Matthew Arnold, in his article entitled A Word More About America, expressed the opinion that the people of the United States had solved “the political and social problem;” and Professor Von Holst, in his Constitutional History of the United States, has declared that “in political questions of a concrete nature the Americans are, on an average, more competent judges than any people on the continent of Europe.” These criticisms from abroad are based on keen insight, extensive observation, and profound scholarship. Their correctness in the way of generalization needs not to be questioned. Nevertheless, the operation of our government is constantly revealing important phases of the political problem which are yet unsolved, and are taxing to the utmost the American aptitude for politics. Foremost among them is the conflict between the States in dealing with internal affairs. Upon the subjects, broadly stated, of foreign relations, war or insurrection, commerce, the currency, the postal service, naturalization, bankruptcy, patents, and copyrights, the United States are a nation; they may have a national policy and uniform laws. But as to all other matters, including most subjects intimately affecting material and social interests, the United States are a confederation; they may have at the same time thirty-eight different policies and as many conflicting systems of law. Though they possess a common spirit, common habits, sentiments, interests, and social conditions, yet in the regulation of these interests and conditions they assume toward one another the attitude of foreign states. Hence legal anomalies and absurdities are of frequent occurrence. A single piece of property may be taxable in several States at the same time; and a railroad corporation or insurance company may be subject to as many conflicting systems of law as there are States in which it does business. What would constitute a marriage in one State may in another have no such legal effect; persons divorced in one State may in another be lawful husband and wife; and a man may at the same time have two or more legal wives, each in a separate State.
The condition of the law thus exemplified exists not only as to commercial transactions and domestic and social relations, but also as to wills, intestacy, educational and charitable institutions, and the whole range of legislative enactment. Its effect in discouraging material development and in unsettling the home and society may easily be inferred. No wonder that, as a president of the American Bar Association lately said, “lawyers everywhere feel the necessity of a prompt and thorough reform of modern state legislation.” Yet, when a remedy is sought, it is not to be found. In the words of a learned writer, these are “wrongs without a remedy; there is no organized instrumentality for their correction within the four corners of our system of government.”
The causes of this conflict of law are deeply rooted. Indeed, they reach back to the settlement of this country, and are imbedded in the nature of our government. The earliest settlements were made at points widely apart, and for objects very dissimilar. They encountered various conditions of soil, climate, and other surroundings. Among the colonists were represented many nationalities, many religious sects, and all grades of society. To be sure, the prevalence of the English common law and some voluntary borrowing from one another’s codes were unifying influences. Moreover, the colonial charters usually required that the laws and institutions established should not be repugnant to the laws of England. But the charters were interpreted freely, and some colonies, notably Massachusetts Bay, refused to acknowledge any control in establishing their institutions. In fact, the colonies did not so much recognize their position of England’s dependencies as they pursued their destiny as independent communities. Under a consciousness of individuality and a local pride, they organized their polities each after its own ideals. Hence great diversity arose among them in political, social, and legal institutions.
With the growth in population and in wealth these differences were correspondingly intensified. They gave rise to a sectional spirit which finally dominated the relations of the colonies. In the struggle for independence of England, though yielding somewhat to the necessity of union, this spirit remained still a distracting and paralyzing influence. It gave form to the Articles of Confederation, and made them inadequate to the exigencies of the Union; and when, therefore, a stronger general government became inevitable, this was framed and adopted only through a compromise between these rival spirits of sectionalism and nationality.
The question of uniformity in state legislation was one of those upon which this issue was most clearly drawn. In the Constitutional Convention, Mr. Madison called attention to “the propensity of the States to pursue their particular interests,” and insisted that “in developing the evils which vitiate the political system of the United States, it is proper to take into view those which prevail within the States individually, as well as those which affect them collectively.” He accordingly favored Edmund Randolph’s resolution, giving Congress a negative on state legislation, and the power to legislate on all subjects affecting the peace and harmony of the Union. Of course this proposal met determined opposition. “The national legislature, with such a power,” said Elbridge Gerry, “may enslave the States.” “Will any State,” asked John Rutledge, “ever agree to be bound hand and foot in this manner?”
Nevertheless, the point was at first substantially carried. For though the suggestion of a negative upon state legislation was not followed, the convention did resolve, first, that the national legislature ought to possess the right “to legislate, in all cases, for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by individual legislation;” and, secondly, “that the jurisdiction of the national judiciary shall extend to cases arising under laws passed by the general legislature, and to such other questions as involve the national peace and harmony.” Had these resolutions become embodied in the Constitution, the history of our legislative development might have been far different from what it is. For though too great opportunity might have existed for the encroachment of Congress, at the same time uniformity in state legislation might have been made possible.
