Samuel Walker McCall.

The American Constitution online

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rOV/N, ON- SEPTEMBER r/, 1907.

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American Constitution


Hon. Samuel W. McCall







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(Following is the full text of the speech which Congressman Mc-
Call delivered at Jamestown on September 17. 1907, on the occasion of
the one hundred and twentieth anniversary of the adoption of the Na-
tional Constitution by the convention of 1787. Mr. McCall has kindly
furnished us the manuscript, which is entitled to rank as part of the
permanent political literature of the American people. We say this
advisably, for we can recall no discussion of the Constitution in recent
years which more perfectly conjoins the wisdom of the philosopher
with the experience of the man of affairs.— Editor of The Inter-Nar

I have listened with deep interest to the eloquent speech of
my friend, the president of the Exposition,^ and to the learned
address of the distinguished jurist and statesman who has just
spoken.*^ It is most fitting that, in the celebration of the founding
of Virginia, a day should be set apart for doing honor to the
national constitution, in the formation of which she bore so large
a part. That great Virginian, that great i\.merican rather, George
"Washington, was chiefly responsible for the existence of the conven-
tion and presided over its deliberations. The "Virginia plan"
presented by Edmund Bandolph was made the basis of its work.
James Madison and the other delegates from this state performed
a part which history delights to recall, and the debt of the country
for Virginia's work in the great convention is beyond all calcula-
tion. What place is there in all America where the anniversary
of the final passage of the Constitution in the national convention
could more fittingly ba observed than upon the spot where Vir-
ginia was born, where the air is still vital and throbbing with the
eloquence of those great voices of another time?

Coming, as I do, from the Commonwealth of Massachusetts,
which for more than two centuries had a development parallel
with your own, which was closely associated with you in all the
glorious events of the revolution and which might indeed be fitting-

1 Hon. H. St. George Tucker.

2 Hon. Alton B. Parker.


ly called the twin sister of Virginia, it is with peculiar pleasure that
I take part on this occasion. The settlements at Jamestown and
at Plymouth Avere near each other in point of time, and their
influence, gradually radiating from each center through the sur-
rounding wilderness, at last blended together, and became the
most potent force in the establishment of civil government in
America, in achieving our independence, and in forming the
national Constitution.

Perhaps no other political document has received the degree
of attention that has been bestowed upon the Constitution. It
has been lauded by great orators, expounded by great lawyers, and
interpreted by authors almost without number. It has been au-
thoritatively construed by as august a Judicial body as has been
known in history. Whatever is new about it is apt to be doubtful.
On this occasion I shall not traverse the broad and well known
field, but I shall atteinpt to bring to your attention a few con-
siderations, well worn no doubt, which seem to me most timely,
in view of the special trend of the day. '^

I know it is sometimes said that the Constitution is becoming
antiqi^ated and outgrown. It is doubtless true that since the
SpaniL-h war authoritative efforts have been made to free the
government from its limitations, in order that we might prosecute
a new and ambitious policy — a policy which, now that we have
embarked upon it, I think all thoughtful and patriotic citizens
wish we were well rid of. We have here and there, scattered over
the globe, little pro-consuls, governing despotically in the American
name. Ambitious statesmen chafe under its restraints, and enter-
prising people, desirous of embodying in the policies of the nation
every "ism" that may be floating upon the air, would have a style
of constitution which would change with every autumn and spring.
Nc doubt there are those who think it a fitting time for us today
to "come to bury Caesar, not to praise him."

But the principles of the Constitution were never more vital,
and its limitations never more necessary to real progress and lib-
erty than at this very hour. If its terms have been forgotten or
violated, the result has not been such as to tempt us to repetition.
It has endured the storm and stress of more than a century;
it has successfully met every crisis, and under it the nation has
had a growth beyond all parallel in history. It satisfied every
demand of our vigorous and growing youth, and as well responded


to every need of the splendid maturity of our people. It has stood
the strain of war. For more than a hundred years it permitted
us, without usurpation, to do everything that our national well-
heing required to be done. If it has thwarted some adventurous
designs and set at naught the crude and callow projects of inex-
perience, that was one of the things it was supremely designed to
do. We need not claim that it is perfect, but it is probably more
ne,arly perfect than any constitution we should adopt today.
Important amendments to it have been proposed, which were after-
wards shown to be useless. Seven years ago, for instance, a ma-
jority of the House of Eepresentatives voted for the so-called anti-
trust amendment, and yet the Sherman anti-trust statute has
been proven so drastic, that the attorney general has formally
recommended that it be made less strong, and drastic as it is^ it is
probable that it does not exhaust the constitutional powers of
Congress upon the subject.

