Constitutional Government (Boston Quarterly Review, 1842)
Constitutional Government
[From the Boston Quarterly Review for January,1842.]
Government is not, as the author of "Common Sense"
asserts, "at best a necessary evil." It has its origin and necessity in what is good, not merely in what is bad, in human
nature. It rests for its support on elements as pure, as elevated, and as indestructible as those on which rests religion
itself. It will not, therefore, cease to operate, nor become
less essential as an instrument of social progress and well-
being, in proportion as men advance in wisdom and virtue,
as in contended by a portion of our modern philanthropists.
Man was made to live in society, in intimate relations
with his race, and he can live nowhere else. It is only in
society, and by its aid, that he can grow, and expand, and
fulfill the end of his being.
Society is inconceivable without individuals, but it has an
existence, a destiny distinguishable, if not separable from
theirs. It acts ever in relation to individuals, and through
individuals, but its action is not theirs, nor merely an aggregate of isolated activities. It is not itself an aggregate, a
collection, but a unity, an individuality, living its own life,
which extends from the indefinite past to the illimitable
future.
Society becomes a unity, an individual, by organizing
itself onto the state or commonwealth. So organized, it is
government, and its action is governmental action. Or, in
other words, and a more limited sense, government is the
result of this organization and the agent through which it
operates.
Society organized into the state or commonwealth, that is,
as government, has for its mission the maintenance of every
member of the community, in the free and full possession
of all his natural liberty, and the performance, in harmony
with this natural liberty, of those labors demanded by the
common good of all, which necessarily surpass the reach of
individual strength, skill, and enterprise.
The maintenance of each and every member of the com-
munity in full possession of his natural liberty is the
first duty of government. Till this be done, nothing is
gained. But this is not all. No individual is sufficient for
himself, and however free individuals may be, if left to act
always as individuals, without concert, without union, association, they can accomplish little for themselves, or for the
race. Savages are as free, individually, as can be wished;
but the savage state is the lowest conceivable form of social
life. In it there is no progress. The individual is poor
and solitary, wandering the earth as an outcast, and doomed
to subsist on wild berries, or the scanty products of fishing
or the chase, always precarious, and at best but feebly sufficing for his subsistence. There are labors demanded for
the growth and well-being of the individual, which no single individual can perform. These must be performed by
association, that is, by government. Government besides,
maintaining the natural liberty of the individual, must open
the resources of the country, construct roads and bridges,
railways and canals, open harbors, erect light-houses, protect commerce and navigation, build school-houses and
churches, asylums and hospitals, and furnish the means of
universal education, of the highest industrial, scientific, and
artistic culture for all the children born into the community.
The ends of government are determined by the law of
eternal and absolute justice, and are everywhere and always
the same. Always and everywhere is it obligatory on government to maintain justice between man and man, and to
direct the activity of society to the common good of all its
members. Of this no government may ever lose sight. No
statesman may raise in regard to it the question of expediency, allege that it is difficult or inconsistent, and that it
may, therefore, be sacrificed to something more easily attained.
But the form of the government is a mere question of
means to an end. One form of government in itself is no
more just and equitable than another, and no more obligatory
upon a people. That form is the best for a people, which
in its practical workings best realizes the true end of government. In some countries this may be the monarchial
form, in others, the aristocratic, in others still, the democratic, or some modification of one or all of these.
Hitherto all governments have failed to realize, in any
tolerable degree, the two-fold end of government designated.
The American governments form no exception to this statement. They have merely demonstrated that the American
people can maintain a strong and stable government without
kings or nobles; nothing more. It remains to be demonstrated that they can establish, and maintain wise and just
governments, which fulfill their duty alike to society and
the individual. Beyond the recognition of political rights,
our governments do nothing more for individual liberty, or
for social progress, than the governments of the more advanced European nations are doing. In the science of legislation we are perhaps behind England, France, and even
Germany; for we are struggling with great zeal and perseverance to fasten upon the country a policy which these
nations are casting off.
Politically we have declared all men to be equal; the
rights of one man to be the measure of those of another;
but in all other respects we are nearly as unequal in our
condition as are the people elsewhere. Property, instead
of becoming more equally diffused, becomes relatively more
and more concentrated in a few hands. Poverty keeps pace
with wealth, and even outruns it. There is as gross ignorance, as filthy wretchedness with us, though confined with-
in narrower limits, as can be found on the face of the globe.
Laws are partial, and unequal in their operation. One section of the country, or one interest is favored at the expense
of another; the administration of justice is affected by the
relative condition of the parties concerned; he with the
longer purse, or the most influential friends, is pretty sure to
have the better cause, and a rich man, though acknowledged
to be a murderer, is seldom hanged; swindlers and rogues on
a large scale are high-minded and honorable men; and the
many are taxed for the support, or the benefit of the few.
Government maintains not individual liberty, nor does it
confine itself to those labors which are for the common good
of all. It is perpetually legislating for classes, for interests,
and protecting one at the expense of another. Whence the
cause of this failure? And what is the remedy?
One class of politicians attribute the failure to the general diffusion of democracy, to the almost universal extension
of the right of suffrage; and the remedy they would pro-
pose, if they dared, is the restriction of this right to men of
property and respectability, or at least to those who have a
property stake in the community. The number properly
qualified, in any community, for the exercise of political
power, is unquestionably small. The voice of the multitude
is rarely the voice of God. But the few who are qualified,
are as likely to be found among those whom these politicians
would exclude from the elective franchise, as among those
to whom they would extend it. The ignorant multitude
are as likely to be on one side of the line as on the other;
and vice is as prevalent among the rich as among the poor,
and altogether more dangerous. Restrict the right of suffrage to the property holders, and none of those would be
excluded who are now influential in giving to government
its false direction. The men who cause all the mischief are
not the poor, the men who live by daily wages, but the men
of property, business men, bankers, traders, speculators, and
designing politicians, who want government administered
for their special benefit. The restriction of suffrage, so far
as it would have any practical effect, would throw still more
power into the hands of these, and enable them to turn
government further and further from its true end.
The evils, which obtain, result from the attempt of government to build up certain property interests. Government never makes direct war on the natural liberty of
individuals; but destroys it by legislating for classes, for
special interests, instead of confining itself to those measures
which are equal and for the common good of all. To place
it entirely in the hands of any one class, or under the control of any special interest, is merely to aggravate the evil,
not to cure it. For it is the invariable nature of every class,
of every interest, to wield, so far as it can, the whole force
of the government for its own protection and furtherance.
