Here too, of course, the Supreme Court did not try to settle the theoretical question which was stirring the whole country; but presently came the action of Downes vs. Bidwell, a simple suit in which a New York commercial house was the complainant, and the New York Customs the defendant. In case the provisions of the Constitution were to hold for the entire domain of the United States, the tariff which Congress had enacted was unconstitutional, but if the Constitution was to hold only for the states, while Congress was sovereign over all other possessions, the tariff was constitutional. The Supreme Court decided for this latter interpretation by five votes against four, and the commercial house paid its tax. Therewith the principle was decided for all time, and if to-morrow the United States should get hold of Asia and Africa, it is assured from the outset that the new domain would not be under the Constitution, but under the authority of Congress—simply because Downes lost his case against Customs Inspector Bidwell, and had to pay six hundred dollars in duty on oranges.
This last case shows clearly that the decisions by no means always support the Constitution against legislative bodies; and statistics show that although in two hundred cases the verdict has been against the legislatures, it has been more often decided in their favour. The entire history of the Supreme Court shows that in a conservative spirit it has always done full justice to both the centralizing and particularizing tendencies. It has shown this conciliatory attitude especially by the firm authority with which it has decided the hazardous disputes over boundaries and other differences, between the several states, so that such disputes really come up no longer. For a century the Supreme Court has been a shining example of a federal tribunal.
Such complete domination of the national life could not have been attained by the Supreme Bench if it had not remained well above all the doings of the political parties, and that it does so may seem surprising when one considers the conditions under which the judges are appointed. The President selects the new judge whenever, by death or retirement, a vacancy occurs among the nine judges; and the Senate confirms the selection. Party factors, therefore, determine the appointment, and in point of fact Democratic Presidents have always appointed judges belonging to their own party, and Republicans have done the same. The result is that both parties are represented in the Supreme Court. That in political questions, such as the case of Porto Rico, which we have mentioned, party conceptions figure somewhat in the decision of the judges is undoubted. Yet they figure only in the sense that allegiance to one or the other party involves certain fundamental convictions, and these necessarily come into play in the judicial verdict. On the other hand, there is never the least suspicion that the judges harbour political schemes or seek in their decision to favour either political party. This results from the fact that it is a matter of honour with both parties to place really the most distinguished jurists in these highest judicial offices—jurists who will be for all time an honour to the administration which appointed them. They are almost exclusively men who have never taken part in technical politics, but who have been either distinguished judges elsewhere or else leading barristers, and who, from the day of their appointment on, will be only judges. Their position is counted among the most honourable which there is, and it would almost never happen that a jurist would decline his appointment, although the position, like all American official positions, is inadequately rewarded; the salary is ten thousand dollars, while any great lawyer is able to earn many times that sum. At the present moment there sits on the Supreme Bench a group of men, every one of whom represents the highest kind of American spirit. The bustle and confusion, which prevail in the two wings of the Capitol, does not invade the hall where the nine judges hold their sessions. These men are, in the American public mind, the very symbol of conscience.
We shall have occasion to consider later on the administration of justice by the nation, under various points of view. While in many respects this will appear less conscientious and more especially less deliberate, it will, nevertheless, recall not a few admirable features of the Supreme Court.
CHAPTER SIX
City and State
The Constitution, the President and his Cabinet, the Senate, the House of Representatives, and the Supreme Court, in short all of those institutions which we have so far sketched, belong to the United States together. The European who pictures to himself the life of an American will inevitably come to think that these are the factors which most influence the life of the political individual. But such is not the case; the American citizen in daily life is first of all a member of his special state. The organization of the Union is more prominent on the surface than that of the single state, but this latter is more often felt by the inhabitants.
The quality of an American state can be more easily communicated to a German than to an Englishman, Frenchman, or Russian. The resident of Bavaria or Saxony knows already how a man may have a two-fold patriotism, allegiance to the state and also to the empire; so that he can recognize the duties as well as the privileges which are grouped around two centres. The essentials of the American state, however, are not described by the comparison with a state in the German Empire, which is relatively of too little importance; for in comparison with the Union the American state has more independence and sovereignty than the German. We have observed before that it has its own laws and its own court of last appeal; but these are only two of the many indications of its practical and theoretical independence. The significant organic importance of the state shows itself not less clearly if one thinks of the cities subordinate to it, rather than of the Federation which is superior to it. While the German state is more dependent on the Federation than is the American, the German city is more independent of the state than is any city in the United States. The political existence of the American city is entirely dependent on the legislature of its state. The Federation on the one hand and the cities on the other, alike depend for their administrative existence on the separate states.
It is not merely an historical relic of that time when the thirteen states united, but hesitated to give up their individual rights to the Federation; a time when there were only six cities of more than eight thousand inhabitants. Nothing has changed in this respect, and it is not only the Democratic party to-day which jealously guards state rights; the state all too often tyrannizes still over the large cities within its borders. There are some indications, indeed, that the state rights are getting even more emphasis than formerly—perhaps as a reaction against the fact that, in spite of all constitutional precautions, those states which have close commercial relations tend practically to merge more and more with one another.
On observing the extraordinary tenacity with which the federal laws and the local patriotism of the individual cling to the independence of each one of the forty-five states, one is inclined to suppose that it is a question of extremely profound differences in the customs, ideals, temperaments, and interests of the different states. But such is not at all the case. The states are, of course, very unlike, especially in size; Texas and Rhode Island, for instance, would compare about as Prussia and Reuss. There are even greater differences in the density of population; and the general cast of physiognomy varies in different regions of the country. The Southerner shows the character bred by plantation life; the citizen of the North-east evinces the culture bred of higher intellectual interests; while the citizens of the West attest the differences between their agricultural and mining districts. Yet the divisions here are not states, but larger regions comprising groups of states, and it sometimes happens that more striking contrasts are found within a certain state than would be found between neighbouring states. The state lines were after all often laid down on paper with a ruler, while nature has seldom made sharp lines of demarcation, and the different racial elements of the population are fairly well mixed. For the last century the pioneers of the nation have carried it steadily westward, so that in many states the number of those born in the state is much less than of those who have migrated to it; and of course the obstinate assertion of the prerogatives of such a state does not arise from any cherished local traditions to which the inhabitants are accustomed. The special complexion of any provincial district, moreover, is assailed from all sides and to a large extent obliterated, in these days of the telegraph and of extraordinarily rapid commercial intercourse and industrial organization.
The uniformity of fashions, the wide-spread distribution of newspapers and magazines, the great political parties, and the intense national patriotism all work towards the one end—that from Maine to California the American is very much the same sort of man, and feels himself, in contrast with a foreigner, to be merely an American. And yet in spite of all this each single state holds obstinately to its separate rights. It is the same principle which we have seen at work in the American individual. The more the individuals or the states resemble one another the more they seem determined to preserve their autonomy; the more similar the substance, the sharper must be the distinctions in form.