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CHAPTER 36

Nature of the American State

From the study of the national government, we may go on to examine that of the several states which make up the Union. This is the part of the American political system which has received least attention both from foreign and from native writers. Finding in the federal president, cabinet, and Congress a government superficially resembling those of their own countries, and seeing the federal authority alone active in international relations, Europeans have forgotten and practically ignored the state governments to which their own experience supplies few parallels, and on whose workings the intelligence published on their side of the ocean seldom throws light. Even the European traveller who makes the six or seven days’ run across the American continent, from New York or Philadelphia via Chicago to San Francisco, though he passes in his journey of three thousand miles over the territories of eleven self-governing commonwealths, hardly notices the fact. He uses one coinage and one post office; he is stopped by no customhouses; he sees no officials in a state livery; he thinks no more of the difference of jurisdictions than the passenger from London to Liverpool does of the counties traversed by the line of the Northwestern Railway. So, too, our best informed English writers on the science of politics, while discussing copiously the relation of the American states to the central authority, have failed to draw on the fund of instruction which lies in the study of state governments themselves. Mill in his Representative Government scarcely refers to them. Mr. Freeman in his learned essays, Sir H. Maine in his ingenious book on popular government, pass by phenomena which would have admirably illustrated some of their reasonings.

American publicists, on the other hand, have been too much absorbed in the study of the federal system to bestow much thought on the state governments. The latter seem to them the most simple and obvious things in the world, while the former, which has been the battleground of their political parties for a century, excites the keenest interest, and is indeed regarded as a sort of mystery, on which all the resources of their metaphysical subtlety and legal knowledge may well be expended. Thus while the dogmas of state sovereignty and states’ rights, made practical by the great struggle over slavery, were discussed with extraordinary zeal and acumen by three generations of men, the character, power, and working of the states as separate self-governing bodies have received little attention or illustration. Yet they are full of interest; and he who would understand the changes that have passed on the American democracy will find far more instruction in a study of the state governments than of the federal Constitution. The materials for this study are unfortunately, at least to a European, either inaccessible or unmanageable. They consist of constitutions, statutes, the records of the debates and proceedings of constitutional conventions and legislatures, the reports of officials and commissioners, together with that continuous transcript and picture of current public opinion which the files of newspapers supply. Of these sources only one, the constitutions, is practically available to an European writer. To be able to use the rest one must go to the state and devote one’s self there to these original authorities, correcting them, where possible, by the recollections of living men. It might have been expected that in most of the states, or at least of the older states, persons would have been found to write political, and not merely antiquarian or genealogical, state histories, describing the political career of their respective communities, and discussing the questions on which political contests have turned. But this was not (except in a very few cases) attempted till near the end of the nineteenth century, so that the European enquirer found a scanty measure of the assistance which he would naturally have expected from previous labourers in this field. I call it a field: it was till lately rather a primeval forest, where the vegetation is rank, and through which even now but few trails have been cut. The new historical school which is growing up at the leading American universities, and has already investigated the colonial period with so much thoroughness, and has now begun to grapple with this task;¹ in the meantime, the difficulties I have stated must be my excuse for treating this branch of my subject with a brevity out of proportion to its real interest and importance. It is better to endeavour to bring into relief a few leading features than to attempt a detailed account which would run to inordinate length.

The American state is a peculiar organism, unlike anything in modern Europe, or in the ancient world. The only parallel is to be found in the cantons of Switzerland, the Switzerland of our own day, for until 1815, if one ought not rather to say until 1848, Switzerland was not so much a nation or a state as a league of neighbour commonwealths. But Europe so persistently ignores the history of Switzerland, that most instructive patent museum of politics, apparently only because she is a small country, and because people go there to see lakes and to climb mountains, that I should perplex instead of enlightening the reader by attempting to illustrate American from Swiss phenomena.

Let me attempt to sketch the American states as separate political entities, forgetting for the moment that they are also parts of a federation.

