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twenty years which have elapsed since the Constitution was adopted, but its most rapid progress was during the epoch of the Civil War.2 The Constitutional History of the United States is in fact divided by this war into two sharply defined periods.3
The grounds for differences of opinion as to the meaning of the Constitution largely arose out of the fact that the wording of the Constitution had been the result of compromise. Only thirty-nine of the fifty-five delegated to the Convention signed the Constitution, and it failed to completely satisfy anyone. Indeed, had it satisfied either extreme party it could never have been adopted. The result was, that after the adoption of the
26 It requires a steady, clear- were even more afraid of having viewed, thoroughly informed his- too strong a central government torical sense, therefore, to deter- than of having one which was too mine what was at any given time weak, and they accepted the new the real character of our political Constitution offered them by the institutions. To us of the present
Convention of 1787 because conday it seems that the Constitution vinced of the truth of the arguframed in 1787 gave birth in 1789 ments urged by its friend to the to a national government such as effect that the union would be fedthat which now constituted an in- eral merely and would involve no destructible bond of union for the real sacrifice of individuality or states, but the men of that time autonomy the part of the would certainly have laughed at states. Wilson's “The State,'' any such idea, and for the English race, as I have said, every law is “The war (i. e., of 1861-1865) what those who administer it think wrought changes of the most proit is. The men of 1789 meant to found character. Secession form 'a more perfect union' than prevented, the Union
was prethat which had existed under the served, and slavery was forever Confederation; they saw that for abolished; these were the immethe colonies there must be union diate effects of the struggle; but or disintegration; they thought the remoter results were even more union needful and they meant to important. They penetrated to the have it
any necessary degree. changing of the very nature of the But they had no special love for Union, though the form of the the union which they set about Federal government remained in consummating, and they meant to all essential features unaltered.'' have as little of it as possible, as Id. p. 480. little as might be compatible with 3 Read the last few pages of Von wise providence as to the welfare Holst's “Constitutional History of the new fledged states. They of the United States.''
Constitution each faction sought for that interpretation of the instrument which would best support its own views of government.
At the election of 1789 the conduct of the Government, under the newly adopted Constitution, was not unnaturally given to the party friendly to this instrument, and the Government of the United States remained under the control of this party for
The efforts toward the strengthening of the central Government, which were made during this period. were the work of the legislative and executive departments. judicial department was still weak and the tremendous influence which this department was later to exercise in the development of the government of the United States was not yet appreciated.
The troubled conditions of the times caused the Federal party, during the administration of President John Adams, to pass a series of laws, culminating with the Alien and Sedition Acts, for the purpose of strengthening the central Government. These laws aroused great indignation and opposition to the Government and ultimately drove the Federalist Party from power. A more immediate result was the calling forth of the most dramatic enunciations of the States rights principles to be found in American history prior to the secession period.
$ 83. The Virginia and Kentucky Resolutions of 1798 and 1799.—The Virginia and Kentucky Resolutions were proclamations passed by the Legislatures of these States in 1798 and 1799, denouncing the alleged recent usurpations of power by the National Government, and setting forth the relations between the general and State governments, from the standpoint of the States rights, or strict constructionist, standpoint.
The Virginia resolutions of 1798 declared that the Constitution was a compact by which the States had surrendered only a limited portion of their powers, that whenever the Federal Government undertook to step over the boundary of its delegated authority, it was the duty of the State to interpose and maintain the rights which they had reserved to themselves; that the Alien and Sedition laws were an usurpation by the Federal Government of powers not granted to it, since the abridgment of liberty of speech or of the press had been especially forbidden by the Constitution; that the State of Virginia solemnly declared those laws to be unconstitutional, and appealed to the other States to join in that declaration; and that her governor should be instructed to transmit copies of these resolutions to the governors of other States to be laid before the legislatures. These resolutions were repeated by the Virginia Legislature in the following year.
The Kentucky resolutions of 1798 were to the same general effect as those of Virginia, but with the additional declaration that the States were one party to the compact, and the Federal Government was the other, and that each party must be the judge of infractions of the agreement, and of the mode and measure of redress. The next year the Kentucky resolutions of 1799 were adopted. They declared "nullification” to be “the rightful remedy,” but qualified this by saying that they “bowed to the laws of the Union."
