ously critical period in American history. Separately, these compromises would have been comparatively harmless. But working together, they seriously threatened the existence of the union in 1820, 1833, and in 1850, while in 1861 they plunged the country into one of the most terrible civil wars known to history. That civil war was the price which the American people paid for their lack of national patriotism in 1787. With national patriotism enough to have had at heart the highest ultimate good of the whole American people, the Convention would have framed, and the states would have adopted, a constitution without these compromises. But the actual alternatives were a constitution with these denationalizing elements or anarchy. The work which national patriotism might have done peacefully and without loss, in 1787, was done at a terrible cost in the civil war. The constitution which was intended to be the great national charter of a free people is no longer disfigured by clauses recognizing slavery. The three* slavery clauses were blotted out of it by the blood of the men who fell in that terrible struggle. It is still silent as to secession and state sovereignty. But in the lurid light of the civil war, that silence is no longer misinterpreted. All men now admit that practically if not theoretically-we think practically and theoretically-when the people of the thirteen states adopted the constitution *The third was the clause which provided for a fugitive slave law. of 1787, they acknowledged the unity and sovereignty of the one American people. The radical defect of the confederation was its inability to execute its laws. The attention of the Convention was, therefore, early directed to some means of remedying this. The Virginia plan, as introduced by Randolph, proposed to give to Proposal to Congress the power to veto all unconstitutional laws passed by the states, and all laws conflicting with treaties made in accordance with it, and to compel by force any state to do its duty as defined in the constitution. The power to veto unconstitutional laws was at first agreed to by the Convention without dissent. Indeed, even this did not go far enough to satisfy some of its members. Charles Cotesworth Pinckney moved that the national legislature should have authority to negative all laws passed by the states which they should judge to be improper. Radical as this motion was, it was seconded by Madison, and advocated by some of the ablest men in the Convention. It received however, the votes of but three states, Virginia, Massachusetts and Pennsylvania. But upon maturer reflection, the Convention decided that the states could be kept from violating the constitution and treaties and laws of the United States by means less offensive to the people. They decided to incorporate in the constitution a clause providing that the constitution and the laws and treaties made in accordance with it, should be "the supreme law of the land," and that the judges in every state should be bound thereby, "anything in the constitution or laws of any state to the contrary notwithstanding." The substance of this clause was introduced by Paterson, in the plan which was intended to leave the princi ple of the confederation untouched. And no wonder, for it was substantially a repetition of the "promise" made by the states in the Articles of Confederation, to "abide by the determinations of the United States in Congress assembled." Under the government of the confederation, this promise had been of no value for the confederation had no power to compel the states to keep it. But the creation of a national executive and judiciary made this clause in the constitution mean exactly what it said. The constitution provided that the judicial powers should extend to all cases in law and equity arising under it, or the laws and treaties made in accordance with it. When, therefore, Congress or the legislature of a state passes a law which any one considers as encroaching upon his rights as guaranteed by the constitution, he can refuse to obey it on the ground that it is unconstitutional. The case so arising comes before the federal courts, and if they in the last resort declare the act unconstitutional, it is null and void so far as the particular case before them is concerned. There is nothing in the constitution to prevent the continued enforcement of the nullified law in all other cases that are not brought before the federal courts. But the decisions of the Supreme Court are so universally respected that they have "the force of a general rule," and no executive attempts to enforce a law in any case which they have pronounced unconstitutional.** Americans who are familiar with no constitutional Burgess on Su the United States. system but their own, are apt to look upon preme Court of this as a matter of course, but Burgess has shown us that this is far from being the case. "In England, France and Germany," he tells us, "such an effect is scarcely thought of. We have seen however, that the supreme court of England, France and Germany might deal with a particular case just as the Supreme Court of the United States deals with it, and that the legislatures of these respective States have only about the same powers of coercion over those courts that the Congress of the United States possesses. What, then, is it which causes this all important generalization to be made immediately and unconditionally from a special decision of the Supreme Court of the United States, when such a generalization is scarcely dreamed of anywhere else?" "We must go back of statutes and constitution for the explanation. Back of these, however, there lies nothing in the domain of political science but public opinion." It is, then, the feeling of the American people that law must rest upon reason and justice, that the constitution is a *See Burgess' Science and Constitutional law, vol. II, p. 327. more reliable statement of the principles of reason and justice, than mere legislative acts, and that the judiciary is a more trustworthy interpreter of those principles than the legislature—it is this feeling which has given such authority to the interpretation of the constitution by the Supreme Court. This feeling "has been awakened and developed by the fact that the political education of the people has been directed by the jurists rather than the warriors or the priests; and it is the reflex influence of this education that upholds and sustains, in the United States, the aristocracy of the robe. I do not hesitate to call the governmental system of the United States the aristocracy of the robe; and I do not hesitate to pronounce this the truest aristocracy for the purposes of government which the world has yet produced."* QUESTIONS. 1. What is the difference between a republic and a representative democracy? Which did the Convention aim to provide for? 2. How do you account for the pronounced anti-democratic tendencies of men like James Madison and Elbridge Gerry? 3. Specify the various features of the constitution which show that it provides for a republic rather than a representative democracy. 4. Our governmental system is in fact much more democratic than the framers of the constitution intended it to be. State the reasons. 5. Contrast the Virginia and New Jersey plans. 6. What was the Connecticut compromise? * Burgess' Political Science and Constitutional Law, vol. II, p. 360. |