[This article is excerpted from A Brief Enquiry into the Nature and Character of our Federal Government (1840). The work critiques Justice Joseph Story’s widely esteemed Commentaries on the Constitution of the United States and its support of strong centralized government. Upshur instead describes the Constitution as a compact created by a confederation of individual, sovereign states, each possessing the power to interpose on behalf of its citizens against the federal government and, if necessary, to withdraw from it. This selection concludes Upshur’s work and summarizes many of his arguments.]
Regarding this work of Judge Story as a whole, it is impossible not to be struck with the laborious industry which he has displayed, in the collection and preparation of his materials. He does not often indulge himself in speculations upon the general principles of government, but confines himself, with great strictness, to the particular form before him. Considering him as a mere lawyer, his work does honor to his learning and research, and will form a very useful addition to our law libraries. But it is not in this light only that we are to view it. The author is a politician, as well as a lawyer, and has taken unusual pains to justify and recommend his own peculiar opinions. This he has done, often at the expense of candor and fairness, and, almost invariably, at the expense of historical truth.
We may well doubt, therefore, whether his book will not produce more evil than good to the country, since the false views which it presents, of the nature and character of our government, are calculated to exert an influence over the public mind too seriously mischievous to be compensated by any new lights which it sheds upon other parts of our Constitution. Indeed, it is little else than a labored panegyric upon that instrument.
Having made it, by forced constructions and strange misapprehensions of history, to conform to his own beau ideal of a perfect government, he can discern in it nothing that is deficient, nothing that is superfluous. And it is his particular pleasure to arm it with strong powers and surround it with imposing splendors.
In his examination of the legislative department, he has displayed an extraordinary liberality of concession, in this respect. There is not a single important power ever exercised or claimed for congress which he does not vindicate and maintain. The long contested powers to protect manufactures, to construct roads, with an endless list of similar objects to which the public money may be applied, present no serious difficulty to his mind.
An examination of these several subjects, in detail, would swell this review beyond its proper limits, and is rendered unnecessary by the great principles which it has been my object to establish. I allude to them here, only as illustrating the general character of this book, and as showing the dangerous tendency of its political principles. It is, indeed, a strong argument in favor of federal power; and when we have said this, we have given it the character which the author will most proudly recognize. And it is not for the legislature alone, that these unbounded powers are claimed; the other departments come in for a full share of his favor. Even when he is forced to condemn, he does it with a censure so faint, and so softened and palliated, as to amount to positive praise.
It is too late for the people of these States to indulge themselves in these undiscriminating eulogies of their Constitution. We have, indeed, every reason to admire and to love it, and to place it far above every other system, in all the essentials of good government. Still, it is far from being perfect, and we should be careful not to suffer our admiration of what is undoubtedly good in it, to make us blind to what is as undoubtedly evil.
When we consider the difficulties under which the convention labored, the great variety of interests and opinions which it was necessary for them to reconcile, it is matter of surprise that they should have framed a government so little liable to objection. But the government which they framed is not that which our author has portrayed. Even upon the guarded principles for which I have contended in this review, the action of the whole system tends too strongly towards consolidation.
Much of this tendency, it is true, might be corrected by ordinary legislation; but, even then, there would remain in the federal government an aggregate of powers which nothing but an enlightened and ever-vigilant public opinion could confine within safe limits. But if our author’s principles be correct, if ours be, indeed, a consolidated and not a federative system, I, at least, have no praises to bestow on it. Monarchy in form, open and acknowledged, is infinitely preferable to monarchy in disguise.
The principle that ours is a consolidated government of all the people of the United States, and not a confederation of sovereign States, must necessarily render it little less than omnipotent. That principle, carried out to its legitimate results, will assuredly render the federal government the strongest in the world. The powers of such a government are supposed to reside in a majority of the people; and, as its responsibility is only to the people, that majority may make it whatever they please.
To whom is that majority itself responsible? Upon the theory that it possesses all the powers of the government, there is nothing to check, nothing to control it. In a population strictly homogeneous in interests, character and pursuits, there is no danger in this principle. We adopt it in all our state governments, and in them it is the true principle; because the majority can pass no law which will not affect themselves, in mode and degree, precisely as it affects others.
But in a country so extensive as the United States, with great differences of character, interests and pursuits, and with these differences, too, marked by geographical lines, a fair opportunity is afforded for the exercise of an oppressive tyranny, by the majority over the minority. Large masses of mankind are not apt to be swayed, except by interest alone; and wherever that interest is distinct and clear, it presents a motive of action too strong to be controlled.