It would seem that the advocates of state rights fully appreciated the danger to which their principle was exposed. For though defeated in open convention, they continued the struggle in private committee, and were, apparently, successful. All the resolutions having been submitted to a committee of detail to be formulated into a constitution, the two above recited received no mention in the report, and all subsequent efforts to introduce them before the convention were promptly voted down. This sudden change may be imputed largely to the growing conviction that the people would refuse to ratify a constitution abridging too much the powers of the States. Timothy Ellsworth thus expressed this feeling: “The people of the States are strongly attached to their own constitutions. … The only chance we have to support a general government is to graft it on the state governments. … In this way only can we rely on the confidence and support of the people. The purpose for which the delegates had been chosen was to render the Constitution adequate to the exigencies of the Union,” — an end which, as experience under the Articles of Confederation had shown, could not be attained unless full and definite powers were given to Congress on subjects recognized as national; for example, commerce, defense, revenue, and foreign relations. Such powers, it was believed, the people could be induced to concede; but to ask them, in addition, to do what, on the other hand, did not appear indispensable, namely, to curtail still further the rights of the States, would be vain, — it might be fatal. Hence Madison’s suggestion that this was the opportunity “to secure a good internal legislation and administration to the particular States,” at first adopted, was finally put aside. Excepting the subjects of bankruptcy and naturalization, the exclusive control by the States of their internal affairs remained undisturbed by the Constitution as it had come down to them from early times; and thus it has remained to this day.
This stagnation in one part of our political system is the more conspicuous when contrasted with the rapid growth of the spirit of nationality. In the Constitution this principle found at last a substantial expression, — a government within its limits truly national. But that government, as is the case with every fundamental law, was one only in outline. “Constitute government how you please,” said Burke, “infinitely the greater part of it must depend upon the exercise of powers which are left at large to the prudence and uprightness of ministers of state.” In the exercise of this discretion, Hamilton and his colleagues, whose duty it became to fill in this outline, to organize and to start the machinery of government, addressed themselves to their task, keeping always in view the purpose of the founders, — the strengthening of the central government that it might be “adequate to the exigencies of the Union.” As a consequence, the general government, in adjusting foreign relations, defending the frontier, and maintaining peace, came more and more into prominence, and took its rightful place as the sole representative and director of the national life.
But even more in the development of public policy than in the establishment of the government has the principle of nationality been consolidating the Union. “The leading thought in Hamilton’s financial policy,” says Von Holst, “was the creation of national interests.” The various features of that policy, the Assumption Bill, the Funding Act, the tax laws, and the National Bank, all greatly extended the influence of the national government at the expense of the States. Likewise his scheme for the encouragement of manufactures laid the foundation of the system of protective duties, which has gradually brought nearly all the industries of the country into such intimate relations with Congress that they are constantly affected by the manœuvres of parties. Moreover, Hamilton’s doctrine of “implied powers” has been used to a remarkable extent in increasing the power of Congress and in solidifying the Union. Under this warrant, Congress has carried on, at the expense of the national treasury, a great system of internal improvements, and aided in the construction of continental railways, extending its influence throughout the land.
With this rapid growth in federal activity there has been a corresponding increase in a nationality of sentiment. The people, being affected in so many important relations by the national government, gradually transferred to it more and more of the interest before exclusively felt in the state governments. They began to feel a common citizenship in a great country, and to assimilate one another’s habits, customs, and thought.
This was not true, however, of the country as a whole. Exasperated by the agitation in the North for the abolition of slavery, the South came more and more under the domination of the principle of sectionalism, which existed in the Constitution side by side with the principle of nationality, and had given rise to a distinct method of constitutional interpretation and a distinct line of political doctrine. Under this influence, the tendency at the South was rather to resist the encroachment of Congress, to maintain fidelity to the state governments, and to emphasize individuality in thought and in conduct. Yet as the struggle over slavery increased in violence, it became itself a unifying influence, till at last North and South fought in solid phalanxes to determine the nature of our political system. The result confirmed the fact that we are a nation, not a confederation, and by abolishing slavery put aside a great obstacle to a nationality of sentiment, and initiated a unification of our institutions, the last step in the attainment of a truly national life.
In this direction, however, the assimilation and harmonization of our institutions and laws, the nineteenth century has witnessed but little progress. There has, indeed, been some unconscious movement toward uniformity. As a common foundation of all state legislation lies the English common law. Trained in this and starting out from it, the courts of the different States, under similar conditions of social and material development, have tended to arrive at common principles. Often, expediency has led courts and legislatures, especially in the newer communities, to follow the judicial decisions and to copy the laws of other States. At times, also, the interests involved in interstate commerce, refusing to endure the barriers of conflicting laws, influence a revision of state legislation in the direction of uniformity.