But if amendments are desirable there is a way provided for
their adoption. And upon this day wliich is the anniversary of
the farewell address, as well as of the final action of the conven-
tion, we may well ponder upon those weighty words spoken by
that great soldier and statesman, to whom more than to any other
man we are indebted for our independence and our national gov-
ernment. "If in the opinion of the people," said George Wash-
ington one hundred and eleven years ago today, "the distribution
or modification of the constitutional powers be in any particular
wrong, let it be corrected by amendment in the way the Consti-
tution designates. But let there be no change by usurpation; for,
though this in one instance may be the instrument of good, it is the
customary weapon by which free governments are destroyed. The
precedent must always greatly overbalance in permanent evil any
partial or transient benefit which the use can at any time yield."

But it is proposed to expand the Constitution by "construc-
tion." So far as the rules of interpretation are concerned, they
should of course be applied, not with the technical narrowness
employed in construing penal statutes, but with the liberality
befitting the organic act of a governmient in which general terms
must necessarily be used. But if imder the pretence of exercising
a granted power a power not granted is put in force, then we
should have substantially that usurpation which would fall
under the denunciation of George Washington. It is pro-
posed, for instance, to construe the power to regulate


commerce between the States so as absolutely to prohibit it, and
thus to exercise jurisdiction over the processes of production
within the limits of a State. Control of every country road and
every city street over which a letter carrier may travel is to be
assumed under the power to establish post roads, while the taxing
power is to be invoked, not for the purpose of raising revenue for
the government, but for the purely social purpose of limiting the
size of fortunes. Other threatened infractions, if possible more
culpable, might also be mentioned. I am familiar with the tri-
umphant ad captandum, made for want of argument to serve as
a reply to such criticisms. Tt is that they are urged in favor of
corporations. But how does it happen that so far as governmental
favors are concerned, the corporations derive their peculiar juice
and fatness, not under State enactments, but under the subsidies
of national laws. And, unless it be for their interest to do so,
why is it also that many great corporations — common carriers and
insurance companies — have been pressing for national rather than
State control ?

What is the grand distinctive thing about the American Con-
stitution? Mr. Gladstone has said that it "is the most wonderful
work struck off at a given time by the brain and purpose of man."
Making allowances for Mr. Gladstone's rhetorical way of putting
things, he probably did not mean that the framers enunciated for
the first time the principles of the Constitution, but that at a given
time many great principles were assembled together as the frame
of the Government of what was destined to be a great nation. In
that respect it was unique. The constitutions of other nations had
almost invariably been unwritten, had been gradually evolved from
history, and were the slow and ripened products of time.
But the important provisions of our Constitution were not
created when the Constitution was written. They were not novel
and untried, but had been worked out in the bitter struggle of cen-
turies between despotism and liberty. Many of them had been
fashioned in the history of other nations, and chiefly in the growth
of the British government. Some of them had existed in our
colonial charters, and in the constitutions adopted by the States
during the revolutionary period. But it was a wonderful work
performed at a given time when our Constitution makers collected
those immortal principles and wtote them together in a single
document as the basis of a nation.


I know it has been said that the founders of the Dutch Eepub-
lic did substantially the same thing when they established the
union of Utrecht by a written constitution. But that union was
a mere treaty between the Dutch states and, as an eminent critic
has pointed out, it formed no central authority at all, but only a
debating society. Its action was binding upon no state which did
not subsequently accept it. It had even less authority than the
confederation which preceded our Constitution.

To my mind the distinctive thing about the American Con-
stitution, which indelibly stamps its character, is that it embodied
an experiment before that time unknown, and , established a gov-
ernment upon the corner stone of the individual, making him for
certain essential purposes of freedom superior even to the Gov-
ernment itself. In the other nations, whatever liberty there was
had commonly appeared in the form of concessions and grants
from sovereigns to the people. The kings ruled by a claim of
divine right. Whatever of liberty the people enjoyed came by
gift from the king, and whatever authority was not granted by the
king remained vested in him. But the American Constitution
reversed all that. It proceeded from the people. The Govern-
ment which it established was one of limited powers. Every
power that it possessed was delegated by the people, and every
power not granted was expressly reserved to the people or to some
of the governmental organs which they had previously established^
The original Constitution was framed upon this theory, but that
there might be no doubt about it, at least six of the States, and
among them Virginia and Massachusetts and New York, accom-
panied their ratification by resolutions making an express construc-
tion that all powers not granted were reserved ; and the first Con-
gress submitted among the amendments embodying the bill of
rights, the Tenth Amendment, declaring that "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.^^ This amendment was immediately ratified and
placed in the Constitution. It is there even more impressively
than if it had been made a part of the original instrument, and it
deals a death blow to the theory that our government has about
it any "divine right" or any "'inherent power," or any power that
is not contained in the express grant. To my mind therefore
the striking thing in the American Constitution, which differen-
tiates it from the previously formed constitutions of all other



nations, is the manner in which it imposed limitations upon gov-
ernment, recognizing that all power originally resided in the
people, and that no government had any species of authority over
th.em which they did not expressly grant.

