The same Subject continued.--The Tenth Amendment.--Fallacies
exposed.--"Constitution," "Government," and "People"
distinguished from each other.--Theories refuted by
Facts.--Characteristics of Sovereignty.--Sovereignty
identified.--Never thrown away.
If any lingering doubt could have existed as to the reservation of their
entire sovereignty by the people of the respective States, when they
organized the Federal Union, it would have been removed by the adoption
of the tenth amendment to the Constitution, which was not only one of
the amendments proposed by various States when ratifying that
instrument, but the particular one in which they substantially agreed,
and upon which they most urgently insisted. Indeed, it is quite certain
that the Constitution would never have received the assent and
ratification of Massachusetts, New Hampshire, New York, North Carolina,
and perhaps other States, but for a well-grounded assurance that the
substance of this amendment would be adopted as soon as the requisite
formalities could be complied with. That amendment is in these words:
"The powers not delegated to the United States by the
Constitution nor prohibited by it to the States are reserved to
the States respectively, or to the people."
The full meaning of this article may not be as clear to us as it was to
the men of that period, on account of the confusion of ideas by which
the term "people"--plain enough to them--has since been obscured, and
also the ambiguity attendant upon the use of the little conjunction
_or_, which has been said to be the most equivocal word in our language,
and for that reason has been excluded from indictments in the English
courts. The true intent and meaning of the provision, however, may be
ascertained from an examination and comparison of the terms in which it
was expressed by the various States which proposed it, and whose ideas
it was intended to embody.
Massachusetts and New Hampshire, in their ordinances of ratification,
expressing the opinion "that certain amendments and alterations in the
said Constitution would remove the fears and quiet the apprehensions of
many of the good people of this Commonwealth [State (New Hampshire)],
and more effectually guard against an undue administration of the
Federal Government," each recommended several such amendments, putting
this at the head in the following form:
"That it be explicitly declared that all powers not expressly
delegated by the aforesaid Constitution are _reserved to the
several States_, to be by them exercised."
Of course, those stanch republican communities meant _the people of the
States_--not their _governments_, as something distinct from their
people.
New York expressed herself as follows:
"That the powers of government may be reassumed by the people
whenever it shall become necessary to their happiness; that
every power, jurisdiction, and right, which is not by the said
Constitution clearly delegated to the Congress of the United
States, or the departments of the Government thereof, remains to
_the people of the several States, or to their respective State
governments, to whom they may have granted the same_; and that
those clauses in the said Constitution, which declare that
Congress shall not have or exercise certain powers, do not imply
that Congress is entitled to any powers not given by the said
Constitution; but such clauses are to be construed either as
exceptions to certain specified powers or as inserted merely for
greater caution."
South Carolina expressed the idea thus:
"This Convention doth also declare that no section or paragraph
of the said Constitution warrants a construction that _the
States do not retain_ every power not expressly relinquished by
them and vested in the General Government of the Union."
North Carolina proposed it in these terms:
"Each State in the Union shall respectively retain every power,
jurisdiction, and right, which is not by this Constitution
delegated to the Congress of the United States or to the
departments of the General Government."
Rhode Island gave in her long-withheld assent to the Constitution, "in
full confidence" that certain proposed amendments would be adopted, the
first of which was expressed in these words:
"That Congress shall guarantee _to each State_ its SOVEREIGNTY,
_freedom, and independence_, and every power, jurisdiction, and
right, which is not by this Constitution expressly delegated to
the United States."
This was in May, 1790, when nearly three years had been given to
discussion and explanation of the new Government by its founders and
others, when it had been in actual operation for more than a year, and
when there was every advantage for a clear understanding of its nature
and principles. Under such circumstances, and in the "full confidence"
that this language expressed its meaning and intent, the people of Rhode
Island signified their "accession" to the "Confederate Republic" of the
States already united.
No objection was made from any quarter to the principle asserted in
these various forms; or to the amendment in which it was finally
expressed, although many thought it unnecessary, as being merely
declaratory of what would have been sufficiently obvious without
it--that the functions of the Government of the United States were
strictly limited to the exercise of such powers as were expressly
delegated, and that the people of the several States retained all
others.
Is it compatible with reason to suppose that people so chary of the
delegation of specific powers or functions could have meant to surrender
or transfer the very basis and origin of all power--their inherent
sovereignty--and this, not by express grant, but by implication?
Mr. Everett, following, whether consciously or not, in the line of Mr.
