From the study of the national government,
we may go on to examine that of the several states which make up the
American publicists, on the other hand,
have been too much absorbed in the study of the federal system to bestow much
thought on the state governments. The latter seem to them the most simple and
obvious things in the world, while the former, which has been the battleground
of their political parties for a century, excites the keenest interest, and is
indeed regarded as a sort of mystery, on which all the resources of their
metaphysical subtlety and legal knowledge may well be expended. Thus while the
dogmas of state sovereignty and states’ rights, made practical by the great
struggle over slavery, were discussed with extraordinary zeal and acumen by
three generations of men, the character, power, and working of the states as
separate self-governing bodies have received little attention or illustration.
Yet they are full of interest; and he who would understand the changes that
have passed on the American democracy will find far more instruction in a study
of the state governments than of the federal Constitution. The materials for
this study are unfortunately, at least to a European, either inaccessible or
unmanageable. They consist of constitutions, statutes, the records of the
debates and proceedings of constitutional conventions and legislatures, the
reports of officials and commissioners, together with that continuous
transcript and picture of current public opinion which the files of newspapers
supply. Of these sources only one, the constitutions, is practically available
to an European writer. To be able to use the rest one
must go to the state and devote one’s self there to these original authorities,
correcting them, where possible, by the recollections of living men. It might
have been expected that in most of the states, or at least of the older states,
persons would have been found to write political, and
not merely antiquarian or genealogical, state histories, describing the
political career of their respective communities, and discussing the questions
on which political contests have turned. But this was not (except in a very few
cases) attempted till near the end of the nineteenth century, so that the
European enquirer found a scanty measure of the assistance which he would
naturally have expected from previous labourers in
this field. I call it a field: it was till lately rather a primeval forest,
where the vegetation is rank, and through which even now but few trails have
been cut. The new historical school which is growing up at the leading American
universities, and has already investigated the colonial period with so much
thoroughness, and has now begun to grapple with this task;1 in the meantime, the difficulties I have
stated must be my excuse for treating this branch of my subject with a brevity
out of proportion to its real interest and importance. It is better to endeavour to bring into relief a few leading features than
to attempt a detailed account which would run to inordinate length.
The American state is a peculiar organism,
unlike anything in modern
Let me attempt to sketch the American
states as separate political entities, forgetting for the moment that they are
also parts of a federation.
The admission, under a statute of 1910, of
two new states2 brought the number of states in the American
Union up to forty-eight, varying in size from
Be it also remembered that the older
colonies had different historical origins. Virginia and North Carolina were
unlike Massachusetts and Connecticut; New York, Pennsylvania, and Maryland different
from both; while in recent times the stream of European immigration has filled
some states with Irishmen, others with Germans or Italians, others with
Scandinavians or Poles, and has left most of the Southern states wholly
untouched.
Nevertheless, the form of government is in
its main outlines, and to a large extent even in its actual working, the same
in all these forty-eight republics, and the differences, instructive as they
are, relate to the points of secondary consequence.
The states fall naturally into five
groups:
·
The
·
The
Middle states—
·
The
Southern, or old slave states—Virginia, West Virginia (separated from Virginia
during the war), North Carolina, South Carolina, Georgia, Alabama, Florida,
Kentucky, Tennessee, Mississippi, Louisiana, Arkansas, Missouri, Texas,
Oklahoma, New Mexico (these two last, however, formed long after the extinction
of slavery)
·
The
Northwestern states—Michigan, Illinois, Wisconsin, Minnesota, Iowa, Nebraska,
Kansas, Colorado, North Dakota, South Dakota, Wyoming, Montana, Idaho
·
The
Pacific states—
Each of these groups has something
distinctive in the character of its inhabitants, which is reflected, though
more faintly now than formerly, in the character of its government and politics.
As the dissimilarity of population and of
external conditions seems to make for a diversity of constitutional and
political arrangements between the states, so also does the large measure of
legal independence which each of them enjoys under the federal Constitution. No
state can, as a commonwealth, politically deal with or act
upon any other state.6 No diplomatic relations can exist nor treaties
be made between states,7 no coercion can be exercised by one upon
another. And although the government of the
Let us pass on to consider the
circumstances which work for uniformity among the states, and work more
powerfully as time goes on.
