Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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Editor/Trans.
First Pub. Date
1881
Publisher/Edition
New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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CONSTRUCTION

I.288.1

CONSTRUCTION (IN U. S. HISTORY). In a country where manhood suffrage is the rule, a written constitution would seem to be a necessity, for the purpose of securing those guarantees against the tyranny of a majority which are attained in Great Britain by limited suffrage, property representation and crown influence. In Great Britain, therefore, the constitution is unwritten, and practically is changed at the will of parliament; in the United States the constitution is written, and is changed either directly, though with great difficulty, by amendments (see CONSTITUTION, IV.), or indirectly and even more slowly by a stricter or broader construction, or interpretation, of its provisions. On this fundamental question of a strict or a broad construction of the constitution, all legitimate national party differences in the United States are and always have been based; and all efforts to establish national parties without reference to it have proved failures. (See ANTI-MASONRY; AMERICAN PARTY, I.; GREENBACK-LABOR PARTY.)

I.288.2

—I. STRICT CONSTRUCTION is the outcome of the particularist element of American politics. It is not based, however, upon any particular affection for the states as states, or upon any opposition to the federal government; these are its effects, not its causes. Its roots really lie in the inertia of the mass of the people, in their unwillingness to make changes at the demand or for the sake of special interests. When this inertia had been so far overcome as to secure the establishment of the constitution in 1789 (see ANTI-FEDERAL PARTY), its next and natural expression was the principle that the constitution should be strictly construed, and this has always been the fundamental principle of the democratic-republican party. It was first put into form by Jefferson and Madison (see BANK CONTROVERSIES, II.; KENTUCKY AND VIRGINIA RESOLUTIONS), and has since been very generally maintained by their party. The most conspicuous instances of its abandonment have been in 1844, 1858-60 (by the southern wing), and in 1868. (See DEMOCRATIC PARTY, IV., V., VI.) The extreme particularist element has usually been marked, not so much by a strict construction of the constitution, as by an exaggerated devotion to the states as principals, not as instruments. (See STATE SOVEREIGNTY, NULLIFICATION, SECESSION.)

I.288.3

—II. BROAD CONSTRUCTION, or LOOSE CONSTRUCTION, of the constitution, is the necessary expression of the nationalizing, often called the centralizing, element of American politics. Its main object has always been to make the federal government as powerful in the internal administration of the whole country as in the management of its foreign affairs. The founder of this school was Alexander Hamilton (see BANK CONTROVERSIES, II.), whose writings are still, to a remarkable degree, a compendium of the broad constructionist doctrines of succeeding times. The little that was lacking in his work was supplied by the Adamses, John and John Quincy; and Webster, Story and Clay had only to complete and beautify a theory whose framework had already been strongly built. In the writings of these six men, may be found all the essentials of broad construction, with the exception of that which was applied to the abnormal political influences of slavery. (See ABOLITION, II.; SLAVERY; RECONSTRUCTION.)

I.288.4

—As this political school has not been constant, but has been steadily developed, it follows that its supporters have been compelled to change their party name and organization as the successive phases of their doctrine have appeared, and have not been able to maintain, through all our history, an identity of name like that of their conservative opponents. Three successive parties have carried out the ideas which Hamilton first advanced. The work of the federal party was mainly to secure the existence of the federal government which it had called into being. The whig party, dropping the federalist opposition to unlimited suffrage, accepted the mass of federalist doctrines, and added to them those of internal improvements and a protective tariff. The republican party, dropping the whig opposition to agitation on the slavery question, accepted the mass of the whig doctrines, and added to them those of the federal government's power to restrict slavery to state limits, to abolish slavery (as the result of civil war), to re-admit seceding states upon conditions, and to protect the slaves when set free. It has also secured the adoption of one amendment (the 15th) which seems to have opened the door to future political consequences, as yet hardly to be estimated. Like the opposing school, broad construction has also its evil side; its extremists have sometimes shown a contempt for the constitution and its limitations which would, if it prevailed, reduce the organic law to a nullity, and subject the whole country to the caprice of a shifting congressional majority.