Found your government on property, and its whole force
will be wielded in favor of property. Man, except so far
as his rights and interests are involved in the protection of
property, will be disregarded, and even depressed. The evil
complained of cannot, then, be redressed by restricting the
elective franchise to the property holders. In point of fact,
these have already too much power, and hence the evil.
Another class of the politicians propose to remedy the evil
by enlarging the power of the democracy. The government, they say, is too aristocratic, and ought to be made
more democratic. This, if it were said in England or
France, would be very intelligible, but in this country it
has no meaning, or a meaning the reverse of that intended.
Democracy here is triumphant; that is, if we mean by democracy the people, or the government of the people.
Here all are people, and all interests popular interests. The
interests fostered by government are no more aristocratic
interests than those it neglects or depresses. It is no more
aristocratic to spin cotton than it is to till the soil, to fit out a
ship for Canton, than it is to saw wood or black boots. All
are alike interests for the people, and therefore democratic
interests. The people here are already sovereign. They
frame the government and administer it. They make and
execute the laws, determine and enact the public policy of
the country. What more, then, in favor of democracy can
be asked?
There are only two ways in which democracy can be politically extended in this country. The first is by removing
the few remaining restrictions on the right of suffrage; the
second is to abolish the constitutional checks now imposed
on the action of the government. The first cannot amount
to much. No man who watches elections, and comprehends
the influences which decide them, can believe that making
suffrage absolutely universal would vary at all their results.
The second would be to increase the power of the government and to enlarge the sphere of its activity. But the evil
complained of does not arise from the weakness of the government, nor from the fact, that is restricted to too few
matters; but the reverse:- from its too great strength, and
from its attempting to do what government ought not to do.
The proposed remedy would be merely rendering the people
as a body politic an unlimited sovereign, and giving, in
practice, to the majority unlimited freedom to pass any laws
they please. This would lessen no evil.
On this subject of democracy our politicians fall into some
mistakes. A portion of them have clear and systematic
minds. They start with the doctrine, that the people are
sovereign, and proceed on the maxim that the people can do
no wrong. Once clear the field for a free and full expression of the will of the people, and government would always
protect the liberty of every citizen, and be administered for
the common good of all; no monopolies, no partial or special
legislation, no fostering of special interests, would be tolerated; no laws bearing unequally on sections, interests, or individuals, would be enacted; no iniquitous public policy
would be pursued; but government, imposing burdens upon
none, would shed its blessings, like the dews of heaven, alike
on all, whether rich or poor, learned or unlearned, powerful
or without influence. But unhappily for this theory, it is
already in practical operation. It is difficult to conceive
what now hinders the free and full expression of the will of
the people. They are sovereign, and can do as they please.
The government and laws that we now have are precisely
what the sovereign people will. They vote as they please,
elect such men to office as they choose to elect, and men who
unusally take good care to support such a policy as they be-
lieve will be most satisfactory to their constituents. How
then can it be pretended, that the will of the people is not
freely and fully expressed? or that if there could be a freer
and fuller expression, it would vary the result?
There can be no question, that the government is not ad-
ministered for the good of the great mass of the community;
no question that the many are taxed, directly or indirectly,
enormously for the exclusive benefit of the few; but whose
is the fault? Bankers, capitalists, corporators, stock-jobbers, speculators, and trafficking politicians control the government, and in nearly all cases shape its policy. By their
arts and intrigues they unquestionably succeed in giving pre-
dominance to their will over the will of the rest of their
fellow-citizens. But they are a portion of the people, and
therefore a portion of the democracy. They do not constitute a class apart from the democracy. The late president
of the late United States Bank is as much one of the people
as the hod-carrier who aided in the construction of his mar-
ble palace. In speaking of the people, the democracy, these
must be included, and their will be counted the will of the
people, as much as the will of any other portion of the com-
munity. In estimating the course likely to be taken by the
people, we must take into account the liability of the
people to follow the advice and dictation of this portion of
their number, and the interest this portion has in misleading
them, and the means it possesses of misleading them. The
whole people must be included in our estimate, and taken
as they are, and for precisely what they are. Whatever the
result of an election in this country, it must always be taken
to be as free and as full an expression of the popular will
as democracy with us can collect. The fact that this will
is, after all, in reality but the will of a small minority, alters
not the truth of this statement. It simply proves that in a
country like ours, under a purely democratic order, or under
an unlimited democracy, the will of the people that rules
will always be the will of the smaller number. It shows,
then, not that we should render our institutions more democratic, but that it is not absolute democracy that we are
to seek the remedy of the evil complained of. The will of
the people, which it is possible to collect can never be in
advance of the people themselves. So long as the people
are what they now are, made up of the same materials, with
the same diversities of character, condition, and interest, no
other will of the people can exist, certainly no other can be
officially uttered, than that which now rules through the
government.
The democratic theory, now under consideration, requires
for its success a community, in which all citizens have
in all respects one and the same interest, and are all sub-
stantially equal in position, wealth, and influence. Whether
such equality and such identity of interests be or be not at-
tainable, be or be not desirable, neither one nor the other is
attained here. As men all are indeed equal, and so far
forth as men, they all have the same interests; but as mem-
bers of the community their conditions are diverse, their
callings are different, and their interests are often hostile
one to another. Their interests, so far forth as men, are
not, as democracy demands, the interests which predomi-
nate. These interests count for little or nothing with elec-
tors and legislators. In elections and legislation the inter-
ests which predominate are never those which belong alike
to all men, but the special interests of classes, sections, or
individuals. Men are governed at the polls, and in the leg-
islative hall, by the same passions and interests which rule
them in the ordinary business of life. No man, when he
acts as an elector, or as a legislator, divests himself, or can
divest himself, of these passions and interests. They are
his life. The planter votes and legislates for the planting
interest, the farmer for the policy that will advance the
price of wheat, the manufacturer for that which will pay
him a bounty on his wares, and the stock-jobber, or speculator, for a paper currency as best adapted to his gambling
propensities. Each demands a policy most favorable to that
branch of business in which he is specially interested. The
several special interests of the country go to the polls, each
pitted against the other, and the stronger triumphs, possesses
itself of the legislature, and wields the whole force of the
government in its own favor. This is inevitable in a democracy, where there are diversities of interest. The stronger
interest, by whatever means it is the stronger, whether by
numbers, wealth, position, talent, learning, intrigue, fraud,
deception, corruption, always possesses itself of the government, and taxes all the other interests of the community
for its own especial benefit.
