The American Commonwealth. Viscount James Bryce
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Fifteenth Constitutional Amendments, which have already been discussed. They were intended to secure equal treatment to the Negroes, and incidentally they declare the protection given to all citizens of the United States.10 Whether they really enlarge it, that is to say, whether it did not exist by implication before, is a legal question not needing to be discussed here.
II. The power of a state over all communities within its limits is absolute. It may grant or refuse local government as it pleases. The population of the city of Providence is nearly one-half of that of the state of Rhode Island, and that of New York City about one-half of that of the state of New York. But the state might in either case extinguish the municipality, and govern the city by a single state commissioner appointed for the purpose, or leave it without any government whatever. The city would have no right of complaint to the federal president or Congress against such a measure. Massachusetts remodelled the city government of Boston just as the British Parliament might remodel that of Birmingham and once superseded the city government of Chelsea by appointing a sort of temporary dictator to administer it for a time. Let an Englishman imagine a county council for Warwickshire suppressing the municipality of Birmingham, or a Frenchman imagine the department of the Rhône extinguishing the municipality of Lyons, with no possibility of intervention by the central authority, and he will measure the difference between the American states and the local governments of Western Europe.
III. A state commands the allegiance of its citizens, and may punish them for treason against it. The power has rarely been exercised, but its undoubted legal existence had much to do with inducing the citizens of the Southern states to follow their governments into secession in 1861. They conceived themselves to owe allegiance to the state as well as to the Union, and when it became impossible to preserve both, because the state had declared its secession from the Union, they might hold the earlier and nearer authority to be paramount. Allegiance to the state must now, since the war, be taken to be subordinate to allegiance to the Union. But allegiance to the state still exists; treason against the state is still possible. One cannot think of treason against Warwickshire or the department of the Rhône.
These are illustrations of the doctrine which Europeans often fail to grasp, that the American states were originally in a certain sense, and still for certain purposes remain, sovereign states. Each of the original thirteen became sovereign (so far as its domestic affairs were concerned, though not as respects international relations) when it revolted from the mother country in 1776. By entering the Confederation of 1781–88 it parted with one or two of the attributes of sovereignty; by accepting the federal Constitution in 1788–91 it subjected itself for certain specified purposes to a central government, but claimed to retain its sovereignty for all other purposes. That is to say, the authority of a state is an inherent, not a delegated, authority. It has all the powers which any independent government can have, except such as it can be affirmatively shown to have stripped itself of, while the federal government has only such powers as it can be affirmatively shown to have received. To use the legal expression, the presumption is always for a state, and the burden of proof lies upon anyone who denies its authority in a particular matter.11
What state sovereignty means and includes is a question which incessantly engaged the most active legal and political minds of the nation, from 1789 down to 1870. Some thought it paramount to the rights of the Union. Some considered it as held in suspense by the Constitution, but capable of reviving as soon as a state should desire to separate from the Union. Some maintained that each state had in accepting the Constitution finally renounced its sovereignty, which thereafter existed only in the sense of such an undefined domestic legislative and administrative authority as had not been conferred upon Congress. The conflict of these views, which became acute in 1830 when South Carolina claimed the right of nullification, produced secession and the war of 1861–65. Since the defeat of the Secessionists, the last of these views may be deemed to have been established, and the term “state sovereignty” is now but seldom heard. Even “states’ rights” have a different meaning from that which they had before the War of Secession.12
A European who now looks calmly back on this tremendous controversy of tongue, pen, and sword, will be apt to express his ideas of it in the following way. He will remark that much of the obscurity and perplexity arose from confounding the sovereignty of the American nation with the sovereignty of the federal government. The federal government clearly was sovereign only for certain purposes, i.e., only in so far as it had received specified powers from the Constitution. These powers did not, and in a strict legal construction do not now, abrogate the supremacy of the states. A state still possesses one important attribute of sovereignty—immunity from being sued except by another state. But the American nation which had made the Constitution, had done so in respect of its own sovereignty, and might well be deemed to retain that sovereignty as paramount to any rights of the states. The feeling of this ultimate supremacy of the nation was what swayed the minds of those who resisted secession, just as the equally well-grounded persuasion of the limited character of the central federal government satisfied the conscience of the seceding South.
The Constitution of 1789 was a compromise, and a compromise arrived at by allowing contradictory propositions to be represented as both true. It has been compared to the declarations made with so much energy and precision of language in the ancient hymn Quicunque Vult, where, however, the apparent contradiction has always been held to seem a contradiction only because the human intellect is unequal to the comprehension of such profound mysteries. To everyone who urged that there were thirteen states, and therefore thirteen governments, it was answered, and truly, that there was one government, because the people were one. To everyone who declared that there was one government, it was answered with no less truth that there were thirteen. Thus counsel was darkened by words without knowledge; the question went off into metaphysics, and found no end, in wandering mazes lost.
There was, in fact, a divergence between the technical and the practical aspects of the question. Technically, the seceding states had an arguable case; and if the point had been one to be decided on the construction of the Constitution as a court decides on the construction of a commercial contract, they were possibly entitled to judgment. Practically, the defenders of the Union stood on firmer ground, because circumstances had changed since 1789 so as to make the nation more completely one nation than it then was, and had so involved the fortunes of the majority which held to the Union with those of the minority seeking to depart that the majority might feel justified in forbidding their departure. Stripped of legal technicalities, the dispute resolved itself into the problem often proposed but capable of no general solution: When is a majority entitled to use force for the sake of retaining a minority in the same political body with itself? To this question, when it appears in a concrete shape, as to the similar question when an insurrection is justifiable, an answer can seldom be given beforehand. The result decides. When treason prospers, none dare call it treason.
The Constitution, which had rendered many services to the American people, did them an inevitable disservice when it fixed their minds on the legal aspects of the question. Law was meant to be the servant of politics, and must not be suffered to become the master. A case had arisen which its formulæ were unfit to deal with, a case which had to be settled on large moral and historical grounds. It was not merely the superior physical force of the North that prevailed; it was the moral forces which rule the world, forces which had long worked against slavery, and were ordained to save North America from the curse of hostile nations established side by side.
The word “sovereignty,” which has in many ways clouded the domain of public law and jurisprudence, confused men’s minds by making them assume that there must in every country exist, and be discoverable by legal inquiry, either one body invested legally with supreme power over all minor bodies, or several bodies which, though they had consented to form part of a larger body, were each in the last resort independent of it, and responsible to none but themselves.13 They forgot that a constitution may not have determined where legal supremacy shall dwell. Where the Constitution of the United States placed it was at any rate doubtful, so doubtful that it would have been better to drop technicalities, and recognize the broad fact that the legal claims of the states had become incompatible with the historical as well as legal claims of the nation. In the uncertainty as to where legal right resided, it would have been prudent to consider where physical force resided. The South, however,