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this difficulty, or in taking from the States and giving to the Union all that was necessary to make the Union a nation, and leaving to the States all that was not necessary for this purpose. Let us now look at the provisions by which they effected this purpose.
The second clause of the sixth article of the constitution is as follows: “ This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding."
This article asserts and establishes the nationality of the Union, and the sovereignty of this nationality; for that is the necessary meaning and effect of making all laws and treaties made under its authority the supreme law of the land.
This sovereignty being established, the next question is, What does it embrace, or how far does it extend? The answer is, Just so much and so far as it is carried by the constitution itself, and not a jot farther. The constitution being a written instrument, the purpose of which was to create a national constitution by abstracting so much of the sovereignty of the States as was necessary therefor and putting together what was thus taken, the natural and just construction would have been, that whatever was not taken from the States, expressly or by necessary implication, was left to them. But to make this sure, Articles IX. and X. of the amendments were adopted. They provide, that "the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people. ... 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 constitution has been subjected in all its parts to the severest examination and the most acute criticism. But it may safely be said that no one has succeeded in pointing out clearly and rationally, any claim or assumption in the constitution of any right or power which the Union possesses or can exercise not necessary to our existence and prosperity as a nation. But the principles of construction above stated, and the amendments above cited, as they reserve to the States whatever is not taken from them, and as they give supreme authority to laws made under the constitution, required express declarations as to what subjects Congress could make laws about, and also as to what things the States should not do. The first will be found in the eighth section of the first article, beginning, “ The Congress shall have power;" the second may be found in the tenth section of the same article, beginning, “No State shall,” &c.
We shall have occasion hereafter, in the course of these comments, to refer more particularly to some of these permissions and to some of these prohibitions. Here we will only say, that a familiar principle of legal construction will apply to both of these enumerations; namely, that an enumeration which purports to be complete and exhaustive, excludes all items not expressly included.
A most important provision for the preservation of State rights is to be found in the peculiar construction of the Senate. The representatives in Congress are apportioned among the several States according to the number of their population. But the Senate is composed of two senators from each State. This provision is apparently a very simple one; but it is of extreme importance.
It was a compromise -- more than ingenious, for it was a wise and just compromise — between extreme views, both of which were pressed with very great urgency. On the one hand, it was said to be of the very essence of a republican representative government that all its citizens should be equal in power and privilege. If the United States were to be a nation, it was to be a republic, and could not, without losing an essential quality of a republic, give to a portion of its people a distinct advantage in the exercise of political power over any other equal portion. Admit that a large State would have more power in the government than a small State, no citizen or citizens of the larger State would have more power than the same number of citizens in the smaller. If the larger State had more power, that only meant that its citizens, taken together, possessed the same power that they would have if, in the same number, they lived in small States; and why should their political power be taken from them because they united together to form a large State ?
On the other hand, it was contended that, for many purposes, it must be considered that the States had come together to form a Union. They had, each one of them, occupations and interests which were peculiar to that State. If they joined with the much larger States in a government which was purely popular, the small must yield to the large in all things, and be crushed in the conflict. Because the Union would be a republic, much power must be given to a merely popular vote, or to majority of numbers. But because it was a Union formed from independent and sovereign States, who gave up much of their independent sovereignty for the sake of union, some regard must be paid to their rights as States, and an equality between the States must be conceded in some important points of political power.
This was admitted; and how much was conceded may be inferred from the fact that Delaware, with a territory of a little more than two thousand miles, and a population of about one hundred thousand, has the same representation in the Senate that New York has, with a territory more than twenty times as large, and a population about forty times as large. Hence the two States have equal powers as to the acceptance or rejection of treaties, the confirmation of all appointments by the President, and in trials of impeachment. Moreover, as each State has as many electors of President and VicePresident as the whole number of its representatives and senators, the smaller States have in this important matter a power larger in proportion to the number of their population than the larger States possess.
But perhaps the most important advantage secured to the smaller States is, that they have equal power with the larger as to any amendments of the constitution, as they can be made only by three. fourths of the several States; and should there be an agreement in opinion or feeling between all, or nearly all, of the smaller States, it might come to pass that such amendments would be made or be rejected by much less than a majority of the whole people.
THE DISTRIBUTION OF POWER.
There are three great governmental powers or functions. One is the executive, which carries all the laws into effect; another is the legislative, which makes all the laws; the third is the judicial, which determines whether that which is alleged to be law is in fact law, and which construes and interprets the laws, or declares what they mean, and how they apply to any particular case.