This fact is not duly considered by our democratic theorists. They tell us the voice of the people is the voice of
God; that what the people will is for the good of the whole;
but however this may be in some refined transcendental
sense, in practice the will of the people is the will of that
interest in the community, which is able to command a majority, and the voice of the people is the voice of that inter-
est. Political theories must be tested not by their abstract
beauty and excellence, but by their practical operations, the
people being taken just as they are. In Fourth of July
orations, or in caucus speech, the noblest sentiments, the
purest and loftiest enthusiasm for justice and humanity, are
always received by the assembled mass with the heartiest
rounds of applause. Appeals to patriotism and philanthropy will always make you most effective as an orator, or
as a writer; but patriotism and philanthropy, when carried
to the polls or into the legislative hall, are identified by
each man with the special protection by government of his
peculiar interest. Patriotism and philanthropy with the
planter are in his cotton-bags, with the farmer in his wheat-
field, with the manufacturer in his spindle and loom, with
the banker in his notes, with the merchant in his ship or
counting-room. What most benefits ME, is most patriotic
and for humanity. No government will work well, that does
not recognize this fact, and which is not shaped to meet it,
and counteract its mischievous tendency.
There is altogether too much fulsome flattery of the people, too much nonsense uttered about independent voters.
One-fourth of your independent voters will not take the
trouble to go to the polls, unless called out by more zealous
partisans; and the party which can make the most noise, and
has the most money to spend for electioneering purposes,
will always be able to call out the larger portion of them,
and usually enough to decide a closely contested election
vote always with the stronger party, and always do vote
with that party which they believe has the greater likelihood of succeeding. Of the reminder, not one in ten has
any clear conception of the questions at issue, or any toler-
able judgment of what will be the practical operation of one
policy or another.
With these facts staring us in the face, it seems idle to
seek a remedy for the evils complained of in a further ex-
tension of the democratic principle. The form of our government is already as democratic as need be; and were it
made more so, it could only aggravate the disease, so long
as there is in the community the present inequality of conditions, or the present diversity of interests. This remark
will of course be offensive to our demagogues and trading
politicians, whose stock in trade consists mainly in their
ability to scream democracy, DEMOCRACY, in our ears from
morning to night, and from year's end to year's end. It
will deprive them of many of their present facilities, should
it gain credit with the people, and render it somewhat
doubtful whether this ability to scream democracy does in
reality of itself qualify a man for any and every office from
path-master to president of the United States. But as this
is a sacrifice demanded by the public good, perhaps these
pure patriots will consent to make it.
In these remarks nothing is said against democracy, when
interpreted to mean, as many of our friends interpret it, a
government which is so constituted and administered, as to
maintain the natural liberty of the individual and to perform
those social labors, surpassing the reach of the individual,
demanded by the common good of all. But when democracy
is so interpreted, the end of government is confounded with
its form,- an error into which we ourselves, we are sorry to
say, have on some occasions fallen. That what it thus de-
clared to be democracy, is the end that government should
aim to realize, that which it should be so constituted and
administered as to realize, is unquestionably true. But the
purely democratic form of government, that is, a form of
government which recognizes the absolute sovereignty of
the people, and leave the ruling majority the unlimited
freedom to do whatever it pleases, will not secure this end,
as is abundantly proved by the considerations already al-
leged. Democracy, when it is interpreted to mean the end
to be gained, is worthy of all acceptation; it is defective
only as a means. It cannot as a form of government se-
cure the end proposed, because there are in the country a
diversity of conflicting interests, and the government must
always take the direction of the stronger interest; which
with us has been heretofore, if not now, what may with
sufficient accuracy be termed the interest of business capital. The government, following the direction of this interest, can be for the common good only on condition that
the interest of all classes, sections, and individuals is identical with the interests of the small minority engaged in
business.
Nor is this all. The interest which triumphs, and obtains for itself the fostering care of the government, is not
in reality promoted thereby. The specially protected interests, in the long run, suffer in consequence of the very
protection they receive. This is now admitted by the more
enlightened statesmen both at home and abroad. All interests prosper best under that government which proceeds
on the maxim, "justice to all, favors to none." In political economy, as well as individual, a departure from the
principles of common justice breeds confusion, hostility,
and brings with it a day of terrible retribution. The laws of
God, whether for individuals, or for societies, are equal
and just, opposed to all favoritism, to all special privileges,
and in neither case are they ever transgressed with impunity. But all interests are short-sighted. The dram of
protection exhilarates to-day, and they think not that it will
debilitate to-morrow, and finally, if persisted in, destroy the
system.
The evils of government all proceed from its attempts to
protect or further special interests; that is, from not con-
fining itself to those matters, or to such lines of policy as
necessarily affect all interests and all individuals alike. The
interests of a community are two-fold, those which are common to all its members, and those which are peculiar to
classes, or to individuals. The first only are proper objects
of government. True statesmanship consists in so constituting the government, that it can never, in its practical operations, obtain any power to act on any matters but these.
Government should be so constituted, as to operate for man,
not for his accidents. It should legislate not for the merchant, the manufacturer, the farmer, the planter, the speculator, the banker, the laborer, but for the man. The problem to be solved is, how to constitute and administer the
government so as to recognize always, and in all its practical bearings, the supremacy of the man.
Aristocracy with us is not the solution of this problem,
because the aristocracy, whatever its basis, birth, wealth,
learning, or military service, will always administer the
government for the exclusive benefit of the aristocratic class.
Monarchy will not answer, because there every thing must
bend to the glory of the monarch. Democracy will not an-
swer, because it concentrates all power in the hands of the
ruling majority for the time, and that majority will always
consist, as has been shown, of the stronger interest in the com-
munity, and therefore of the interest that should be checked
rather than suffered to rule. The common vice of all these
systems, as of all conceivable absolute governments, is in
their CENTRALISM. All power is centered in the government, and the interest, class, or individual oppressed or neglected, has no effectual veto on its tyrannical acts.
The great and difficult problem for the statesmen, but at
the same time his first and indispensable duty, is to provide
a veto on power. No government can operate well, where
there is no power in the community to arrest it, peaceably
and effectually, whenever it runs athwart the interests or
the rights of the people at large, or of any portion of them.
