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secede from the confederation; and thus did the confederation itself, the inviolable, the perpetual, most unconstitutionally, yet most rightly, dissolve and vanish.
As it had been with the Articles of Confederation, so it was with the federal Constitution. It did not quite fit the nation as it grew. The two great political parties disagreed as to the respective limits of the two sovereignties which it recognized. Each of these sovereignties naturally tended to enlarge its own. domain, which could only be done by encroaching on that of the other. This was the natural outcome of the attempt to adjust the individual interests and independence of the states to a central government charged to look after the common welfare. What was the common welfare in a given case; what sacrifices could the Union rightfully claim from its several members; who should finally judge between the parties?-were questions both frequent and fundamental.
Bitter controversies of this kind were provoked by the alien and sedition laws, the embargo, the navigation of the Mississippi, the acquisition of new territory from France and Spain, the revenue act of 1832 and the admission of Texas into the Union. Perhaps these questions would have been settled otherwise than they in fact were had they taken the form of private controversies and been submitted to the Supreme Court; but they were settled by the action of the executive and congress. And just as the states rights man in the South could view with complacency the national embargo which ruined New England, and the New England Federalist could justify or excuse the Hartford convention, so the dominant party was not hampered in action by its theories of the Constitution. It disposed of these various questions for the benefit of the country as it professed to understand it, admitting, of course, motives of expediency and conciliation. But it seems to me, and this is what I wish to emphasize, that these differences were settled in fact without any decision of the general constitutional question, settled just as though no written Constitution existed, and as they might have been settled under any form of government.
But whatever determined the practical settlement of these differences, they made plain the danger to the Union from the opposition of the two primeval elements of the national Constitution—the residual sovereignty of the states and the limited sovereignty of the nation. A perfect balance of these was only
theoretically possible. As living forces they were normally in a state of constant fluctuation, but by identifying themselves with opposing interests, they tended to become actively hostile. last they became fused with interests of vast magnitude, geographically distinct, and their antagonism culminated in the proslavery and anti-slavery movements.
The belief which Mr. Lincoln expressed in 1858, that this government could not "permanently endure half slave and half free," was not that of the framers of the Constitution. They had no fear of slavery. They did not foresee the economic changes and territorial acquisitions which would make it powerful and aggressive, nor its alliance with the doctrine of state rights which transformed it from a social institution into a constitutional force in action. The anti-slavery movement, on its side, was forced to call for the intervention of the national government to arrest the growth of slavery, and thus became, in spite of itself, the embodiment of the national idea. These two movements were the national life; they were the unwritten Constitution in process of formation. A truce, fondly thought to be a final peace, was proclaimed under the name of the Missouri compromise. This was an act of congress, extra-constitutional-consciously such-and, after it had been repealed, incidentally declared to be unconstitutional; but it was kept for some thirty years. At last this truce was ended by the Kansas-Nebraska act, and the former controversy was renewed. An authoritative exposition of the Constitution in the extreme pro-slavery senseso, at least, it was popularly understood-apparently closed the debate. Alas! such debates are not to be closed thus. This was no mere forensic discussion as to the meaning of a constitutional text. It was an elemental struggle--each of the contending forces striving to become the supreme expression of the national life; and it was referred, as such titanic arguments are wont to be referred, to the inappealable judgment of war. The victory was to the national idea, and it rewrote the Constitution.
Concerning the civil war and the process of reconstruction, there are perhaps many who believe, and others who would gladly persuade themselves, that from the beginning to the end the Constitution was strictly and consciously observed. One writer stigmatizes, as "wild ideas," the views prevailing among the public men in the North, that the Constitution was no longer the measure of the national powers, that from necessity the gov
ernment must exercise powers, not deriving from the Constitution itself, but from the purpose of the war. Such doctrines he declares to be as unfounded as those of nullification and secession. Upon this subject, as upon so many others which are no longer burning questions but have passed into history, it is permitted without reproach to entertain any shade of opinion. For myself, I give my complete adhesion to the "wild ideas" of those who believed they were doing their best to save the Union by whatsoever means it might be saved, and that, as to the Constitution, it was not in question. Contemporaneous exposition of an act is strongest in the law. Constitutional debates in the arena of politics before the war; constitutional commentaries and expositions, by law writers or by the venerable Supreme Court itself, after the war, are not at all decisive. What those thought and felt who were bearing "the burden of the day and the heats," who were in constant touch with the people, who felt the forward push and impetus of the vital forces of the nation driving on to the goal, is a contemporaneous exposition, and I believe it to be the truest. Even though it were fairly demonstrable that the powers of the national government, as they appeared in action in the period of the war and reconstruction, can be deduced from some of the constitutional powers, it would not follow that they were in fact so derived. Sanction the conduct of the government, if you will, by referring it to the authority of this or that text or deduction, you have only shown coincidence, not derivation. The conduct of the government would have been just the same without such sanction.