The admission, under a statute of 1910, of two new states² brought the number of states in the American Union up to forty-eight, varying in size from Texas, with an area of 265,780 square miles, to Rhode Island, with an area of 1,250 square miles; and in population from New York, with over 9,000,000 inhabitants, to Nevada, with 81,000. That is to say, the largest state is much larger than either France or the Germanic Empire; the most populous much more populous than Sweden, or Portugal, or Denmark, while the smallest is smaller than Warwickshire or Corsica, and the least populous less populous than the city of York, or the town of Reading in Berks. Considering not only these differences of size, but the differences in the density of population (which in Nevada is .7 and in Wyoming 1.5 to the square mile, while in Rhode Island it is 508.5 and in Massachusetts 418.8 to the square mile); in its character³ (in South Carolina the blacks are 835,843 against 679,161 whites, in Mississippi 1,009,487 against 786,111 whites); in its birthplace (in North Carolina the foreign-born persons are less than 1/400 of the population, in California, nearly one-third, in North Dakota more than one-half); in the occupations of the people, in the amount of accumulated wealth, in the proportion of educated persons to the rest of the community—it is plain that immense differences might be looked for between the aspects of politics and conduct of government in one state and in another.

Be it also remembered that the older colonies had different historical origins. Virginia and North Carolina were unlike Massachusetts and Connecticut; New York, Pennsylvania, and Maryland different from both; while in recent times the stream of European immigration has filled some states with Irishmen, others with Germans or Italians, others with Scandinavians or Poles, and has left most of the Southern states wholly untouched.

Nevertheless, the form of government is in its main outlines, and to a large extent even in its actual working, the same in all these forty-eight republics, and the differences, instructive as they are, relate to the points of secondary consequence.

The states fall naturally into five groups:

The New England states—Massachusetts, Connecticut, Rhode Island, New Hampshire, Vermont, Maine

The Middle states—New York, New Jersey, Pennsylvania, Delaware,⁴ Maryland, Ohio, Indiana⁵

The Southern, or old slave states—Virginia, West Virginia (separated from Virginia during the war), North Carolina, South Carolina, Georgia, Alabama, Florida, Kentucky, Tennessee, Mississippi, Louisiana, Arkansas, Missouri, Texas, Oklahoma, New Mexico (these two last, however, formed long after the extinction of slavery)

The Northwestern states—Michigan, Illinois, Wisconsin, Minnesota, Iowa, Nebraska, Kansas, Colorado, North Dakota, South Dakota, Wyoming, Montana, Idaho

The Pacific states—California, Nevada, Arizona, Utah, Oregon, Washington

Each of these groups has something distinctive in the character of its inhabitants, which is reflected, though more faintly now than formerly, in the character of its government and politics.

New England is the old home of Puritanism, the traces whereof, though waning under the influence of Irish and French Canadian immigration, are not yet extinct. The Southern states will long retain the imprint of slavery, not merely in the presence of a host of Negroes, but in the backwardness of the poor white population, and in certain attributes, laudable as well as regrettable, of the upper class. The Northwest is the land of hopefulness, and consequently of bold experiments in legislation: its rural inhabitants have the honesty and somewhat limited horizon of agriculturists. The Pacific West, or rather California and Nevada, for Oregon and Washington belong in point of character quite as much to the Northwestern group, tinges the energy and sanguine good nature of the Westerners with a speculative recklessness natural to mining communities, where great fortunes have rapidly grown and vanished, and into which elements have been suddenly swept together from every part of the world, as a Rocky Mountain rainstorm fills the bottom of a valley with sand and pebbles from all the surrounding heights.

As the dissimilarity of population and of external conditions seems to make for a diversity of constitutional and political arrangements between the states, so also does the large measure of legal independence which each of them enjoys under the federal Constitution. No state can, as a commonwealth, politically deal with or act upon any other state.⁶ No diplomatic relations can exist nor treaties be made between states,⁷ no coercion can be exercised by one upon another. And although the government of the Union can act on a state, it rarely does act, and then only in certain strictly limited directions, which do not touch the inner political life of the commonwealth.