The prosperity of Rome dates from the establishment of the
tribunitial power, which was a veto on the government;
and it continued till both the government and veto power
were absorbed in the emperor. Then centralism triumphed. All power was in the same hands, in one and the
same body, and Rome declined and fell. The merits of the
old feudal system, now so universally repudiated, consisted
in the veto the great vassals had on the crown, and on each
other. England is indebted, for the stability and beneficial
influence of her government, to the imperfect veto her
house of commons has, in granting or withholding supplies.
In Poland the veto power was carried too far, and proved
the ruin of the republic. But always, in order to secure
good government, must there be somewhere in the state the
POSITIVE power called the government, and the NEGATIVE
power, naturally and peaceably arresting the action of the
government, whenever it attempts to play the tyrant.
These two powers must be lodged in different hands. For
the veto power is nothing, if vested in the government it-
self. It would then be only the government vetoing its
own acts. It must be separated from the positive power,
and placed in other hands, as was the case at Rome. The
patrician order governed, but the plebeians, through their
tribunes, could veto its acts. The patricians, therefore,
while they constituted the governing power of the state,
could enact no laws, pursue no line of public policy, which
would not be so far acceptable to the plebeians as to escape
the trubunitial veto. But if this veto power had been
lodged in some branch of the senate itself, or in a portion
of the ruling order, it would have been no veto at all; because the interest that must exercise it, if exercised at all,
would have been the very interest against which it must be
exercised.
It may be assumed, then, as an axiom in political science,
that in order to secure a wise and just administration of government, there must be a division of powers into positive
and negative, and the negative power must be placed in such
hands, as will have a direct interest in interposing it against
the encroachments of the positive, or governing power.
Till quite recently nearly all American statesmen have
recognized the necessity of a veto power. They have not,
however, always perceived the necessity of placing it in a
distinct organization. They have sought to obtain it by
various artificial divisions in the positive power itself, and
have trusted to the ruling interest to veto its own acts,-at
least to some considerable extent, and wholly where circumstances were not against them. The necessity of a limitation on the exercise of power has been felt by all; but, except in the case of the federal government, they do not appear to have had any clear conceptions of the nature of the
limitations demanded, nor the effectual means of constituting it. The methods they have for the most part relied
on, are frequency of elections, the division of the legislative
branch into two houses, the executive veto, and written con-
stitutions. Frequency of elections is well, as far it goes,
but is by no means an effectual veto. For it rarely happens
that the veto is needed, when it must not be excercised against
the majority of the people themselves, as well as against a
majority of their representatives in the legislature. The
new elections will then almost always return men pledged to the of the new house will need vetoing as much as those of the old.
The division of the legislature into two houses answers a
good purpose, when, as in England, they are differently constituted, and really represent different interests, but in this
country, for the most part, the two houses represent the
same interest, and differ from each other only in the fact
that one is more numerous than the other, as is evinced by
the fact that the instances of disagreement between the
senate and the house are few, and comparatively trifling.
Both houses are usually of the same political complexion.
Nevertheless, this division, when the members of one house
are chosen for a longer term of service than those of the
other, or when the local interests of the state are such, that
by making the members of one house more numerous than
those of the other, one may be made to represent different
interests from those represented by the other, answers a good
purpose, and to some extent secures the veto power demanded.
The executive veto is inefficient, from the fact that it will
rarely be exercised. The executive is in all cases chosen
by the people at large, or by the legislative branch of the
government. In most cases his term of office is the same,
or very nearly the same, with that of the members of the
legislature, and he must therefore agree with the ruling
majority in his politics; and will for the most part represent the same interests. In general, then, the chances are
much greater that he will approve an improper exercise of
power on the part of the ruling majority than that he will
veto it. In a few instances, the presidential veto has been
exercised against the wishes of the political friends of the
president, but never when there was not good reason to believe that a majority of the people would sustain it.
Written constitutions are indispensable in this country;
but mere written constitutions impose only a slight restriction on the power of the ruling majority. If there be not
a veto power behind them, in the very constitution of the
commonwealth, able and interested in sustaining them, they
will be violated with impunity whenever the ruling majority
find them in their way. In the estimation of those who
have the power, that is always constitutional which they
believe to be conducive to their own especial interests. The
minority may protest, adduce the very letter of the constitution, but what avails it? Power cares not for a few slopes,
curves, and angles, drawn on parchment. It cares not on
what rights or interests it tramples. It goes straight to its
object, from which nothing can avert it, but an antagonistic
power, which effectually resists it. Experience abundantly
proves this. Nothing is more evident than the unconstitutionality of a United States bank, and yet there has been
scarcely a congress from the origin of the federal government not ready to charter one; the constitution authorizes
no tariff for protection, as the advocates of the protective
policy admit, by the fact that they never dare bring in a
bill for protection that declares on its title its purpose, and
yet the protective policy has been able to command large
majorities in congress and among the people. No law can
be more right in face and eyes of the constitution than that
of the extra session of congress last summer, distributing
the proceeds of the public lands among the states, and yet
it found a majority in both houses of congress in its favor,
and received the executive sanction. These and numerous
other instances show that written constitutions are as mere
waste paper when in the way of ruling majorities.
There is a mistake in regard to constitutions, somewhat
prevalent, fraught with much mischief. It is supposed to
be the easiest thing in the world to frame a constitution, and
therefore to secure the wise and just administration of government. Let the people assemble by their delegates in
convention, debate for three or four months, and then draw
up and instrument, which, when ratified by the people in
their primary assemblies, shall be a constitution, the fundamental law of the land. All this is well enough. But what
makes this instrument a constitution, a fundamental law?
Does the convention merely draw up and instrument? or
does it give a constitution to the body politic? The common opinion seems to be, that it merely draws up an instrument with a certain number of articles and sections, and declares that that shall be the law, according to which the
government shall be administered or power exercised. But
where is the guaranty that power will be so exercised, that
the sovereign authority will not transgress its provisions?
The common reply will be, that the people who make the
constitution will see that it be not violated. This is the
mistake.