Nevertheless, these influences have but slightly offset the individuality and selfishness displayed by the States. The new communities successively formed out of the great West have been for the most part uncontrolled in the management of their internal affairs; and often, following after new, untried principles, they have disregarded precedents set by the older States, and adopted novel policies and laws. As a result, the conflict of law, formerly confined to the acts of thirteen legislatures, is now extended throughout the laws of thirty-eight States, nine Territories, and the District of Columbia.
Of course the spread of population has brought a corresponding development in social and material activities. Our first century under the Constitution has, indeed, been, as Mr. Gladstone has lately said, “a century of national advancement that is without a parallel in history;” and we may, with him, “look forward to its probable continuance upon a still larger scale.” The major part of commercial and legal transactions and of domestic and social relations are affected by the enactments of state legislatures. Surely some effort should be made to secure in the action of these bodies a degree of harmony corresponding to the importance of the interests involved and to the present state of civilization.
As to what the nature of this effort should be there is ground for difference of opinion. In the case of the Territories and the District of Columbia the way is clear. Congress has power, by article four of the Constitution, to “make all needful rules respecting the territory” of the United States, and, by article one, “to exercise exclusive jurisdiction in all cases whatsoever” over the District of Columbia. Under this authority, Congress has passed laws for the suppression of polygamy. The protection of monogamy by similar laws could rest on the same authority, and is equally essential to the public welfare. Indeed, a step in the right direction has already been taken. In 1887 Congress enacted that every ceremony of marriage in any of the Territories of the United States must be certified by the person who performs it, and signed by the parties, and filed in the probate court. Let the national legislature go forward until there is uniformity in all the laws of marriage and divorce throughout the Territories and the District of Columbia. Of course a Territory, when admitted to the Union, would become, like the other States, sovereign over its internal affairs, and such laws of Congress would not continue in force unless reënacted by the new state legislature. But the body of law, once having been established by Congress and approved by public sentiment, would probably not be changed by the State.
Moreover, such action by Congress would be a wholesome example for the States. With reference to the latter, the problem of reform presents more difficulty. As to one subject a solution has been suggested by recent events. In 1886, under the power, expressly granted in the Constitution, “to regulate commerce … among the several States,” Congress passed the Interstate Commerce Law regulating transportation. By the thorough discussion which the measure received in the press as well as in Congress, the people were enlightened as to the import of that power. Moreover, the Supreme Court has recently declared that besides the matter of transportation, “the power also embraces within its control all the instrumentalities by which that commerce may be carried on, and the means by which it may be aided and encouraged.” Reciting these facts, a committee of the American Bar Association has reported that uniformity of law relating to business transactions may be attained by congressional legislation for the regulation of commerce among the States.
Whatever may come of this novel suggestion, as to internal affairs in general the Constitution does not expressly give to the national government control over the legislation of the States; and by the Tenth Amendment, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Hence any direct interference by act of Congress with the States in these matters would be unconstitutional; and this conclusion is supported by the highest authorities.
This has been a great obstacle to the attainment of uniformity in the laws of marriage and divorce, the imperative need of which has long been evident; and it has been suggested by eminent writers that the Constitution should be amended so as to give to Congress full control over these subjects. To the effectiveness of such a step in securing uniformity the experience of some foreign countries could testify. A case to the point is that of Switzerland, which was stated somewhat at length in The Atlantic for February, 1888. Down to 1874, the constitutional development of Switzerland and its experience in regulating the celebration of marriage was analogous to that of the United States. Similar conflict and uncertainty existed in the laws enacted by the cantons, and the interference of the central government was likewise resisted as unconstitutional. But in 1874 the new Constitution expressly transferred that subject from the cantons to the general government; and in 1876 uniformity was at last secured by a national law. Likewise in the new civil codes of the German Empire and of the Kingdom of Italy, the celebration of marriage was put into the control of the central government, and uniform laws resulted.
It is to be noted, however, that these changes were carried through in the course of radical readjustments of the powers and the forms of government, and upon a current of popular favor, — conditions not to be expected at present in the United States. No considerable revision of the Constitution has taken place since its adoption. Indeed, excluding the amendments made before the government was fully established, only once in our history have the conditions been favorable for the least amendment of the Constitution, and that upon but one subject. After a discussion of the subject of slavery and the nature of our government, lasting for nearly three quarters of a century, and issuing at last in civil strife, the resulting upheaval of public sentiment was sufficiently great to bring about the Thirteenth, Fourteenth, and Fifteenth Amendments. The opinion has some currency that there are premonitions of a second great wave of popular feeling, this time upon the subject of the liquor traffic. Should this opinion prove well founded, possibly there could be associated with the effort to protect the home by an amendment prohibiting the liquor traffic a movement to protect the family by an amendment giving Congress control of marriage and divorce.
