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CHAPTER IV.

COMMENTS UPON THE CONSTITUTION OF THE UNITED STATES.

SECTION I.

WHAT OUR CONSTITUTION IS.

From the day the constitution was adopted to this time, the question, what that constitution is, has divided men's minds. At sundry times debated and discussed with earnestness, and arraying different political parties against each other, at length the antagonism which had been growing for generations was intensified into open hostility, and the late war broke forth. Slavery made the political question a local question. But those who seceded from the Union regarded the antislavery movement only as the occasion for exercising their right of secession. Some went so far as to maintain that each State had a right to secede whenever it chose to, and for no other reason than its will and pleasure. But generally they rested their secession upon the principle that the constitution is a compact between the States; that each of the parties has the right of judging whether that compact be violated; and that any party deeming it violated has a right to leave or secede from the Union formed by the compact.

It is to the last degree unjust and unwise in those who stand on either side of this great question to accuse those who stand on the other side, of holding views which are wholly and obviously unreasonable, and are induced only by personal, local, and selfish interests. On the contrary, the question is one of great and inherent difficulty, and from the foundation of the government has divided able and honest men.

One of the forms of this question is this: Is the Constitution of the United States a compact? The answer I should give is: Yes, it is a compact; but it is also much more than a compact.

The question may then be asked, Supposing it to be a compact, is it a social or a federal compact? In other words, is it a compact between all the members of this political society, meaning thereby all the individuals who collectively make up the people, each one entering into covenant with all the rest; or is it a compact between the several States who come together in a federal league?

Here my answer would be, it is both; neither exclusively, but both reconciled into unity.

It is, in the first place, a compact between the States. The very name of this nation, "The United States," indicates this. The States, while still colonies, first met by delegates to think of, and, if they could, provide for, confederation. The States, then, met by delegates, and prepared and submitted to the people the Articles of Confederation. When it became apparent that these were insufficient and unsatisfactory, the States came together by delegates in a convention, which prepared this constitution, and returned it to the States. It was provided that it should go into force, not when such a number or proportion of the people should approve of and accept it, but when it should be ratified by the conventions of nine of the States. So, too, the constitution itself constantly preserves the distinction between the States, as in choosing the President and the members of the Senate and House of Representatives, and continually refers to the States elsewhere.

On the other hand, the constitution itself, as decidedly declares that it is made by the people. "We THE PEOPLE of the United States, . . . do ordain and establish this constitution for the United States of America." It is made for the States; but it is the people who make it.

The States met in convention to frame it; but they met by delegates appointed by the people. And when it was framed and remitted for approval and adoption to the States, it was sent there, not to be ratified by their executive or legislative bodies, but by conventions of delegates to be chosen by the people expressly to take this matter into consideration.

These considerations, on the one side and the other, rest perhaps too much upon mere verbal construction. There are those of greater weight which we may invoke to help us answer this question. No precedents in human history can give us much assistance. The work which our fathers had to do was a new work. Leagues and confederacies had been made before, but never under such circumstances or for such a purpose; and the work they did must be judged of by itself.

The very first principle which came forth from the circumstances and doings of the time is, that when men come together to accomplish any great purpose, the will of the majority must govern. Henceforward this great principle must stand forth among human transactions, and wield a force which it never possessed before. There had been forms of government which called themselves republican. But this great word bore a very different meaning formerly from that which it bears now. Our fathers had achieved

their independence. They had all been subjects of a personal sovereign. When they cast off this sovereignty, they had no master; nor were any of them masters over the rest. They came together as political equals: all free, and all equally free. It followed, of necessity, that the will of the majority must govern. Everybody felt, everybody saw, that if the majority did not govern, nothing could govern; and if there were no government, there could be no social order, no organized community.

Under their charters, the people of the different colonies had voted on many important matters, and determined them by a majority. When the colonies became States, this became, of necessity, the universal rule. Within each State no other method was thought of. The machinery of counties and townships was still made use of, because they were accustomed to it, and it was the most convenient way of ascertaining the will of the majority. So when the question came, Shall we form a Union, shall we become a nation, and how shall we become a nation, and what shall it be? — all these questions were answered by a convention of delegates, chosen in the several States by a majority vote. That convention framed a constitution for the people; and the people in the States, and through State organizations, accepted it. This was done in conventions of delegates chosen by majority votes, and the constitution was ratified in these conventions by a majority vote.

