Chapter VI: The Checks and Balances of the Constitution (2)

In shaping the policy of the government during this period the influence of Hamilton was even more pronounced than it had been in the Federal Convention. As Secretary of the Treasury he proposed and brought about the adoption of a financial policy in harmony with his political views. Believing that the government must have the confidence of the conservative and well-to-do classes, he framed a policy which was calculated to gain their support by appealing to their material interests. The assumption by the general government of the state debts incurred during the Revolutionary war was designed and had the effect of detaching the creditor class from dependence upon the governments of the various states and allying them to the general government. The protective tariff system also had far-reaching political significance. It was expected to develop an influential manufacturing class who would look to the general government as the source of their prosperity, and who would therefore support its authority as against that of the states. To unite the moneyed interests and identify them with the general government was one of the reasons for chartering the bank of the United States. The internal revenue system which enabled the general government to place its officials in every community and make its authority directly felt throughout all the states was a political as well as a financial measure. It was prompted partly by the desire to appropriate this field of taxation before it was laid hold of by the states and partly by the desire to accustom the people to the exercise of Federal authority. All these measures which were formulated by Hamilton and carried through largely by his influence were intended to lay a solid basis for the development of national as opposed to state authority.

It was the purpose of the Constitution as we have seen to establish the supremacy of the so-called upper class. To consolidate its various elements and bring the government under their control was the aim of the Federalist party.

That such a policy should have aroused much popular opposition and provoked bitter criticism was to be expected. Criticism, however, was especially irritating to those who accepted the Federalist theory of government. For if the few had a right to rule the many, then the latter, as a matter of course, ought to treat the former with respect; since otherwise the power and influence of the minority might be overthrown.

The Alien and Sedition laws by which the governing class sought to repress criticism were the logical culmination of this movement to limit the power of the majority. This attempt, however, to muzzle the press and overthrow the right of free speech instead of silencing the opposition only strengthened and intensified it. It merely augmented the rising tide of popular disapproval which was soon to overwhelm the Federalist party.

The Constitution, as we have seen, did not expressly subordinate the states. Although framed by those who wished to make the general government supreme, it contained no provision which could not be so construed as to harmonize with the widely accepted doctrine of state rights. It was represented by its framers and understood by the people generally as dividing sovereignty between the general government on the one hand and the states on the other. Within the province assigned to the state, it was to be supreme, which would naturally seem to imply adequate constitutional power in the state to defend itself against federal aggression. This view of the Constitution, if not actually encouraged, was allowed to go unchallenged in order not to endanger its adoption.

The Constitution is and was intended to be rigid only in the sense that it effectually limits the power of the majority. The founders of our government were not averse to such changes in the system which they established as would promote or at least not interfere with their main purpose--the protection of the minority against the majority. Indeed, they intended that the Constitution as framed should be modified, amended and gradually molded by judicial interpretation into the form which they desired to give it, but which the necessity of minimizing popular opposition prevented them from accomplishing at the outset. Amendment by judicial interpretation was merely a means of conferring indirectly on the minority a power which the Constitution expressly denied to the majority. No hint of this method of minority amendment, however, was contained in the Constitution itself. But, on the contrary, any such view of the Constitution would have been negatived by the general theory of checks and balances which, consistently applied, would limit the power of the minority as well as that of the majority. It was not reasonable to suppose that the Constitution contemplated placing in the hands of the minority a power which it was so careful to withold from the majority. In fact, the language of the Constitution warranted the belief that it was intended as a means of checking the general government itself by protecting the states in the exercise of all those powers not expressly denied to them. And since the Constitution, as we have seen, merely marked off the limits of federal and state jurisdiction, without specifying how the general government on the one hand, or the state government on the other, was to be kept within the territory assigned to it, it was natural to suppose that it contemplated giving to each the same means of protecting itself against the encroachments of the other.