Constitutions are intended to be a restriction on power,
and are needed because power has a perpetual tendency to
exceed wholesome limits. But, with us, power is the
people. The people here are the sovereign authority. Constitutions are needed, then, to be a check on the people, a limit to their power, in order to save us from the calamities of absolute government. To form a constitution and entrust its preservation to the people is, then, a manifest absurdity; for then the very power is relied on to protect the constitution from violation, which the constitution is created to
restrict, and from which alone the violation of the constitution is to be apprehended. It is like locking up the culprit
in prison, and entrusting him with the keys. To say that
the people will voluntarily, of their own accord, sustain a
constitution that restricts their sovereign power, is only say-
ing that they will voluntarily, of their own accord, forbear
to exercise that portion of their power so restricted. What,
then, is the use of the constitution? If affords no additional
security; but leaves us right where we should be, in case
we had no constitution at all. We have with the constitution nothing but the discretion or pleasure of the sovereign
on which to rely, and we should have that without the constitution. In this view of the case, constitutions are a great
absurdity.
Let not these remarks be misinterpreted. Nothing is in-
tended against the constitutional governments; but the reverse.
Constitutional governments are the only governments which
really secure the freedom of the subject or citizen. But,
then, they must be constitutional governments. The constitution must be something more than the roll of parchment,
with its slopes, angles, and curves. To make the constitution is not to draw up the written instrument, but to organize the body politic, to constitute it several powers; and if
we really intend it to be a constitution, so to organize the
state as to have always a negative power capable of arresting the positive power; whenever it is disposed to exceed
the bounds prescribed to it. The constitution, then, must
virtually consist in the manner in which is different interests, classes, sections, or natural divisions of the community
are organized in relation to the government. The great
point to be kept always steadily in view, is the constitution
of the veto of power. The positive power can always take
care of itself. There is rarely any danger that it will not
be able to do all the good that the community requires.
The danger is that it will absorb too much into itself, and
become tyrannical and oppressive. Almost the sole art in
constituting the government consists in devising an effective
veto, one that shall operate naturally, peaceably, when, and
one when, it is required.
The constitution of the veto is by no means an easy
problem, now will it admit of an arbitrary solution. It must
have its reasons and origin in the previous divisions, habits,
conditions, or institutions of the country. In some countries
it is almost, if not quite, impossible to constitute a veto
power; in others it already exists, if statesmen but knew
how to avail themselves of it. In one sense it is always the
people that possesses and exercises the veto; but not the
people as a whole, constituting one simple body, but the
people taken in parts. The whole people, through the
majority, are the positive power, the governing power; the
negative power must be sought in the parts, and secured by
so constituting or organizing the parts, that each part, when
an oppressive measure is attempted, may have an effectual
veto on the action of the majority, or positive power. But
where these parts do not already exist, or where the population of a country, or its natural or geographical character,
the productions of the soil, or the pursuits of the people, do
not permit the organization of the community into distinct
parts, the constitution of a veto power is nearly or quite
impossible; and such countries seem doomed to all the horrors of eternal despotism. Liberty is not for them, except
as it comes from aboard and through conquest. Conquest
by foreign mad introduce upon the soil a new race,
which by virtue of its previous habits, institutions, divisions,
coexisting with those of the conquered race, shall furnish
them the necessary elements, and pave the way for the
eventual establishment of effectual veto power, and thus
save them from despotism, and bring them into the family
of the free. This is the process by which western Europe
was redeemed from the despotism into which imperial Rome
had degenerated. Modern Europe owes its freedom, saving
the moral influences of the church, to the conquests of the
northern barbarians. England owes hers to the Norman
conquest. The barbarians, by their military divisions and
possessions of the land, furnished the feudal lords; the conquered population, by being forced into industrial pursuits,
gradually emerged into communes, commons, and third-
estates. The superiority of the English commons over the
corresponding class in continental Europe is owing to the
fact. that their ranks were recruited by the old Saxon
nobility and gentry, dispossessed of thier former rank and
estates by the followers of the conqueror. In western
Europe and in England, conquest supplied the elements out
of which free government could be ultimately constructed,
by instituting such divisions as could be made available in
time for the constitution of a veto on the sovereign power.
In this country we have been favored by Providence.
Here the constitution of the veto power is more natural and
easy then anywhere else; and our statesmen have not
entirely overlooked it, though they have not made as much
of the opportunities afforded them, as they might, or should
have done. Two parties existed at the origin of our govern-
ment, both honest no doubt, but each tending to push the
other to extremes, and both conspiring to give to govern-
ment a false direction. Both really desired to obtain a veto
power, but neither understood precisely how it should be
constituted; neither in fact took the right course to obtain
it. The jealousy was rather of the power of classes than of
the power of the sovereign. One party wished to place a
veto on the power of what it called the mob; the other, on
the power of what it termed the aristocracy. The first
sought its end by laboring to lodge the sovereign power
exclusively in the hands of the well-born, the gentlemen,
and the holders of property. This would undoubtedly have
been an effectual veto on the power of the poorer classes, but
none on the power of the government. The positive power
of the state would still have been unlimited, and in the hands,
too, even more liable to abuse it, than would have been the
poorer classes it was proposed to exclude. The government,
if unlimited, is safer in the hands of the simple-men, than
in the hands of the gentlemen; and the democracy, to use
the term in its old sense, may be more safely trusted than
the aristocrat.
The other party sought to place a check upon the aristocracy, the gentlemen, and men of property, by rendering
suffrage universal. They were right, as far as they went.
But their system could not be effectual; for, in the first
place, it imposed no check on the sovereign power itself,
which was the main point; and none in fact on the aristocracy, because the gentlemen, the men of birth, education,
manners, and property, could always be the most influential,
and thus control the elections and the government. In
point of fact, this second policy has furthered the aims of
the first; and the old party which called "democracy an
illuminated hell," finds now that it is through democracy it
can most effectually secure the triumph of the aristocracy.
Hence it claims to be the democratic party of the country.
The struggle between these two parties has engrossed
almost wholly the attention of our statesmen, and prevented
them from considering, so expressly as they should have
done, the all-essential point of constituting the veto power,
where it would amount to something. The government,
whether lodged in the hands of the gentlemen or the simple-
men, will be tyrannical and oppressive, if the oppressed
party have no effectual means of resistance except that of
rebellion, which would end, even if successful, as it does in
the Asiatic nations, only in displacing one tyranny, and substituting another equally bad. Nevertheless, the veto has
not been altogether overlooked. In the constitution of the
federal government we have it in as perfect a form as can
be desired. Providence prepared the way for it, by so ordering it that the country should be settled by distinct colonies,
independent one of another, which at the revolution could
become free and independent states. By the union of those
states into a single body politic, for certain specific purposes,
we obtain the two powers needed. The American people,
acting through the federal government, as one people, constitute the positive of governing power; the states, each in
its separate, independent capacity, constitute the negative or
veto power. The positive power is that of majority.
