1. That the Constitution of the United States is not a league,
confederacy, or compact between the people of the several States in
their sovereign capacities; but a government proper, founded on the
adoption of the people, and creating direct relations between itself
and individuals.
2. That no State authority has power to dissolve these relations; that
nothing can dissolve them but revolution; and that, consequently, there
can be no such thing as secession without revolution.
3. That there is a supreme law, consisting of the Constitution of the
United States, and acts of Congress passed in pursuance of it, and
treaties; and that, in cases not capable of assuming the character of a
suit in law or equity, Congress must judge of, and finally interpret,
this supreme law so often as it has occasion to pass acts of
legislation; and in cases capable of assuming, and actually assuming,
the character of a suit, the Supreme Court of the United States is the
final interpreter.
4. That an attempt by a State to abrogate, annul, or nullify an act of
Congress, or to arrest its operation within her limits, on the ground
that, in her opinion, such law is unconstitutional, is a direct
usurpation on the just powers of the general government, and on the
equal rights of other States; a plain violation of the Constitution,
and a proceeding essentially revolutionary in its character and
tendency.
Whether the Constitution be a compact between States in their sovereign
capacities, is a question which must be mainly argued from what is
contained in the instrument itself. We all agree that it is an
instrument which has been in some way clothed with power. We all admit
that it speaks with authority. The first question then is, What does it
say of itself? What does it purport to be? Does it style itself a
league, confederacy, or compact between sovereign States? It is to be
remembered, Sir, that the Constitution began to speak only after its
adoption. Until it was ratified by nine States, it was but a proposal,
the mere draught of an instrument. It was like a deed drawn, but not
executed. The Convention had framed it; sent it to Congress, then
sitting under the Confederation; Congress had transmitted it to the
State legislatures; and by these last it was laid before conventions of
the people in the several States. All this while it was inoperative
paper. It had received no stamp of authority, no sanction; it spoke no
language. But when ratified by the people in their respective
conventions, then it had a voice, and spoke authentically. Every word
in it had then received the sanction of the popular will, and was to be
received as the expression of that will. What the Constitution says of
itself, therefore, is as conclusive as what it says on any other point.
Does it call itself a "compact"? Certainly not. It uses the word
_compact_ but once, and that is when it declares that the States shall
enter into no compact. Does it call itself a "league," a "confederacy,"
a "subsisting treaty between the States"? Certainly not. There is not a
particle of such language in all its pages. But it declares itself a
CONSTITUTION. What is a _constitution_? Certainly not a league,
compact, or confederacy, but a _fundamental law_. That fundamental
regulation which determines the manner in which the public authority is
to be executed, is what forms the _constitution_ of a state. Those
primary rules which concern the body itself, and the very being of the
political society, the form of government, and the manner in which
power is to be exercised,--all, in a word, which form together the
_constitution of a state_,--these are the fundamental laws. This, Sir,
is the language of the public writers. But do we need to be informed,
in this country, what a _constitution_ is? Is it not an idea perfectly
familiar, definite, and settled? We are at no loss to understand what
is meant by the constitution of one of the States; and the Constitution
of the United States speaks of itself as being an instrument of the
same nature. It says this _Constitution_ shall be the law of the land,
anything in any State _constitution_ to the contrary notwithstanding.
And it speaks of itself, too, in plain contradistinction from a
confederation; for it says that all debts contracted, and all
engagements entered into, by the United States, shall be as valid under
this _Constitution_ as under the _Confederation_. It does not say, as
valid under this _compact_, or this league, or this confederation, as
under the former confederation, but as valid under this _Constitution_.
This, then, Sir, is declared to be a _constitution_. A constitution is
the fundamental law of the state; and this is expressly declared to be
the supreme law. It is as if the people had said, "We prescribe this
fundamental law," or "this supreme law," for they do say that they
establish this Constitution, and that it shall be the supreme law. They
say that they _ordain and establish_ it. Now, Sir, what is the common
application of these words? We do not speak of ordaining leagues and
compacts. If this was intended to be a compact or league, and the
States to be parties to it, why was it not so said? Why is there found
no one expression in the whole instrument indicating such intent? The
old Confederation was expressly called a _league_, and into this league
it was declared that the States, as States, severally entered. Why was
not similar language used in the Constitution, if a similar intention
had existed? Why was it not said, "the States enter into this new
league," "the States form this new confederation," or "the States agree
to this new compact"? Or why was it not said, in the language of the
gentleman's resolution, that the people of the several States acceded
to this compact in their sovereign capacities? What reason is there for
supposing that the framers of the Constitution rejected expressions
appropriate to their own meaning, and adopted others wholly at war with
that meaning?