It is perfectly certain and obvious to any one who will think about it, that the union of these three powers in the same person or body makes him or it perfectly despotic. For if he who executes the laws makes them just as he pleases, and then construes and applies them just as he pleases, he must needs be a perfect despot, or, as the modern word is, an autocrat, which means one who has all power in himself.
Then it should be obvious to us, for it is quite as true, that progress away from despotism, progress in a well-ordered and guarded liberty, depends upon and may be measured by the degree in which these three great and fundamental powers of government are separated from each other, and each of them protected from the invasion of the others. Then the executive can do nothing but execute the laws which are made for him by one body and interpreted for him by another, over which he has no absolute control. Legislators have less temptation to make laws to strengthen their own hands; because the laws, when they are made, pass out of their hands, leaving behind them no power to enforce the laws. The judicial body is under still less temptation to interpret laws wrongly; for it can gain nothing by it, as it has nothing to do with making the laws or with enforcing them.
Hence, as civilization advanced in the world, and governments improved, this distinction was made, and the importance of it discerned. Thus, in England, the government is monarchical in form, but a mingled web of aristocracy and democracy in fact; for the English king or queen has no political power, and is only a pageant. But there are many republican elements in their government, and a great deal of freedom in the nation. And there this distinction between the three great powers of government is carried out to a considerable extent. Our fathers, when they lived in colonies subject to Great Britain, had more of this distinction than they had in the parent country, and saw it more clearly and valued it more highly. And when they became independent, and framed their own constitutions, State and national, they took excellent care to make this distinction as perfect as possible.
We shall see as we go on that this distinction is not perfect; and perhaps we shall have reason to look upon this imperfection as a weak spot in our national constitution, and to think it would be strengthened if these great powers were more distinctly separated, and the bodies which hold them made more independent of each other.
THE EXECUTIVE POWER.
The executive power is vested in a President. He holds his office for four years; and there is nothing in the constitution to prevent him, or the Vice-President, from being re-elected any number of times.
Originally the method of electing the President and Vice-President was very different from that now in force. Then the electors voted for two persons, and whoever had the highest number of votes (if he had a majority of all the votes) was President; and the person having the next greatest number of votes was Vice-President. If there was no majority, the House of Representatives, voting by States, and each State having one vote, chose the President. At the election for 1801 there was no majority,— Thomas Jefferson having sixty-three votes; Aaron Burr, the same number; Johp
Adams, sixty-five; C. C. Pinkney, sixty-four; and John Jay, one. On the first ballot in the House, eight States voted for Jefferson, six for Burr, and the votes of two States were divided; three States having then been added to the original thirteen. There were thirty-four ballots without any change from the first; but on the thirty-sixth ballot Jefferson had ten votes and Burr had four: so Jefferson became President, and Burr Vice-President. This exhibition of the inconvenience and embarrassment which might arise from that method of electing these officers, led to the 12th amendment, which was adopted in 1804, and has been in force ever since. By this amendment the electors vote in distinct ballots for President and for Vice-President. The provisions for filling these offices in case no one has a majority will be seen in the 12th amendment, as heretofore given in the constitution.
The theory of choosing the President and Vice-President by electors is excellent; but it does not work well. This theory is, that the people in the several States should choose their wisest men, and that the electors so chosen should choose the men for these high offices who, in their judgment, were best fitted for them. But in point of fact the electors exercise no judgment whatever. They are simply the instruments of the party which chooses them, and are chosen to vote for the candidate of the party, and always do so. As soon as the electors are chosen and known to the country, it is certainly known who will be President and Vice-President, the vote by electors having become a mere formality. These officers are, in fact, chosen by a popular vote. But the machinery of electors chosen by States may put the choice of President and VicePresident into the hands of a minority of the people, because each State has as many electors as it has representatives and senators; and a small majority in a large number of the smaller States might constitute a majority of the electors, while the minority of the electors were chosen by and represented a majority of the people. There have been, on this and other grounds, many attempts to avoid these mischiefs by a direct popular vote. As yet, however, they have not succeeded.
For the powers of the President, we refer to the second article of the constitution. We must, however, look to the seventh section of the first article for a most important power given to the President; it is what is commonly called the veto power.
Every bill which has passed the House and the Senate is presented to the President. If he approves and signs it, it becomes a law. If he does not approve it, he may return it to the House in which it originated, with his objections. It then becomes a law if it be passed by two-thirds of each House. He must return it within