But it was not only in the individual States that the framers of our Constitution were in all those years gathering knowledge and experi ence in the science of popular government. From the very date of the Declaration, Con gress, conscious of the inadequacy of its pow ers, even for the purposes of carrying on war and conducting foreign affairs, entered upon the novel and difficult task of arranging a scheme which should enable it more efficiently to conduct those affairs which were of common interest to all the people of the 13 States, and which no one of them, nor all of them individually could control. After two years they adopted and submitted to the States what they styled giArticles of Confederation and per petual Union,* but it was not until March 1781 that the powers of Congress were en larged by the final ratification of these articles by the delegates of all the States. But this attempted bond of union — a crude experiment in the formation of a national government— proved little better than a rope of sand, and ut terly failed to accomplish the purposes intended. While the war lasted the tremendous pressure of their common danger and common distress kept the States together and made them obedi ent to the request of Congress which really had no power to command, but as soon as this external pressure was taken off, they fell apart, and each asserted its independent sovereignty. So jealous were the States, which had just escaped from the dominion of one central power, of anything which should seem to cre ate dominion over them in another, that al though upon paper they had laid many re straints upon their own action, and conferred upon Congress extensive powers over their Federal affairs, they had carefully refrained from giving any sanction to those powers and from granting to Congress the means of com pelling obedience to its enactments. The Ar ticles provided for no Federal executive and for no judiciary department, although they author ized Congress to provide for the settlement of boundary disputes between States and to ap point courts of prize and for the trial of piracies and felonies on the high seas. More over, Congress could not of its own authority raise a dollar of money for revenue or a single man to recruit its armies. It could only make requisitions for men and money upon individual States, which met them or not as they found it convenient. Nor could it proceed at all in the exercise of the principal powers nominally conferred upon it until nine States assented to the same. One of the leading writers of the time thus describes the powers of Congress under this Confederation: • By this political compact the United States in Congress assembled have exclusive power for the following purposes, without being able to execute one of them. They may make and conclude Treaties, but can only recommend the observ ance of them. They may appoint Ambassadors, but cannot defray even the expense of their tables. They may borrow money in their own name on the faith of the Union, but cannot pay a dollar. They may coin money, but they cannot purchase an ounce of bullion. They may make war and determine what number of troops are necessary, but cannot miss a single soldier. In short, they may declare everything, and do nothing." Judge Story says that, strong as this lan guage is, it has no coloring beyond what the naked truth would justify, and even Washing ton himself wrote: °The Confederation ap pears to me to be little more than a shadow without the substance, and Congress a nugatory body, their ordinances being little attended to.* Of course, under such a system our national affairs drifted steadily and rapidly from bad to worse. Interest on the public debt could not be paid, nor the ordinary expenses of gov ernment be provided for. The treaties which had been made could not be carried out, and foreign nations would not deal in the way of new treaties with the envoys of a body which had no head and no power to perform what they should agree to in its behalf. Our ex ternal commerce was at the mercy of foreign nations, whose laws contrived for its destruc tion, Congress could do nothing to counteract. And worst of all, our domestic commerce, which between all the citizens of one nation should be free and equal, was at the mercy of the caprice or selfishness of each individual State. There were many boundary disputes be tween States which threatened civil war. Fed eral laws were a dead letter, without Federal courts to expound and define their true mean ing and operation, or an executive to see that they were properly executed. There was a general failure as yet to realize in actual en. joyment the advantages we had won by seven years of war, and everything seemed drifting toward bankruptcy, disunion and anarchy. But these very defects of the Confederation, and the evils which resulted from them, demanded the constant exercise of the best brains in all the States to understand and to remedy them, and opened a new school for all our statesmen in the study of constitutional government. When Washington had laid down his sword and surrendered his commission to Congress, after the signing of the treaty of peace which acknowledged the independence of the United States, he exhorted his countrymen by all they held dear to provide for the establishment of a strong and stable government as the only hope of retaining the liberties they had won; and from that hour until the Federal Constitution was made and ratified he and Hamilton, and Franklin and Madison, and all the other great statesmen who made it, or helped to secure its adoption, were engaged in the constant study of the principles of free government and in enforcing them upon the attention of their fel low citizens, so that they came to the per formance of their g.reat duties in the Federal Convention as graduates of the best practical school of Constitutional Law that the world has ever seen.