Tlie fraraers of the Constitution knew or cared nothing
about the consciousness of a State or of a world. The only free-
dom that they had knowledge of was individual freedom, and to
that freedom they knew that government had often been the most
deadly foe. The problem that they attempted to solve was to
organize a State in which stability and order should be reconciled
with liberty. Their prime purpose was to secure the wellbeing of
the individual, which was the highest conscious unit they knew
anything about. They believed that it was for individual men
that States were founded, for those who were governed that gov-
ernments were ordained. History up to that time had been
chiefly made up of the doings of governments under which the
masses of mankind were permitted to stand afar off and see the
groat central figure perform, see him engorged with power, sur-
rounded by his creatures pandering to his whims, in order to
buy themselves new honors, while the toiling millions of men and
women were preyed upon and despoiled, with no right to liberty or
even life itself, except by the grace of the sovereign. The people
existed for the government and not the government for the people.

In the little island from which they came their fathers were
near enough to the throne to suspect at first, and then to know
that the king was a man like the rest of them, and by steady and
resistless struggles they were able to secure more and more of the
powers of the government in the people, until at last their sov-
ereign was reduced almost to a fiction and became a mere influence
rather than a power. But abstractly, the government of England
is without limitation. The powers granted to Parliament hedge
about and limit the king, but what limitation is there upon the
power of Parliament? More firmly even than the liberty of the
people of England did the Constitution establish the individual
freedom of our own people. It safeguarded the citizen in certain
great essentials against the republic itself and against the tyranny
of the majority, even when expressing itself through the agencies
of organized government.

Has it worked badly, this system of protecting the individual
of the million, this letting in the light of freedom to warm and


stimulate his faculties? Man is the greatest force we know of
upon Llie planet, and tlie genial influence of freedom has kindled
his powers into action, has brought the faculties of millions into
full play. It has not limited ambition to the few, but has made it
free to all. It has stimulated invention, industry, enterprise, and
is chiefly responsible for the astounding development the world
has seen since the establishment of the American Constitution.

I desire to speak to you at some greater length upon a sub-
ject to which I have alluded, upon the federated character of our
system, and the relation between the national and the local govern-
ments. Our somewhat complex system was the logical result of
the conditions existing after the Eevolution ; I say complex because
I do not know where to find such another double allegiance, if I
may call it such, where two governments divide between them
the exercise of sovereign powers over the same territory. There
are instances where one government delegates certain authority
over its soil to another, and where there may be an inferior and
subject government, the power of which is revocable by the im-
perial state, but such systems are not parallel with ours.

Our Constitution makers wished to escape the chaos and weak-
ness inevitable from having a great number of independent sov-
ereigns, such as existed here immediately after the revolution.
On the other hand, they wished to avoid a highly centralized gov-
ernment. James Wilson feared that the National Government
would be made so weak that it would be devoured by the States,
but neither he nor those associated with him desired it to be so
powerful that the States would be devoured by it. They aimed
to establish a safe balance which would equally protect both against
dis-union and a centralized autocracy. Critics of their work, who
delight to parade the usually safe wisdom, which lags a century
after the event, now point out that they might have drawn a
stronger Constitution and have averted the civil war. But this
is by no means clear even now. A Constitution with a stronger
central government would probably not have been ratified at all,
03', if ratified, would very likely not have delivered us from civil
war. Our ancestors could not legislate partisan passion out of
the human breast. Previous generations had entailed the black
heritage of slavery upon a great section of the country. It became
inevitably the occasion for a furious sectional strife. It is probable,
with such a deep-seated and irrepressible cause of irritation, that



there would have been war in any event. If such a cause had
not existed, it is altogether probable that the people would have
accepted as the more practical one, the theory put forth with im-
mortal eloquence by Webster, that the National Government within
the sphere of its constitutional powers was supreme.