Webster's ill-considered objection to the term "compact," takes
exception to the sovereignty of the States on the ground that "the
_word_ 'sovereignty' does not occur" in the Constitution. He admits that
the States were sovereign under the Articles of Confederation. How could
they relinquish or be deprived of their sovereignty without even a
mention of it--when the tenth amendment confronts us with the
declaration that _nothing_ was surrendered by implication--that
everything was reserved unless expressly delegated to the United States
or prohibited to the States? Here is an attribute which they certainly
possessed--which nobody denies, or can deny, that they _did_
possess--and of which Mr. Everett says no mention is made in the
Constitution. In what conceivable way, then, was it lost or alienated?
Much has been said of the "prohibition" of the exercise by the States of
certain functions of sovereignty; such as, making treaties, declaring
war, coining money, etc. This is only a part of the general compact, by
which the contracting parties covenant, one with another, to abstain
from the separate exercise of certain powers, which they agree to
intrust to the management and control of the union or general agency of
the parties associated. It is not a prohibition imposed upon them from
without, or from above, by any external or superior power, but is
self-imposed by their free consent. The case is strictly analogous to
that of individuals forming a mercantile or manufacturing copartnership,
who voluntarily agree to refrain, as individuals, from engaging in other
pursuits or speculations, from lending their individual credit, or from
the exercise of any other right of a citizen, which they may think
proper to subject to the consent, or intrust to the management of the
firm.
The prohibitory clauses of the Constitution referred to are not at all a
denial of the full sovereignty of the States, but are merely an
agreement among them to exercise certain powers of sovereignty in
concert, and not separately and apart.
There is one other provision of the Constitution, which is generally
adduced by the friends of centralism as antagonistic to State
sovereignty. This is found in the second clause of the sixth article, as
follows:
"This Constitution, and the laws of the United States which
shall be made in pursuance thereof, and all treaties made, or
which shall be made, under the authority of the United States,
shall be the supreme law of the land; and the judges in every
State shall be bound thereby, anything in the Constitution or
laws of any State to the contrary notwithstanding."
This enunciation of a principle, which, even if it had not been
expressly declared, would have been a necessary deduction from the
acceptance of the Constitution itself, has been magnified and perverted
into a meaning and purpose entirely foreign to that which plain
interpretation is sufficient to discern. Mr. Motley thus dilates on the
subject:
"Could language be more imperial? Could the claim to State
'sovereignty' be more completely disposed of at a word? How can
that be sovereign, acknowledging no superior, supreme, which has
voluntarily accepted a supreme law from something which it
acknowledges as superior?"[74]
The mistake which Mr. Motley--like other writers of the same
school--makes is one which is disposed of by a very simple correction.
The States, which ordained and established the Constitution, _accepted_
nothing besides what they themselves _prescribed_. They acknowledged no
superior. The supremacy was both in degree and extent only that which
was delegated by the States to their common agent.
There are some other considerations which may conduce to a clearer
understanding of this supremacy of the Constitution and the laws made in
pursuance thereof:
1. In the first place, it must be remembered that, when the Federal
Constitution was formed, each then existing State already had its own
Constitution and code of statute laws. It was, no doubt, primarily with
reference to these that the provision was inserted, and not in the
expectation of future conflicts or discrepancies. It is in this light
alone that Mr. Madison considers it in explaining and vindicating it in
the "Federalist."[75]
2. Again, it is to be observed that the supremacy accorded to the
general laws of the United States is expressly limited to those enacted
in conformity with the Constitution, or, to use the exact language,
"made in pursuance thereof." Mr. Hamilton, in another chapter of the
"Federalist," calls particular attention to this, saying (and the
italics are all his own) "that the laws of the Confederacy, as to the
_enumerated_ and _legitimate_ objects of its jurisdiction, will become
the supreme law of the land," and that the State functionaries will
coöperate in their observance and enforcement with the General
Government, "_as far as its just and constitutional authority
extends_."[76]
3. In the third place, it is not the _Government_ of the United States
that is declared to be supreme, but the _Constitution_ and the laws and
treaties made in accordance with it. The proposition was made in the
Convention to organize a government consisting of "supreme legislative,
executive, and judicial powers," but it was not adopted. Its deliberate
rejection is much more significant and conclusive than if it had never
been proposed. Correction of so gross an error as that of confounding
the Government with the Constitution ought to be superfluous, but so
crude and confused are the ideas which have been propagated on the
subject, that no misconception seems to be too absurd to be possible.
