Chapter I: The Theory of Reconstruction

The Conception of a "State" in a System of Federal Government--The Different Kinds of Local Government Provided for in the Constitution of the United States--Local Government Under the Constitution of the United States--"State" Destructibility in the Federal System of Government--The Effect on "State" Existence of the Renunciation of Allegiance to the Union--The Idea of "State" Perdurance--The Constitutional Results of Attempted Secession.

[Sidenote: The conception of a "State" in a system of federal government.]

The key to the solution of the question of Reconstruction is the proper conception of what a "State" is in a system of federal government. This is a conception which is not easy to acquire, and which, when acquired, is not easy to hold. The difficulty lies, chiefly, in the tendency to confound the idea of a "State" in such a system with a state pure and simple. Until the distinction between the two is clearly seen and firmly applied, no real progress can be made in the theory and practice of the federal system of government. Now the fundamental principle of a state pure and simple is sovereignty, the original, innate, and legally unlimited power to command and enforce obedience by the infliction of penalties for disobedience. On the other hand, the nature of a "State" in a system of federal {2} government is a very different thing. Such a "State" is a local self-government, under the supremacy of the general constitution, and possessed of residuary powers. In the federal system of the United States, it is a local self-government, under the supremacy of the Constitution of the United States, and of the laws and treaties of the central Government made in accordance with that Constitution, republican as to form, and possessed of residuary powers--that is, of all powers not vested by the Constitution of the United States exclusively in the central Government, or not denied by that Constitution to the "State."

[Sidenote: The different kinds of local government provided for in the Constitution of the United States.]

It must be kept in mind that this is not the only kind of local government known in the constitutional law and practice of the United States. There is, and always has been, since the establishment of the federal system in 1789, for the larger part of the population which declared united independence of Great Britain in 1776, another kind of local government for a part of the United States, a local government which is not self-government, a local government which is but an agency of the central Government. In fact, there have been at times three kinds of local government in the political system of the United States, viz., local government by the executive department of the central Government--that is, local government by executive discretion, martial law--local government as an agency of the legislative department of the central Government--that is, Territorial government--and "State" government. That is to say, since 1789 the whole of the United States, territorially, has never been under the federal system of government, but has _always_ been partly under federal government and partly under the exclusive government of Congress, and has _sometimes_ been partly under federal government, {3} partly under the exclusive government of Congress, and partly under the exclusive government of the President.

[Sidenote: Local government under the Constitution of the United States.]

The Constitution of the United States recognizes and provides for all three of these species of local government, and vests in Congress the power of advancing the population of a district, the confines of which district shall be determined by Congress itself, from the lower to the higher forms of local government. While the Constitution does not expressly impose upon Congress the duty of making or permitting the change from one kind of local government to another, it impliedly indicates that Congress shall determine the kind of local government which the population of any particular district shall enjoy in accordance with the conditions prevailing, at any given moment, among them. If the maintenance of law and order requires the immediate exercise of military power, Congress may, and should, permit the continuance of the President's discretionary government. If, on the other hand, this is not necessary, Congress may, and should, confer civil government, under the Territorial form, and when the population of a Territory shall have become ripe for local self-government and capable of maintaining it, Congress may, and should, allow the Territory to become a "State" of the Union, a Commonwealth.

[Sidenote: "State" destructibility in the system of federal government.]

[Sidenote: The effect on "State" existence of the renunciation of allegiance to the Union.]