Their allotted task was to create a National Government which should reach, for its own proper purposes, by its own power, every man and every foot of territory in the whole United States, and should at the same time leave un touched and undiminished the complete control by each State of all its internal and domestic affairs— which should be entirely adequate without aid from the States, to govern the peo ple effectively in all matters that involved the general interests of all, to deal with foreign nations with the whole power and resources of the entire people behind it, in all the exigencies of peace and war, and to accomplish all this with the least possible vesting of arbitrary power in any department or officer of the new government. They differed in opinion and senti
ment on many points, but all agreed in a su preme dread of arbitrary power, whether it should be exercised by the executive, the legis lative or the judiciary department, whether by a single man or by a majority of all, for they considered that the majority without any re strictions upon its power might become quite as dangerous as any other despot. They did not believe with my Lord Coke that absolute despotic power must in all governments reside somewhere. They carried this distrust of arbi trary power so far that they actually tied the hands of the people, whom they reg.arded as the source of all political power, and deprived them of the right to consider any amendment of the Constitution until it should be proposed by a vote of two-thirds of both houses of Congress or by a Convention called by Con gress, on the application of the legislatures of two-thirds of the States, and deprived them of the power of voting directly upon any amend ment, which could only be ratified by the legis latures or conventions of three-fourths of the States.
In other words, the people of the United States who ordained the Constitution, deprived themselves of the power to modify it by the direct vote of a majority or two-thirds or even three-quarters of their own numbers, whether that number should be 3,000,000 or 80,000,000. They must act deliberately and indirectly through Congresses, legislatures, conventions and primary elections. Truly a rare instance of political self-restraint at the basis of free popu lar government. One of the best definitions of the objects of such government is contained in the preamble of the Constitution: •We, the People of the United States, in order to form a more perfect Union, establish justice. Insure domestic tran quility, provide for the common defence, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.' It was to eestablish justice) for the people of the United States that the Federal judiciary, with the Supreme Court as its head, was cre ated. It forms the balance wheel by which the affairs of the nation and its relation to the States are kept in working order, and is itself held in check by the power of the President to appoint its members as vacancies tnay occur, and by the power of Congress to impeach them for misconduct, to regulate the measure of its appellate jurisdiction and to increase or diminish its numbers. The permanent stability of the judicial_power is assured by. its being imbedded in the Constitution, with a jurisdiction co-ordi nate with that of the executive and legislative departments, by the extreme difficulty in the way of any amendment that would impair it, and by the universal conviction which the ex perience of a century has produced, that its continued existence with the full enjoyment of its present functions is absolutely essentiat to the successful working of our scheme of popu lar representative government.
The great achievement of the framers of the Constitution, was so to distribute the powers of government between the States and the Na tion, as to give the latter supreme control over all subjects that concerned the general interests of all, and reserve to each of the former ex clusive control over local affairs which con cerned only its own territory and people, and to do this in such a way that the State and Federal administrations should not clash in actual opera tion. They knew well the importance of a distribution of the powers of government be tween the three great departments. They created a Congress on which they conferred legislative powers over 18 enumerated subjects, necessarily involving the general interests of the people of all the States and essential to national sovereignty, including the levying and collection of taxes for Federal purposes, the borrowing of money, the regulation of com merce with foreign nations and among the several States, the coining of money, declaring war, raising and supporting armies, and main taining a navy. They placed such limits upon the exercise by Congress of legislative power as should prevent its interference with legiti mate local administration by the States, or with the fundamental rights of the citizens, and put such prohibitions upon the legislative power of the States as should prevent their interfer ence with the general powers and functions of the Federal government. They vested the executive power of the Federal government in the President, who was made commander-in chief of the army and navy and of the militia of the States when called into the service of the United States. He was granted power to pardon offenders against the United States, to make treaties, provided two-thirds of the Senate concur, to have a veto power over acts of Con gress, which could be overridden only by a vote of two-thirds on reconsideration. He was also to nominate, with the advice and consent of the Senate, ambassadors, judges and all the principal officers of the United States, to recom mend to the consideration of Congress such measures as he should judge necessary and proper, to commission all officers of the United States, and to take care that the laws should be faithfully executed.