VII

THE DISTRIBUTION OF POWERS

Efforts to Strengthen the Confederation. Thoughtful men viewed the approaching downfall of the Confederation with alarm. They saw that if the union of the States were dissolved, and each State should assume complete and undisputed sovereignty, the fruits of independence would be most bitter. With thirteen nations instead of one, the country would be the easy prey of foreign invaders, sectional interests would jostle each other and bring State into conflict with State, commerce between the States would be shackled, and all the social, moral, and intellectual advantages which flow from union would be lost.

Before it was too late men like Washington and Hamilton and Franklin came forward with measures designed to strengthen the union. In 1785 commissioners from Maryland and Virginia met at Washington's home at Mount Vernon to adjust some matters of interstate navigation. At this meeting Washington suggested that the two States ought to enter into an agreement as to the regulation of interstate commerce in all particulars. The discussion following this suggestion showed that if there was to be any useful regulation of commerce between the States all the States must join. Accordingly all the States were invited to appoint commissioners to discuss the matter. In response to this invitation five of the thirteen States met at Annapolis in 1786. This representation was considered too small and the meeting adjourned without attempting anything. Be

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fore adjourning, however, it recommended that a convention of all the States be held at Philadelphia in May, 1787, "to take into consideration the situation of the United States, to devise such further provisions as shall appear necessary to render the constitution of the federal government adequate to the exigencies of the times." Congress, seeing the drift of affairs, adopted the idea of holding a general convention, and resolved that it was expedient that in May, 1787, one be held at Philadelphia "for the sole and express purpose of revising the Articles of Confederation."

The Constitutional Convention of 1787. All the States responded to the call, excepting Rhode Island. The men sent to the Convention were the ablest and wisest in America. They represented conflicting interests, and differed widely among themselves in their views of government, but they were capable of placing the public good above selfish considerations. They had not proceeded far with their work before they saw that a mere revision of the Articles of Confederation would not bring relief to the country. If union was to be anything more than a name there must be a central government clothed with substantial power. Instead of continuing the Confederation, which was avowedly a mere "league of friendship" in which the exercise of power depended upon the States, the men of the Convention bravely decided to frame a Constitution for a real federal government, one which should have its three departments conducted by its own officials, and which should be independent of the State in the exercise of its powers. The proposed government was to reach the individual, make laws for him, take money out of his pocket for taxes, and judge and punish him if he violated its laws.

The framework of the new government was agreed to after a most serious and thorough discussion, and was sub

1 The Confederation was frequently called a federal government. In 1787 men had not yet learned to distinguish clearly between a federal and a confederated government.

mitted in September, 1787, to the people of the States as a "Constitution for the United States of America." If ratified by nine States (129) the new Constitution was to go into operation. Its adoption was opposed fiercely by those who did not believe in a strong central government, but its friends were stronger than its enemies, and by July, 1788, it had been ratified by eleven States, North Carolina and Rhode Island withholding their consent. In 1789 the new government was organized in New York with Washington as President.

The Constitution of 1787 is a distinct political creation. True, the framers drew upon the political experiences of the past, and true, they received hints from existing State governments, but we must remember that the task that lay before them was the building of a federal government, and in planning for a federal structure they were thrown on their own resources, for they had no adequate model from which to copy. The federal temple which they reared was an original political creation. To refuse to admit this because they availed themselves of the political experiences of the past would be almost as unreasonable as it would be to refuse to call St. Peter's a creation because in planning for it Angelo availed himself of the architectural experience of the past. When we consider the magnitude and the difficulties of the task which lay before the statesmen of the Convention of 1787 thirteen jealous, proud, and independent States to be brought under one strong federal power, warring interests of sections to be reconciled, a lawless and chaotic condition of affairs in the Union to be safely tided over, a turbulent and distrustful public opinion to be faced, problems connected with the government of unorganized communities in the west and southwest to be solved we consider the nature of this task, and contemplate the success which followed their efforts, we can understand Gladstone when he says that "their work was the most wonderful ever struck off at a given time by the brain and purpose of man.”

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How the Convention Distributed Power. If we wish to understand our political system we must gain clear notions respecting the manner in which the framers distributed power to the State and federal governments. Let us suppose that the men of the Constitutional Convention of 1787 had at their disposal all the powers of a sovereign state, all the powers that it is possible for a government to exercise, and that they divided these powers between the new federal government and the existing State government in such a manner as they thought best. With this supposition in mind let us see what disposal they made of the great reservoir of governmental power which was at their command. And first let us learn what powers they gave exclusively to the federal government:

I. Powers Exclusively Federal. When granting a power exclusively to the federal government it had to be plain to the minds of the framers (1) that the States would be willing to surrender the power; (2) that the federal government needed the power; (3) that the power when exercised would affect all the States alike. Applying these tests to each grant of power, the framers gave the federal government absolute control in the following matters: war, peace, treaties, alliances, ambassadors, postal affairs, the army and navy, foreign commerce, interstate commerce, naturalization, coinage of money, Indian affairs, bankruptcy, patents, copyrights, territories, letters of marque and reprisal.

II. Concurrent Powers. If the proposed federal government was to be strong and efficient it must be permitted to raise money by taxation and to borrow money; it must define the qualifications of those who were to vote for its officers and regulate the time and manner of holding the elections of its officers; it must have the support of the State militia in times of war. But it was not considered wise for the federal government to be given the exclusive power of collecting taxes and borrowing money and controlling its elections and militia. Hence it became necessary for the framers to grant certain powers to the federal government,

and at the same time reserve powers of the same kind for the State. Powers belonging to both governments are called concurrent. The concurrent powers established by the Convention relate to the following matters: taxation, public debt, citizenship, suffrage, elections, militia, eminent domain. III. Powers Prohibited to the Federal Government. While the framers planned for a federal government which should be capable of achieving its rightful purposes, they at the same time took care that it should not be an instrument of oppression. To safeguard the interests of the States they formally prohibited certain powers to the federal government. The powers which were denied to the federal government in the Convention are stated in Article I, Section 9, of the Constitution (p. 403). Other prohibitions are found in the first eight articles of the Amendments which were adopted in 1791 to allay the fears of those who thought the new government might exceed its powers. These eight amendments are the bill of rights of the Constitution. They restrain the federal government, but they do not restrain the State.

IV. Powers Prohibited to the State. The framers saw that certain limitations upon the power of the State would also be wholesome. Indeed in 1787 prohibitions upon the power of the State were more necessary than prohibitions upon the federal government, for the States were strong, and were disposed to disregard the authority of the central government. Accordingly, as a pledge of good faith on the part of the States a self-denying section (Article I, Section 10) was inserted in the Constitution.

It should be noticed that there are three prohibitions upon both State and federal governments: neither a State nor the United States can grant any title of nobility (71, 73), or pass an ex post facto law, or any bill of attainder 2 (65, 73).

1 An ex post facto law makes an act criminal which was not so when done, or increases the severity of the punishment of a previous act.

A bill of attainder is a legislative act which inflicts punishment without judicial trial.