Again, Sir, the Constitution speaks of that political system which is
established as "the government of the United States." Is it not doing
strange violence to language to call a league or a compact between
sovereign powers a _government_? The government of a state is that
organization in which the political power resides. It is the political
being created by the constitution or fundamental law. The broad and
clear difference between a government and a league or compact is, that
a government is a body politic; it has a will of its own; and it
possesses powers and faculties to execute its own purposes. Every
compact looks to some power to enforce its stipulations. Even in a
compact between sovereign communities, there always exists this
ultimate reference to a power to insure its execution; although, in
such case, this power is but the force of one party against the force
of another; that is to say, the power of war. But a _government_
executes its decisions by its own supreme authority. Its use of force
in compelling obedience to its own enactments is not war. It
contemplates no opposing party having a right of resistance. It rests
on its own power to enforce its own will; and when it ceases to possess
this power, it is no longer a government.
Mr. President, I concur so generally to the very able speech of the
gentleman from Virginia near me [1], that it is not without diffidence
and regret that I venture to differ with him on any point. His
opinions, Sir, are redolent of the doctrines of a very distinguished
school, for which I have the highest regard, of whose doctrines I can
say, what I can also say of the gentleman's speech, that, while I
concur in the results, I must be permitted to hesitate about some of
the premises. I do not agree that the Constitution is a compact between
States in their sovereign capacities. I do not agree, that, in
strictness of language, it is a compact at all. But I do agree that it
is founded on consent or agreement, or on compact, if the gentleman
prefers that word, and means no more by it than voluntary consent or
agreement. The Constitution, Sir, is not a contract, but the result of
a contract; meaning by contract no more than assent. Founded on
consent, it is a government proper. Adopted by the agreement of the
people of the United States, when adopted, it has become a
Constitution. The people have agreed to make a Constitution; but when
made, that Constitution becomes what its name imports. It is no longer
a mere agreement. Our laws, Sir, have their foundation in the agreement
or consent of the two houses of Congress. We say, habitually, that one
house proposes a bill, and the other agrees to it; but the result of
this agreement is not a compact, but a law. The law, the statute, is
not the agreement, but something created by the agreement; and
something which, when created, has a new character, and acts by its own
authority. So the Constitution of the United States, founded in or on
the consent of the people, may be said to rest on compact or consent;
but it is not itself the compact, but its result. When the people agree
to erect a government, and actually erect it, the thing is done, and
the agreement is at an end. The compact is executed, and the end
designed by it attained. Henceforth, the fruit of the agreement exists,
but the agreement itself is merged in its own accomplishment; since
there can be no longer a subsisting agreement or compact _to form_ a
constitution or government, after that constitution or government has
been actually formed and established.
It appears to me, Mr. President, that the plainest account of the
establishment of this government presents the most just and
philosophical view of its foundation. The people of the several States
had their separate State governments; and between the States there also
existed a Confederation. With this condition of things the people were
not satisfied, as the Confederation had been found not to fulfil its
intended objects. It was _proposed_, therefore, to erect a new, common
government, which should possess certain definite powers, such as
regarded the prosperity of the people of all the States, and to be
formed upon the general model of American constitutions. This proposal
was assented to, and an instrument was presented to the people of the
several States for their consideration. They approved it, and agreed to
adopt it, as a Constitution. They executed that agreement; they adopted
the Constitution as a Constitution, and henceforth it must stand as a
Constitution until it shall be altogether destroyed. Now, Sir, is not
this the truth of the whole matter? And is not all that we have heard
of compact between sovereign States the mere effect of a theoretical
and artificial mode of reasoning upon the subject? a mode of reasoning
which disregards plain facts for the sake of hypothesis?
Mr. President, the nature of sovereignty or sovereign power has been
extensively discussed by gentlemen on this occasion, as it generally is
when the origin of our government is debated. But I confess myself not
entirely satisfied with arguments and illustrations drawn from that
topic. The sovereignty of government is an idea belonging to the other
side of the Atlantic. No such thing is known in North America. Our
governments are all limited. In Europe, sovereignty is of feudal
origin, and imports no more than the state of the sovereign. It
comprises his rights, duties, exemptions, prerogatives, and powers. But
with us, all power is with the people. They alone are sovereign; and
they erect what governments they please, and confer on them such powers
as they please. None of these governments is sovereign, in the European
sense of the word, all being restrained by written constitutions. It
seems to me, therefore, that we only perplex ourselves when we attempt
to explain the relations existing between the general government and
the several State governments according to those ideas of sovereignty
which prevail under systems essentially different from our own.