$ 84. The accession to power of the strict Constructionist Party-On March 4, 1801, the control of both the Executive and Legislative departments of the United States Government passed into the hands of the strict Constructionist Party, which was to retain its control of these departments, with the exception of brief intervals, for sixty years. During the rule of this party the above mentioned departments were hostile to the development of the power of the central Government at the expense of those of the States, and yet during this very period we find a great increase of the powers of the National Government, a result brought about by the work of the Judicial Department.
One of the last official acts of President John Adams was the appointment of John Marshall as Chief Justice of the Supreme Court of the United States. This appointment was to strongly affect the future constitutional and legal history of the country. Under his leadership the Supreme Court soon began to take a position relative to the Constitution which materially contributed to the completion of the work of making one Nation out of the United States. *
* See Chapter X.
For the half century beginning in 1820 these questions of States rights were inseparably connected with the slavery question, and will be considered in connection with that subject."
Since the close of the reconstruction period the question has ceased to be the great dividing line between political parties, and consequently has come to be considered on all sides with greater fairness and less animosity. No one today opposes the idea of a strong central Government, or the supremacy of the United States Constitution and laws. On the other hand, few oppose the claims of the States to independent action within their proper sphere. Those few who apparently desire to reduce the States to the position of geographical subdivisions are too few to seriously threaten the time-honored equilibrium now existing between the two governments.
$ 85. The Co-existing Governments.—Throughout all the time that has elapsed since the adoption of the Constitution, there have been, and are at the present time, two distinct governments within the territorial limits of each State of the United States. Each of these governments has its separate departments; each has its distinct laws; and each has its own tribunals for their enforcement. Neither government is allowed to encroach upon the proper jurisdiction of the other, nor to authorize any interference therewith by its executive or judicial officers. The United States Constitution recognizes and protects both governments, but its relation to each is very different.
The United States Constitution contains no grant of powers to the State governments; these existed prior to the Federal Constitution; and at the time of its adoption, except for the slight restrictions contained in the Articles of Confederation, were possessed of full sovereign powers. The United States Constitution was thus a grant of powers to the United States Government, and a consequent limitation upon those of the States.
The United States Government is entirely the creation of the Constitution, it is a government of delegated powers, possessing no authority not expressly or by implication granted to it by the instrument which created it. The State governments exist independently of their Constitutions and possess all such rights as are not expressly or by application denied to them by their own Constitution or by that of the United States.' The Govern
* See Chapter XIII.
* McCulloch Maryland, 4 Wheaton, 316.
• The distribution of powers between the National and the State governments is effected in two ways: Positively, by conferring certain powers
the National government; Negatively, by imposing certain restrictions on the States. It would have been superfluous to confer any power on the States, because they retain all powers not actually taken from them. A lawyer may think that it was equally unnecessary and, so to speak, inartistic, to lay any prohibitions on the National government, because it could ex hypothesi exercise no powers not expressly granted. However, the anxiety of the States to fetter the master they were giving themselves caused the introduction of provisions qualifying the grant of expressed powers, and interdicting the la. tional government from
arious kinds of action on which it might otherwise have been tempted to
Bryce's American Commonwealth, Vol. I., p. 306.
the Federal government under the Constitution as it stood before the war, only two under the Constitution as it stands since the addition of the war amendments. I suppose that I am justified in singling out as these twelve greatest subjects of legislation the folfowing: Catholic emancipation, parliamentary reform, the abolition of slavery, the amendment of the poor laws, the reform of municipal corporations, the repeal of the corn laws, the admission of Jews to Parliament, the disestablishment of the Irish Church, the alteration of the Irish land laws, the establishment of national education, the introduction of the ballot, and the reform of the criminal law. Of these every one except the corn laws and the abolition of slav. ery, would have been, under our system, so far as they could be dealt with at all, subjects for State regulation entirely, and, of course, it was only by constitutional amendment, made in recognition of the accomplished facts of the war, that slavery, which was formerly a question reserved for State, and for State action alone, brought within the field of the Federal authority." J. F. Jameson's Introduction to the Constitutional and Political History of the Individual States, Johns Hopkins Univ. Studies in History and Political Science, Fourth Series, p. 9.
*"A striking illustration of the preponderant part played by State law under our system is supplied in the surprising fact that only one out of the dozen greatest subjects of legislation which have engaged the public mind in England during the present century would have come within the powers of