Let us pass on to consider the circumstances which work for uniformity among the states, and work more powerfully as time goes on.

He who looks at a map of the Union will be struck by the fact that so many of the boundary lines of the states are straight lines. Those lines tell the same tale as the geometrical plans of cities like St. Petersburg or Washington, where every street runs at the same angle to every other. The states are not areas set off by nature. Their boundaries are for the most part not natural boundaries fixed by mountain ranges, nor even historical boundaries due to a series of events, but boundaries, purely artificial, determined by an authority which carved the national territory into strips of convenient size, as a building company lays out its suburban lots. Of the states subsequent to the original thirteen, California is the only one with a genuine natural frontier, finding it in the chain of the Sierra Nevada on the east and the Pacific Ocean on the west. No one of these later states can be regarded as a naturally developed political organism. They are trees planted by the forester, not self-sown with the help of the seed-scattering wind. This absence of physical lines of demarcation has tended and must tend to prevent the growth of local distinctions. Nature herself seems to have designed the Mississippi basin, as she has designed the unbroken levels of Russia, to be the dwelling place of one people.

Each state makes its own constitution; that is, the people agree on their form of government for themselves, with no interference from the other states or from the Union. This form is subject to one condition only: it must be republican.⁸ But in each state the people who make the constitution have lately come from other states, where they have lived under and worked constitutions which are to their eyes the natural and almost necessary model for their new state to follow; and in the absence of an inventive spirit among the citizens, it was the obvious course for the newer states to copy the organizations of the older states, especially as these agreed with certain familiar features of the federal Constitution. Hence the outlines, and even the phrases of the elder constitutions reappear in those of the more recently formed states. The precedents set by Virginia, for instance, had much influence on Tennessee, Alabama, Mississippi, and Florida, when they were engaged in making or amending their constitutions during the early part of this century.

Nowhere is population in such constant movement as in America. In some states more than one-fourth of the inhabitants are foreign-born. Many of the townsfolk, not a few even of the farmers, have been till lately citizens of some other state, and will, perhaps, soon move on farther west. The Western states are like a chain of lakes through which there flows a stream which mingles the waters of the higher with those of the lower. In such a constant flux of population local peculiarities are not readily developed, or if they have grown up when the district was still isolated, they disappear as the country becomes filled. Each state takes from its neighbours and gives to its neighbours, so that the process of assimilation is always going on over the whole wide area.

Still more important is the influence of railway communication, of newspapers, of the telegraph. A Greek city like Samos or Mitylene, holding her own island, preserved a distinctive character in spite of commercial intercourse and the sway of Athens. A Swiss canton like Uri or Appenzell, entrenched behind its mountain ramparts, remains, even now under the strengthened central government of the Swiss nation, unlike its neighbours of the lower country. But an American state traversed by great trunk lines of railway, and depending on the markets of the Atlantic cities and of Europe for the sale of its grain, cattle, bacon, and minerals, is attached by a hundred always tightening ties to other states, and touched by their weal or woe as nearly as by what befalls within its own limits. The leading newspapers are read over a vast area. The inhabitants of each state know every morning the events of yesterday over the whole Union.

Finally the political parties are the same in all the states. The tenets (if any) of each party are (with some slight exceptions) the same everywhere, their methods the same, their leaders the same, although of course a prominent man enjoys especial influence in his own state. Hence, state politics are largely swayed by forces and motives external to the particular state, and common to the whole country, or to great sections of it; and the growth of local parties, the emergence of local issues and development of local political schemes, are correspondingly restrained.

