« ForrigeFortsett »
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, anything in the constitution or laws of any state to the contrary notwithstanding.” The constitution is thus the law, and, moreover, the supreme law of the land. The constitutions of the separate states are their fundamental laws only in regard to those matters which are not submitted by the federal constitution to federal authority. This provision makes the constitution an integral part of the constitution of each state. If there is a conflict between them, then the provision of the state constitution opposed to the federal constitution is ipso facto null and void. All judges, and therefore, evidently, all other state officers, and all citizens of the state, are absolutely bound down to this fundamental principle. He who seeks to overthrow it lays hands on the fundamental law of the land. The federal government, which is bound to give the constitution life and being by law, is therefore not only empowered but directed to break down any opposition;- if possible, by the ordinary and peaceful powers of the state as provided by the constitution, but in case of need, by force.
§ 11. The Right AND THE DUTY OF USING FORCE follow directly from the ideas of “law” and “government." They are, moreover, set forth in the constitution in a way quite beyond doubt. The third section of the second article provides that the president“shall take care that the laws be faithfully executed.” The constitution is the supreme law of the land, and the president's highest duty is therefore to take care that it shall be executed everywhere and under all circumstances. It provides in the
1 Taylor vs. Taintor, Wallace, XVI., 366.
seventh paragraph of the first section of the second article that he shall, upon entering office, take the following oath: "I do solemnly swear (or affirm) that I will faithfully execute the office of president of the United States, and will, to the best of my ability, preserve, protect and defend the constitution of the United States.” If the constitution laid upon him this duty, it must also have intended that he should have, or should be able to obtain, the means by which to fulfill the duty in all cases. Whether and how far it is his privilege to decide for himself whether the application of force is necessary in a given case, and actually to use force, need not be discussed at this point, where only questions of general principles are at issue. Here it is sufficient to show that if, and so far as, he is not authorized to do this, the law-making power is. Article I., section 8, paragraph 18, says that congress shall have power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof." It is the president's, duty, and therefore also within his power, to preserve, protect and defend the constitution, and congress is therefore bound to give him the means to use this power, that is, to come up to this duty. In case that not only individuals but states as such should rebel against the laws or the constitution, the right of the federal government to use force can be in no way questioned; and if other means are not sufficient, it is so much the more bound to use force because the political order or the very existence of the Union is endangered in so much higher a degree. If the federal government seeks by force to command obedience to the laws and the constitution, and the opposition becomes in substance and form a war, this war
may be conducted for the sake of humanity and policy as a war with a foreign power under all the rules of international law, but legally the government has to do only with a rebellion."
$ 12. THE SECESSION OF A State is simply a fact, not a. legal proceeding. As long as the people of the United States, whose work the constitution is, did not themselves decide to destroy this work, that is, the Union,– in other words, as long as they wished to continue to be one people,- the constitution of the Union, despite any fact whatever, remained from the standpoint of law wholly unchanged. On questions of this sort, single states have as little right of action as single individuals. An ordinance of secession is wholly null and void. Despite it, the state remains a member of the Union and its citizens remain citizens of the Union. Its and their duties under
1 In the Prize Cases (Black, II., 635), the supreme court says that the rebels were at the same time a war-making power and traitors, and were therefore subject to the consequences to be deduced from either the one or the other character. The United States, on the other hand, bore the double character of a war-making power and of the sovereign, and had therefore the rights of both.
It seems to me strange to refer the right to suppress a rebellion to the right to declare war, as the supreme court does in Texas vs. White (Wallace, VII., 700). The Philadelphia convention certainly had no thought of civil war when it gave this right to congress. I think, therefore, that it is at least an unfortunate formulization of the idea I have already recognized as just, when the supreme court declares in the Prize Cases just quoted that congress alone has the right to declare war. In the case of a civil war, according to my judgment, formed from the standpoint of constitutional law, the lawful government has nothing whatever to do with declaring war. A war is a fact which has simply to be recognized. If congress merely recognizes. the fact, the views expressed in the text and by the supreme court come into harmony.
2 These fundamental principles are clearly and sharply formulated in Cohens vs. Virginia, Wheaton, VI., 264.
the constitution continue wholly unaltered.' No new act of admission is necessary, therefore, in order to allow a state which has been in rebellion to enter again into the full enjoyment of its constitutional rights. It is again an equal member of the Union when it has been recognized as such by the political powers of the Union, and its representatives and senators have been admitted by congress.
$ 13. RECONSTRUCTION. It was thus not a legal, but a political question, how the so-called reconstruction was to be accomplished. The courts had to decide, upon a given case, what the political powers of the federal government had determined in regard to that case, and had to base their judgment upon this determination; but it did not appertain to them to decide, in addition to this, what these political powers ought to have decided.
These remarks have by no means exhausted the consequences which are to be deduced from the opening sentence of the constitution. It is only when this sentence is analyzed from exactly the opposite standpoint that its full influence upon the political nature of the Union is first recognized.
§ 14. THE UNITED STATES. The people of the United States name themselves as the possessors of sovereignty, and act throughout as such; so that they give to the United States the constitution. The people of the United States, however, is not exactly the same thing as the population of the North American republic. As the Union has never been a purely arbitrary and theoretical creation, so also the name United States is no arbitrary and casual phrase, but is due to the political facts of the
1 White vs. Cannon, Wallace, VI., 443; White vs. Hart, Ibid., XIII., 646.
2 Texas vs. White, Wallace, VII., 700.
Union. The United States is not only the name of a thing, but the thing itself. As the population of the Union, in giving itself a constitution, acted not as one simple whole but in and through its organization into states, an organization historic and existing by law, so it did not by the constitution organize or wish to organize a close national state. It changed the federation of states, a federation with the loosest powers, into a federal state, upon a deep-laid, national foundation. Out of the federation there came an actual Union, but the Union was not divided into provinces, which were still called states. Its constituent members were actually states and must always remain states. It was a mistaken use of the word “sovereign” (because it led to conclusions false from the standpoint of fact), if afterwards, as before, even in official utterances, men spoke of “sovereign” states; but the states had their own sphere of authority, and within this they were completely independent of the national government. The expression “people of the United States,” it has been well said, does not on account of this become a shadow, without legal existence or incomprehensible. The possibility of misusing the word “people” in a demagogic way always remains, and this possibility will always be made use of from time to time; but if one has an honest wish to receive and understand the word in its constitutional sense, then there is less • room for doubts than there would be if the Union were a single state. The “people of the United States” are the
1 Schlief (p. 10) affirms that even the mob can identify itself with this “we, the people of the United States.” This is not to be questioned, but the constitution cannot be made answerable therefor. In his view the introductory words are “evidently an imitation of the introductory formula commonly used up to the present day in the constitutional monarchies of Europe in passing a law: 'We, king by the grace of God,'”- an assertion which is irreconcilable with