Let it be supposed that a certain number of States, containing a majority of the people of all the States, should find it to their interest to pass laws oppressive to the minority, and violating their rights as secured by the Constitution. What redress is there upon the principles of Judge Story? Is it to be found in the federal tribunals? They are themselves a part of the oppressing government, and are, therefore, not impartial judges of the powers of that government.
Is it to be found in the virtue and intelligence of the people? This is the author’s great reliance. He acknowledges that the system, as he understands it, is liable to great abuses; but he supposes that the virtue and intelligence of the people will, under all circumstances, prove a sufficient corrective. Of what people? Of that very majority who have committed the injustice complained of, and who, according to the author’s theory, are the sole judges whether they have power to do it or not, and whether it be injustice or not.
Under such a system as this, it is a cruel mockery to talk of the rights of the minority. If they possess rights, they have no means to vindicate them. The majority alone possess the government; they alone measure its powers, and wield them without control or responsibility. This is despotism of the worst sort, in a system like ours. More tolerable, by far, is the despotism of one man, than that of a party, ruling without control, consulting its own interests, and justifying its excesses under the name of republican liberty. Free government, so far as its protecting power is concerned, is made for minorities alone.
But the system of Judge Story, while it invites the majority to tyrannize over the minority, and gives the minority no redress, is not safe even for that majority itself. It is a system unbalanced, unchecked, without any definite rules to prevent it from running into abuse, and becoming a victim to its own excesses.
The separation and complete independence of the several departments of the government is usually supposed to afford a sufficient security against an undue enlargement of the powers of any one of them. This is said to be the only real discovery in politics, which can be claimed by modern times; and it is generally considered a very great discovery, and, perhaps, the only contrivance by which public liberty can be preserved. The idea is wholly illusory.
It is true that public liberty could scarcely exist without such separation, and, for that reason, it was wisely adopted in our systems. But we should not rely on it with too implicit a confidence, as affording in itself any adequate barrier against the encroachments of power or any adequate security for the rights and liberties of the people. I have little faith in these balances of government because there is neither knowledge nor wisdom enough in man to render them accurate and permanent.
In spite of every precaution against it, one department will acquire an undue preponderance over the rest. The first excesses are apt to be committed by the legislature; and, in a consolidated government, such as the author supposes ours to be, there is a peculiar proneness to this.
In all free governments, the democratic principle is continually extending itself. The people being possessed of all power, and feeling that they are subject to no authority except their own, learn, in the end, to consider the very restraints which they have voluntarily imposed upon themselves, in their constitution of government, as the mere creatures of their own will, which their own will may at any time destroy. Hence the legislature, the immediate representatives of the popular will, naturally assume upon themselves every power which is necessary to carry that will into effect.
This is not liberty. True political liberty demands many and severe restraints; it requires protection against itself, and is no longer safe when it refuses to submit to its own self-imposed discipline. But whatever power the legislature may assume, they seldom retain it long. They win it, not for themselves, but for the executive. All experience proves that this is a usual result, in every form of free government.
In every age of the world, the few have found means to steal power from the many. But in our government, if it be indeed a consolidated one, such a result is absolutely inevitable. The powers which are expressly lodged in the executive, and the still greater powers which are assumed, because the Constitution does not expressly deny them, a patronage which has no limit, and acknowledges no responsibility, all these are quite enough to bring the legislature to the feet of the executive.
Every new power, therefore, which is assumed by the federal government, does but add so much to the powers of the president. One by one, the powers of the other departments are swept away, or are wielded only at the will of the executive. This is not speculation — it is history. Those who have been so eager to increase the powers and to diminish the responsibilities of the federal government may know, from their own experience, that they have labored only to aggrandize the executive department, and raise the president above the people.
That officer is not, by the Constitution, and never was designed to be, anything more than a simple executive of the laws; but the principle which consolidates all power in the federal government clothes him with royal authority, and subjects every right and every interest of the people to his will. The boasted balance, which is supposed to be found in the separation and independence of the departments, is proved, even by our own experience, apart from all reasoning, to afford no sufficient security against this accumulation of powers. It is to be feared that the reliance which we place on it may serve to quiet our apprehensions, and render us less vigilant than we ought to be of the progress, sly, yet sure, which a vicious and cunning president may make towards absolute power.
And let us not sleep in the delusion that we shall derive all needful security from our own “intelligence and virtue.” The people may, indeed, preserve their liberties forever, if they will take care to be always virtuous, always wise, and always vigilant. And they will be equally secure, if they can assure themselves that the rulers they may select will never abuse their trust, but will always understand and always pursue the true interests of the people. But, unhappily, there are no such people, and no such rulers. A government must be imperfect, indeed, if it require such a degree of virtue in the people as renders all government unnecessary.
