While the States were thus dealing with the problems raised by the application to their internal administration of the principles of the new democratic creed, the force of mere external fact was compelling them to attempt some sort of permanent unity. Those who had from the first a specific enthusiasm for such unity were few, though Washington was among them, and his influence counted for much. But what counted for much more was the pressure of necessity. It was soon obvious to all clear-sighted men that unless some authoritative centre of union were created the revolutionary experiment would have been saved from suppression by arms only to collapse in mere anarchic confusion. The Continental Congress, the only existing authority, was moribund, and even had it been still in its full vigour, it had not the powers which the situation demanded. It could not, for instance, levy taxes on the State; its revenues were completely exhausted and it had no power to replenish them. The British Government complained that the conditions of peace were not observed on the American side, and accordingly held on to the positions which it had occupied at the conclusion of the war. The complaint was perfectly just, but it did not arise from deliberate bad faith on the part of those who directed (as far as anyone was directing) American policy, but from the simple fact that there was no authority in America capable of enforcing obedience and carrying the provisions of the treaty into effect. The same moral was enforced by a dozen other symptoms of disorder. The Congress had disbanded the soldiers, as had been promised, on the conclusion of peace, but, having no money, could not keep its at least equally important promise to pay them. This led to much casual looting by men with arms in their hands but nowhere to turn for a meal, and the trouble culminated in a rebellion raised in New England by an old soldier of the Continental Army called Shay. Such incidents as these were the immediate cause of the summoning at Philadelphia of a Convention charged with the task of framing a Constitution for the United States.
Of such a Convention Washington was the only possible President; and he was drawn from a temporary and welcome retirement in his Virginian home to re-enter in a new fashion the service of his country. Under his presidency disputed and compromised a crowd of able men representative of the widely divergent States whose union was to be attempted. There was Alexander Hamilton, indifferent or hostile to the democratic idea but intensely patriotic, and bent above all things upon the formation of a strong central authority; Franklin with his acute practicality and his admirable tact in dealing with men; Gerry, the New Englander, Whiggish and somewhat distrustful of the populace; Pinckney of South Carolina, a soldier and the most ardent of the Federalists, representing, by a curious irony, the State which was to be the home of the most extreme dogma of State Rights; Madison, the Virginian, young, ardent and intellectual, his head full of the new wine of liberty. One great name is lacking. Jefferson had been chosen to represent the Confederacy at the French Court, where he had the delight of watching the first act of that tremendous drama, whereby his own accepted doctrine was to re-shape France, as it had already re-shaped America. The Convention, therefore, lacked the valuable combination of lucid thought on the philosophy of politics and a keen appreciation of the direction of the popular will which he above all men could have supplied.
The task before the Convention was a hard and perilous one, and nothing about it was more hard and perilous than its definition. What were they there to do? Were they framing a treaty between independent Sovereignties, which, in spite of the treaty, would retain their independence, or were they building a nation by merging these Sovereignties in one general Sovereignty of the American people? They began by proceeding on the first assumption, re-modelling the Continental Congress—avowedly a mere alliance—and adding only such powers as it was plainly essential to add. They soon found that such a plan would not meet the difficulties of the hour. But they dared not openly adopt the alternative theory: the States would not have borne it. Had it, for example, been specifically laid down that a State once entering the Union might never after withdraw from it, quite half the States would have refused to enter it. To that extent the position afterwards taken up by the Southern Secessionists was historically sound. But there was a complementary historical truth on the other side. There can be little doubt that in this matter the founders of the Republic desired and intended more than they ventured to attempt. The fact that men of unquestionable honesty and intelligence were in after years so sharply and sincerely divided as to what the Constitution really was, was in truth the result of a divided mind in those who framed the Constitution. They made an alliance and hoped it would grow into a nation. The preamble of the Constitution represents the aspirations of the American Fathers; the clauses represent the furthest they dared towards those aspirations. The preamble was therefore always the rallying point of those who wished to see America one nation. Its operative clause ran: "We, the People of the United States, in order to form a more perfect Union, … do ordain and establish this Constitution for the United States of America." That such language was a strong point in favour of the Federalist interpreters of the Constitution was afterwards implicitly admitted by the extreme exponents of State Sovereignty themselves, for when they came to frame for their own Confederacy a Constitution reflecting their own views they made a most significant alteration. The corresponding clause in the Constitution of the Southern Confederacy ran, "We, the deputies of the Sovereign and Independent States, … do ordain," etc., etc.
For the rest two great practical measures which involved no overbold challenge to State Sovereignty were wisely planned to buttress the Union and render it permanent. A clause in the Constitution forbade tariffs between the States and established complete Free Trade within the limits of the Union. An even more important step was that by which the various States which claimed territory in the as yet undeveloped interior were induced to surrender such territory to the collective ownership of the Federation. This at once gave the States a new motive for unity, a common inheritance which any State refusing or abandoning union must surrender.
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