Accordingly, when Congress appeared to overstep the limits which the Constitution set to its authority, the states naturally looked for some means of making the checks imposed upon the general government effective. True, the Constitution itself did not specify how this was to be done; but neither could one find in it any provision for enforcing the limitations on the authority of the states. The general government, however, had supplied itself with the means of self-protection by calling into existence the veto power of the Federal judiciary. This made the checks upon the authority of the states operative. But how were those imposed by the Constitution on the general government itself to be enforced? Not by the Federal government or any of its organs, since this would allow it to interpret the Constitution to suit itself. If the general government should have the right to interpret and enforce the constitutional limitations on the powers of the states, it would for a like reason follow that the states should interpret and enforce the constitutional limitations on the authority of the general government itself. To carry out in good faith what appeared to be the purpose of the Constitution, _i.e._, to limit the authority of the general government as well as that of the states, it would seem to be necessary to make each the judge of the other's powers. It would devolve then on the state governments to keep the general government within the bounds which the Constitution set to its authority.

This could be accomplished, however, in no other way than by a veto on such acts of the general government as, in the opinion of the state, exceeded its constitutional authority. Those who believed in a federal as opposed to a national government and who therefore wished to enforce the constitutional checks on the general government, were irresistibly impelled toward the doctrine of nullification as the sole means of protecting the rights of the states.

As Von Holst says, "Calhoun and his disciples were not the authors of the doctrine of nullification and secession. That question is as old as the Constitution itself, and has always been a living one, even when it has not been one of life and death. Its roots lay in the actual circumstances of the time, and the Constitution was the living expression of these actual circumstances."[134]

Madison, in _The Federalist_, refers in a vague and indefinite manner to the power of a state to oppose an unjustifiable act of the Federal government.

"Should an unwarrantable measure of the Federal government," he says, "be unpopular in particular states ... the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance, and perhaps refusal, to co-operate with the officers of the union; the frowns of the executive magistracy of the state; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any state, difficulties not to be despised; would form in a large state, very serious impediments; and where the sentiments of several adjoining states happened to be in unison, would present obstructions which the Federal government would hardly be willing to encounter."[135]

Again he says, "The state government will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other."[136]

It is doubtful whether Madison, in writing the passages above quoted, had in mind any thing more than a general policy of opposition and obstruction on the part of the states. He certainly intended, however, to convey the idea that under the proposed Constitution the states would have no difficulty in defending their constitutional rights against any attempted usurpation at the hands of the Federal government. We can trace the gradual development of this idea of state resistance to Federal authority until it finally assumes a definite form in the doctrine of nullification.

"A resolution [in the Maryland legislature] declaring the independence of the state governments to be jeopardized by the assumption of the state debts by the Union was rejected only by the casting vote of the speaker. In Virginia the two houses of the legislature sent a joint memorial to Congress. They expressed the hope that the funding act would be reconsidered and that the law providing for the assumption of the state debts would be repealed. A change in the present form of the government of the union, pregnant with disaster, would, it was said, be the presumptive consequence of the last act named, which the house of delegates had formally declared to be in violation of the Constitution of the United States."[137]

The general assembly of Virginia in 1798 adopted resolutions declaring that it viewed "the powers of the Federal government ... as limited by the plain sense and intention of [the Constitution] ... and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted, ... the states ... have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits, the authority, rights, and liberties appertaining to them." These resolutions were drawn by Madison who had now come to oppose the strong centralizing policy of the Federalists.

A more explicit statement of this doctrine is to be found in the Kentucky Resolutions of 1798 which declared "that the several states composing the United States of America are not united on the principle of unlimited submission to their general government; ... and that whenever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party; that this government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that as in all other cases of compact among parties having no common judge, _each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress_."

The Kentucky resolutions of 1799 go one step farther and give definite expression to the doctrine of nullification. They declare "that the several states who formed that instrument [the Constitution], being sovereign and independent, have the unquestionable right to judge of the infraction; and, _that a nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy_."

