The principle that ours is a consolidated government of all the people of the United States,and not a confederation of sovereign States,must necessarily render it little less than omnipotent.That principle,carried out to its legitimate results,will assuredly render the federal government the strongest in the world.The powers of such a government are supposed to reside in a majority of the people;and,as its responsibility is only to the people,that majority may make it whatever they please.To whom is that majority itself responsible?Upon the theory that it possesses all the powers of the government,there is nothing to check,nothing to control it.In a population strictly homogeneous in interests,character and pursuits,there is no danger in this principle.We adopt it in all our State governments,and in them it is the true principle;because the majority can pass no law which will not affect themselves,in mode and degree,precisely as it affects others.But in a country so extensive as the United States,with great differences of character,interests and pursuits,and with these differences,too,marked by geographical lines,a fair opportunity is afforded for the exercise of an oppressive tyranny,by the majority over the minority.Large masses of mankind are not apt to be swayed,except by interest alone;and wherever that interest is distinct and clear,it presents a motive of action too strong to be controlled.Let it be supposed that a certain number of States,containing a majority of the people of all the States,should find it to their interest to pass laws oppressive to the minority,and violating their rights as secured by the Constitution.
What redress is there,upon the principles of Judge Story?Is it to be found in the federal tribunals?They are themselves a part of the oppressing government,and are,therefore,not impartial judges of the powers of that government.Is it to be found in the virtue and intelligence of the people?
This is the author's great reliance.He acknowledges that the system,as he understands it,is liable to great abuses;but he supposes that the virtue and intelligence of the people will,under all circumstances,prove a sufficient corrective.Of what people?Of that very majority who have committed the injustice complained of,and who,according to the author's theory,are the sole judges whether they have power to do it or not,and whether it be injustice or not.Under such a system as this,it is a cruel mockery to talk about the rights of the minority.If they possess rights,they have no means to vindicate them.The majority alone possess the government;
they alone measure its powers,and wield them without control or responsibility.
This is despotism of the worst sort,in a system like ours.More tolerable,by far,is the despotism of one man,than that of a party,ruling without control,consulting its own interests,and justifying its excesses under the name of republican liberty.Free government,so far as its protecting power is concerned,is made for minorities alone.
But the system of our author,while it invites the majority to tyrannize over the minority,and gives the minority no redress,is not safe even,for that majority itself.It is a system unbalanced,unchecked,without any definite rules to prevent it from running into abuse,and becoming a victim to its own excesses.The separation and complete independence of the several departments of the government is usually supposed to afford a sufficient security against an undue enlargement of the powers of any one of them.This is said to be the only real discovery in politics,which can be claimed in modem times;and it is generally considered a very great discovery,and,perhaps,the only contrivance by which public liberty can be preserved.The idea is wholly illusory.It is true,that public liberty could scarcely exist without such separation,and,for that reason,it was wisely adopted in our systems.But we should not rely on it with too implicit a confidence,as affording in itself any adequate barrier against the encroachment of power,or any adequate security for the rights and liberties of the people.I have little faith in these balances of government;
because there is neither knowledge nor wisdom enough in man to render them accurate and permanent.In spite of every precaution against it,some one department will acquire an undue preponderance over the rest.The first excesses are apt to be committed by the legislature;and,in a consolidated government,such as the author supposes ours to be,there is a peculiar proneness to this.In all free governments,the democratic principle is continually extending itself.The people being possessed of all power,and feeling that they are subject to no authority except their own,learn,in the end,to consider the very restraints which they have voluntarily imposed upon themselves,in their constitution of government,as the mere creatures of their own will,which their own will may at any time destroy.
Hence the legislature,the immediate representatives of the popular will,naturally assume upon themselves every power which is necessary to carry that will into effect.This is not liberty.True political liberty demands many and severe restraints;it requires protection against itself,and is no longer safe,when it refuses to submit to its own self-imposed discipline.
And let us not sleep in the delusion that we shall derive all needful security from our own "intelligence and virtue."The people may,indeed,preserve their liberties forever,if they will take care to be always virtuous,always wise,and always vigilant.And they will be equally secure,if they can assure themselves that the rulers they may select will never abuse their trust,but will always understand and always pursue the true interests of the people.But,unhappily,there are no such people and no such rulers.