The majority of the American people govern through congress. This is right. This is the only possible rule that
can be adopted; and the maxim so common among our politicians, the majority must govern, is accepted. But the
majority, according to the constitution, is not absolute. It
has a right to govern only within certain limits. Whenever
it transcends, in its acts, those limits, its acts are unconstitutional, and therefore null and void from the beginning.
When it so transcends, there is, by means of state organization, a veto power to arrest it. By this the constitution of
the Union is rendered a real constitution-a constitution of
the people, and not a mere roll of parchment. There is a
power behind the written constitution, different from the
authorities created under it, capable of compelling its
observance. A state is to the union what the tribune was
to the Roman senate. When the Union enacts a law which
transcends the constitution, and every law does transcend
the constitution, that bears unequally on the different states,
the state can interpose its veto and arrest its action. The
veto sought by means of universal suffrage, that is to say,
the veto of the individual citizen, is too feeble to amount to
anything; but the veto of a state will always be as effectual
as was the Roman tribune.
This veto power is no artificial creation, but is inherent
in the constitution of American society. No objection can
be brought against its exercise. It can never be exercised
except against an unjust and unconstitutional law. A state
will interpose its veto only against such a law as bears with
peculiar hardship upon itself, which oppresses it for the
benefit of some one or more of the other state. No state
will complain of a law from which it does not suffer, or re-
fuse to submit to a law from which it suffers no more than
its sister states. A law affecting all the states alike, and
so burdensome as to demand the interposition of the state
veto, would be so odious to them all, that its repeal, with-
out a resort to the veto power, could be easily effected.
The laws of human action forbid us to fear an inerposition
of the veto without just cause. The Roman tribunes, it
does not appear, even interposed thier veto except when
the senate proposed a law which threatened to be peculiarly
oppressive to the plebeians; and the English house of commons has never interposed its veto, that is, withheld the
supplies, except in the last resort, as the only means left of
forcing the government to a redress of grievances, or the
abandonment of an oppressive policy. It may be assumed
as an axiom, that a state will never interpose its veto, except
when the acts of general government are peculiarly oppressive to its citizens, ruining their interests, for the pro-
motion of those of the other states. Now, all such acts are,
from their very nature, unconstitutional. The federal
government has no right to impose, directly or indirectly,
any heavier burdens on one state than on another. Its
taxes must be laid equally upon all, according to a uniform
census; and its measures, to be constitutional, must be for
the uniform benefit of all the states. The measures then
which a state would veto, would be always unconstitutional
measures, and therefore null and void from the beginning.
The veto would then always be interposed to saved the con-
stitution, never to destroy it.
The state veto will always be effectual. One of three
things must inevitably follow its interposition. The government must reduce the vetoing state by force; obtain
a new grant of power; or yield to a compromise. The
first is out of the question. There will always be one or
more states to sympathize with the vetoing state, that will
not consent to the employment of force against it; and individual volunteers from all the states, from various motives,
will always rush to its support; so that no trifling force
will be requisite to subdue it. The state in favor of the
policy vetoed, strongly desirous as they may be of carrying
in into effect, will pause before resolving to do it at the expense of a protracted and bloody civil war, and will rather
choose to abandon the policy, than sustain it at such cost.
The second alternative will rarely, if ever, occur. A glance
at the geographical character of the country will show us
that a policy bearing so hard on any one state as to induce
it to resort to its veto, will always be opposed by more than
one-fourth of the states; a power to carry the measure into
effect can never be obtained, if one-fourth of the states
join the voting state. Nothing remains, then, but the last
alternative. The government must yield to a compromise
of the difficulty; and consent to abandon, as soon as may
be, the obnoxious policy. The state veto will, then, always
be an effectual, peaceable, and orderly remedy. The knowledge of its existence, and the certainly that it will be inter-
posed when occasion demands, will operate as a salutary
check upon the government, and serve to keep it so uniformly within constitutional limits; that a resort to the
veto will rarely, if ever, become necessary.
This veto power, which Providence, and not man, seems
to have constituted for us, has in most cases been overlooked,
or undervalued by our statesmen. This is bad. For though
it is impossible to constitute an effectual veto power,
where it does not exist it is an easy thing, through a false
political theory, to abolish it, when provided. The veto
power has not done us all the service it might, in consequence of the centralizing doctrines which have prevailed;
and because the attention of our statesmen has been turned
in other directions. Let the true theory of our constitution
once be brought out, and understood by the people of the
several states, and the veto power will be saved, and be
found capable at all times of saving the constitution. With
this power fairly recognized as in integral element in the
constitution of American society, the American government
must appear to all competent judges, as a miracle of wisdom,
and adapted to any conceivable extent of territory, and fitted
to endure for ever. It combines all the excellencies of the
Roman and English governments; nay, of all preceding
governments, without any of their defects. It is the most
wonderful creation of political science the world has ever
beheld; the resume, if one may so speak, of all the past
political labors of the race, the latest and noblest birth of
time. Nothing is wanting to it, but to be comprehended,
accepted, and administered in its true spirit.
In regard to our state governments, we have been less
successful in constituting the veto power; and what is worst
of all, we have made no progress in obtaining it. On the
one hand, there has prevailed the certralism of the aristocracy; that is, of such an aristocracy as the country has been
able to produce or import, not very respectable, and hardly
deserving to be called an aristocracy; and on the other hand,
we have had the centralism of democracy. The tendency
has been, however, steadily in favor of the democratic centralism, which is the better tendency of the two. Every
new revision of the constitution has tended to bring our
governments nearer and nearer to the character of pure
democracies. This has been effected by the gradual elevation of the laboring classes, but more especially from the
disposition of demagogues and political aspirants to court
the multitude; and from the fact, already mentioned, that
the party, formerly in favor of giving the government an
aristocratic cast, have discovered that they can obtain all
by means of democracy, they hoped from aristocracy, and
without incurring the odium of being opposed to the democracy. This party, made up at present, for the most part, of
the money-changes, who now, as of old, turn God's temple
into a den of thieves, are so pleased with democracy, and
find that they can so easily secure the preponderating influences in elections and in the legislative hall, that they have
no wish to return to the high-toned doctrines of the old
Federal party; but would resist such a return with as much
firmness as any portion of our countrymen. Both parties,
under this point of view, have come on to the same ground;
and are viewing with each other, which shall be the most
democratic. Both parties combine their influences to establish democratic certralism; this is, to render the government an unlimited democracy; the one party, because it
knows it can always use the democracy in furtherance of
the views of the aristocracy; and the other, because it hopes
to secure thereby a preponderating influence to the poorer
and more numerous classes. Between them both it will go
hard, but CENTRALISM, which is but another name for ABSO-
LUTISM, shall triumph, and freedom and good government
be indefinitely postponed. This is now the predominating
tendency, which every statesmen, every patriot, and every
philanthropist must struggle to arrest, before it shall be too
late.