But, Sir, to return to the Constitution itself; let me inquire what it
relies upon for its own continuance and support. I hear it often
suggested, that the States, by refusing to appoint Senators and
Electors, might bring this government to an end. Perhaps that is true;
but the same may be said of the State governments themselves. Suppose
the legislature of a State, having the power to appoint the governor
and the judges, should omit that duty, would not the State government
remain unorganized? No doubt, all elective governments may be broken up
by a general abandonment on the part of those intrusted with political
powers of their appropriate duties. But one popular government has, in
this respect, as much security as another. The maintenance of this
Constitution does not depend on the plighted faith of the States, as
States, to support it; and this again shows that it is not a league. It
relies on individual duty and obligation.
The Constitution of the United States creates direct relations between
this government and individuals. This government may punish individuals
for treason, and all other crimes in the code, when committed against
the United States. It has power also to tax individuals, in any mode
and to any extent; and it possesses the further power of demanding from
individuals military service. Nothing, certainly, can more clearly
distinguish a government from a confederation of states than the
possession of these powers. No closer relations can exist between
individuals and any government.
On the other hand, the government owes high and solemn duties to every
citizen of the country. It is bound to protect him in his most
important rights and interests. It makes war for his protection, and no
other government in the country can make war. It makes peace for his
protection, and no other government can make peace. It maintains armies
and navies for his defence and security, and no other government is
allowed to maintain them. He goes abroad beneath its flag, and carries
over all the earth a national character imparted to him by this
government, and which no other government can impart. In whatever
relates to war, to peace, to commerce, he knows no other government.
All these, Sir, are connections as dear and as sacred as can bind
individuals to any government on earth. It is not, therefore, a compact
between States, but a government proper, operating directly upon
individuals, yielding to them protection on the one hand, and demanding
from them obedience on the other.
There is no language in the whole Constitution applicable to a
confederation of States. If the States be parties, as States, what are
their rights, and what their respective covenants and stipulations? And
where are their rights, covenants, and stipulations expressed? The
States engage for nothing, they promise nothing. In the Articles of
Confederation, they did make promises, and did enter into engagements,
and did plight the faith of each State for their fulfilment; but In the
Constitution there is nothing of that kind. The reason is, that, in the
Constitution, it is the _people_ who speak, and not the States. The
people ordain the Constitution, and therein address themselves to the
States, and to the legislatures of the States, in the language of
injunction and prohibition. The Constitution utters its behests in the
name and by authority of the people, and it does not exact from States
any plighted public faith to maintain it. On the contrary, it makes its
own preservation depend on individual duty and individual obligation.
Sir, the States cannot omit to appoint Senators and Electors. It is not
a matter resting in State discretion or State pleasure. The
Constitution has taken better care of its own preservation. It lays its
hand on individual conscience and individual duty. It incapacitates any
man to sit in the legislature of a State who shall not first have taken
his solemn oath to support the Constitution of the United States. From
the obligation of this oath no State power can discharge him. All the
members of all the State legislatures are as religiously bound to
support the Constitution of the United States as they are to support
their own State constitution. Nay, Sir, they are as solemnly sworn to
support it as we ourselves are, who are members of Congress.
No member of a State legislature can refuse to proceed, at the proper
time, to elect Senators to Congress, or to provide for the choice of
Electors of President and Vice-President, any more than the members of
this Senate can refuse, when the appointed day arrives, to meet the
members of the other house, to count the votes for those officers, and
ascertain who are chosen. In both cases, the duty binds, and with equal
strength, the conscience of the individual member, and it is imposed on
all by an oath in the same words. Let it then never be said, Sir, that
it is a matter of discretion with the States whether they will continue
the government, or break it up by refusing to appoint Senators and to
elect Electors. They have no discretion in the matter. The members of
their legislatures cannot avoid doing either, so often as the time
arrives, without a direct violation of their duty and their oaths; such
a violation as would break up any other government.
Looking still further to the provisions of the Constitution itself, in
order to learn its true character, we find its great apparent purpose
to be, to unite the people of all the States under one general
government, for certain definite objects, and, to the extent of this
union, to restrain the separate authority of the States. Congress only
can declare war; therefore, when one State is at war with a foreign
nation, all must be at war. The President and the Senate only can make
peace; when peace is made for one State, therefore, it must be made for
all.
Can anything be conceived more preposterous, than that any State should
have power to nullify the proceedings of the general government
respecting peace and war? When war is declared by a law of Congress,
can a single State nullify that law, and remain at peace? And yet she
may nullify that law as well as any other. If the President and Senate
make peace, may one State, nevertheless, continue the war? And yet, if
she can nullify a law, she may quite as well nullify a treaty.