I.288.5

—III CONSTRUCTION IN GENERAL, has always been "strict" and "loose" relatively, not absolutely. As broad construction has advanced, strict construction has advanced with it pari passu, so that much which is now taken as strict construction, would have seemed to Jefferson, or to John Taylor of Caroline, the loosest possible. The constitution, therefore, even where it remains ipsissimis verbis, is in practice a very different instrument, in many important points, from that which it was in 1789. The great reason for change of construction has, of course, always been necessity or convenience; but the immediate causes are reducible to three: party tenure of power, judicial decisions, and war.

I.288.6

—1. Whenever a broad construction party has gained control of the government, it has put its ideas into practice, and, when once put into practice and become familiar to the people, some of these new constructions have generally held their place and been adopted by the democratic party on its return to power or in its efforts to do so. Thus the idea of vast and undefined indirect powers in congress under the "general welfare" clause of the constitution (Art. I., § 8), was adopted, 1800-12 from the overthrown federal party; the doctrine of the power of congress to appropriate the national funds for internal improvements was adopted, 1854-60, from the overthrown whig party; and the slavery and reconstruction amendments and legislation were recognized and adopted, 1872-80, in the effort to overthrow the republican party.

I.288.7

—2. The general rule followed by the federal courts has always been that in purely political questions the judicial department must be governed by the action of the legislative and executive. This one rule has evidently left a clear road to broad construction whenever the legislative and executive have inclined to take it. But, even in matters not strictly political, the general drift of the decisions in United States courts has been toward a broad construction. Thus, instead of the cardinal principle of the original democratic party (see BANK CONTROVERSIES, II.), that only absolutely necessary laws were within the power of congress, the federal courts have decided that congress may pass laws that are absolutely necessary, very necessary, or simply necessary in the judgment of congress. In the same way many other powers, which were once doubtful or denied, have since been settled by the federal courts in accordance with the broad construction view. (See CONGRESS, POWERS OF.) The supreme court decisions in 1879 (100 U. S.), in their interpretation and application of the 14th and 15th amendments, show that this process has by no means stopped, but is only entering a new stage of development.

I.288.8

—3. As there is no limit to the force which may be brought against a republic in war, so there is practically no limit to the force with which the republic, if thoroughly roused, will repel it. During the revolution the continental authorities habitually tampered with the mails, arrested and deported, or summarily executed, suspected persons, and, wherever necessary or possible, considered state laws as practically suspended. The alien and sedition laws of 1798 were defended mainly on the ground that war really existed with France. In 1812-16 the extremities to which the federal government was often reduced compelled the strict construction democratic party to resort to measures, such as conscription, impressment, naval equipment, disregard of state control of the militia, and the creation of a public debt and a national bank, which, by their own party principles, were either highly inexpedient or flatly unconstitutional. (See DRAFTS, I.; GUNBOAT SYSTEM; CONVENTION, HARTFORD; BANK CONTROVERSIES, III.) In 1846-50, as the Mexican war was conducted outside of the country, its effects were less perceptible, but the supreme court's decisions on the absolute power of the federal government over the conquered soil of New Mexico and California were important, and were afterward used as precedents in reconstruction. (See also TERRITORIES.) In 1861 the southern wing of the strict construction party not only voluntarily abandoned that branch of the federal government, congress, of which it had undisputed possession, to its broad construction opponents, but even strengthened the hands of its opponents by making war on the government, and thus bringing into play the undefined and unlimited war power. The consequence has been the enormous and now hardly questioned development of the permanent powers of the federal government.

I.288.9

—The above will make it evident that construction, strict or broad, is the vis viva of the constitution, which has enabled it, with very little formal change, to survive "the pressure of exigencies caused by an expansion unexampled in point of prosperity and range." By its means the law-abiding character of the American people, and their unquestioning faith in their constitution, have both been preserved intact throughout a vast foreign immigration which has radically altered the nature and blood of the people, and each characteristic has been able reciprocally to act upon and increase the other.

I.288.10

—See authorities cited under the articles above referred to, particularly under CONSTITUTION, IV.

ALEXANDER JOHNSTON.

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