THE AMERICAN REPUBLIC: A SYMPOSIUM.

THE CONSTITUTIONAL BASIS.*

THE civil government of the United States is a constitutional republic. Originating in popular aspiration and conducted for public ends, it was truly characterized by Mr. Lincoln as a government of the people, by the people, and for the people, Instead of exalting the individuality of the ruler, or investing him with divine rights, it interprets him as a public servant, responsible to the power that elected him to office, and emphasizes the personality of the citizen, guaranteeing him an enjoyable liberty in the pursuit of the proper ends of life, under limitations in which both conscience and judgment concur.

The basis of the unique political system is the Constitution framed in 1787, under which the presidential history of the Republic commenced one hundred years ago. The first point to be noted is, that the people are under the sovereign authority of a Constitution according to which all legislation is supervised, and all professed loyalty to the government is measured. The hold of the instrument upon the public judgment, as well as upon statesmen, politicians, and rulers, is amazing, when it is remembered that it was the product of a period of governmental incipiency and experiment, and might be supposed to be unadapted in its general tenor and provisions to the present time, so different is it in spirit, achievement, enterprise, and activity from the colonial days that gave it birth. With few amendments made during a century, it is still the standard of legislation, the test of governmental policy, and the basis of the process of American civilization. No Jew ever venerated the law more than the American venerates the Constitution. tests every thing-the republicanism of the States, the solidity of territorial constitutions, the rights of false religions, the movements of civil corporations, the morality of social and industrial institutions, and the political drift of the great body

It

*An eminent jurist was engaged to prepare the paper on this topic; but when it was too late to substitute another, he found it impossible, owing to a dangerous illness, to furnish the article. Under the circumstances, we had either to omit the Symposium, or supply the missing link. We venture upon the latter course.-EDITOR.

of our citizenship. Whatever it permits, sanctions, or forbids is considered right or wrong, accordingly. Tested for one hundred years, it has not been found wanting in the essentials of good government, or in the abundance of its resources, or in the elasticity of its safeguards for the exigencies that have arisen in our history. It may, therefore, continue to influence the nation in its legislation, regulate its interpretations of political teaching, suggest the best methods of political action, and determine the course of the nation in its plans for the future.

Though it may seem unnecessary, we are constrained to call attention to the fact that ours is a written Constitution, because it does not follow that though a government is founded on established ideas there is a written authority for its existence, and development, and history. England is a case in point. Professor Bryce acknowledges that while England is governed by a constitution it is unwritten, and historically, or, in the literary sense, it is a fiction. The Magna Charta, a written authority for liberty, is by no means the constitution of the empire, nor may the so-called palladium of liberty be found at all except in tradition, or that custom which sometimes eclipses law and determines the direction of political movements and changes. It would be difficult, perhaps not impossible, to build up a republic in the New World on the uncertain basis of an unwritten standard of law. The American is not fond of fictions, nor of ambiguities in authority. Practical in sense, moved by definite purposes, aiming at precise ends, he must have a constitution written and printed in his language, and reasonably clear of mystery and equivocal determinations. He is not transcendental enough to trust to the air, the vagueness of tradition, or the antiquity of custom; he believes in the letter, and knows how to extract the spirit from the verbal forin. The Englishman communes with the unseen spirit of right and wrong, and legislates according to his communion. A written constitution might have saved the empire from unjust wars, and much internal mischief-making and oppression.

The American view of the necessity of a written constitution is illustrated, if not re-enforced, by the fact that the divine revelation of truth reaches the race, not through tradition, or as the result of speculation, or of alleged communion with the divine Being, but in written form, or books that, passing through

many hands since they were written, are substantially the same as when they were first penned, and still constitute the source of spiritual knowledge to all who are in sympathy with its grandeur and power. We believe in a written revelation as the source of religion, and in a written constitution as the source of government.

