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THE

AMERICAN REVIEW,

No. XXI.

FOR SEPTEMBER, 1849.

SHORT CHAPTERS ON PUBLIC ECONOMY.

I.

Constitutionality.

It arrived only at its perfect and full development within the last few ages, and stands immoveable, by the accumulated strength of all its past existence. It came into perfect being, not by revolution, not by a change of principles, but by the native force of an internal life, which impelled it to throw off a foreign incumbrance, and stand free in the vigor of independant youth. It is a government of principles, not of prescription, nor of forms. Its traditional forms are few; it did not come down to us loaded with the corruptions of former ages, to be maintained by the timid and condemned by the wise.

It is never to be lamented when men are driven to search into the foundation of the commonwealth; as it is necessary for the conduct of life that the divine and abstract principles of virtue should have a conscious existence in the intellect, and should be frequently agitated and discussed; so, if we intend to maintain in their original purity and force, those ideas of authority, of right, and of obedience, upon which all government is founded, we must often reflect, and induce others to reflect upon them, in their simplicity. It is necessary to revive and fortify the spirit of the Constitution by frequent recurrence to the rights and opinions upon which it rests; tracing these to their principles, and casting an historic glance upon those conditions of society those exigencies of humanity-from which they took their rise, and through which they became apparent; rights, in our own case, derived from a recognition of the imperious necessity of freedom to the full development of our nature; principles, grounded in human nature, tested by the experience of all time, and suggested as rules of legislation | moral laws, by which the superior destiny of man is distinguished above his physical sensuous destiny. Governments founded like ours upon a recognition of of justice, of faith, of beneficence, of honishable governments; and die only with the races which gave birth to them.

It is a government of necessity; it arose from necessity, and exists by necessity; it is therefore not subvertible while its moral conditions exist. But the necessity which gave it birth is not that with which the mathematics are conversant, nor the wants and desires of the grosser nature of man. The necessity with which our laws are in accordance is of a moral nature, and can be found only in the operation of moral causes.

In the course of history, philosophers observe series of events signifying the existence and operation of certain divine and

from an observation of the evils that arose upon their absence. Ours is not an hypo-and thetical government; it was not erected upon an imaginary basis; the first fibres of its roots can be traced backward into the ❘ or, of liberty and of constancy, are imper

darkness of primeval liberty; its growth has been gradual through many centuries.

VOL. IV. NO. III. NEW SERIES.

15

All other governments are liable to revolution, and to one or both of the fruits of revolution, the despotism of a multitude or the despotism of an individual.

If we fall then into either of these extremes, it must be when the great majority of those who study the wants of the people, and act for them in the business of legislation, become so far blinded to the moral necessities of those whose opinions they guide and influence, as to substitute for them scientific theories, the dreams of humanitarianism, or the schemes of their own ambition. Fortunately for us, the number of such citizens is so great, and their equality of will so level to the freedom of all, there is little danger but that all things shall long continue as they

sense of its own character, and attributes, and duty, the Supreme Court will declare its own incompetency to enact laws or construct policies. It will say to those legislators who attempt to impose their own duties upon its shoulders, "You alone are competent to this decision; it is not for us to express the will of the people, or to regulate the public economy. Where there is law, either evident or to be liberally or morally constructed, we can point it out or construct it, but we cannot make it. When the law is clear and the application difficult we will aid you; but when the law does not exist, you must look for its grounds in the genius of the people and the necessity of the times, and not in our precedents.

Nor can the authority of the Executive be appealed to for the construction of constitutional law. In cases where neither law nor precedent can serve as guides, the Executive must indeed consult the spirit of the nation; but should that system be pursued into which of late we have too much fallen-the electing of a president for the declared purpose of enforcing contested constructions of the Constitution, the day must come when all law shall lie at the mercy of executive construction; and the executive of to-day must become in that event the source of all power, until, after a period of four years, its authority is annihilated by another executive. By allowing the opinion of an executive to have any weight beside that which the character of worth and wisdom may bring with it, we admit the existence of a new legislative power, not recognized by the Constitution; a legislative power which lessens with its increase the efficacy of regular legislation, and which must, eventually, absorb everything to itself. True it is, the Executive has been entrusted with a power of forbidding a hasty and clearly unconstitutional legislation; but this power was given to the Executive, not as a law-making, but only as a regulative function. Legislative bodies may move precipitately, and illegally, since even their existence and conduct is limited by the supreme law of the land; nor are they free themselves from an ambition which leads them continually to encroach upon the functions of other members of the system. It is necessary that every member

[graphic]

of a constitutional government should be | be inevitably referred for a decision to the

well-ascertained opinion of the day.