He who looks at a map of the
Each state makes its own constitution;
that is, the people agree on their form of government for themselves, with no
interference from the other states or from the
Nowhere is population in such constant
movement as in
Still more important is the influence of
railway communication, of newspapers, of the telegraph. A Greek city like
Finally the political parties are the same
in all the states. The tenets (if any) of each party are (with some slight
exceptions) the same everywhere, their methods the same, their leaders the
same, although of course a prominent man enjoys especial influence in his own
state. Hence, state politics are largely swayed by forces and motives external
to the particular state, and common to the whole country, or to great sections
of it; and the growth of local parties, the emergence of local issues and
development of local political schemes, are correspondingly restrained.
These considerations explain why the
states, notwithstanding the original diversities between some of them, and the
wide scope for political divergence which they all enjoy under the federal
Constitution, are so much less dissimilar and less peculiar than might have
been expected. European statesmen have of late years been accustomed to think
of federalism and local autonomy as convenient methods either for recognizing
and giving free scope to the sentiment of nationality which may exist in any
part of an empire, or for meeting the need for local institutions and distinct
legislation which may arise from differences between such a part and the rest
of the empire. It is one or other or both of these reasons that have moved
statesmen in such cases as those of Finland in her relations to Russia, Hungary
in her relations to the Austro-Hungarian monarchy, Iceland in her relations to
Denmark, Bulgaria in her relations to the Turkish sultan, Ireland in her
relations to Great Britain. But the final causes, so to speak, of the
recognition of the states of the American Union as autonomous commonwealths,
have been different. Their self-government is not the consequence of
differences which can be made harmless to the whole body politic only by being
allowed free course. It has been due primarily to the historical fact that they
existed as commonwealths before the Union came into being; secondarily, to the
belief that localized government is the best guarantee for civic freedom, and
to a sense of the difficulty of administering a vast territory and population
from one centre and by one government.
I return to indicate the points in which
the legal independence and right of self-government of the several states
appears. Each has its own:
·
Constitution
(whereof more anon)
·
Executive,
consisting of a governor, and various other officials
·
Legislature
of two houses
·
System
of local government in counties, cities, townships, and school districts
·
System
of state and local taxation
·
Debts,
which it may (and sometimes does) repudiate at its own pleasure
·
Body
of private law, including the whole law of real and personal property, of contracts,
of torts, and of family relations
·
System
of procedure, civil and criminal
·
Courts,
from which no appeal lies (except in cases touching federal legislation or the
federal Constitution) to any federal court
·
Citizenship,
which may admit persons (e.g., recent immigrants) to certain privileges of
citizens at times, or on conditions, wholly different from those prescribed by
other states
Three points deserve to be noted as
illustrating what these attributes include.
I. A man gains active citizenship of the
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.
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
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, thought herself
able to resist any physical force which the rest of the nation might bring
against her. Thus encouraged, she took her stand on the doctrine of states’
rights; and then followed a pouring out of blood and treasure such as was never
spent on determining a point of law before, not even when Edward III and his successors
waged war for a hundred years to establish the claim of females to inherit the
crown of France.
What, then, do the rights of a state now
include? Every right or power of a government except:
·
The
right of secession (not abrogated in terms, but admitted since the war to be no
longer claimable. It is expressly negatived in the
recent constitutions of several Southern states.);
·
Powers
which the Constitution withholds from the states (including that of intercourse
with foreign governments);
·
Powers
which the Constitution expressly confers on the federal government.
As respects some powers of the last class,
however, the states may act concurrently with, or in default of action by, the
federal government. It is only from contravention of its action that they must
abstain. And where contravention is alleged to exist, whether legislative or
executive, it is by a court of law, and, in case the decision is in the first
instance favourable to the pretensions of the state,
ultimately by a federal court, that the question falls to be decided.14
A reference to the preceding list of what
each state may create in the way of distinct institutions will show that these
rights practically cover nearly all the ordinary relations of citizens to one
another and to their government, nearly all the questions which have been most
agitated in England and France of recent years. An American may, through a long
life, never be reminded of the federal government, except when he votes at
presidential and congressional elections, buys a package of tobacco bearing the
government stamp, lodges a complaint against the post office, and opens his
trunks for a customhouse officer on the pier at New York when he returns from a
tour in Europe. His direct taxes are paid to officials acting under state laws.