We think it of some importance, also, to observe that, whatever its defects or need of repair, ours is in its spirit and letter a working Constitution. Singularly free from all theorizing as to the function of government, and barren of all mere sentiment touching the duty of the citizen, it is the plainest, most direct, and most authoritative statement of the purposes of the Republic that has been devised. In its general import a child can understand it, though in its largest meaning it is suggestive of the profoundest philosophy of human institutions, and has called forth the deepest study of the most sagacions statesmen of the world. The Decalogue is the only instrument that surpasses it in clearness, brevity, comprehensiveness, depth of meaning, and adaptation to the race. Lycurgus never gave to Sparta a fundamental law like our document. We shall not occupy space with an enumeration of the particular prerogatives it confers upon the general government, but it may be well to remember that by virtue of its grants of power the Congress may raise armies and navies for the national defense; coin and borrow money; lay and collect taxes, duties, imports, and excises; regulate commerce with foreign nations; establish a uniform rule of naturalization; establish post-offices and post-roads; promote the progress of science and useful arts; constitute tribunals inferior to the Supreme Court; define and punish felonies committed on the high seas; provide for the organization of militia to execute the laws, suppress insurrections, and repel invasions, and make all laws which shall be necessary for the execution of the foregoing powers, or of any other power vested by the Constitution in the government of the United States. In pursuance of its delegated power the American Congress has from time to time enacted laws for the accomplishment of the purposes stated, and strengthened the government in its duties to itself and in the enforcement of law among the people.

Recognizing the fundamental character of the Constitution,

we should not forget that it is limited in its scope and operations, and is in a sense superseded in the States by Constitutions of their own. Wiser than most men in their generation, the fathers of the Republic were careful to avoid the erection of a despotism on the one hand, and of an anarchical democracy on the other. They discovered that a centralization of power in the federal government might pave the way to despotic assumption, and yet that the transfer of too much power to the States might weaken the interstate bond and prevent the development of national unity. The problem of founding a national government which should be compatible with the autonomy of the States had never been solved in political history, and the solution they reached was probably in their own minds rather tentative and experimental than esteemed an absolute achievement. The military conflict between the North and the South in 18611865 was a test of the superiority of the national Constitution and the subordinate but autonomous existence of Statehood under it. The result of the test was so decisive that no one now questions the validity of national authority within constitutional limits, or the rights of the States to the exercise of certain powers for their internal development and prosperity. With its evident superiority in national affairs the Congress has no constitutional right to order the suspension of the privilege of the use of habeas corpus except in case of rebellion or the danger of the public safety; nor may a bill of attainder or ex post facto law be passed; nor a capitation or other tax be levied except as specified; nor a duty be imposed on articles exported from any State; nor preference be given to the ports of one State over those of another; nor shall money be drawn from the treasury except as appropriated by law; nor shall any title of nobility be granted by the United States. Thus it is expressly stipulated that, while federal authority is co-extensive with federal jurisdiction, there are certain powers it may not exercise, and an interference with certain rights of the States is absolutely prohibited.

Lest the States might, under provocative circumstances, be inclined to usurp federal right, certain restrictions are imposed upon them by the general Constitution, and have been accepted by the States as proper and legitimate. No State may enter into a treaty with a foreign power; or grant letters of marque

and reprisal; or emit bills of credit; or impair contracts by law; or impose duties on imports and exports without the consent of Congress; or keep troops or ships of war in time of peace; or engage in war unless actually invaded, or in such imminent danger as will not admit of delays. The adjustment of the relations of the National and State governments seems almost perfect, and is vindicating itself in the harmony that subsists between the National and State exercise of authority. On the one hand the Nation is not so obscured by the State as to lose its independent and self-respecting existence, nor on the other is the State so absorbed in the nation as to be without resuscitating and progressive power.

In this exaltation of the Constitution as the exponent of political thought we are not unmindful of the fact that, as an instrument of action, defense, and progress, it is imperfect, and subject to modification in order to adapt it to the changed conditions of society and the country. As a piece of literature it is superior, and in the field of political or legal expression it is without an equal. In language it is strong Anglo-Saxon, and in spirit as positive as Old Testament commandments. The "shalls" and "shall nots" are neither few, obscure, nor ambiguous, but clear, cut, and thundered with the voice of an authority that speaks from sea to sea. Whatever others may hold, we incline to the view that it is without sophistry in its declarations and free from a double sense in its expression. It is not a proslavery instrument, though the abolitionist was prone to characterize it as a "covenant with death." It recognized slavery as a fact, and dealt with it perhaps too leniently, but in no sense as authorizing or justifying it. Even the Old Testament provides for slaves under certain conditions, but never does it sanction the institution; and Paul counsels slaves, not as justifying slavery, but as dealing with existing facts and conditions. This is debatable we know, and therefore the point is not urged. But if the Constitution, as it came from the fathers, justified the institution of slavery, all will agree that the war compelled such a modification of it as to free it from all further complicity with the hideous crime.

Much eulogy has been bestowed upon the first amendment to the Constitution, which inhibits Congress from making laws respecting an establishment of religion, and which also pro