But, to leave the field of speculation, the amendment last mentioned must be brought about, if at all, under the normal conditions of society and by the method provided in the Constitution; and the probability of this being effected at present is slight. For, apart from the lack of popular interest in such a movement, the nature of the machinery to be used is most discouraging. Its framers could hardly have realized how complicated and unwieldy it would become in the development of our political system, else they would have made it simpler. An amendment must first be proposed either by a two-thirds vote of Congress, or by a convention called by Congress on the application of two thirds of the several States, and must then be ratified either by the legislatures of three fourths of the several States, or by conventions in three fourths of the States. The result is that the Constitution is almost incapable of amendment.
Moreover, there is a popular feeling that “there must be no tinkering with the Constitution.” Arising soon after the establishment of the government, at first as a partisan sentiment, this feeling afterward passed beyond party lines into a popular worship; and it became the orthodox opinion that the Constitution embodies the best form of government yet devised, and contains within itself an infallible and all-sufficient rule of political action. This conviction has all along been strengthened by the favorable comments of eminent foreign observers.
Thus has grown up throughout the United States a strong aversion to any amendment whatever, — especially to any that, like the one suggested, tends to curtail the rights of the States. The old doctrine of state rights is still a force in our politics, though it acts in a limited range. It is manifested in a widespread determination to maintain the constitutional rights of the States; and so far it has the support of the Supreme Court, particularly in recent decisions.
In view of these circumstances, it has often become necessary, in order to reform an abuse in our politics, to resort to measures neither the most direct nor the most effective; and such seems to be the need in the matter in hand. Since it is at present impracticable to amend the Constitution, if immediate relief is to be had from the conflict in state legislation, some other expedient must be devised, not inconsistent with that instrument, and not offensive to the political prejudices of the people.
In recent years, the problem has been studied with a view to uniformity, especially in the laws of marriage and of divorce; and a plan advocated by one of the most eminent authorities upon this subject has met with much favor. In 1881, Theodore Dwight Woolsey, formerly president of Yale University, in discussing the subject with a representative of the New York Herald, said: “The advantage of uniformity must be evident to every one. It cannot be secured except by voluntary action on the part of the legislatures of the different States. The most direct way of bringing the matter to the attention of the legislatures would be for representatives of all the States to meet for the preparation of measures to be presented for enactment. If the governor of each State would appoint or request a competent person to represent his State in such a convention, the result might be the thorough reformation of the marriage and divorce laws of the nation.” It would be expected that each legislature, upon the recommendation of the governor, would enact such a measure as should result from the deliberations of this convention; and that Congress, upon the advice of the President, should extend the measure over the Territories and the District of Columbia. Of course the work of the convention need not be restricted to the subjects just mentioned; it might be applied to other subjects also in which uniformity should be deemed expedient.
It must be admitted that this scheme is without precedent, and that any State that would enact such a law would be able at any time thereafter to repeal it. But also without precedent are the circumstances of the evil, and if uniformity would result between a few States only, this might be a leaven which would gradually permeate the whole.
At any rate, this plan holds out a reasonable hope of immediate relief. As such it merits a trial. But from the fact that the trial itself depends upon the voluntary action of many officials and of many legislatures, nothing whatever can be done without the vigorous and constant support of public sentiment. It would seem that the initiative would be most suitably and most effectively taken by the bench and the bar; for they may fairly be expected to know both the present condition of the law and the proper means for its reformation. This obligation has already been recognized to some extent. In 1882, the Bar Association of Kings County, New York, took measures to petition the governor of that State to appoint commissioners to an interstate convention, in accordance with the suggestion of Dr. Woolsey. In 1887, the American Bar Association, at the request of Professor Simeon E. Baldwin, of New Haven, instructed its Committee on Jurisprudence and Law Reform to inquire and report “whether it would not be desirable to promote the enactment in the several States of some uniform law” for the celebration of marriage. It is the express object of this association to promote uniformity of legislation throughout the Union through the medium of local councils acting directly upon state legislatures. But its meetings are brief and infrequent. It can best accomplish its purpose by advocating through its local councils the appointment by the several States of commissioners to an interstate convention. Such a body could give the subject that sustained and thorough consideration which its importance requires. It would have to deal with the evil in our political system, than which there is no other so deeply rooted, so far-reaching, and so injurious. There is scarcely a single business interest, hardly a person, who is not injured, directly or indirectly, by this omnipresent conflict and confusion of law.
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