The answer is, yes. Unless the legislation or administration of such a state transgresses some provision of the federal Constitution (such as that forbidding ex post facto laws, or laws impairing the obligation of a contract), the national government not only ought not to interfere but cannot interfere. The state must go its own way, with whatever injury to private rights and common interests its folly or perversity may cause.
Such a case is not imaginary. In the slave states before the war, although the Negroes were not, as a rule, harshly treated, many shocking laws were passed, and society was going from bad to worse. Even now it sometimes happens that in one or two Western states the roads and even the railways are infested by robbers, there are parts of the country where justice is uncertain and may be unattainable when popular sentiment does not support the law, so that homicide often goes unpunished by the courts, though sometimes punished by Judge Lynch. There are districts where armed bands occasionally appear, perpetrating nocturnal outrages which no state police has been provided to check. So, too, in a few of these states statutes opposed to sound principles of legislation have been passed, and have brought manifold evils in their train. But the federal government looks on unperturbed, with no remorse for neglected duty.
The obvious explanation of this phenomenon is that the large measure of independence left to the states under the federal system makes it necessary to tolerate their misdoings in some directions. As a distinguished authority28 observes to me, “The Federal Constitution provided for the protection of contracts, and against those oppressions most likely to result from popular passion and demoralization; and if it had been proposed to go further and give to the Federal authority a power to intervene in still more extreme cases, the answer would probably have been that such cases were far less likely to arise than was the Federal power to intervene improperly under the pressure of party passion or policy, if its intervention were permitted. To have authorized such intervention would have been to run counter to the whole spirit of the Constitution, which kept steadily in view as the wisest policy local government for local affairs, general government for general affairs only. Evils would unquestionably arise. But the Philadelphia Convention believed that they would be kept at a minimum and most quickly cured by strict adherence to this policy. The scope for Federal interference was considerably enlarged after the Civil War, but the general division of authority between the States and the nation was not disturbed.”
So far from lamenting as a fault, though an unavoidable fault, of their federal system, the state independence I have described, the Americans are inclined to praise it as a merit. They argue, not merely that the best way on the whole is to leave a state to itself, but that this is the only way in which a permanent cure of its diseases will be effected. They are consistent not only in their federal principles but in their democratic principles. “As laissez aller,” they say, “is the necessary course in a federal government, so it is the right course in all free governments. Law will never be strong or respected unless it has the sentiment of the people behind it. If the people of a state make bad laws, they will suffer for it. They will be the first to suffer. Let them suffer. Suffering, and nothing else, will implant that sense of responsibility which is the first step to reform. Therefore let them stew in their own juice: let them make their bed and lie upon it. If they drive capital away, there will be less work for the artisans; if they do not enforce contracts, trade will decline, and the evil will work out its remedy sooner or later. Perhaps it will be later rather than sooner; if so, the experience will be all the more conclusive. Is it said that the minority of wise and peaceable citizens may suffer? Let them exert themselves to bring their fellows round to a better mind. Reason and experience will be on their side. We cannot be democrats by halves; and where self-government is given, the majority of the community must rule. Its rule will in the end be better than that of any external power.” No doctrine more completely pervades the American people, the instructed as well as the uninstructed. Philosophers will tell you that it is the method by which Nature governs, in whose economy error is followed by pain and suffering, whose laws carry their own sanction with them. Divines will tell you that it is the method by which God governs: God is a righteous Judge and God is provoked every day, yet He makes His sun to rise on the evil and the good, and sends His rain upon the just and the unjust. He does not directly intervene to punish faults, but leaves sin to bring its own appointed penalty. Statesmen will point to the troubles which followed the attempt to govern the reconquered seceding states, first, by military force and then by keeping a great part of their population disfranchised, and will declare that such evils as still exist in the South are far less grave than those which the denial of ordinary self-government involved. “So,” they pursue, “Texas and California will in time unlearn their bad habits and come out right if we leave them alone: Federal interference, even had we the machinery needed for prosecuting it, would check the natural process by which the better elements in these raw communities are purging away the maladies of youth, and reaching the settled health of manhood.”
A European may say that there is a dangerous side to this application of democratic faith in local majorities and in laissez aller. Doubtless there is; yet those who have learnt to know the Americans will answer that no nation so well understands its own business.
Criticism of the Federal System
All Americans have long been agreed that the only possible form of government for their country is a federal one. All have perceived that a centralized system would be inexpedient, if not unworkable, over so large an area, and have still more strongly felt that to cut up the continent into absolutely independent states would not only involve risks of war but injure commerce and retard in a thousand ways the material development of every part of the country. But regarding the nature of the federal tie that ought to exist there have been keen and frequent controversies, dormant at present, but which might break out afresh should there arise a new question of social or economic change capable of bringing the powers of Congress into collision with the wishes of any state or group of states. The general suitability to the country of a federal system is therefore accepted, and need not be discussed. I pass to consider the strong and weak points of that which exists.
The faults generally charged on federations as compared with unified governments are the following:
I. Weakness in the conduct of foreign affairs
II. Weakness in home government, that is to say, deficient authority over the component states and the individual citizens
III. Liability to dissolution by the secession or rebellion of states
IV. Liability to division into groups and factions by the formation of separate combinations of the component states
V. Absence of the power of legislating on certain subjects wherein legislation uniform over the whole Union is needed
VI. Want of uniformity among the states in legislation and administration
VII. Trouble, expense, and delay due to the complexity of a double system of legislation and administration
The first four of these are all due to the same cause, viz., the existence within one government, which ought to be able to speak and act in the name and with the united strength of the nation, of distinct centres of force, organized political bodies into which part of the nation’s strength has flowed, and whose resistance to the will of the majority of the whole nation is likely to be more effective than could be the resistance of individuals, because such bodies have each of them a government, a revenue, a militia, a local patriotism to unite them, whereas individual recalcitrants, however numerous, would be unorganized, and less likely to find a legal standing ground for opposition. The gravity of the first two of the four alleged faults has been exaggerated by most writers, who have assumed, on insufficient grounds, that federal governments are necessarily weak. Let us, however, see how far America has experienced such troubles from these features of a federal system.
I. In its