So when a man says he is planting a tree for himself and his posterity, he does not mean to be understood as saying that he has any thought of compelling them, nor is it to be inferred that he is such a simpleton as to imagine that he has any right or power to compel them, to eat the fruit. So far as they are concerned, he only means to say that his hopes and motives, in planting the tree, are that its fruit may be agreeable to them.
So it was with those who originally adopted the Constitution. Whatever may have been their personal intentions, the legal meaning of their language, so far as their “posterity” was concerned, simply was, that their hopes and motives, in entering into the agreement, were that it might prove useful and acceptable to their posterity; that it might promote their union, safety, tranquillity, and welfare; and that it might tend “to secure to them the blessings of liberty.” The language does not assert nor at all imply, any right, power, or disposition, on the part of the original parties to the agreement, to compel their “posterity” to live under it. If they had intended to bind their posterity to live under it, they should have said that their object was, not “to secure to them the blessings of liberty,” but to make slaves of them; for if their “posterity” are bound to live under it, they are nothing less than the slaves of their foolish, tyrannical, and dead grandfathers.
It cannot be said that the Constitution formed “the people of the United States,” for all time, into a corporation. It does not speak of “the people” as a corporation, but as individuals. A corporation does not describe itself as “we,” nor as “people,” nor as “ourselves.” Nor does a corporation, in legal language, have any “posterity.” It supposes itself to have, and speaks of itself as having, perpetual existence, as a single individuality.
Moreover, no body of men, existing at any one time, have the power to create a perpetual corporation. A corporation can become practically perpetual only by the voluntary accession of new members, as the old ones die off. But for this voluntary accession of new members, the corporation necessarily dies with the death of those who originally composed it.
Legally speaking, therefore, there is, in the Constitution, nothing that professes or attempts to bind the “posterity” of those who established it.
If, then, those who established the Constitution, had no power to bind, and did not attempt to bind, their posterity, the question arises, whether their posterity have bound themselves? If they have done so, they can have done so in only one or both of these two ways, viz. by voting, and paying taxes.
II
Let us consider these two matters, voting and tax paying, separately. And first of voting.
All the voting that has ever taken place under the Constitution, has been of such a kind that it not only did not pledge the whole people to support the Constitution, but it did not even pledge any one of them to do so, as the following considerations show.
1. In the very nature of things, the act of voting could bind nobody but the actual voters. But owing to the property qualifications required, it is probable that, during the first twenty or thirty years under the Constitution, not more than one tenth, fifteenth, or perhaps twentieth of the whole population (black and white, men, women, and minors) were permitted to vote. Consequently, so far as voting was concerned, not more than one tenth, fifteenth, or twentieth of those then existing, could have incurred any obligation to support the Constitution.
At the present time, it is probable that not more than one sixth of the whole population are permitted to vote. Consequently, so far as voting is concerned, the other five-sixths can have given no pledge that they will support the Constitution.
2. Of the one-sixth that are permitted to vote, probably not more than two-thirds (about one-ninth of the whole population) have usually voted. Many never vote at all. Many vote only once in two, three, five, or ten years, in periods of great excitement.
No one, by voting, can be said to pledge himself for any longer period than that for which he votes. If, for example, I vote for an officer who is to hold his office for only a year, I cannot be said to have thereby pledged myself to support the government beyond that term. Therefore, on the ground of actual voting, it probably cannot be said that more than one-ninth, or one-eighth, of the whole population are usually under any pledge to support the Constitution.
3. It cannot be said that, by voting, a man pledges himself to support the Constitution, unless the act of voting be a perfectly voluntary one on his part. Yet the act of voting cannot properly be called a voluntary one on the part of any very large number of those who do vote. It is rather a measure of necessity imposed upon them by others, than one of their own choice. On this point I repeat what was said in a former number,1 viz.:
“In truth, in the case of individuals, their actual voting is not to be taken as proof of consent, even for the time being. On the contrary, it is to be considered that, without his consent having even been asked, a man finds himself environed by a government that he cannot resist; a government that forces him to pay money, render service, and forego the exercise of many of his natural rights, under peril of weighty punishments.