Such being the nature of a "State" of the Union and such the method of its creation, what reason is there for speaking of the "States" in a system of federal government as indestructible? As they emerge from the status of Territories under the exclusive power of Congress, upon having attained certain conditions, why may they not revert to the status of Territories upon having lost these conditions of "State" existence; nay, why may {4} they not revert to the status of martial law by having lost all of the conditions of civil government? The dictum "once a State always a State" in a system of federal government has no sound reason in it. Under the Constitution of the United States, every "State" of the Union may through the process of amendment be made a province subject to the exclusive government of the central authorities; and when those who wield the powers of a "State" renounce the "State's" allegiance to the United States, renounce the supremacy of the Constitution of the United States and of the laws of the central Government made in accordance therewith, then from the point of view of political science it will become a state pure and simple, a sovereignty, if and when it permanently maintains, by its own power or by the assent of the United States, this attitude against the United States, but from the point of view of the constitutional law of the United States it simply destroys one of the fundamental conditions of local self-government, and gives, thus, warrant to the central Government to resume exclusive government in the district, and over the population which has become disorganized by refusing obedience to the supreme law of the land, as fixed by the Constitution of the United States. Whether the central Government has the physical power, at a given moment, to do this or not, is another question. It certainly has, at the outset, the legal right. The "State" is no longer a "State" of the Union, nor has it become a state out of the Union. It is simply nowhere. The land is there and the people are there, but the form of local government over it and them has been changed from local _self_-government to a Congressional or a Presidential agency, as the case may be.

[Sidenote: The idea of "State" perdurance.]

[Sidenote: The acceptance of this idea by the Government of the United States.]

Neither is there any reason for holding that the old {5} "State" organization perdures as an abstract something under the forms of Congressional or Presidential rule, and will emerge of itself when these are withdrawn. If the "State" form of local government should be established again over that same district and over the population inhabiting it, it would be an entirely new creation, even though it should recognize the forms and laws and obligations of the old "State." It must be, however, remembered that both the executive and judicial departments of the United States Government committed themselves fully to this theory of "State" perdurance as an abstract something unaffected by the loss of the conditions of the "State" form of local government through the rebellion of the "State" organization against the supremacy of the Constitution and laws of the United States, and that Congress did the same thing, at first, in some degree. It was this error which caused all of the confusion in the ideas and processes of Reconstruction, and we ought, therefore, to rid ourselves of it at the start, at the same time that we recognize its influence over the minds of those who engaged in the difficult work of the years between 1865 and 1876.

[Sidenote: The constitutional results of attempted secession.]

From the view which we take of the nature of a "State" in a system of federal government, and its possible destructibility, there is not much difficulty in determining the constitutional results of an attempt upon the part of such a "State" to break away from its connections in that system. What it does, stripped of all misconception and verbiage, is simply this: it forcibly resists the execution of the whole supreme law of the land, and destroys the prime condition of its own existence by making it necessary for the central Government to {6} assert exclusive power in the district where this happens. Naturally the executive department of the central Government must act first, and subdue by force the force which has been offered against the supremacy of the Constitution and laws of the United States. After that shall have been accomplished, the question as to how the population in the rebellious district shall be civilly organized anew, is one for the legislative department of the central Government exclusively. Congress may fashion the boundaries of the district at its own pleasure, and may establish therein such a Territorial organization of civil local government as it may see fit, and is limited in what it may do in this respect only by the constitutional immunities of the individual subject or citizen under every form of civil government provided or allowed by the Constitution of the United States. Congress may also enable the existing population of such a district, or such part of that population as it may designate, to organize the "State" form of local government, and may grant it participation in the powers of the central Government upon an equality with the other "States" in the federal system. These things are matters in which the President, as the executive power, cannot interfere. As participant in legislation, however, he may, at his own discretion, use his powers of recommendation and veto.

If rebellion against the supremacy of the Constitution and laws of the United States should not be committed by an existing "State" organization, but by a new organization claiming to be the "State" organization within the district concerned, the existing organization remaining loyal, but requiring the aid of the central Government to maintain its authority, then the withdrawal of that aid by the President after the accomplishment of its purpose would, of course, leave the old {7} "State" organization with restored authority, and Congress would have no function to perform in the re-establishment of civil government in such a district, or in the readmission of its population to participation in the central Government. This was the course followed in Missouri and Kentucky, and it was the course, which, at first, was attempted in the case of Virginia. In the first two cases it was entirely correct. In the last it had to be abandoned, for reasons, and on account of conditions, which will be explained later.

What we have, therefore, in the theory and history of Reconstruction is the case of existing "State" organizations forcibly resisting the execution of the supreme law of the land, and stricken down by the executive power of the central Government in the attempt, that power being exercised at its own motion and in its own way.

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