The Constitutional Convention took up a task such as had never before been
It was known by the historians at Philadelphia that alliances of States, or
confederations or confederacies, had always bred dissensions and fallen apart.
Indeed, it was because their own Confederation had been sinking and was
practically gone that they were in convention working for "a more perfect
They knew also that in anything tighter than a confederation the individual
States forming it had always lost identity through absorption in the central
organization. Thus, the Confederacy of Delos (about 480 B. C.), which was
formed by Aristides to consolidate Greek cities and colonies in defense against
Persia, and which was to last until the pieces of iron thrown into the sea
should float, was before long weakened by secessions. "The confederacy of
equal states," says the historian Betten in Ancient World,
"became an empire, with Athens for its 'tyrant city.'"
Against this loss of identity, in particular, they were determined to guard.
The units in the failing Confederation had, by the Declaration of Independence,
proclaimed themselves to be "free and independent States."
And in the Articles of Confederation, their first Constitution, they
declared that "each State retains its sovereignty and independence."
So the individuality of the State in this Union never should have been treated
The delegates from all of the States represented were of one mind for
preserving perpetually the identity and sovereignty of their commonwealths, so
far as that could be worked out. They organized a Union (as distinguished from
a confederation, which they then were) which would present a front for them to
the nations of the world in negotiations and in defense and offense. It would
also take over the home concerns which were essentially national, and
especially those respecting which there had been lack of harmony among them, as
in the case of commerce across State lines.
So, by section 8 of Article I of the Constitution which they drafted, they
gave to the Congress of the Union (what that of the Confederation lacked) power
to raise money by taxation "to pay the Debts and provide for the common
Defence and general Welfare." They gave Congress power to borrow money on
the credit of the Union, and the next important grant of power was to regulate
commerce among the States and with foreign nations. After those grants came
authority for uniform laws for naturalization and bankruptcy, for coinage,
weights and measures, counterfeiting, post office, declaring war, raising
armies and navies (but for not longer than two years), and for laws making
those grants effective.
Then, by section 10, the States surrendered to the Nation the power to make
treaties, to coin money, and a few others.
Thus, the lines between the governments of the States and that of the Union
had been very clearly drawn. And thus there had been blended the Confederation
and the Nation. But both remained in their respective individualities. By the
organization the Confederation would be prevented from falling apart. And the
Nation would let the States of the confederation alone.
It was to this system, by which men attempted for the first time
successfully to strip themselves of the features of power that tend to tyranny,
that Senator Hoar paid this tribute:
"The most sublime thing in the Universe, except its Creator, is a great
and free people governing itself by a law higher than its own desire."
That arrangement has, of late years, been failing.
It was to make clear to the reading American the causes of the decline of
the constitutional system as set up, and the course which should be taken to
stop it, that this book was written.
The three most important conclusions to be derived from this study are
1. A Government erected by deep scholarship upon a Fundamental Law must fail
without sufficient scholarship in the people who choose its officers to sense
instantly and resist courageously every proposal to depart from its principles;
and to operate as inoculation against notions, foreign and domestic, for
2. The States, which insisted during the writing of the Constitution, and
afterward by demanding a Bill of Rights, that their complete independence in
all but international and strictly national affairs should be respected
forever, must recover the constitutional position which, through the
incompetence of their representatives in Congress, they have too much given
over to Federal control.
3. As the Judiciary is the keystone of the American arch, only the most
experienced and capable legal scholars should be appointed by the President to
judicial seats; and it is the high constitutional duty of the Senate to refuse
confirmation of appointments of any other kind.
With those three essentials brought into effect, our Republic should serve
Remarking that if angels were caring for us there would be no need for the
devices which we employ "to control the abuses of government," a
writer of The Federalist (No. 51) added:
"In framing a government which is to be administered by men, over men,
the great difficulty lies in this: you must first enable the government to
control the governed; and, in the next place, oblige it to control
That is the surpassing task confronting the American today — to compel
his Government to control itself.