These considerations explain why the states, notwithstanding the original diversities between some of them, and the wide scope for political divergence which they all enjoy under the federal Constitution, are so much less dissimilar and less peculiar than might have been expected. European statesmen have of late years been accustomed to think of federalism and local autonomy as convenient methods either for recognizing and giving free scope to the sentiment of nationality which may exist in any part of an empire, or for meeting the need for local institutions and distinct legislation which may arise from differences between such a part and the rest of the empire. It is one or other or both of these reasons that have moved statesmen in such cases as those of Finland in her relations to Russia, Hungary in her relations to the Austro-Hungarian monarchy, Iceland in her relations to Denmark, Bulgaria in her relations to the Turkish sultan, Ireland in her relations to Great Britain. But the final causes, so to speak, of the recognition of the states of the American Union as autonomous commonwealths, have been different. Their self-government is not the consequence of differences which can be made harmless to the whole body politic only by being allowed free course. It has been due primarily to the historical fact that they existed as commonwealths before the Union came into being; secondarily, to the belief that localized government is the best guarantee for civic freedom, and to a sense of the difficulty of administering a vast territory and population from one centre and by one government.

I return to indicate the points in which the legal independence and right of self-government of the several states appears. Each has its own:

Constitution (whereof more anon)

Executive, consisting of a governor, and various other officials

Legislature of two houses

System of local government in counties, cities, townships, and school districts

System of state and local taxation

Debts, which it may (and sometimes does) repudiate at its own pleasure

Body of private law, including the whole law of real and personal property, of contracts, of torts, and of family relations

System of procedure, civil and criminal

Courts, from which no appeal lies (except in cases touching federal legislation or the federal Constitution) to any federal court

Citizenship, which may admit persons (e.g., recent immigrants) to certain privileges of citizens at times, or on conditions, wholly different from those prescribed by other states

Three points deserve to be noted as illustrating what these attributes include.

I. A man gains active citizenship of the United States (i.e., a share in the government of the Union) only by becoming a citizen of some particular state. Being such, he is forthwith entitled to the national franchise. That is to say, voting power in the state carries voting power in federal elections, and however lax a state may be in its grant of such power, e.g., to foreigners just landed or to persons convicted of crime, these state voters will have the right of voting in congressional and presidential elections.⁹ The only restriction on the states in this matter is that of the Fourteenth and Fifteenth Constitutional Amendments, which have already been discussed. They were intended to secure equal treatment to the Negroes, and incidentally they declare the protection given to all citizens of the United States.¹⁰ Whether they really enlarge it, that is to say, whether it did not exist by implication before, is a legal question not needing to be discussed here.

II. The power of a state over all communities within its limits is absolute. It may grant or refuse local government as it pleases. The population of the city of Providence is nearly one-half of that of the state of Rhode Island, and that of New York City about one-half of that of the state of New York. But the state might in either case extinguish the municipality, and govern the city by a single state commissioner appointed for the purpose, or leave it without any government whatever. The city would have no right of complaint to the federal president or Congress against such a measure. Massachusetts remodelled the city government of Boston just as the British Parliament might remodel that of Birmingham and once superseded the city government of Chelsea by appointing a sort of temporary dictator to administer it for a time. Let an Englishman imagine a county council for Warwickshire suppressing the municipality of Birmingham, or a Frenchman imagine the department of the Rhône extinguishing the municipality of Lyons, with no possibility of intervention by the central authority, and he will measure the difference between the American states and the local governments of Western Europe.

III. A state commands the allegiance of its citizens, and may punish them for treason against it. The power has rarely been exercised, but its undoubted legal existence had much to do with inducing the citizens of the Southern states to follow their governments into secession in 1861. They conceived themselves to owe allegiance to the state as well as to the Union, and when it became impossible to preserve both, because the state had declared its secession from the Union, they might hold the earlier and nearer authority to be paramount. Allegiance to the state must now, since the war, be taken to be subordinate to allegiance to the Union. But allegiance to the state still exists; treason against the state is still possible. One cannot think of treason against Warwickshire or the department of the Rhône.

