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AUTHORITIES. U. S. Supreme Court Reports (Dallas, 4 vols. to 1804; Cranch, 8 vols. to 1815; Wheaton, 13 vols. to 1827; Peters, 16 vols. to 1842; Howard, 24 vols. to 1860; Black, 2 vols. to 1862; Wallace, 22 vols. to 1874; Otto, 17 vols. to 1882; since then, Davis. Otto's reports are usually cited in American books, not by his name, but as “U. S. Reports,"— the general name for the series of supreme court decisions. I shall follow this example. In my Constitutional History of the United States I have hitherto taken my references from Curtis's edition of the supreme court reports, so far as that goes. In 1882 the Lawyers Co-operative Publishing Company (Rochester, N. Y.) began, under the editorship of Stephen R. Williams, an edition which is more complete, more convenient, and in many respects more valuable. Up to April, 1885, 22 volumes appeared, coming down to the October term, 1884). U. S. Statutes at Large. (The student cannot dispense with them, although the Revised Statutes, 1875; 2d edition, 1878; Supplement, 1874-81, are more convenient, lighten the task of research by their topical arrangement, and derive an especial value from their references to the decisions of the supreme court. They contain only the laws at present in force.) U. S. Digest, B. V. Abbott, 15 vols., Boston, 1874–78; New Series, 9 vols., 1870-78; 10 vols. by J. E. Hudson and G. F. Williams, continuation by Williams alone. A. C. Freeman, Digest of American Decisions, vol. I, San Francisco, 1882. Opinions of the Attorneys-General. The stenographic reports of the proceedings in congress, which have appeared under different titles. The Debates and Proceedings in the Congress of the United States come down to the conclusion of the first session of the twenty-fifth congress (October 6, 1837), 28 vols., Wash., 1825– 1837. The Congressional Globe begins in 1833 and extends to 1873. The Congressional Record covers the time since. Some of the official publications of the government, usually referred to as a whole as Congressional Documents, are an important source of information. Among these, the Reports of Committees are of especial value, and that, too, for constitutional history. Since both the inferior federal courts and the state courts have to pass upon the constitutionality of federal and state laws, and all the disputed questions of constitutional law cannot possibly be brought before the supreme court for adjudication, the decisions of these other courts often carry great weight. But the enormous number of these decisions makes an exhaustive review of them more and more of an impossibility, even to the most learned American jurists.
J. Wilson, Works, 3 vols., Phila., 1804. J. Taylor, Construction Construed and Constitutions Vindicated, 1820. Ibid., New Views of the Constitution of the United States, 1823. R. Mohl, Das Bundesstaatsrecht der Vereinigten Staaten von Nord-Amerika, Stuttg. and Tüb., 1824. J. Kent, Commentaries on American Law, 1st ed., 1826 ; 12th ed., 1873; 4 vols. Rawle, A View of the Constitution of the United States of America, 2d ed., Phila., 1829. Th. Sergeant, Constitutional Law, being a Review of the Practice and Jurisdiction of the Courts of the United States and of Constitutional Points Decided, 2d ed., Phila., 1830. J. Story, Commentaries on the Constitution of the United States, 2 vols., 1st ed., 1833; 4th ed., 1873. A. P. Upshur, The Federal Government, its true Nature and Character, being a Review of Judge Story's Commentaries on the Constitution of the United States, Petersburg, 1840. A. de Tocqueville, De la Démocratie aux Etats-Unis, 2 vols., Paris, 1835.
FUNDAMENTAL PRINCIPLES OF THE CONSTITUTION AND
OF CONSTITUTIONAL LAW. $ 7. THE SO-CALLED PREAMBLE. At the beginning of the constitution is the following sentence: “We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America.” This sentence is ordinarily called the Preamble, a title which Farrar (pp. 85–89) rejects, because it must lead to entirely erroneous conclusions about its legal nature and scope. Farrar is right, because this is a technical expression, taken from English law;' and this expression does not cover