The first clear and unequivocal statement of the doctrine of nullification may be traced to Jefferson. In the original draft of the Kentucky resolutions of 1798, which he wrote, it is asserted that where the Federal government assumes powers "which have not been delegated, a nullification of the act is the rightful remedy; that every state has a natural right in cases not within the compact (_casus non foederis_) to nullify of their own authority, all assumptions of power by others within their limits."[138] This was omitted, however, from the resolutions as finally adopted, although included in substance, as we have seen, in the Kentucky resolutions of 1799.

Jefferson's authorship of the original draft of the Kentucky resolutions of 1798 is made the basis of Von Holst's contention that he was the father of the doctrine of nullification. This, however, is something of an exaggeration. He is more accurate when he refers to the doctrine as being as old as the Constitution itself and the outgrowth of the circumstances of the time. The prevalent conception of the state as a check upon the Federal government derived support, as we have seen, from the efforts of the framers of the Constitution themselves to give it an interpretation that would remove as far as possible the obstacles to its ratification by allaying the fears and jealousy of the states. The idea that the state government could oppose and resist an unconstitutional exercise of authority by the Federal government was widely accepted as a general principle, although little attention had been given to the practical application of the doctrine. Jefferson merely gave definite form to what had been a more or less vague conception by showing how the constitutional checks upon the Federal government could be made effective.

The best statement of this doctrine, however, is to be found in the works of John C. Calhoun, whose Disquisition on Government and Discourse on the Constitution of the United States are a masterly defense of the system of checks and balances. He had no sympathy with what would now be called popular government. His point of view was essentially aristocratic, and he frankly avowed it.

He recognized the fact that under the existing social organization the interests of all classes are not the same; that there is a continual struggle between them; and that any interest or combination of interests obtaining control of the government will seek their own welfare at the expense of the rest. This, he claimed, made it necessary to so organize the government as to give the minority the means of self-protection. To give to the minority this constitutional power would tend to prevent the selfish struggle to obtain possession of the government, since it would deprive the majority of all power to aggrandize themselves at the expense of the minority. The very essence of constitutional government, according to his view, was the protection afforded to the minority through the limitation of the power of the majority. To accomplish the true end of constitutional government, which is the limitation of the power of the numerical majority, it is necessary, he contended, that the various classes or interests should be separately represented, and that each through its proper organ should have a veto on the acts of the others. In a government so organized no measure could be enacted into law and no policy enforced, unless it had received the assent of each element recognized in the Constitution. This method of taking the sense of the community, which required the concurrence of its several parts, he termed that of the concurrent majority.

This principle of class representation, he maintained, was fundamental in the American Constitution, which recognized for certain purposes the numerical majority as one of its elements, but only for certain purposes. For he tells us, and correctly, that "the numerical majority is, strictly speaking, excluded, even as one of its elements."[139] In support of this statement he undertakes to show that the numerical majority could not even prevent the amendment of the Constitution, since through a combination of the smaller states an amendment desired by the minority could be forced through in opposition to the wishes of the majority. He might have added that it was the intention of those who framed our government to allow the minority a free hand in amending by the method of constitutional interpretation; and also that they intended to deny to the numerical majority a veto on treaties and appointments. This refusal to recognize the numerical majority even as one of the coordinate elements in the government was as hereinbefore shown inconsistent with the doctrine of checks, and is to be explained on the theory that they wished to subordinate the democratic element in the Constitution.

Calhoun argued that the growth of political parties had broken down our system of constitutional checks. The Constitution as originally adopted made no mention of, and allowed no place for these voluntary political organizations. In fact, the purpose of the political party was diametrically opposed to and subversive of all that was fundamental in the Constitution itself, since it aimed at nothing less than the complete destruction of the system of checks by bringing every branch of the government under its control. To the extent that it had achieved its purpose, it had consolidated the powers of the general government and brought them, he contended, under the direct control of the numerical majority, which was the very thing that the framers of the Constitution wished to guard against.