The state, or a local authority constituted by state statutes, registers his birth,
appoints his guardian, pays for his schooling, gives him a share in the estate
of his father deceased, licenses him when he enters a trade (if it be one
needing a licence), marries him, divorces him,
entertains civil actions against him, fines him for overspeeding
his automobile, declares him a bankrupt, hangs him for murder. The police that
guard his house, the local boards which look after the poor, control highways,
impose water rates, manage schools—all these derive their legal powers from his
state alone. Looking at this immense compass of state functions, Jefferson
would seem to have been not far wrong when he said that the federal government
was nothing more than the American department of foreign affairs. But although
the national government touches the direct interests of the citizen less than
does the state government, it touches his sentiment more. Hence the strength of
his attachment to the former and his interest in it must not be measured by the
frequency of his dealings with it. In the partitionment
of governmental functions between nation and state, the state gets the most but
the nation the highest, so the balance between the two is preserved.
Thus every American citizen lives in a
duality of which Europeans, always excepting the Swiss, and to some extent the
Germans, have no experience. He lives under two governments and two sets of
laws; he is animated by two patriotisms and owes two allegiances. That these
should both be strong and rarely be in conflict is most fortunate. It is the
result of skilful adjustment and long habit, of the fact that those whose votes
control the two sets of governments are the same persons, but above all of that
harmony of each set of institutions with the other set, a harmony due to the
identity of the principles whereon both are founded, which makes each appear
necessary to the stability of the other, the states to the nation as its basis,
the national government to the states as their protector.
[1] Since
this book was first published (in 1888) much excellent work has been done on
state history all over the country, and state constitutions have received much
study.
[2] Arizona
and New Mexico.
[3] Census
of 1900.
[4] Delaware
and Maryland were slave states, but did not secede, and are in some respects to
be classed rather with the Middle than with the Southern group, as indeed are
West Virginia, Missouri, and Oklahoma (this last really Western in character),
perhaps even Tennessee and Kentucky.
[5]
[6] Except
with consent of Congress.
[7] Ibid.
[8] The
case of
As to any special conditions imposed by Congress, see Chapter 37 post.
[9] Congress
has power to pass a uniform rule of naturalization (Constitution, art. I, § 8).
Under the present naturalization laws a foreigner must have resided in the
In more than a third of the states the electoral franchise is now enjoyed by
persons not naturalized as United States citizens.
[10]
“The line of distinction between the privileges and immunities of citizens of
the United States, and those of citizens of the several States, must be traced
along the boundary of their respective spheres of action, and the two classes
must be as different in their nature as are the functions of their respective
governments. A citizen of the United States as such has a right to participate
in foreign and inter-state commerce, to have the benefit of the postal laws, to
make use in common with others of the navigable waters of the United States,
and to pass from State to State, and into foreign countries, because over all
these subjects the jurisdiction of the United States extends, and they are
covered by its laws. The privileges suggest the immunities. Wherever it is the
duty of the
[11] As
the colonies had associated themselves into a league, at the very time at which
they revolted from the British Crown, and as their foreign relations were
always managed by the authority and organs of this league, no one of them ever
acted in international affairs as a free and independent sovereign state.
Abraham Lincoln was in this sense justified in saying that the
[12] States’
rights was a watchword in the South for many years. In
1851 there was a student at
[13] A
further confusion arises from the fact that men are apt in talking of
sovereignty to mix up (as the Benthamite school did
unfortunately) legal supremacy with practical predominance, sovereignty de jure with sovereignty de facto. They ought to go
together, and law seeks to make them go together. But it may happen that the
person or body in whom law vests supreme authority is unable to enforce that
authority: so the legal sovereign and the actual sovereign—that is to say, the
force which will prevail in physical conflict—are different. There is always a
strongest force; but the force recognized by law may not be really the
strongest; and of several forces it may be impossible to tell, till they have
come into actual physical conflict, which is the strongest. This subject has
been discussed in an essay on sovereignty in the author’s Studies in History
and Jurisprudence.
[14] See
Chapter 22 ante.
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