For the formation of our own opinions, we must go back to first principles, as we may suppose them to have lain in the minds of our founders; and deduce, as they deduced, opinions of the propriety or impropriety of what is proposed. Let this be done by each succeeding generation, and there will arise in time, out of the united arguments and experience of many succeeding generations, a system of polity filling out the original design of our founders, extending the power of the Constitution where it is inoperative, interpreting its silence, and, in fine, executing its intention in its own peculiar spirit.

Had the fathers inserted in that instrument any clause that might confer upon the general government, the power of engaging in works of prospective improvement, it would have exceeded its intention, and have incurred the danger of violation by encroaching upon the changeable sphere of opinion.

armed with a power of resistence sufficient for its own preservation; nor do those powers which have been granted by the Constitution to each member of the government, exceed what is necessary to their independent existence. There could hardly, nevertheless, be observed a more fatal symptom, either in the conduct of a government or of a party, than a disposition manifested by them to allow the encroachment of executive upon judicial or legislative power. As it would be impossible to over-estimate the dangers which might follow upon an absorption of the power of the government by the legislative body, aiming at its own aggrandizement and the diminution of executive and judicial responsibility, so it would be equally impossible to overrate the perils, not only to State liberties, but even to individual rights, from the repeated election of a president, chosen, not for the administration of the laws, but for enforcing new and partial constructions of those laws. When, therefore, we are called upon to examine the merits of new measures, either of public economy or of national enterprise, we must withdraw ourselves from the atmosphere of interest; we must endeavor to place ourselves in sympathy with the genius and spirit of the nation. If the Constitution is silent or obscure upon a point of authority or competency, and we are pressed for a decision, there remains no other course but to go back to our origin, and from that to trace the rise of our polity; to observe what courses have led to aggrandizement, to peace, and prosperity, regarding always the fundamental laws as barriers and limits within which we are free to act, in all cases, as it may seem best for the nation. The Constitution does not provide for nor establish a system of political economy; it neither sustains nor forbids a tariff or a free trade, a bank or a sub-treasury, the annexation of a State, or the extension of public aid to national enterprises. It does not forbid the establishment of slavery in new territories, nor does it command such an establishment. All questions of this nature creating parties, whose majorities change from year to year, and whose opinions vary, as passion and enthusiasm and interest compel, must | engage in, and what economy it will use.

If a class of powers had been given by it, under the general head of progress and improvement, authorizing Congress to appropriate funds for scientific expeditions, for the planting of colonies, for the construction of telegraphs, for the establishment of colleges and schools of science, for architectural outlay, for national roads, for the protection of commerce; if a clause had been inserted in the Constitution providing for works intended to increase the value of public lands, by railroads opening the western territories, by the construction of harbors for the augmentation of trade, by naval expeditions to extend our commerce in the southern and eastern seas; had these powers been directly conferred, together with an injunction upon congress to protect our agriculture and our manufactures by tariffs, to collect the dues of government in silver and gold, and to establish some particular form of bank or treasury, it would not have the force, encumbered with such details, that it now has, as a body of fundamental law, fixing the framework merely, and unchangeable powers of the government; leaving to the majority of the nation to determine for itself, from time to time, what works it will We conceive that the great error of our politics has thus far lain in a continual reference to the Constitution for decisions in cases of mere expediency and policy, not contemplated by that instrument. Fundamental laws cannot be established, or rather, will not stand, if they are made to specify what shall, or shall not be done, in the detail of national economy. They do not point out the aims, they do not designate the purposes, the objects, but show only the right and wrong, the rules, and fixed forms of public conduct. I am not assisted by the moral law in resolving whether to engage in commerce or in manufacture; nor can the laws of the land determine whether the people shall become farmers or artisans. That is a barbarous and unrefined minuteness in a State constitution, which regulates the method of its treasury, the extent of its territory, or the shape or extent of its taxation. It is, perhaps, the most striking instance of human wisdom upon record, that our founders carefully abstained from even naming what is transient in government, and that they introduced into that instrument such things only as must always be observed while the nation continues to be a republic.

extend aid to every species of enterprise that seemed likely to increase the wealth of the nation. We should, therefore, be the last to advise any alteration or amendment of the fundamental law; we would not, with President Monroe, recommend that a general sanction of the policy of internal improvements be incorporated in the Constitution, since that would be to make law the slave, instead of the guide and master of opinion; and would be a step toward alteration and decline. It must be reckoned among the dangers to which the State is always liable, engaging too far, or in too great a number of enterprises. We prefer to draw all arguments for expenditure from its evident necessity and propriety, and not from any amendments which ourselves have procured to the Constitution.

We do not wish to tamper with that venerable instrument. It would be a precedent full of danger and ill omen.

If there be a point of policy upon which Considerate men of all parties will agree, it is on this of the inviolability of the Constitution.