These are illustrations of the doctrine which Europeans often fail to grasp, that the American states were originally in a certain sense, and still for certain purposes remain, sovereign states. Each of the original thirteen became sovereign (so far as its domestic affairs were concerned, though not as respects international relations) when it revolted from the mother country in 1776. By entering the Confederation of 1781–88 it parted with one or two of the attributes of sovereignty; by accepting the federal Constitution in 1788–91 it subjected itself for certain specified purposes to a central government, but claimed to retain its sovereignty for all other purposes. That is to say, the authority of a state is an inherent, not a delegated, authority. It has all the powers which any independent government can have, except such as it can be affirmatively shown to have stripped itself of, while the federal government has only such powers as it can be affirmatively shown to have received. To use the legal expression, the presumption is always for a state, and the burden of proof lies upon anyone who denies its authority in a particular matter.¹¹

What state sovereignty means and includes is a question which incessantly engaged the most active legal and political minds of the nation, from 1789 down to 1870. Some thought it paramount to the rights of the Union. Some considered it as held in suspense by the Constitution, but capable of reviving as soon as a state should desire to separate from the Union. Some maintained that each state had in accepting the Constitution finally renounced its sovereignty, which thereafter existed only in the sense of such an undefined domestic legislative and administrative authority as had not been conferred upon Congress. The conflict of these views, which became acute in 1830 when South Carolina claimed the right of nullification, produced secession and the war of 1861–65. Since the defeat of the Secessionists, the last of these views may be deemed to have been established, and the term “state sovereignty” is now but seldom heard. Even “states’ rights” have a different meaning from that which they had before the War of Secession.¹²

A European who now looks calmly back on this tremendous controversy of tongue, pen, and sword, will be apt to express his ideas of it in the following way. He will remark that much of the obscurity and perplexity arose from confounding the sovereignty of the American nation with the sovereignty of the federal government. The federal government clearly was sovereign only for certain purposes, i.e., only in so far as it had received specified powers from the Constitution. These powers did not, and in a strict legal construction do not now, abrogate the supremacy of the states. A state still possesses one important attribute of sovereignty—immunity from being sued except by another state. But the American nation which had made the Constitution, had done so in respect of its own sovereignty, and might well be deemed to retain that sovereignty as paramount to any rights of the states. The feeling of this ultimate supremacy of the nation was what swayed the minds of those who resisted secession, just as the equally well-grounded persuasion of the limited character of the central federal government satisfied the conscience of the seceding South.

The Constitution of 1789 was a compromise, and a compromise arrived at by allowing contradictory propositions to be represented as both true. It has been compared to the declarations made with so much energy and precision of language in the ancient hymn Quicunque Vult, where, however, the apparent contradiction has always been held to seem a contradiction only because the human intellect is unequal to the comprehension of such profound mysteries. To everyone who urged that there were thirteen states, and therefore thirteen governments, it was answered, and truly, that there was one government, because the people were one. To everyone who declared that there was one government, it was answered with no less truth that there were thirteen. Thus counsel was darkened by words without knowledge; the question went off into metaphysics, and found no end, in wandering mazes lost.

There was, in fact, a divergence between the technical and the practical aspects of the question. Technically, the seceding states had an arguable case; and if the point had been one to be decided on the construction of the Constitution as a court decides on the construction of a commercial contract, they were possibly entitled to judgment. Practically, the defenders of the Union stood on firmer ground, because circumstances had changed since 1789 so as to make the nation more completely one nation than it then was, and had so involved the fortunes of the majority which held to the Union with those of the minority seeking to depart that the majority might feel justified in forbidding their departure. Stripped of legal technicalities, the dispute resolved itself into the problem often proposed but capable of no general solution: When is a majority entitled to use force for the sake of retaining a minority in the same political body with itself? To this question, when it appears in a concrete shape, as to the similar question when an insurrection is justifiable, an answer can seldom be given beforehand. The result decides. When treason prospers, none dare call it treason.

