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A knowledge of human nature, too perspicacious not to preceive the danger, and too cautious not to provide against it, dictated in the composition of our Constitution, those checks and balances on which its purity and continuance were calculated to depend. While all necessary power was granted, every sound precaution was adopted to prevent its abuse.
We have already considered the express restrictions on the legislature, and have seen that on some points they cannot legislate at all, and on many others they can act only to a limited extent; but a wider view may be now taken, and an examination of the entire context will fully exhibit a pervading principle, which, while it secures the due performance of public duty, prevents its abuse.
The legislature is in the first place restrained by a fixed and absolute Constitution, over which it has no sort of
power. In some countries, and in one of our own states,* the legislature laying their hands on the Constitution, may so mould it from time to time, as to give a sanction to measures not within its original contemplation. But the Constitution of the United States, the work of the people, alterable only by the people, possesses a sacred and intangible character in respect to the legislature. This is, therefore, the great restraint. When the legislature feels that it has no power unless the Constitution has given it, the mere shame of being defeated in any step which cannot be supported, compels it to look to the Constitution for its authority, and if it cannot find it there, to desist from the measure.
Secondly, as this may not always be a sufficient restraint,
• The state of Maryland. The legislature of that state may alter or abolish any part of the Constitution or the bill of rights, provided the bill for that purpose is passed three months before a new election, and is confirmed by the general assembly at the first session after such election, the object of which proviso undoubtedly is to afford the people an opportunity to testify by the removal of the members a disapprobation of their measures.
the judicial power presents an effectual barrier against its excesses, the observations on which head need not be repeated. But, as observed, the judicial power possesses no spontaneous motion-it must be called into action by the application of others—either individuals, or constituted authorities, -and in the mean time, the obnoxious law may not only take its place in the statute book, but be injuriously acted upon. The third corrective therefore, is the hands of the people, who do not, as disingenuously remarked,* make no other use of their power than to give it away. The biennial election of the house of representatives, of which the people can by no artifice be deprived, secures to them the power of removing every member of that house who has shown, either an inability to comprehend, or an unwillingness to conform to the transcendent obligations of the Constitution, which he has sworn to support. Here, then, we have the protection and safety unknown to those countries where, either the legislature elect themselves, or enjoy an hereditary right, or where, although the representative principle may be nominally kept up, its exercise may be suspended or postponed at the pleasure of another part of the government.
It is true, that this mode of reforming the abuse, is not at first full and complete. The senate, which must have concurred in the unconstitutional law, is not renewed at the same period, but the Constitution, which for reasons heretofore assigned, conferred on this body a longer duration of office, has regulated the continuance of each senator, so that at the end of every two years one-third of the whole must be chosen anew. The sense of the people, indicated by a full change in the house of representatives, and by the change of one-third of
* By Delolme, in the chapter already referred to.
the senate, could not be without effect, and in two years more it would be imperious and irresistible.
A further restraint, though less definite, yet not without considerable weight, may be conceived in the influence arising from the portion of sovereignty remaining in the states.
Although, to the full extent established by the Constitution, the power of the legislature of the United States is superior to that of the states, yet in the smallest particular in which they pass beyond the true line, the power of the states is in full effect. The states will always maintain a reasonable jealousy on this subject.
In all matters not transferred to the general government, the rights and interests of the people are confided to the care of the state governments, and an anxiety to secure and defend them has been uniformly apparent in all the states. The desire of preserving harmony and order, nay, the very love of power, always more valuable where it is least resisted, will operate with great effect on the national legislature to prevent its falling into unnecessary collisions with the states. This consideration will have the greatest influence with the members of the senate, who, although they do not in any sense sit and act as states in a federative quality, and are not bound by instructions—yet cannot but look with much respect to, and feel a close connection with the legislature of the state that appoints them.
2dly. The fears of those theoretical writers, who have gratified themselves by lamenting the internal dangers of our republic, have been chiefly directed against the tendency of the executive authority to overpower the freedom of the people.
It is supposed that much is to be apprehended from the influence of an officer who has the power of appointing so many other officers, and who is entrusted with the management
of the military force. It is true, they admit that as he has not exclusively the appointment to office, this influence is thereby somewhat diminished, but the recommendations proceeding from him alone, and the power of dismission being exclusively with him, the hope of the one, and the fear of the other, must confer on him an excessive and alarming influence. All these considerations may have weight, yet the evil consequences predicted are not likely to ensue.
The military force, as we have seen, is well regulated not only by the constitutional prohibition to provide for its support for a longer term than two years, but also by the power that congress have to shorten even that period, and by the great improbability that an American army would consent to substitute for regular subsistence and the approbation of their countrymen, the tumultuary and precarious exactions of internal warfare, and convulsions, personal dangers which must be certain, and eventual ruin from which they cannot be exempted. The influence supposed to arise in respect to the appointments to, or dismissions from office, can operate only in a narrow circle, and however far it might be carried, would not tend to the subversion of the government, or even to any material alteration of it, since the value of the offices would always depend on the preservation of the Constitution and the laws, and their emoluments could not be carried beyond their legal limits.
No person is eligible to the office of president before he attains the age of thirty-five years, nor unless he has been a resident within the United States for fourteen years.
The object of the latter provision is, that his habits and opinions shall. be as much as possible purely American, but temporary absence on public business, and particularly on an embassy to a foreign nation, would not be an interruption of residence in the sense here affixed to it.
The senator must have attained the age of thirty years, and
the members of the house of representatives the age of twentyfive years.
In some of the states, the chief executive magistrate is not again eligible, until an interval has elapsed, after having served a certain time. The Constitution of the United States, on the contrary, admits the same individual to be continued in office by re-election during his life.
The propriety of a rotation in office, has had some warm advocates. The chief arguments in its favour seem to be,
1. That it renders the people more secure in their rights against an artful and ambitious man. If it were impossible that the chief magistrate should be re-elected after serving for a given time, it would be in vain for him to concert plans and create an insidious influence for the promotion of his own continuance in power.
2. On an opposite principle, it is supposed that he would be more independent in the exercise of his office: when, knowing that he could not be re-elected to it, he would not be under the necessity of courting the popular favour.
And 3dly. It has occurred to the imaginations of some, that there would be no small danger that the great powers of Europe, being interested in having a friend in the president of the United States, would interpose in his election, and the dangers and misfortunes of Poland be renewed in America.*
In answer to these objections, it has been said with great truth and force:
1st. That one ill effect of the exclusion would be a diminution of the inducements to good behaviour. Less zeal would be felt in the discharge of a duty, when the advantage of the station must be relinquished at a determinate period. The desire of reward is one of the strongest incentives of human
* See debates in Virginia convention, vol. ii. p. 67.