But the constitution of the veto power, within the states
themselves, even if these dangerous centralizing doctrines of
our politicians were abandoned, and the attention of all
turned towards it, would be exceedingly difficult, and all but
impossible. In the Union, it is, as has been seen, comparatively easy. The Union spreads over a vast extent of territory, with many varieties of climate, soil, and productions,
which create distinct, sectional interests, embracing entire
states, and therefore capable of being organized, each into a
veto power on the other. This indicates the importance
of an extended territory; and shows us that our federal sys-
tem must work the better in proportion as the field of its
operations becomes extended and varied. Were it to extend
over the whole continent of North America, as it one day
must, if continued, it would be altogether more beneficial in
its operations, and stronger and more likely to be permanent
than now. These sectional interests, from the mutual hostility of which, so much evil is apprehended by narrow-
minded and short-sighted politicians, are the very life and
support of the system. If the Union were not extensive
and varied enough to create them, the horizontal division of
parties would universally obtain, by which the whole power
of the government, with no effective veto, would be thrown
into the hands of the upper classes, who would invariably
make it an instrument for oppressing yet more the poorer
and more numerous classes. Of all possible divisions of
parties, this horizontal division is the worst, the most dangerous, and the one against which we should labor the most
strenuously to guard; for, where it occurs, the lower strata
must bear the whole weight of the upper. But with the
great extent of territory, and diversity of interests, presented by the Union, parties will divide geographically, and
consequently so that each party may have within its ranks
a proportional share of the wealth of the community; and
will be so constituted, that the interest represented by one
party can be organized into an effective veto on the preponderance of that represented by another. Where there are
so many interests, each embodying the force of an entire
state, the federal government must be held in check. No
one interest will consent to be sacrificed to another. Each,
then, will struggle to prevent the government from granting
any special protection to another; and the result must be,
that the government will, as it should, abandon the policy
of specially protecting any interest, and confine itself to the
common good of all. When government is so confined, it
operates always wisely, justly, in favor of freedom and national prosperity.
But when we come within the bosom of the states them-
selves, the whole aspect is changed. In the Union, it suffices to give one sectional interest, by means of state organization, a veto on another; but in the state itself it is not
against the preponderating influence of one sectional or geo-
graphical interest over another, that it is necessary to guard.
The territory is, in general, too small, and the interests of
all parts of the state are too much the same, for these sec-
tional interests to become much importance. Parties is
the bosom of the state rarely, if ever, divide geographically,
but almost uniformly, especially in the non-slave-holding
states, horizontally. Parties are classes, with merely individual exceptions. Take the two parties which now exist,
and one will be found to embrace much the larger portion
of the wealth of the community, nearly all the active business capital of the country, while the other is made up of
small farmers, journeyman mechanics, and common laborers.
At least, this is eminently so in the New England states;
and it is becoming more and more so in the middle and
western states, in proportion as the effort is made to render
government more just and equitable in its operations. This
is a serious fact, and one from which the saddest consequences are to be apprehended. With this division of par-
ties, as has already been said, power is all on one side. The
poorer and more numerous classes are no match for the
wealthy and more influential minority. Universal suffrage
serves but to delude them. For wealth can command votes,
if not always at the polls, at least in the legislative hall.
The United States Bank, when it represented the money
power, though unable to prevent the reelection of General
Jackson, never failed to have a majority in both houses of
congress. The upper classes can always triumph, when they
think it worth their while to make the effort. Let them
once bring the weight of their personal characters, their influence as employers and creditors, to bear, as they always
will when there is any thing important enough at stake, and
the poorer and more numerous classes, with justice, patriot-
ism, and intelligence on their side, are before them but as
the chaff of the summer threshing-floor before the wind.
They sweep over the country in one wild destructive tornado, as they did in 1840. There are no arts too base for
them to adopt, no oppressions too gross for them to practice, no corruption and bribery, no fraud and misrepresentation, too barefaced for them to countenance, in order to
secure their triumph. Having the wealth of the country,
they can easily command all that is base and profligate in
the community, and be sure of the services of every Iscariot
that will betray the sacred cause of freedom and justice for
"thirty pieces of silver." Even men, who have generally
the reputation of being high-minded and honorable men,
from whom better things might be expected, will consent
to quaff "hard cider," or play the buffoon, in order to cheat
the simple and unsuspecting out of their rights. The election of 1840 reads to the statesman and patriot an instructive lesson. A reaction has indeed taken place for the moment, for there is at present no call for similar exertions;
but it will go hard, but similar or worse scenes will be re-
enacted whenever the upper classes feel again that power is
slipping from their grasp, and that it is necessary to rally
to prevent the government from being restricted to its constitutional duties.
The evil to be guarded against in the states, especially
the non-slave-holding states, is this tendency to a horizontal
division of parties. With this division, it may be taken for
granted, that power will be always virtually, if not nom-
inally, in the hands of the upper strata of society; and the
poorer and more numerous classes must be governed for the
benefit of the wealthy and more influential minority. The
only possible remedy is in the constitution of some veto
power, which shall arrest the government, whenever it at-
tempts to act on matters not common to all classes, or to
pass laws not for the common good of all. This is the kind
of veto needed in the states; a veto operating naturally and
effectually to prevent the wealthier and more influential
classes from pursuing any line of policy bearing with peculiar hardship on the poorer and more numerous classes.
The constitution of such a veto power is the problem, and,
it need not to be disguised, that it is a problem of most difficult solution.
It was partly in consequence of observing this tendency,
in all small communities, to divide horizontally, and perceiving that in such a division power was, and must be, on
the side of the upper stratum, that we were induced, some
time since, to suggest the bold and energetic measure of
changing the law, by which property now descends from
one generation to another. We saw no way of preventing
this horizontal division, but by rendering each member of
the community an independent proprietor. The substantial
equalization of property, could it be effected without violence, by the gradual and natural operation of a just and
uniform law, we felt would abolish the distinction of classes,
and give to each man his proportional share of influence.
