Meanwhile it would be unjust to the supporters of State Rights to deny the excellence and importance of their contribution to the Constitutional settlement. To them is due the establishment of local liberties with safeguards such as no other Constitution gives. And, in spite of the military victory which put an end to the disputes about State Sovereignty and finally established the Federalist interpretation of the Constitution, this part of their work endures. The internal affairs of every State remain as the Constitution left them, absolutely in its own control. The Federal Government never interferes save for purposes of public taxation, and, in the rare case of necessity, of national defence. For the rest nine-tenths of the laws under which an American citizen lives, nearly all the laws that make a practical difference to his life, are State laws. Under the Constitution, as framed, the States were free to form their separate State Constitutions according to their own likings, and to arrange the franchise and the test of citizenship, even for Federal purposes, in their own fashion. This, with the one stupid and mischievous exception made by the ill-starred Fifteenth Amendment, remains the case to this day, with the curious consequence, among others, that it is now theoretically possible for a woman to become President of the United States, if she is the citizen of a State where female suffrage is admitted.
Turning to the structure of the central authority which the Constitution sought to establish, the first thing that strikes us – in the teeth of the assertion of most British and some American writers – is that it was emphatically not a copy of the British Constitution in any sense whatever. It is built on wholly different principles, drawn mostly from the French speculations of that age. Especially one notes, alongside of the careful and wise separation of the judiciary from the executive, the sound principle enunciated by Montesquieu and other French thinkers of the eighteenth century, but rejected and contemned by England (to her great hurt) as a piece of impracticable logic – the separation of the executive and legislative powers. It was this principle which made possible the later transformation of the Presidency into a sort of Elective Monarchy.
This result was not designed or foreseen; or rather it was to an extent foreseen, and deliberately though unsuccessfully guarded against. The American revolutionists were almost as much under the influence of classical antiquity as the French. From it they drew the noble conception of "the Republic," the public thing acting with impersonal justice towards all citizens. But with it they also drew an exaggerated dread of what they called "Cæsarism," and with it they mixed the curious but characteristic illusion of that age – an illusion from which, by the way, Rousseau himself was conspicuously free – that the most satisfactory because the most impersonal organ of the general will is to be found in an elected assembly. They had as yet imperfectly learnt that such an assembly must after all consist of persons, more personal because less public than an acknowledged ruler. They did not know that, while a despot may often truly represent the people, a Senate, however chosen, always tends to become an oligarchy. Therefore they surrounded the presidential office with checks which in mere words made the President seem less powerful than an English King. Yet he has always in fact been much more powerful. And the reason is to be found in the separation of the executive from the legislature. The President, while his term lasted, had the full powers of a real executive. Congress could not turn him out, though it could in various ways check his actions. He could appoint his own Ministers (though the Senate must ratify the choice) and they were wisely excluded from the legislature. An even wiser provision limited the appointment of Members of Congress to positions under the executive. Thus both executive and legislature were kept, so far as human frailty permitted, pure in their normal functions. The Presidency remained a real Government. Congress remained a real check.
In England, where the opposite principle was adopted, the Ministry became first the committee of an oligarchical Parliament and later a close corporation nominating the legislature which is supposed to check it.
The same fear of arbitrary power was exhibited, and that in fashion really inconsistent with the democratic principles which the American statesmen professed, in the determination that the President should be chosen by the people only in an indirect fashion, through an Electoral College. This error has been happily overruled by events. Since the Electoral College was to be chosen ad hoc for the single purpose of choosing a President, it soon became obvious that pledges could easily be exacted from its members in regard to their choice. By degrees the pretence of deliberate action by the College wore thinner and thinner. Finally it was abandoned altogether, and the President is now chosen, as the first magistrate of a democracy ought to be chosen, if election is resorted to at all, by the direct vote of the nation. At the time, however, it was supposed that the Electoral College would be an independent deliberative assembly. It was further provided that the second choice of the Electoral College should be Vice-President, and succeed to the Presidency in the event of the President dying during his term of office. If there was a "tie" or if no candidate had an absolute majority in the College, the election devolved on the House of Representatives voting in this instance by States.
In connection with the election both of Executive and Legislature, the old State Rights problem rose in another form. Were all the States to have equal weight and representation, as had been the case in the old Continental Congress, or was their weight and representation to be proportional to their population? On this point a compromise was made. The House of Representatives was to be chosen directly by the people on a numerical basis, and in the Electoral College which chose the President the same principle was adopted. In the Senate all States were to have equal representation; and the Senators were to be chosen by the legislatures of the States; they were regarded rather as ambassadors than as delegates. The term of a Senator was fixed for six years, a third of the Senate resigning in rotation every two years. The House of Representatives was to be elected in a body for two years. The President was elected for four years, at the end of which time he could be re-elected.
Such were the main lines of the compromises which were effected between the conflicting views of the extreme Federalists and extreme State Rights advocates, and the conflicting interests of the larger and smaller States. But there was another threatened conflict, more formidable and, as the event proved, more enduring, with which the framers of the Constitution had to deal. Two different types of civilization had grown up on opposite sides of the Mason-Dixon line. How far Slavery was the cause and how far a symptom of this divergence will be discussed more fully in future chapters. At any rate it was its most conspicuous mark or label. North and South differed so conspicuously not only in their social organization but in every habit of life and thought that neither would tamely bear to be engulfed in a union in which the other was to be predominant. To keep an even balance between them was long the principal effort of American statesmanship. That effort began in the Convention which framed the Constitution. It did not cease till the very eve of the Civil War.
The problem with which the Convention had to deal was defined within certain well-understood limits. No one proposed that Slavery should be abolished by Federal enactment. It was universally acknowledged that Slavery within a State, however much of an evil it might be, was an evil with which State authority alone had a right to deal. On the other hand, no one proposed to make Slavery a national institution. Indeed, all the most eminent Southern statesmen of that time, and probably the great majority of Southerners, regarded it as a reproach, and sincerely hoped that it would soon disappear. There remained, however, certain definite subjects of dispute concerning which an agreement had to be reached if the States were to live in peace in the same household.
First, not perhaps in historic importance, but in the insistence of its demand for an immediate settlement, was the question of representation. It had been agreed that in the House of Representatives and in the Electoral College this should be proportionate to population. The urgent question at once arose: should free white citizens only be counted, or should the count include the Negro slaves? When it is remembered that these latter numbered something like half the population of the Southern States, the immediate