1 Sedgwick, pp. 42-45.
the essential part of this introductory sentence of the constitution. It not only speaks, like a preamble, of the motives and aims of the law-giver, but it names the authority which here expresses its will; and it declares what this expression of will is, and upon whom it is to be binding. It is evident that this is not simply an outward and purely formal difference, but one of great material significance. This appears from a comparison of the introductory sentences of the articles of confederation with this; from the numerous changes which it had to undergo before it received its final form in the Philadelphia convention;' and from the long and earnest debates which it caused in some of the ratification conventions. It was almost universally recognized that the enumeration of certain objects did not make this clause an independent source of power to the federal authorities. Nevertheless, it did not by any means follow that no weight at all was to be given it because no legal consequences could be deduced from it. It had not "simply an historical significance," and the constitution did not “ first begin with that which followed the preamble," 2 but it is, in the proper sense of the word, a most essential part of the constitution itself, for it is to it what the enacting clause is to an ordinary law. The discussion of the aims enumerated in it, to which the American commentators for the most part devote much space, is unnecessary in a statement of existing constitutional law, because it is of a political rather than a legal nature. But the other parts of the preamble demand careful attention and would deserve it even if no independent legal significance were to be given to them, because they provide the natural start
1 Collected by Farrar, pp. 33–38. 2 Schlief, p. 71.
ing point for a discussion of the principles which to a certain extent form the foundation of the whole constitution, as well as of the rules which control its interpretation and construction. The “people of the United States” name themselves as the framers of the constitution, that is, as the possessors of political omnipotence, of sovereignty. But who, then, are the people of the United States? This question was the formal beginning of the struggle between two political schools which culminated in the civil war, and is still carried on to-day with tongue and pen, though in a far milder way.
$ 8. THE DOCTRINE OF STATE SOVEREIGNTY. The premise of the argument of the so called state's-rights school is that there never has been, either in point of fact or in point of law, one people of the United States. The argument proceeds as follows. The people of each state, without being bound in any way by the action or the non-action of the other states, decided for themselves, through their authorized representatives, whether or not they would accept the draft of the Philadelphia convention. That the constitution is a work of states is therefore a fact which cannot be gotten rid of on the plea that the constitution begins with the words: “We, the people of the United States.” If these words do not contain an evident falsehood, then must the phrase “ United States” be read here as “ states united;” but so read they say simply that the states, in order to better protect their interests, have entered into a new compact to regulate everything in regard to those matters as to which they wish to form one commonwealth. The political existence of the Union was not changed. The states were sovereign afterwards as well as before, and they alone were sovereign because a partition of sovereignty is impossible from its very meaning. It would be to turn nature upside
down if the creator were made subordinate to the creature. There was no common judge standing above the federal powers and the states. If a conflict of authority broke out between them, the decisive judgment was left to the states, that is, to each of them for itself, as to what rights they had reserved for themselves and what. powers they had given to the Union. If the federal government, in the opinion of a single state, exceeded its constitutional authority, that state was justified in declaring the particular law, so far as it came in question, to be null and void. John C. Calhoun, of South Carolina, who with great logical acuteness developed into a complete system this so-called doctrine of nullification, declared that nullification was an “eminently conservative remedy," and affirmed that it, and it alone, could prevent the dissolution of the Union. The younger school of the southern state's-rights men did not stand by him in this. The doctrine of nullification was constantly pushed into the background and often completely rejected, and on the
1 See my book about him in the series of biographies edited by John T. Morse, under the general name of “American Statesmen."
2 The doctrine in its beginnings goes back to the last years of the eighteenth century. The hated alien and sedition laws, whose unconstitutionality will scarcely be questioned by anyone to-day, gave the legislatures of Virginia and Kentucky the opportunity to proclaim the doctrine officially. When the anti-federalists in 1801 obtained the mastery, and the policy of the United States in the struggle with England seriously embarrassed the industrial interests, especially those of the New England states, the parties changed their standpoints. The federalists were now champions of state's rights. During the war with England they inserted in their political manifestoes the leading clauses of the Virginia and Kentucky resolutions, word for word. But it was under the pressure of the special interests of the slave-holders that the doctrine of state sovereignty was first fully framed, thought out to a logical end, and finally, with the most terrible zeal, transferred from theory to practice.