The complete control which the numerical majority had thus obtained over the Federal government made it supremely important that all constitutional power vested in the several states to resist Federal aggression should be actively employed. That the states had the power under the Constitution to check the general government when it attempted to overstep the limits set to its authority was necessarily implied in the fact that our system of government was federal and not national. His argument proceeded on the theory encouraged by the framers of the Constitution that the general government and the state governments were coordinate. "The idea of coordinates," he tells us, "excludes that of superior and subordinate, and necessarily implies that of equality. But to give either the right, not only to judge of the extent of its own powers, but, also, of that of its coordinate, and to enforce its decision against it, would be, not only to destroy the equality between them, but to deprive one of an attribute--appertaining to all governments--to judge, in the first instance, of the extent of its powers. The effect would be to raise one from an equal to a superior, and to reduce the other from an equal to a subordinate."[140]

From this it would follow that neither should have the exclusive right to judge of its own powers--that each should have a negative on the acts of the others. That this was the intention of the framers of the Constitution he argues from the fact that all efforts in the Convention to give the general government a negative on the acts of the states were unsuccessful. The efforts to confer this power, he contends, were made because it was seen that in the absence of such a provision the states would have a negative on the acts of the general government. The failure of these efforts in the Convention was due, he claims, to the fact that the members of that body wished to make the general government and the state governments coordinate, instead of subordinating the latter to the former as the advocates of a national government desired. The fact upon which Calhoun based this contention would seem to justify his conclusion; but if we consult the debates which took place in that body, it is easily seen that the refusal of the Convention to incorporate such a provision in the Constitution can not be ascribed to any hostility on the part of that body to national government. In fact, as hereinbefore shown, it was for purely practical reasons that they rejected all proposals which contemplated the recognition in the Constitution itself of the supremacy of the general government. While declining to allow a provision of this character to be incorporated in the Constitution, they by no means disapproved of a strong supreme central government, but merely adopted a less direct and therefore easier method of attaining their end.

While Calhoun maintained that in order to make the limitations on the authority of the general government effective it was necessary that a state should have a veto on Federal laws, he did not contend that the verdict of a state should be final. It would still be possible for the general government to override the veto of a state by procuring a constitutional amendment which would remove all doubt as to its right to exercise the power in question. This method of appeal, he argued, was always open to the general government, since it represented and was in the hands of the numerical majority. This would be true, however, only when the party in power had the requisite two-thirds majority in both houses of Congress, or at least controlled the legislatures in two-thirds of the states. Otherwise its control of the general government would not enable it to propose the desired constitutional amendment. With this qualification Calhoun's contention was correct. On the other hand the state could not defend itself against Federal aggression, since, belonging to the minority, it would have no means of compelling the submission of a constitutional amendment involving the point in dispute. The effect of a state veto on an act of Congress would be to compel the latter to choose between abandoning the law in question as unconstitutional and appealing to the constitution-making power in defense of its claim. If it chose the latter alternative and succeeded in having its authority supported by an appropriate constitutional amendment, there was nothing for the state to do but submit, provided that the amendment in question was one clearly within the scope of the amending power. If, as Calhoun assumed, it was the purpose of the Constitution to withhold from a mere majority in control of the general government the power to enact and enforce unconstitutional legislation, the veto of a state would seem to be the only means by which the constitutional rights of a minority of the states could be protected.

Calhoun did not question the right of the Supreme Court of the United States to declare an act of Congress null and void, or its right to pass judgment upon the Constitution or the laws of a state when they were attacked as in conflict with the Federal Constitution in a case before it. This right, he contended, belonged to all courts whether federal or state. A decision of the Supreme Court of the United States adverse to the constitution or law of a state was, however, he maintained, binding only on the general government itself and the parties to the suit. As against the state it had no power to enforce its decision.