Government is founded not in the virtues, but in the vices of mankind; not in their knowledge and wisdom, but in their ignorance and folly. Its object is to protect the weak, to restrain the violent, to punish the vicious, and to compel all to the performance of the duty which man owes to man in a social state. It is not a self-acting machine which will go on and perform its work without human agency; it cannot be separated from the human beings who fill its places, set it in motion, and regulate and direct its operations.
So long as these are liable to err in judgment, or to fail in virtue, so long will government be liable to run into abuses. Until all men shall become so perfect as not to require to be ruled, all governments professing to be free will require to be watched, guarded, checked, and controlled. To do this effectually requires more than we generally find of public virtue and public intelligence. A great majority of mankind are much more sensible to their interests than to their rights. Whenever the people can be persuaded that it is their greatest interest to maintain their rights, then, and then only, will free government be safe from abuses.
Looking to our own federal government, apart from the States, and regarding it, as our author would have us, as a consolidated government of all the people of the United States, we shall not find in it this salutary countervailing interest. In an enlarged sense it is, indeed, the greatest interest of all to support that government in its purity; for although it is undoubtedly defective in many important respects, it is much the best that has yet been devised.
Unhappily, however, the greatest interest of the whole is not felt to be, although in truth it is, the greatest interest of all the parts. This results from the fact that our character is not homogeneous, and our pursuits are wholly different. Rightly understood, this fact should tend to bind us the more closely together, by showing us our dependence upon each other; and it should teach us the necessity of watching, with the greater jealousy, every departure from the strict principles of our union.
It is a truth, however, no less melancholy than incontestable, that if this ever was the view of the people, it has ceased to be so. And it could not be otherwise. Whatever be the theory of our Constitution, its practice, of late years, has made it a consolidated government; the government of an irresponsible majority. If that majority can find, either in the pursuits of their own peculiar industry, or in the offices and emoluments which flow from the patronage of the government, an interest distinct from that of the minority, they will pursue that interest, and nothing will be left to the minority but the poor privilege of complaining.
Thus the government becomes tyrannous and oppressive precisely in proportion as its democratic principle is extended; and instead of the enlarged and general interest which should check and restrain it, a peculiar interest is enlisted to extend its powers and sustain its abuses. Public virtue and intelligence avail little in such a condition of things as this. That virtue falls before the temptations of interest which you present to it, and that intelligence, thus deprived of its encouraging hopes, serves only to point out new objects of unlawful pursuit, and suggest new and baser methods of attaining them.
This result could scarcely be brought about if the federal government were allowed to rest on the principles upon which I have endeavored to place it. The checking and controlling influences which afford safety to public liberty are not to be found in the government itself. The people cannot always protect themselves against their rulers; if they could, no free government, in past times, would have been overthrown.
Power and patronage cannot easily be so limited and defined as to rob them of their corrupting influences over the public mind. It is truly and wisely remarked by Alexander Hamilton in theFederalist number 79, that “a power over a man’s subsistence is a power over his will.” As little as possible of this power should be entrusted to the federal government, and even that little should be watched by a power authorized and competent to arrest its abuses. That power can be found only in the States.
In this consists the great superiority of the federative system over every other. In that system the federal government is responsible not directly to the people en masse, but to the people in their character of distinct political corporations. However easy it may be to steal power from the people, governments do not so readily yield it to one another. The confederated States confer on their common government only such power as they themselves cannot separately exercise, or such as can be better exercised by that government. They have, therefore, an equal interest to give it power enough and to prevent it from assuming too much. In their hands the power of interposition is attended with no danger; it may be safely lodged where there is no interest to abuse it.
Under a federative system, the people are not liable to be acted on (at least, not to the same extent) by those influences which are so apt to betray and enslave them under a consolidated government. Popular masses, acting under the excitements of the moment, are easily led into fatal errors. History is full of examples of the good and great sacrificed to the hasty judgments of infuriated multitudes, and of the most fatal public measures adopted under the excitements of the moment. How easy is it for the adroit and cunning to avail themselves of such occasions, and how impossible is it for a people so acted on to watch their rulers wisely and guard themselves against the encroachments of power?
In a federative system this danger is avoided, so far as their common government is concerned. The right of interposition belongs not to the people in the aggregate, but to the people in separate and comparatively small subdivisions. And even in these subdivisions they can act only through the forms of their own separate governments. These are necessarily slow and deliberate, affording time for excitement to subside and for passion to cool. Having to pass through their own governments, before they can reach that of the United States, they are forbidden to act until they have had time for reflection and for the exercise of a cool and temperate judgment.