The logic of Calhoun, transcendent though it was, led to a
barren conclusion from a practical standpoint, for if each State
were at liberty to withdraw from the Union at pleasure, the Union
as Webster expressed it, would have been but "a rope of sand."
So, I think the Civil War was due to another cause than the in-
completeness of the work of the Constitution makers. They
created an admirable poise, avoiding the weakness of disunion on
the one hand, and on the other the destruction of individual liberty,
certain to result from a highly centralized government, destined
some day to hold sway over hundreds of millions of people, inhabit-
ing vafet stretches of the earth's surface. This aspect of our con-
stitutional question is especially important at a time when it seems
not unlikely that the National Government may attempt to devour
the States.

We are all to be regulated in our business and modes of
living by gentlemen sent out from Washington, and the gentlemen
sent out from Washington are to be regulated by one man in the
White House. Would it be possible to conceive of a more ideal
centralized paternalistic government? To illustrate the extent to
which this national detective system has grown. Congress at its
last session appropriated about nine millions of dollars to inspect
various kinds of business, more than five times the amount ap-
propriated for similar purposes ten years ago, or probably a greater
sum than was required at that time for the pay and subsistence of
all the private soldiers in the army. Were we hopelessly wicked
and corrupt a decade ago, or has cur wickedness increased so
rapidly during that time that this vast army of Federal detectives
should be set upon the tracks of the people ? And, there are still
other proposals for increases of the system, and the end is not
yet. TTow much farther need we go in this direction before we
shall range ourselves by the side of Russia and every business man
will hqve a federal inspector at his elbow?

But, if this excessive governmental supervision of the citizen
is so necessary, why should it be conducted on so large a scale by
the National Government? Is an inspector who feeds at the na-


tional crib, far from the master's eye, likely to be any better than
the one acting under local authority? And, by the master, I
do not mean the President; he is only a servant, for the people-
are supposed to be the masters of their government. If we study
our histor}^ we shall not find that the Federal inspectors are made
of any super-human material. They are made of precisely the
same clay as are the agents of local governments, and subject to
the same human frailties. Look at the swindles connected,
with federally inspected banks; at the astounding corrup-
tion attaching itself to almost the only railroad built under
national auspices; at the horrible disasters upon, the sea, due in_
part to the failure of Federal inspectors to do their duty. I shall
not prolong the list. I only allude to these instances to show
the baselessness of the assumption that one who holds a Federal
commission is infallible, and of the further assumption that the
evils now existing in life will all disappear if we shall enter upoiL>
a Utopian world, where every breath we draw will be under the-
direction of some beneficent instrument of the Washington diety.
I take it that national office holders are no better and no worse than
are the officers of States, but as governmental functions are more
and more transferred to the national authority, the number of
agents subject to a single jurisdiction is increased amazingly, and
the authority exercised by the man at the head of this colossal
machine passes all bounds.

Tliere are of course certain great imperial powers that must
be exercised by the National Government, but the time-honored
functions of the States have as a whole been well administered, and
they should be permitted to remain with the States. The people
can exercise a closer scrutiny over the conduct of their local
agents, and the commission of acts of wrong doing will be more
apt to be detected and pimished, and hence more apt to be re-
strained. We have had painful instances of dishonesty in con -
nection with the government of our cities, but it is significant
that they have usually been unearthed not by office holders, but by
the vigilance and public spirit of private citizens who can
get a near view. It was so a generation ago when Tilden
and his associates brought Tweed to justice in ISTew York.
It i? so at this moment when a body of men holding no
office are disclosing some startling things in connection
with the government of Boston. This most salutary force is^


largely wanting when you set up your government upon a stage
one thousand miles from, those who are governed. Office holders
sometimes find each other out, or turn state's evidence, hut the
most potent agency to secure honest official conduct is the sleepless
vigilance of the people.

A great central government exerting its authority in all gov-
ernmental matter? over a vast and scattered population necessarily
takes on an autocratic character. The part of each individual in
such a government becomes so infinitesimal and diluted that it
vanishes almost entirely as an appreciable force. The wide range
of powers heretofore exercised under the Constitution by the States
gives an opportunity to the individual citizen to bear an appreci-
able part in actual government. The historian Freeman, in com-
paring small states with great ones, said that a "small republic
develops all the faculties of individual citizens to the highest pitch.
The average citizen of such a State is a superior being to the
average citizen of a large kingdom. He ranks not wdth its aver-
age subjects, but at the very least with its average legislators." I
have given the obvious reason. In a small community resting
upon suffrage, which is practically universal, the average citizen
takes part in the actual work of government, and is disciplined by


Online LibrarySamuel Walker McCallThe American Constitution → online text (page 1 of 2)