And what did the people do? "We the people of the United States... ordain and establish this constitution." Surely words of such emphatic meaning were not chosen by accident or without design. They tell us that the constitution is a supreme, a fixed, and abiding law; ordained and established, so that it might make of the people, from whose will it was born, a nation, - a permanent and abiding nation. This it could not be and do if the very existence of the constitution and of the Union itself were made dependent upon the will and pleasure of any portion of the people who framed it. No portion of the people, whether under the name and form of a State, or county, or township, or by any other designation, could annul it. True to its fundamental principle, the will of the majority, and knowing that the will of the majority may change either from change of circumstances or the teaching of experience, it provides the means of change, which will be considered presently. But unless and until changed in accordance with these provisions, the constitution remains, the fixed and abiding, the ordained and established, framework of our political and national existence.

The principle which underlies the Constitution of the United States, and every State constitution, and upon which all are founded, is this, the utmost liberty is given to the individual, and yet he,

with others, must yield so much of this as is needed to give due life and efficiency to the nearest and least community of which he is at member; this smaller community joins with others to make a larger; and that a yet larger, until the series ends in a nation which embraces the whole. And in the whole series, from the lowest step to the highest, each for its own sake gives up so much of right and power as is needed to make the community which stands on the next higher step all that it should be. Founded upon this principle, the system of government formed by the Constitution of the United States is not, I think, to be regarded as, merely and upon the whole, the best thing which circumstances permitted our fathers to construct, but as in itself near to the perfection of a republican government.

I am perfectly aware that this may seem to many persons an obscure statement. Let me try to explain my meaning.

The first form of union for a common regulation is in the family; and that the family may be happy, each individual member gives up somewhat of his or her own mere will and pleasure. All our citizens, who are not exceptions to a prevailing method, live in families; and it is there that the work of government begins; there its first lessons are learned; there its habits are formed; there its first fruits are gathered; and there, if the family government is wise and good, those fruits are peace and happiness and mutual assistance and universal improvement.

But families need that duties should be performed and advantages secured which demand combination with other families, and the strength and support of united counsel and united action; and to this end families combine into townships or cities. To the town or city, as an organization, are committed all those duties and utilities the need of which has called them into being, and to the town or city is freely entrusted all the power requisite to a full and complete discharge of all those duties.

And then the same principle is further applied. Beyond those of the towns and cities are, again, common duties and utilities, which are all those of a certain district; and within this district the towns coalesce into counties, to which, again, as separate organizations, are confided the duties which can be best discharged in this way and by this means; and with these duties goes all the power requisite to the best performance of them.

Nor is this principle then arrested. For the counties are gathered into one body, and this is the State. And who are they who then form the State, who constitute the State? The people, and the whole people. They who first form its families, and then its towns and cities and counties, finally, in their widest assemblage, form the State. And for what do they form it? Precisely for all

those duties and all those utilities which embrace the whole people, which require for their due performance a due regard to the whole people, and which may serve not only to cement all together by a common interest, a common safety, and a common prosperity, but may use the strength of the whole for the protection of each, and for the preservation of all personal rights, and family rights, and all the rights of those lesser and larger communities into which families and persons are gathered.

And, then, what power do the people who constitute the State give to it? Abundant power to discharge all its duties; to do the whole of its work of legislation for the whole, and of common defence and protection through all the departments of government; but nothing more. This, then, is the theory of our State polity; and so far as we are wise, this it is in active operation; and so far as we are truly prosperous, this prosperity is its effect.

Did the thought ever enter into the mind of a human being that it would be wise for any State to abandon to-morrow all town and city and county lines and organizations, and commit all the duties now performed by their means to the central power of the State? No one can imagine such a thing. And he who should desire it must, if he would be consistent, go yet further, and propose also to obliterate all family lines, all family organization and authority, and ask of the central power to determine what food shall be placed on every table, and what clothes every member of the household shall wear. No; State rights, in the just and rational meaning of that phrase, are perfectly compatible with national sovereignty.

We all feel that our present form of government is perfectly adapted to the great end of all republican government, and that is, a wise self-government; and the reason of this adaptation is, that it leaves to the individual, with the least possible control or interference, the freedom of voluntary choice and action. And it gathers individuals into communities, the least, the larger, and at length the largest, only so far as a common necessity and a common good require this, leaving to each one full power to do all that is needful to subserve and protect its best interests, and promote its highest prosperity. And then it seeks so to form these communities, and so to provide for them, and so to act by its common legislation upon individuals and the bodies into which they are gathered, as to lead and guide each and all into that conduct which shall be best for each and for all, with the least possible compulsory action upon any.

When the several States came together and formed a nation, what else did they but take a step further forward upon the same pathway, which each State does so well and so wisely in treading for herself? It seems to me that it was precisely this step and no