The leading inquiry in the examination of any system of government must, of course, concern primarily the real depositaries and the essential machinery of power. There is always a centre of power: where in this system is that centre? in whose hands is self-sufficient authority lodged, and through what agencies does that authority speak and act? The answers one gets to these and kindred questions from authoritative manuals of constitutional exposition are not satisfactory, chiefly because they are contradicted by self-evident facts. It is said that there is no single or central force in our federal scheme; and so there is not in the federal scheme, but only a balance of powers and a nice adjustment of interactive checks, as all the books say. How is it, however, in the practical conduct of the federal government? In that, unquestionably, the predominant and controlling force, the centre and source of all motive and of all regulative power, is Congress. All niceties of constitutional restriction and even many broad principles of constitutional limitation have been overridden, and a thoroughly organized system of congressional control set up which gives a very rude negative to some theories of balance and some schemes for distributed powers, but which suits well with convenience, and does violence to none of the principles of self-government contained in the Constitution.
This fact, however, though evident enough, is not on the surface. It does not obtrude itself upon the observation of the world. It runs through the undercurrents of government, and takes shape only in the inner channels of legislation and administration which are not open to the common view. It can be discerned most readily by comparing the "literary theory" of the Constitution with the actual machinery of legislation, especially at those points where that machinery regulates the relations of Congress with the executive departments, and with the attitude of the houses towards the Supreme Court on those occasions, happily not numerous, when legislature and judiciary have come face to face in direct antagonism. The "literary theory" is distinct enough; every American is familiar with the paper pictures of the Constitution. Most prominent in such pictures are the ideal checks and balances of the federal system, which may be found described, even in the most recent books, in terms substantially the same as those used in 1814 by John Adams in his letter to John Taylor. "Is there," says Mr. Adams, "a constitution upon record more complicated with balances than ours? In the first place, eighteen states and some territories are balanced against the national government.... In the second place, the House of Representatives is balanced against the Senate, the Senate against the House. In the third place, the executive authority is, in some degree, balanced against the legislative. In the fourth place, the judicial power is balanced against the House, the Senate, the executive power, and the state governments. In the fifth place, the Senate is balanced against the President in all appointments to office, and in all treaties.... In the sixth place, the people hold in their hands the balance against their own representatives, by biennial ... elections. In the seventh place, the legislatures of the several states are balanced against the Senate by sextennial elections. In the eighth place, the electors are balanced against the people in the choice of the President. Here is a complicated refinement of balances, which, for anything I recollect, is an invention of our own and peculiar to us."2
All of these balances are reckoned essential in the theory of the Constitution; but none is so quintessential as that between the national and the state governments; it is the pivotal quality of the system, indicating its principal, which is its federal characteristic. The object of this balance of thirty-eight States "and some territories" against the powers of the federal government, as also of several of the other balances enumerated, is not, it should be observed, to prevent the invasion by the national authorities of those provinces of legislation by plain expression or implication reserved to the States,—such as the regulation of municipal institutions, the punishment of ordinary crimes, the enactment of laws of inheritance and of contract, the erection and maintenance of the common machinery of education, and the control of other such like matters of social economy and every-day administration,—but to check and trim national policy on national questions, to turn Congress back from paths of dangerous encroachment on middle or doubtful grounds of jurisdiction, to keep sharp, when it was like to become dim, the line of demarcation between state and federal privilege, to readjust the weights of jurisdiction whenever either state or federal scale threatened to kick the beam. There never was any great likelihood that the national government would care to take from the States their plainer prerogatives, but there was always a violent probability that it would here and there steal a march over the borders where territory like its own invited it to appropriation; and it was for a mutual defense of such border-land that the two governments were given the right to call a halt upon one another. It was purposed to guard not against revolution, but against unrestrained exercise of questionable powers.
The extent to which the restraining power of the States was relied upon in the days of the Convention, and of the adoption of the Constitution, is strikingly illustrated in several of the best known papers of the "Federalist;" and there is no better means of realizing the difference between the actual and the ideal constitutions than this of placing one's self at the point of view of the public men of 1787-89. They were disgusted with the impotent and pitiable Confederation, which could do nothing but beg and deliberate; they longed to get away from the selfish feuds of "States dissevered, discordant, belligerent," and their hopes were centred in the establishment of a strong and lasting union, such as could secure that concert and facility of common action in which alone there could be security and amity. They were, however, by no means sure of being able to realize their hopes, contrive how they might to bring the States together into a more perfect confederation. The late colonies had but recently become compactly organized, self-governing States, and were standing somewhat stiffly apart, a group of consequential sovereignties, jealous to maintain their blood-bought prerogatives, and quick to distrust any power set above them, or arrogating to itself the control of their restive wills. It was not to be expected that the sturdy, self-reliant, masterful men who had won independence for their native colonies, by passing through the flames of battle, and through the equally fierce fires of bereavement and financial ruin, would readily transfer their affection and allegiance from the new-made States, which were their homes, to the federal government, which was to be a mere artificial creation, and which could be to no man as his home government. As things looked then, it seemed idle to apprehend a too great diminution of state rights: there was every reason, on the contrary, to fear that any union that could be agreed upon would lack both vitality and the ability to hold its ground against the jealous self-assertion of the sovereign commonwealths of its membership. Hamilton but spoke the common belief of all thinking men of the time when he said: "It will always be far more easy for the state governments to encroach upon the national authorities than for the national government to encroach upon the state authorities;" and he seemed to furnish abundant support for the opinion, when he added, that "the proof of this proposition turns upon the greater degree of influence which the state governments, if they administer their affairs uprightly and prudently, will generally possess over the people; a circumstance which, at the same time, teaches us that there is an inherent and intrinsic weakness in all federal constitutions, and that too much pains cannot be taken in their organization to give them all the force that is compatible with the principles of liberty."3
Read in the light of the present day, such views constitute the most striking of all commentaries upon our constitutional history. Manifestly the powers reserved to the States were expected to serve as a very real and potent check upon the federal government; and yet we can see plainly enough now that this balance of state against national authorities has proved, of all constitutional checks, the least effectual. The proof of the pudding is the eating thereof, and we can nowadays detect in it none of that strong flavor of state sovereignty which its cooks thought they were