action of the general government. The theory on which this interpretation has rested was that the Constitution was a compact" between "sovereign states." To protect the rights of the states from invasion, it was essential that the Constitution should be strictly construed to preserve to the states every power not expressly conferred by it on the central government. This States' rights doctrine was held by the Republicans in 1798 and 1799 (p. 286), by the New England Federalists in 1814 (p. 344), by Calhoun and the South Carolinians at the time of the nullification episode (p. 391), and by the leaders in the secession of 1860-61 (p. 473). The party which has controlled the national government Theory of has generally maintained the opposite doctrine: that the national Constitution was the framework of a national government existence. formed by the people" of the whole United States acting in its sovereign capacity. According to this theory, the Constitution should be interpreted to give the central government whatever powers were convenient as aids to the carrying out of its functions. In this way originated the doctrine of implied powers (p. 242). This theory of a liberal interpretation of the organic law was held by Hamilton and his party at the organization of the government (p. 272), by Jefferson when in power (p. 327), by Marshall throughout his long tenure of the chief justiceship (p. 350), by Webster in his reply to Hayne (p. 393), and by Lincoln and the Republican party. |