Besides, they are taught to look not to one government only for the protection and security of their rights, and not to feel that they owe obedience only to that. Conscious that they can find in their own state governments protection against the wrongs of the federal government, their feeling of dependence is less oppressive and their judgments more free. And while their efforts to throw off oppression are not repressed by a feeling that there is no power to which they can appeal, these efforts are kept under due restraints, by a consciousness that they cannot be unwisely exerted, except to the injury of the people themselves.
It is difficult to perceive how a federal government, established on correct principles, can ever be overthrown, except by external violence, so long as the federative principle is duly respected and maintained. All the requisite checks and balances will be found in the right of the States to keep their common government within its proper sphere; and a sufficient security for the due exercise of that right is afforded by the fact that it is the interest of the States to exercise it discreetly. So far as our own government is concerned, I venture to predict that it will become absolute and irresponsible, precisely in proportion as the rights of the States shall cease to be respected, and their authority to interpose for the correction of federal abuses shall be denied and overthrown.
It should be the object of every patriot in the United States to encourage a high respect for the state governments. The people should be taught to regard them as their greatest interest, and as the first objects of their duty and affection. Maintained in their just rights and powers they form the true balance wheel, the only effectual check upon federal encroachments. And it possesses as a check these distinguishing advantages over every other: that it can never be applied without great deliberation and caution, that it is certain in its effects, and that it is but little liable to abuse.
It is true that a State may use its power for improper purposes, or on improper occasions; but the federal government is, to say the least of it, equally liable to dangerous errors and violations of trust. Shall we then leave that government free from all restraint, merely because the proper countervailing power is liable to abuse? Upon the same principle, we should abandon all the guards and securities which we have so carefully provided in the Federal Constitution itself. The truth is, all checks upon government are more or less imperfect; for if it were not so, government itself would be perfect. But this is no reason why we should abandon it to its own will.
We have only to apply to this subject our best discretion and caution, to confer no more power than is absolutely necessary, and to guard that power as carefully as we can. Perfection is not to be hoped for, but an approximation to it, sufficiently near to afford a reasonable security to our rights and liberties, is not unattainable.
In the formation of the federal government we have been careful to limit its powers, and define its duties. Our object was to render it such that the people should feel an interest in sustaining it in its purity, for otherwise it could not long subsist. Upon the same principle we should enlist the same interest in the wise and proper application of those checks, which its unavoidable imperfections render necessary.
That interest is found in the States. Having created the federal government at their own free will, and for their own uses, why should they seek to destroy it? Having clothed it with a certain portion of their own powers, for their own benefit alone, why should they desire to render those powers inoperative and nugatory? The danger is not that the States will interpose too often, but that they will rather submit to federal usurpations than incur the risk of embarrassing that government by any attempts to check and control it. Flagrant abuses alone, and such as public liberty cannot endure, will ever call into action this salutary and conservative power of the States.
But whether this check be the best or the worst in its nature, it is at least one which our system allows. It is not found within the Constitution but exists independent of it. As that Constitution was formed by sovereign States, they alone are authorized, whenever the question arises between them and their common government, to determine, in the last resort, what powers they intended to confer on it.
This is an inseparable incident of sovereignty, a right which belongs to the States simply because they have never surrendered it to any other power. But to render this right available for any good purpose, it is indispensably necessary to maintain the States in their proper position. If their people suffer them to sink into the insignificance of mere municipal corporations, it will be vain to invoke their protection against the gigantic power of the federal government.
This is the point to which the vigilance of the people should be chiefly directed. Their highest interest is at home; their palladium is their own state governments. They ought to know that they can look nowhere else with perfect assurance of safety and protection. Let them then maintain those governments, not only in their rights, but in their dignity and influence. Make it the interest of their people to serve them; an interest strong enough to resist all the temptations of federal office and patronage.
Then alone will their voice be heard with respect at Washington; then alone will their interposition avail to protect their own people against the usurpations of the great central power. It is vain to hope that the federative principle of our government can be preserved, or that anything can prevent it from running into the absolutism of consolidation, if we suffer the rights of the States to be filched way, and their dignity and influence to be lost, through our carelessness or neglect.
Abel Parker Upshur (1790–1844) was an American lawyer, judge, and politician from Virginia. He was active in Virginia state politics and later served as secretary of the Navy and secretary of state during the Whig administration of President John Tyler. He was the pseudonymous author of An Exposition of the Virginia Resolutions of 1798, a vigorous defense of state nullification.