CHAPTER IV. CONSTITUTIONAL GUARANTEES AS ELEMENTS OF CIVIL To foreigners studying the structure of our government by the light of the British Constitution, nothing appears more strange than the unity which pervades it in the midst of the most apparent diversity. They cannot understand this federal paradox. A harmonious Union in the midst of such a complexity of State interests is to them a political riddle. Thus, we have a President of a Union of forty-four States, who does not communicate officially with the Governors of any of these States, as part of his necessary duty. We have forty-four Governors of States who do not report to the President, or communicate officially with him, as part of their necessary duty. We have a national legislature which makes laws for the government of the whole Union, and yet does not communicate officially or directly with the Legislatures of the several States, as part of its necessary duty; and contrariwise, we have forty-four Legislatures which do not communicate with, or report to Congress, as part of their necessary duty. Lastly, we have a Supreme Court of the United States whose judgments operate throughout the Union as the supreme law of the land, and yet which does not communicate officially with any of the forty-four Appellate State Courts, nor they with it, as part of its, or their necessary duty. Only when questions arising out of the Constitution or laws of the United States, or the public treaties, come within its jurisdiction, does it review their judgments, and pronounce upon their validity. But beyond that, it has no power even of review, and none of enforcing its own decrees against a sovereign State.1 To sum up the matter in a few words, we have a Federal executive with no direct supervisory power over the State Executives-a Federal Legislature with no direct supervisory power over State Legislatures, and a Federal Supreme Court with no direct supervisory power over the State courts. This is a paradox in representative government of unusual aspect and unparalleled proportions. So many States united, yet each, as a State, independent; a Federal government over all, yet never interfering with the domestic jurisdiction of any of its subordinate Commonwealths. History may be searched in vain for a similar example of a union of differential members, developing by political affiliation into one organic whole. We owe this happy result to the common source from which these various members have derived their origin. That one source has been omnipresent as an animating principle at every stage of their existence. It is found in the personal independence of the citizen, through which alone a permanent representative form of government can be developed. On this expanding creed we have built our political faith, and applying it to practice, have established a great Commonwealth system, which beginning with the humble township, runs through the sovereign State up to the imperial Federal government, enlarging its proportions as it goes, yet faithfully adhering to the germinal principle of popular sovereignty in the greatest, as in the very least of its parts. I Worcester v. Georgia, 6 Peters, 515; Ableman v. Booth, 21 How. 506. This de-centralization of government in a union of so many States, coupled with the indissoluble nature of that union springing from its national character, is the fruit of the ripest wisdom and political sagacity that ever presided over the organization of a civil body politic. In an age of constitution-making ours stands foremost, as an instrument containing such well-balanced powers of sovereignty, such inflexible guarantees of political and personal rights, and such limitations upon assumptions of arbitrary authority, as to secure harmony through all parts of a graded political system, based upon the single idea of personal independence. It is to these constitutional guarantees that we must ever look for stability and permanency in carrying on the operations of our government. It is through them alone that the welfare of conflicting interests between different sections can be stayed by the hand of federal legislation, or peacefully adjudicated by the appropriate tribunals. A study of their origin and growth will show that they are the last and best fruits of civil liberty organized into the form of a political code. In all free representative governments, the bulwarks of civil liberty consist of public acts passed for the purpose of defining and regulating the exercise of the sovereign powers of the State. It is only in this way that the personal rights of the citizen can be secured against invasion by the supreme authority. These acts are guarantees of the good faith of the citizens towards each other, and towards the common sovereignty under which they are united. They consist of grants of power, together with limitations upon its exercise. Part of these rules of conduct being unwritten form the common law of the land, and are in the nature of conventions; and part consist of positive laws known as constitu tional provisions, which may be enforced in competent tribunals. “Liberties,” says Guizot, “are nothing until they have become rights-positive rights formally recognized and consecrated. Rights even when recognized, are nothing so long as they are not entrenched within guarantees. And lastly, guarantees are nothing so long as they are not maintained by forces independent of them, in the limit of their rights. Convert liberties into rightssurround rights by guarantees-intrust the keeping of these guarantees to forces capable of maintaining them— such are the successive steps in the progress towards a free government.”1 Wherever written constitutions exist, such instruments are absolute and indefeasible against all derivative legislation, and against all revolution by any portion of the people less than was necessary to enact the original charter. Under the Constitution of the United States, there is, consequently, no power of secession vested in the States, or of dissolution of the Union by any portion of the people operating even through a legal convention. The Federal government in its origin is essentially national. The people form a political unit, inhabiting for the purposes of convenience and local government, those several areas of the national territory designated as States. This alone does not constitute a republic. In order to establish one, and to secure any State against domestic incapacity for self-government, or insurrection against the allegiance which it owes to the genius of our Federal Union, it is made the duty of the United States to maintain a republican form of government within its borders. The language of the Constitution on this point is precise and emphatic. "The United States shall guarantee to every State in Rep. Gov. Lect. 6. 1 this Union a republican form of government, and shall protect each of them against invasion, and on application of the Legislature, or of the Executive, when the Legislature cannot be convened, against domestic violence.1 In England, these constitutional guarantees have been either wrested from kings, as in the instance of Magna Charta and the Petition of Rights; or else, solemnly enacted by Parliament as remedies against existing evils threatening the stability of political society. The Habeas Corpus, the Bill of Rights, and Act of Settlement of William and Mary, are examples of the latter. The force of usage producing an effect akin to consent is strongly marked in the inviolable character given to these statutes. For, the distinguishing feature of the British Constitution being the absence of any popular vote in calling it forth, or ratifying it subsequently; and Parliament having the uncontrolled power of adding new provisions to this Constitution at its pleasure, it would seem to follow logically, that constitutional liberty in England is only another name for parliamentary liberty, a fact which locates sovereignty primarily in a legislative assembly, instead of in the people, whose representatives or delegates go to make up such an assembly. This form of enacting a constitution is but a repetition of what has been constantly occurring in monarchical governments, whenever a cabinet constitution has been made, rather than one by the people. But however constitutions may be made, they are always intended to provide for daily emergencies in the life of a nation, which time alone could not relieve; and to supply bulwarks against encroachments of power, not always intentionally, yet insidiously increasing, by that habitual tendency of all departments of government to 1 Art. 4, sec. 4. |