The truth is, Mr. President, and no ingenuity of argument, no subtilty
of distinction can evade it, that, as to certain purposes, the people
of the United States are one people. They are one in making war, and
one in making peace; they are one in regulating commerce, and one in
laying duties of imposts. The very end and purpose of the Constitution
was, to make them one people in these particulars; and it has
effectually accomplished its object. All this is apparent on the face
of the Constitution itself. I have already said, Sir, that to obtain a
power of direct legislation over the people, especially in regard to
imposts, was always prominent as a reason for getting rid of the
Confederation, and forming a new Constitution. Among innumerable proofs
of this, before the assembling of the Convention, allow me to refer
only to the report of the committee of the old Congress, July, 1785.
But, Sir, let us go to the actual formation of the Constitution; let us
open the journal of the Convention itself, and we shall see that the
very first resolution which the Convention adopted was, "That a
national government ought to be established, consisting of a supreme
legislature, judiciary, and executive."
This itself completely negatives all idea of league, and compact, and
confederation. Terms could not be chosen more fit to express an
intention to establish a national government, and to banish for ever
all notion of a compact between sovereign States.
This resolution was adopted on the 30th of May, 1787. Afterwards, the
style was altered, and, instead of being called a national government,
it was called the government of the United States; but the substance of
this resolution was retained, and was at the head of that list of
resolutions which was afterwards sent to the committee who were to
frame the instrument.
It is true, there were gentlemen in the Convention, who were for
retaining the Confederation, and amending its Articles; but the
majority was against this, and was for a national government. Mr.
Patterson's propositions, which were for continuing the Articles of
Confederation with additional powers, were submitted to the Convention
on the 15th of June, and referred to the committee of the whole. The
resolutions forming the basis of a national government, which had once
been agreed to in the committee of the whole, and reported, were
recommitted to the same committee, on the same day. The Convention,
then, in committee of the whole, on the 19th of June, had both these
plans before them; that is to say, the plan of a confederacy, or
compact, between States, and the plan of a national government. Both
these plans were considered and debated, and the committee reported,
"That they do not agree to the propositions offered by the honorable
Mr. Patterson, but that they again submit the resolutions formerly
reported." If, Sir, any historical fact in the world be plain and
undeniable, it is that the Convention deliberated on the expediency of
continuing the Confederation, with some amendments, and rejected that
scheme, and adopted the plan of a national government, with a
legislature, an executive, and a judiciary of its own. They were asked
to preserve the league; they rejected the proposition. They were asked
to continue the existing compact between States; they rejected it. They
rejected compact, league, and confederation, and set themselves about
framing the constitution of a national government; and they
accomplished what they undertook.
If men will open their eyes fairly to the lights of history, it is
impossible to be deceived on this point. The great object was to
supersede the Confederation by a regular government; because, under the
Confederation, Congress had power only to make requisitions on States;
and if States declined compliance, as they did, there was no remedy but
war against such delinquent States. It would seem, from Mr. Jefferson's
correspondence, in 1786 and 1787, that he was of opinion that even this
remedy ought to be tried. "There will be no money in the treasury,"
said he, "till the confederacy shows its teeth"; and he suggests that a
single frigate would soon levy, on the commerce of a delinquent State,
the deficiency of its contribution. But this would be war; and it was
evident that a confederacy could not long hold together, which should
be at war with its members. The Constitution was adopted to avoid this
necessity. It was adopted that there might be a government which should
act directly on individuals, without borrowing aid from the State
governments. This is clear as light itself on the very face of the
provisions of the Constitution, and its whole history tends to the same
conclusion. Its framers gave this very reason for their work in the
most distinct terms. Allow me to quote but one or two proofs, out of
hundreds. That State, so small in territory, but so distinguished for
learning and talent, Connecticut, had sent to the general Convention,
among other members, Samuel Johnston and Oliver Ellsworth. The
Constitution having been framed, it was submitted to a convention of
the people of Connecticut for ratification on the part of that State;
and Mr. Johnston and Mr. Ellsworth were also members of this
convention. On the first day of the debates, being called on to explain
the reasons which led the Convention at Philadelphia to recommend such
a Constitution, after showing the insufficiency of the existing
confederacy, inasmuch as it applied to States, as States, Mr. Johnston
proceeded to say:--
"The Convention saw this imperfection in attempting to legislate for
States in their political capacity, that the coercion of law can be
exercised by nothing but a military force. They have, therefore, gone
upon entirely new ground. They have formed one new nation out of the
individual States. The Constitution vests in the general legislature a
power to make laws in matters of national concern; to appoint judges to
decide upon these laws; and to appoint officers to carry them into
execution. This excludes the idea of an armed force. The power which is
to enforce these laws is to be a legal power, vested in proper
magistrates. The force which is to be employed is the energy of law;
and this force is to operate only upon individuals who fail in their
duty to their country. This is the peculiar glory of the Constitution,
that it depends upon the mild and equal energy of the magistracy for
the execution of the laws."