"The public bodies of the united nation did not at once invite publicity to their deliberations. The Constitutional Convention of 1787 sat with closed doors, and although imperfect reports of the debates have since been published, the injunction of secrecy upon its members was never removed. The Senate for a time followed this example, and the first open debate was had in 1793, on the occasion of the controversy over the right of Mr. Gallatin to a seat in that body. The House of Representatives sat with open doors from the first, tolerating the presence of reporters,—over whose admission, however, the Speaker assumed control,—and refusing in 1796 the pittance of two thousand dollars for full publication of its debates.
"It must be evident from these historical facts that liberty of the press, as now understood and enjoyed, is of very recent origin."[130]
Both the original purpose of this parliamentary privilege and its subsequent abuse not only in England but also in the Colonies, were facts well known by those who framed the Constitution. There was no King here, from whose arbitrary acts Congress would need to be protected, but there was a power which the framers of the Constitution regarded as no less tyrannical and fully as much to be feared—the power of the people as represented by the numerical majority. How to guard against this new species of tyranny was the problem that confronted them. The majority was just as impatient of restraint, just as eager to brush aside all opposition as king or aristocracy had ever been in the past. Taking this view of the matter, it was but natural that they should seek to protect Congress against the people as Parliament had formerly been protected against the Crown. For exactly the same reason as we have seen, they made the judges independent of the people as they had been made independent of the King in England. In no other way was it possible to limit the power of the majority.
That this provision concerning freedom of speech and debate in the legislative body was not regarded as especially important during the Revolutionary period is shown by its absence from most of the early state constitutions. When the Federal Constitution was framed only three of the original states[131] had adopted constitutions containing such a provision. There was, as a matter of fact, no real need for it in the state constitutions of that time. The controlling influence exerted by the legislature in the state government, and the dependence of the courts upon that body, precluded the possibility of any abuse of their powers in this direction.
The Articles of Confederation contained the provision that "Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress."[132] This was designed to protect members of Congress against prosecution in the state courts. Here, as in the English Bill of Rights and in the state constitutions containing a similar provision, reference is made in express terms to prosecution in the courts. The framers of the Constitution, however, left out all reference to the courts. If, as constitutional writers have generally assumed, the framers of the Constitution intended by this provision to protect members of Congress against prosecution in the courts, it is difficult to understand why they should have omitted what had been the main feature and purpose of this provision, not only in the original Bill of Rights, but also in the state constitutions copying it and in the Articles of Confederation. If what they had in mind was the danger of prosecution in the state or Federal courts, why should they have changed completely the wording of this provision by omitting all reference to the very danger which they wished to guard against?
The checks thus far described were intended as a substitute for king and aristocracy; but to make the Constitution acceptable to the people, additional checks were required which the English government did not contain. The division of authority in the latter was solely between different classes or orders, each of which was supposed to represent interests co-extensive with the realm. But while the power of each class was thus limited, their joint and combined action was subject to no constitutional check or limitation whatever. Any policy upon which they agreed could be enforced in any part of the realm, since the Constitution, recognizing no local interests, gave no political subdivision a negative on the acts of the whole. The government of England, then, was purely national as opposed to federal, that is to say the general government was supreme in all respects and the local government merely its creature.
This was the type of government for which Hamilton contended and which a majority of the delegates in the Federal Convention really favored. But the difficulty of securing the adoption of a Constitution framed on this plan made it impracticable. To merge the separate states in a general government possessing unlimited authority would place all local interests at the mercy of what the people regarded as virtually a foreign power. Practical considerations, then, required that the Constitution should in appearance at least conform to the federal rather than to the national type. Accordingly the powers of government were divided into two classes, one embracing only those of an admittedly general character, which were enumerated and delegated to the general government, while the rest were left in the possession of the states. In form and appearance the general government and the governments of the various states were coördinate and supplementary, each being supreme and sovereign within its respective sphere. By this arrangement any appearance of subordination on the part of the state governments was carefully avoided; and since the state retained sovereign authority within the sphere assigned to it by the Constitution, the protection of local interests was thereby guaranteed. This understanding of the Constitution seems to have been encouraged by those who desired its adoption and was undoubtedly the only interpretation which would have found favor with the people generally. Moreover, it was a perfectly natural and logical development of the theory of checks. If the President, Senate, House of Representatives and the Supreme Court were coördinate branches of the general government, and each therefore a check on the authority of the others, a like division of authority between the general government as a whole on the one hand, and the states on the other, must of necessity imply a defensive power in the state to prevent encroachment on the authority reserved to it. And since the government was federal and not national, and since the state government was coördinate with and not subordinate to the general government, the conclusion was inevitable that the former was a check on the latter in exactly the same way that each branch of the general government was a check on the others.
This view of the Constitution while allowed to go unchallenged for the time being to secure its adoption by the states, was not accepted, however, by those who framed it. For although in outward appearance the Constitution did not provide for a national government, it at least contained the germs out of which a national government might in time be developed. The complete supremacy of the general government was one important result which the members of the Convention desired to bring about. Several plans were proposed by which this supremacy should be expressly recognized in the Constitution. Both Randolph and Charles Pinckney favored giving a negative on state laws to Congress.[133] Madison suggested giving it to the Senate. Hamilton, as we have seen, proposed giving an absolute veto to the governors of the various states, who were to be appointed by the President. According to another plan this power was to be given jointly to the President and the judges of the Supreme Court. All of these proposals to give the general government in express terms the power to annul state laws were finally rejected by the Convention, no doubt for the reason that they indicated too clearly their intention to subordinate the state governments. But while declining to confer this power in express terms, it was not their intention to withhold it. As in the case of the judicial veto on congressional legislation, they relied upon control over the Constitution after its adoption to accomplish their end.
The omission from the Constitution of any provision which clearly and unequivocally defined the relation of the general government to the governments of the various states was not a mere oversight. The members of the Convention evidently thought that to ensure the acceptance of the Constitution, it was necessary to submit it in a form least likely to excite the opposition of the states. They expected by controlling its interpretation to be able after its adoption to mold it into a shape more in accord with their own views. The choice of this method, though the only one by which it was possible to attain their end, involved consequences more serious and far-reaching than they imagined. It paved the way for a constitutional struggle which lasted for three-quarters of a century and finally convulsed the country in the greatest civil war of modern times. Had the Constitution in so many words expressly declared that the Federal judiciary should have the power to annul state laws, or had it given this power to some other branch of the Federal government in accordance with some one of the suggestions above mentioned, and had it at the same time expressly withheld from the states the power to negative acts of Congress, there would have been no room for doubt that the general government was the final and exclusive judge in all cases of conflict between Federal and state authority.
Such a provision would have left no room for the doctrine of state rights, or its corollary—the power of a state to nullify a Federal law. It would have settled the question of Federal supremacy beyond the possibility of controversy by relegating the states to a strictly subordinate place in our political system. But inasmuch as the Constitution contained no provision of this character it left the states in a position to defend their claim to coördinate rank with the general government.