His entire argument rests upon the assumption that the Federal and state governments are co-equal and not superior and subordinate. This line of argument naturally led to the conclusion that the Federal and state courts were coordinate. It was perfectly natural for the advocate of state rights to take this view of the matter. Moreover there was nothing in the Constitution which expressly contradicted it. The framers of that instrument, as hereinbefore shown, did not wish to make an open attack on the generally accepted doctrine of state sovereignty before the Constitution was adopted. Their purpose was fully disclosed only after they had obtained control of the new government under the Constitution. To carry out their plan of subordinating the states, it was necessary to establish the supremacy of the Federal judiciary. This was accomplished by an act of Congress[141] which provided that "a final judgment or decree in any suit in the highest court ... of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where is drawn in question the construction ... of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party, under such clause of said Constitution, treaty, statute, or Commission, may be re-examined, and reversed or affirmed in the Supreme Court of the United States upon a writ of error."

This act, while expressly conferring upon the Supreme Court of the United States the power to veto a state law, at the same time denied to a state court the right to treat as unconstitutional a statute, treaty, or authority exercised under the general government. The question might properly be asked why this provision was not incorporated in the Constitution itself. Why did not the framers of that document clearly define the relation of the Federal to the state courts? To have included the substance of this act in the Constitution as submitted to the states, would have precluded the possibility of any future controversy concerning the relation of the Federal to the state courts. From the point of view of practical politics, however, there was one unanswerable argument against this plan. It would have clearly indicated the intention of the framers of the Constitution, but in doing so, it would for that very reason have aroused opposition which it would have been impossible to overcome. This is why the matter of defining the relation of the Federal to the state courts was deferred until after the Constitution had been ratified by the states. They chose the only practicable means of accomplishing their purpose. With all branches of the Federal government under their control, they were able to enact a law which virtually amended the Constitution. Calhoun argues that in passing this act Congress exceeded the powers granted to it by the Constitution. What he fails to recognize, however, is the fact that this measure, although at variance with the interpretation placed upon the Constitution by the people generally, was, nevertheless, in entire harmony with the general purpose of its framers and necessary to carry that purpose into effect.

The view of the American Constitution herein presented may not be familiar to the average reader of our political literature. For notwithstanding the overwhelming proof of the aristocratic origin of our constitutional arrangements accessible to the unbiassed student, the notion has been sedulously cultivated that our general government was based on the theory of majority rule. Unfounded as an analysis of our political institutions shows this belief to be, it has by dint of constant repetition come to be widely accepted. It is beyond question that the Constitution was not so regarded by the people at the beginning of our national life. How, then, was this change in the attitude of the public brought about? There has doubtless been more than one influence that has contributed to this result. The abundant natural resources of the country and the material prosperity of the people are a factor that cannot be ignored. To these must in a measure be ascribed the uncritical attitude of mind, the prevailing indifference to political conditions, and the almost universal optimism which have characterized the American people. This lack of general attention to and interest in the more serious and profound questions of government has been favorable to the inculcation and acceptance of ideas of the system utterly at variance with its true character. Still, with all due allowance for these favoring conditions, it is hard to find a satisfactory explanation of the process by which the worshipers of democracy came to deify an undemocratic constitution. The desire of the conservative classes to preserve and perpetuate the system by presenting it in the guise of democracy, and their influence upon the political thought of the people generally must be regarded as the chief factor in bringing about this extraordinary change in public opinion. Hostile criticism of the Constitution soon "gave place to an undiscriminating and almost blind worship of its principles ... and criticism was estopped.... The divine right of kings never ran a more prosperous course than did this unquestioned prerogative of the Constitution to receive universal homage. The conviction that our institutions were the best in the world, nay more, the model to which all civilized states must sooner or later conform, could not be laughed out of us by foreign critics, nor shaken out of us by the roughest jars of the system."[142]