The Constitution, which had rendered many services to the American people, did them an inevitable disservice when it fixed their minds on the legal aspects of the question. Law was meant to be the servant of politics, and must not be suffered to become the master. A case had arisen which its formulæ were unfit to deal with, a case which had to be settled on large moral and historical grounds. It was not merely the superior physical force of the North that prevailed; it was the moral forces which rule the world, forces which had long worked against slavery, and were ordained to save North America from the curse of hostile nations established side by side.

The word “sovereignty,” which has in many ways clouded the domain of public law and jurisprudence, confused men’s minds by making them assume that there must in every country exist, and be discoverable by legal inquiry, either one body invested legally with supreme power over all minor bodies, or several bodies which, though they had consented to form part of a larger body, were each in the last resort independent of it, and responsible to none but themselves.¹³ They forgot that a constitution may not have determined where legal supremacy shall dwell. Where the Constitution of the United States placed it was at any rate doubtful, so doubtful that it would have been better to drop technicalities, and recognize the broad fact that the legal claims of the states had become incompatible with the historical as well as legal claims of the nation. In the uncertainty as to where legal right resided, it would have been prudent to consider where physical force resided. The South, however, thought herself able to resist any physical force which the rest of the nation might bring against her. Thus encouraged, she took her stand on the doctrine of states’ rights; and then followed a pouring out of blood and treasure such as was never spent on determining a point of law before, not even when Edward III and his successors waged war for a hundred years to establish the claim of females to inherit the crown of France.

What, then, do the rights of a state now include? Every right or power of a government except:

The right of secession (not abrogated in terms, but admitted since the war to be no longer claimable. It is expressly negatived in the recent constitutions of several Southern states.);

Powers which the Constitution withholds from the states (including that of intercourse with foreign governments);

Powers which the Constitution expressly confers on the federal government.

As respects some powers of the last class, however, the states may act concurrently with, or in default of action by, the federal government. It is only from contravention of its action that they must abstain. And where contravention is alleged to exist, whether legislative or executive, it is by a court of law, and, in case the decision is in the first instance favourable to the pretensions of the state, ultimately by a federal court, that the question falls to be decided.¹⁴

A reference to the preceding list of what each state may create in the way of distinct institutions will show that these rights practically cover nearly all the ordinary relations of citizens to one another and to their government, nearly all the questions which have been most agitated in England and France of recent years. An American may, through a long life, never be reminded of the federal government, except when he votes at presidential and congressional elections, buys a package of tobacco bearing the government stamp, lodges a complaint against the post office, and opens his trunks for a customhouse officer on the pier at New York when he returns from a tour in Europe. His direct taxes are paid to officials acting under state laws. The state, or a local authority constituted by state statutes, registers his birth, appoints his guardian, pays for his schooling, gives him a share in the estate of his father deceased, licenses him when he enters a trade (if it be one needing a licence), marries him, divorces him, entertains civil actions against him, fines him for overspeeding his automobile, declares him a bankrupt, hangs him for murder. The police that guard his house, the local boards which look after the poor, control highways, impose water rates, manage schools—all these derive their legal powers from his state alone. Looking at this immense compass of state functions, Jefferson would seem to have been not far wrong when he said that the federal government was nothing more than the American department of foreign affairs. But although the national government touches the direct interests of the citizen less than does the state government, it touches his sentiment more. Hence the strength of his attachment to the former and his interest in it must not be measured by the frequency of his dealings with it. In the partitionment of governmental functions between nation and state, the state gets the most but the nation the highest, so the balance between the two is preserved.

Thus every American citizen lives in a duality of which Europeans, always excepting the Swiss, and to some extent the Germans, have no experience. He lives under two governments and two sets of laws; he is animated by two patriotisms and owes two allegiances. That these should both be strong and rarely be in conflict is most fortunate. It is the result of skilful adjustment and long habit, of the fact that those whose votes control the two sets of governments are the same persons, but above all of that harmony of each set of institutions with the other set, a harmony due to the identity of the principles whereon both are founded, which makes each appear necessary to the stability of the other, the states to the nation as its basis, the national government to the states as their protector.