[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 Co