Ours is not yet a prescriptive Constitution, "whose sole authority is, that it has existed time out of mind." At a moment of our history when the equal necessity of an union of all the citizens, and the preservation of State liberties became intensely apparent, it sprang into life (almost perfect in its form) from the brain of wisdom-a wisdom which, taking into view all the circumstances of the time, and being itself personally, a part of those circumstances, took the middle results of all-a method which left everything incomplete in the detail, and gave only the forms and generalities; not pretending to recommend particular policies, but providing against the influence of any one bias, interest or policy, whose excess might weaken the system of the whole. This form, impressed upon the government, and upon the nation at its birth, when a vigorous life presided in it, cannot, without great danger, be altered or disturbed, as its provisions were the results of a deliberation, not upon any transient circumstances and necessities, but upon those which are fixed and lasting; it can be altered and amended only by a

In another view, and for other reasons, we are to rejoice that we have a Constitution so liberal and so reserved. Had any particular line of policy been recommended as beneficial by the fathers, and the recommendation clothed in the solemn and authoritative language of law, it would have given an unnatural force in that direction; it would have given one party too great an advantage over its opposite. Had it been a recommendation to engage in enterprises of improvement, our strong overruling tendency toward and splendid achievements would have swept us like a torrent to our ruin. With the Constitution clearly for us, that tendency would have been irresistible. We have seen how far we may be led toward ruin by a misstep in negotiation; and, from this single instance, we may judge into what excesses we may yet be plunged by a legislature acting under arbitrary constructions of the Constitution; and if forced construction, even, have this power, what might we not have to fear from a general precept, advising to ❘ wisdom, equal to that which constructed

new

it, in a position of equal dignity, and with | an equal moderation, calmness, and unanimity. But in discussing the system of our national economy, on the other hand, we have to consider the exigency of the time only the wants, desires and aspirations of the age-the particular benefit or

priation of public moneys to the improvement of national harbors, to the removal of snags from rivers, to the construction of telegraphs or national railroads, we are not, therefore, to conclude, that these measures are unconstitutional, nor are we to ask, with President Monroe, for an amend

injury balanced against the general inter-ment to the Constitution authorizing such

est. All this we have to consider in the light of that system of polity which has been established by the experience of our predecessors.

It was not possible, in the nature of things, for the fathers to have specified all and every power of the general government, to the exclusion of all others not named by them, but nevertheless necessary to the existence and prosperity of the nation. It might become proper, in a moment of extreme necessity, for the people, acting through their representatives, to invest the President with a dictatorial power. It might become necessary for the same body, as the immediate agents and defenders of private liberty, to assume for themselves a certain executive authority. It might become necessary for the general government to suffer for a while unlawful encroachments upon its own authority. It might be deemed expedient to allow that clause of the Constitution which "guaranties a republican government" to every State of this Union, or, in other words, to every citizen of this nation; to rest unapplied, where it seemed proper for the peace of all concerned, that certain men, or bodies of men, should exclude themselves from the privileges of freemen. Many cases will arise where a paramount necessity will supercede that inferior necessity which gives its ordinary form and power to the government; nor could the fathers have foreseen and provided for that vast increase of territory which has raised the Union to the rank of an imperial power, and has given us a dominion, and may yet farther extend that dominion over nations incapable of free institutions.

Still less could they have foreseen by what courses, in particular ages, the wealth of the nation might be increased.

When, therefore, we have examined the powers of the general government, and have not been able to discover among them any clauses authorizing the appro

appropriations. We are to inquire only whether the government was established with full powers to do all that is required for the common good of all, and for the common weal; and next, are we to satisfy ourselves that the measures proposed are enterprises of national benefit, and of a magnitude exceeding the power of any individual, or of a State, to accomplish.

Nor will it be a sufficient objection to any such measure, that its benefits will not be immediately felt, in an equal degree, over all parts of the Union. A railroad connecting New Mexico with the Southern States might indeed, be esteemed an enterprise of much greater benefit to the southern than to the northern members of the Union.

A series of harbors along the northern frontier might increase the trade of the North and West, while it conferred only a partial and remote advantage upon the South. Appropriations for improvements must be equitably distributed with a proper regard to the commerce, the agriculture, and the defense of every part of the Union. The farmer cannot, at once, and by one vast outlay, bring every acre of his farm to that high perfection which it will attain in time, after many years of a divided and distributed care. Nor can he, by a thin and feeble manuring of the whole, through successive seasons, produce that desired fertility which he may communicate by confining his outlay and his labor for a time to separate portions.

II.

The Senate.

The house represents the people; in number, and in aggregate as individuals, and as a nation. Certain persons are permitted by law, under certain restrictions, to select the members of the House. These persons so permitted, and under such restrictions, (i. e. voters,) represent the interests of families, individuals, busi

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