Perhaps, as a mere question of legality, it is the president's right to invade and subjugate half of the states in the Union, in order to execute the laws regulating the carriage of the mails, the collection of the revenue and the keeping of the terms of the federal courts. But such purposes as these can only serve as the immediate occasion, never as the cause of a civil war. They are pursued as the pretext or as the attendant of some greater purpose, which is not justified by them; it is itself their justification. Such greater purpose in the civil war was the maintenance of the Union on the part of the North, its destruction on that of the South. When the Constitution was made, in the beginning, it was greater than the Union; it had sheltered, developed and breathed vigor into the Union. But the Union had grown greater than its foster-mother, and now towered above the Constitution.
The Union had grown to be a nation and was conscious of it; it was now asserting its right to be and to endure. It was conscious, too, of the malignant forces which threatened to destroy it, and which, alas! had found an ally in the Constitution itself. To save and to perfect its life was its purpose in the war, and its unimpeachable warrant for all it did. The Constitution was a mere instrument, to be used where sufficient; where insufficient, to be replaced by a better. If it smiled approval, 'twas well; if it frowned, 'twas no worse. Whatever must perish, whatever must be changed, whatever must be held in abeyance, the national life, the Union, must be saved. Leisure enough there should be and to spare, after victory won, for learning and patriotism, with perhaps the aid of some juristic legerdemain, to clothe again the triumphant form of the Union with the mantle of the Constitution.
None of the parties to the great struggle were aiming either to defend or to attack the Constitution. The pro-slavery manhe, the favorite son, the Benjamin of the Constitution-sought to destroy the Union; he could fashion for himself another Constitution. The abolitionist sought to destroy slavery, and thus save the Union and reform the Constitution. The Union man sought simply to save the Union; its Constitution, whatever it might prove to be, would thus of necessity be saved. Before the war-cloud burst, Mr. Lincoln delivered his first inaugural address. It is long, elaborate and chiefly devoted to the Constitution-the rights and duties which spring from it. It marks the close of the era of discussion. His second inaugural, after four years of war, is short, does not mention the Constitution, but emphasizes the names of Government, Union and Nation.
As the "wild ideas" concerning the extra-constitutional character of the war approve themselves to whatever of understanding I am able to apply in the premises, so does the like view seem to me correct concerning the measures of reconstruction. If to save the Union authorized the war and the conduct of it, so the perpetuation of the Union was a living spring of authority for the reconstruction of the states in secession. The complete emancipation of the slaves, the military government in the South, the tragi-comedy ('twixt Hamlet and Harlequin) of the "carpetbag" era, the giving of the suffrage to the blacks, the compulsory adoption of the new state Constitutions and of the thirteenth and fourteenth amendments to the federal Constitution-in a
word, the whole process of reconstruction appears to me to have been carried through under some other authority than that of the Constitution of the United States as it was written. There were, no doubt, theories galore to show how consistent all those measures were with the written text, or at least that they could be vindicated under inferences near or remote to be drawn from the text. There were protestations, too, loud and reiterated, to the same effect. In these I do not hear the spontaneous utterances of the national conviction, but rather the labored efforts of individuals, anxious to adorn with the stamp of legality and consistency acts of the nation done under the invocation of the highest law and approved in the forum of conscience. One utterance of the national conviction, I think I find, reading ever so little or not at all between the lines, in Mr. Lincoln's second inaugural address, where he declares that the destruction of the "cause of the conflict," slavery, is a more "fundamental and astounding result" than had been looked for. The destruction of slavery, if accomplished in fact, was indeed an astounding result, because not anticipated nor intended in the beginning by the vast majority of the people of the North, and a fundamental one because the active cause and original motive of disunion thus ceased to be. But what justified the declaration that slavery was destroyed? Emancipation was a single act and related to certain existing individuals, while the constitutional recognition of slavery was abiding and regarded generations not yet born or not yet enslaved. Emancipation might be condoned as an accomplished fact or justified upon military necessity by the expounders of the Constitution, but this would not legally carry with it the destruction of slavery. If emancipation meant its destruction; if, indeed, at the moment when Mr. Lincoln spoke, slavery was already dead, it was because a new spirit already animated the nation which would read the Constitution as it had not before been read. It was this spirit which authorized Mr. Lincoln, when he spoke of the destruction of slavery as of a fact so plain to all that he did not need to affirm its existence, but only to emphasize its character as a fundamental and an astounding result. He felt that the nation which, six years before, he had sadly declared could not permanently endure half slave and half free, might now hope to endure, since its living Constitution was that of a nation altogether free. And surely that same spirit moved him to close the great proclamation, which did not in words decree