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It is odd that such objectors do not see that the decisive triumph of the central power in the late civil war in America was, in reality, a striking proof of the success of the federation. The armies which General Grant commanded, and the enormous resources in money and devotion from which he was able to draw, were the product of the Federal Union and of nothing else. One of the greatest arguments its founders used in its favour was that if once established it would supply overwhelming force for the suppression of any attempt to break it up. They did not aim at setting up a government which neither foreign malice nor domestic treason, would ever assail, for they knew that this was something beyond the reach of human endeavour. They tried to set up one which, if attacked either from within or from without, would make a successful resistance, and we now know that they accomplished their object. Somewhat the same answer may be made to the objection, which is supposed to have fatal applicability to the case of Ireland, that among the “special faults of federalism” is that it does not provide “sufficient protection of the legal rights of unpopular minorities,” and that “the moral of it all is that the [American] Federal Government is not able to protect the rights of individuals against strong local sentiment” (p. 194 of Mr. Dicey’s book). He says, moreover, if I understand the argument rightly, that it was bound to protect free speech in the States because “there is not and never was a word in the Articles of the Constitution forbidding American citizens to criticize the institutions of the State.” It would seem from this as if Mr. Dicey were under the impression that in America the citizen of a State has a right to do in his State whatever he is not forbidden to do by the Federal Constitution, and in doing it has a right to federal protection. But the Federal Government can only do what the Constitution expressly authorizes it to do, and the Constitution does not authorize it to protect a citizen in criticizing the institutions of his own State. This arrangement, too, is just as good federalism as the committal of free speech to federal guardianship would have been. The goodness or badness of the federal system is in no way involved in the matter.

The question to what extent a minority shall rely on the federation for protection, and to what extent on its own State, is a matter settled by the contract which has created the federation. The settlement of this is, in fact, the great object of a Constitution. Until it is settled somehow, either by writing or by understanding, there is, and can be, no federation. If I, as a citizen of the State of New York, could call on the United States Government to protect me under all circumstances and against all wrongs, it would show that I was not living under a federation at all, but under a centralized republic. The reason why I have to rely on the United States for protection against some things and not against others is that it was so stipulated when the State of New York entered the Union. There is nothing in the nature of the federal system to prevent the United States Government from protecting my freedom of speech. Nor is there anything in the federal system which forbids its protecting me against the establishment of a State Church, which, as a matter of fact, it does not do. Nor is there anything in the federal system compelling the Government to protect me against the establishment of an order of nobility, which, as a matter of fact, it does do. The reason why it does not do one of these things and does the other is simply and solely that it was so stipulated, after much discussion, in the contract. Most thinking men are to-day of opinion that the United States ought to have exclusive jurisdiction of marriage, so that the law of marriage might be uniform in all parts of the Union. The reason why they do not possess such jurisdiction is not that Congress is not fully competent to pass such a law or the federal courts to execute it, but that no such jurisdiction is conferred by the Constitution. In fact it seems to me just as reasonable to cite the ease of divorce in various States of the Union as a defect in the federal system, as to cite the oppression of local minorities in matters not placed under federal authority by the organic law.