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general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any pretense whatever.
The Articles of Confederation having proved too weak; the government thereby created having no executive or sword, no power to levy taxes, no treasury, and no judiciary; a stronger federal government was needed, and hence the adoption in 1787 (in effect 1789) of the present Constitution of the United States, which was ordained and established to form a more perfect: union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.
A most marvelous extension of the area of the United States has occurred since the adoption of the Constitution. Indeed, before its adoption, the federal government had entered upon a career of state building, for, Virginia having made her cessions, the Northwest Territorial Ordinance was passed by the Congress under the Articles of Confederation, providing for the peopling and government of that territory and for the ultimate formation of five states of the American Union therefrom, and from which subsequently the States of Ohio, Indiana, Illinois, Michigan and Wisconsin were created. Afterwards other cessions were made by the colonial states south of the Ohio, notably Virginia, North Carolina and Georgia, from which new states were created. Then came the acquisition of Louisiana, the Spanish and Mexican cessions, the admission of Texas and the discovery of Oregon.
There was a solid reason for the extension of the field of federal control over the internal affairs of the Union, arising out of this growth of the country. The inhabited and civilized portion of the thirteen states which adopted the Constitution, was originally comparatively a narrow strip of land along the Atlantic Ocean. The federal Constitution was based on the
theory of territorial expansion, with a view to the admission to the Union of new states with all the rights of the original states. The aggressive policy of the federal government from the first was to build new states and incorporate them into the Union. Lands to the west were secured by cessions from the original states, and by treaties with Spain, France, Mexico and England, until the territorial possessions of the United States extended from the western boundaries of the original states westwardly to the Pacific Ocean, northwardly to Canada and southwardly to the Gulf of Mexico and the Republic of Mexico. Of all this vast area of country, Texas alone was never a territory of the United States. From the Republic of Texas, she passed at once to the Union of States without undergoing the probationary territorial period. Over the area of our territories, the federal power alone extended and was supreme. These territories were without the limits of any state, and within the territorial area no state had jurisdiction. In them the federal power waged the Indian and foreign wars, determined the disposition of the public lands, established the courts, provided the legislatures and governors, enacted the laws, and executed all the authority of a sovereign, unchecked by state authority. Wisely, however, and pursuant to the policy of the framers of the Constitution, this territorial area was gradually narrowed by the admission of new states clothed with all the authority of the original states. When a new state was admitted, the large power of the federal government was displaced, and the authority of the new state government was enthroned.
Around these proposed new states, the question of party politics raged for many years. In them centered the policies regarding the extension or prohibition of slavery. Touching them, the great political battle of 1860 was fought and the Civil War brought on. We all know that they were territorial questions that brought about the great debate between Lincoln
and Douglas in your State, and made each the candidate of his respective party for President. Generally during the controversy whether these territories should be free or slave soil, a spirit of compromise was abroad in the land, and whenever a northern territory was admitted to statehood, a southern territory was likewise admitted, to preserve the balance of power between the sections.
On all these questions concerning the territories, the federal power was necessarily always in evidence. Armies were marching across the territories to fight the Indians and to preserve peace, and the federal courts and marshals were everywhere, in the territories and states, enforcing or attempting to enforce the fugitive slave law.
When the Civil War came, the activities of the federal power necessarily became almost universal and predominant throughout the states as well as territories. Then followed the reconstruction period and the attempt to make of the southern states provinces instead of states, which came to naught under the decision of the Supreme Court of the United States, speaking through Chief Justice Chase, in Texas v. White, 7 Wallace, holding that the rebellious states had not lawfully seceded, and that our governemnt was an indestructible union of indestructible states, followed by the sober judgment of the American people against the radical unconstitutional reconstruction policies which had been proposed.
A recent historian (see Mr. Frederick Trevor Hill's “Lincoln the Lawyer,” in the May “Century’') says:
"On the 11th of April, 1865, only four days before his death, Lincoln spoke of the work still uncompleted. It was the hour of countless legal questions concerning the status of the seceded States, all based upon the inquiry whether they were still in the Union, or out of it, and hot discussions on this delicate point were carrying the disputants far afield. The great advocate, however, waived the quibbling issue aside and passed directly to the heart of the case.
" "That question,' he remarked, 'is bad as the basis of a controversy and good for nothing at all—a merely pernicious abstraction. We all
agree that the seceded States, so-called, are out of their proper relation to the Union, and that the sole object of the Government, civil and military, in regard to those States is to again get them into that proper relation.
Finding themselves safely at home, it would be utterly immaterial whether they had ever been abroad. Let us all join in doing the acts necessary to restoring the proper practical relations between these States and the Union, and each forever after innocently indulge in his own opinion whether in doing the acts he brought the States from without into the Union, or only gave them proper assistance, they never having been out of it.'”
So the view of Mr. Lincoln was, that after the War the States were to assume their old time relations to the federal Union, modified only by such Constitutional amendments to be made as provided by that instrument.
After the practical failure of the Congressional reconstruction acts, following the Civil War, to impair the rights of the States and to augment the powers of the federal government, except so far as justified by the Thirteenth, Fourteenth and Fifteenth Amendments, there seemed, for a time, to be no disposition on the part of any considerable portion of our people to augment the National powers, even where justified by the Constitution.
During recent years, and down to the present time, there has been a series of successive acts of Congress widely extending the field of the federal powers.
Whether all are justified by the Constitution, I shall not attempt to discuss; whether all are wise I shall not assume to express an opinion. I am only noting the drift and the tendency.
Among these acts are those establishing the Departments of Agriculture and of Commerce and Labor, with their various bureaus, notably the Bureau of Corporations; those regulating railroads and telegraphs engaged in commerce, interstate and international; the anti-trust laws, including the Sherman Act; those affecting the equipment of cars and locomotives of carriers engaged in interstate and international commerce; those preventing the exportation of diseased cat
tle, and providing for the extirpation of their contagious diseases; those acts and treaties acquiring our Island possessions, and the various tariff acts, with protection to American industries and labor as their corner stone. All of these acts, and more, have been in the direction of the extension of federal control. During this period, there were few acts of consequence which I can now recall diminishing or restricting federal power, except where territories
admitted to statehood and thus subjected to the control of State laws and taken from under the control of Congress.
During the session of Congress just adjourned, bills to cover a wide range of legislation, such as the prevention of over-capitalization by corporations, the limiting of hours of labor of railway employes, limiting injunctions against labor unions, protection of animals and children throughout the United States, securing of uniform divorce laws, regulation of insurance and insurance companies, were urged, but none of them was passed. Acts were passed regulating railway rates on interstate commerce, prescribing employers' liability in interstate commerce transactions, regulating the inspection of meats transported as interstate or foreign commerce, prohibiting the manufacture of impure, adulterated misbranded articles of food or drugs in any territory, including the insular possessions and the District of Columbia, and prohibiting the introduction into any State or territory of such articles.
Here, again, no proposition was seriously made or acts passed limiting the field of federal power, except the act providing for the admission of Oklahoma and the Indian Territory as one State and New Mexico and Arizona as another.
To-day, within the area of the states, the only powers which the federal government can exercise are those within the leaves of the Constitution, and they are the powers expressly or impliedly granted to Congress, the President, and