All being proprietors, and virtually possessing in themselves
the means of subsistence, without depending on wealthy
capitalists, the interests of all, so far as government is concerned, would become so nearly the same, that no one would
have an interest in obtaining, or be able to obtain, any law
not bearing equally on all the members of the community.
We still see no effectual measure of curing entirely the evil
complained of, short of the one we proposed,-a measure
which has been received with almost one universal shriek of
horror. We still insist that the measure we suggested is
deserving the serious consideration of our statesmen. Nevertheless, we have, as we had when we suggested it, no hope of its adoption. It therefore enters for nothing in our plan of organizing the state, or administering the government.
The practical statesman, however he may theorize in his
closet, never, when he goes forth to act, wastes his strength
in vain efforts to effect what he knows, in the circumstances
in which he is places, to be an impracticability. When he
cannot adopt the means he believes would be most effectual,
he consents to adopt the best within his reach. However
beneficial might be the proposed change in the statue of
distributions, the class of society that would oppose it, have
now the power, and it would be impossible to dispossess
them without the aid of the change itself; and perhaps,
were we able to obtain for the poorer and more numerous
classes power enough to effect the change, we could, with-
out much harm, dispense with effecting it. That change,
if it ever comes, and come one day it must, will be effected,
not by the direct action of the civil government in assuming the initiative, but through moral and religious influences,
creating a higher order of civilization, and involving a new
and different organization of the race;- an organization
resting for its foundation, not on wealth, nor military force,
nor the accident of birth, but on CAPACITY. The day for
that organization is far distant. The new church will per-
haps usher it in, or usher in something better. In the mean
time government must be organized with such materials as
we have at hand, and do the best it can with the race as
they are, and as they gradually become. With all we can
do, the wail of sorrow, from the heart of the true man,
over the sad doom of the poorer and more numerous classes,
must yet longer be heard. Their friends are few and with-
out influence; or, if they have influence, they lose it the
moment they attempt to befriend them.
Nevertheless, that were a detestable philosophy that left
us nothing but to wail over incurable evils. Shame on the
statesman, on the philanthropist, that can do nothing but
sigh and weep! Something can be done. He blasphemes
God, who utterly despairs. The division, into towns, or
small communities, as in our New England states, though it
in some measure favors the horizontal division, is not with-
out its beneficial effects. It serves many valuable municipal
purposes; and by creating a large number of small offices,
and bringing the people frequently together for town
affairs, in which almost every citizen takes part, has a happy
effect in cultivating the intelligence and independent spirit
of the people. The division of the state into small districts
for the choice of one branch of the legislature, and into
larger, for the choice of the other, and giving to the members of the separate branches a different term of service, are
not without use, and in some of the states answer an important purpose.
But for the present our main reliance must be on the
federal government. The legislation which operates the
most to the disadvantage of the poorer and more numerous
classes is that which concerns currency and finance. The
state legislation on currency and finance is determined almost
solely by the general policy of the federal government.
Abstract the laws relative to the banking and credit system,
together with the protective policy, and not much legislation would be left specially injurious to the poorer and
more numerous classes. The paper system, which has
proved so ruinous to the country, will not long survive in
the states its abandonment by the general government. The
protective policy, which taxes the southern planter and
northern laborer for the especial benefit of the capital
invested in manufactures, depends entirely on the federal
government, which will not be permitted to continue it.
With these two systems will fall most of the measures, bear-
ing with oppressive weight on the poorer classes. The
laborer will be lightened of his burdens; he will retain in
his own hands a larger portion of the proceeds of his
labor; and gradually emerge from his unfriendly condition
to one in which he will have more independence, and consequently more weight in the affairs of his town, and more
power to protect himself in the state. In the meantime,
improvements will continue to be made in the science of
legislation. The state most favorably circumstanced will
take the lead. Its example will influence other states; and
gradually, by being on the alert, by availing ourselves of
every favorable opportunity, we may hope the state governments will ultimately come to be as wisely constituted for
their internal purposes, as the federal government now is
for its sphere of action.
We have gone, thus elaborately, into this subject of constitutional government, because it is important in itself, and
one almost generally neglected by our politicians, and also,
because we have wished to give our own views, which have
in some instances been misapprehended by our political
friends, more fully and at greater length than we have heretofore done. From the fact, that we have objected to an
unlimited democracy, we have been supposed to be
unfriendly to democratic governments. But we contend
earnestly for the popular form of government; we only
object to an unlimited government, whatever its form. We
are in favor of limiting the sovereign power, wherever that
power be lodged; that is, we demand CONSTITUTIONAL GOV-
ERNMENT; and constitutional government exists for us as a
mere name, unless there be in the organization of society a
power which can effectually preserve the constitution, when
ever the government is disposed to violate it. This power
we call the negative or veto power of the state. The con-
stitution of this power we hold to be the main problem in
the organization of government and we are unable to con-
ceive of any safeguard for the liberty of minorities or of
individuals without it. This is the extent of our anti-
democracy. For this we have called aloud, for its importance seems to us hardly suspected by the mass of the people,
and overlooked by the majority of leading politicians,-we
were about to say, of all parties. But we will not say so.
The Republican party, the old state rights party if '98, are
beginning to see its importance more clearly than hereto-
fore, and promise, unless we greatly misread the signs of
the times, to come into power and place in 1844, on true
constitutional ground. The trafficking politicians and
"spoilsmen," of which that party, as well as others, has its
share, will of course reject the doctrines we have set forth,
as they ever do all doctrines which go to secure a wise and
just administration of government. All this portion of
the Republican or any other party want, is the power to
plunder the people, to reward themselves and partisans for
their patriotic services. But we trust their counsels will
not prevail, that the sound portion of the party will for
once count for something, and succeed in placing the gov-
ernment on the constitutional track. If so, the doctrines
we have humbly ser forth will come into power, and with
them the country will be safe; and the experiment of the
American people to establish a wise and just government,
operating always naturally and without violence, in favor
of individual liberty and the common good, will not prove a
sp;endid failure. At any rate, if this very imperfect essay
tend to awaken the attention of the people, and turn it to
the paramount importance of CONSTITUTIONAL GOVERNMENT,
our purpose will have been accomplished.