Thus, it has not been uncommon, of late years, to hear, even in the
highest places, the oath to support the Constitution, which is taken by
both State and Federal officers, spoken of as an oath "to support _the
Government_"--an obligation never imposed upon any one in this country,
and which the men who made the Constitution, with their recent
reminiscences of the Revolution, the battles of which they had fought
with halters around their necks, would have been the last to prescribe.
Could any assertion be less credible than that they proceeded to
institute another supreme government which it would be treason to
resist?
This confusion of ideas pervades the treatment of the whole subject of
sovereignty. Mr. Webster has said, and very justly so far as these
United States are concerned: "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 are sovereign, in the European
sense of the word, all being restrained by written constitutions."[77]
But the same intellect, which can so clearly discern and so lucidly
define the general proposition, seems to be covered by a cloud of thick
darkness when it comes to apply it to the particular case in issue.
Thus, a little afterward, we have the following:
"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? In the Articles of Confederation they
did make promises, and did enter into engagements, and did
plight the faith of each State for their fulfillment; 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."[78]
It is surprising that such inconsistent ideas should proceed from a
source so eminent. Its author falls into the very error which he had
just before so distinctly pointed out, in confounding the people of the
States with their governments. In the vehemence of his hostility to
State sovereignty, he seems--as all of his disciples seem--unable even
to comprehend that it means the sovereignty, not of State governments,
but of people who make them. With minds preoccupied by the unreal idea
of one great people of a consolidated nation, these gentlemen are
blinded to the plain and primary truth that the only way in which the
people ordained the Constitution was as the people of States. When Mr.
Webster says that "in the Constitution it is the people who speak, and
not the States," he says what is untenable. The States _are_ the people.
The people do not speak, never have spoken, and never can speak, in
their sovereign capacity (without a subversion of our whole system),
otherwise than as the people of States.
There are but two modes of expressing their sovereign will known to the
people of this country. One is by direct vote--the mode adopted by Rhode
Island in 1788, when she rejected the Constitution. The other is the
method, more generally pursued, of acting by means of conventions of
delegates elected expressly as representatives of the sovereignty of the
people. Now, it is not a matter of opinion or theory or speculation, but
a plain, undeniable, historical _fact_, that there never has been any
act or expression of sovereignty in either of these modes by that
imaginary community, "the people of the United States in the aggregate."
_Usurpations of power_ by the _Government_ of the United States, there
may have been, and may be again, but there has never been either a
sovereign convention or a direct vote of the "whole people" of the
United States to demonstrate its existence as a corporate unit. Every
exercise of sovereignty by any of the people of this country that has
actually taken place has been by the people of States _as_ States. In
the face of this fact, is it not the merest self-stultification to admit
the sovereignty of the people and deny it to the States, in which alone
they have community existence?
This subject is one of such vital importance to a right understanding of
the events which this work is designed to record and explain, that it
can not be dismissed without an effort in the way of recapitulation and
conclusion, to make it clear beyond the possibility of misconception.
According to the American theory, every individual is endowed with
certain unalienable rights, among which are "life, liberty, and the
pursuit of happiness." He is entitled to all the freedom, in these and
in other respects, that is consistent with the safety and the rights of
others and the weal of the community, but political sovereignty, which
is the source and origin of all the powers of _government_--legislative,
executive, and judicial--belongs to, and inheres in, the people of an
organized political community. It is an attribute of the _whole people_
of such a community. It includes the power and necessarily the duty of
protecting the rights and redressing the wrongs of individuals, of
punishing crimes, enforcing contracts, prescribing rules for the
transfer of property and the succession of estates, making treaties with
foreign powers, levying taxes, etc. The enumeration of particulars might
be extended, but these will suffice as illustrations.
These powers are of course exercised through the agency of governments,
but the governments are _only_ agents of the sovereign--responsible to
it, and subject to its control. This sovereign--the people, in the
aggregate, of each political community--delegates to the government the
exercise of such powers, or functions, as it thinks proper, but in an
American republic never transfers or surrenders sovereignty. _That_
remains, unalienated and unimpaired. It is by virtue of this sovereignty
alone that the Government, its authorized agent, commands the obedience
of the individual citizen, to the extent of its derivative, dependent,
and delegated authority. The ALLEGIANCE of the citizen is due to the
sovereign alone.
Thus far, I think, all will agree. No American statesman or publicist
would venture to dispute it. Notwithstanding the inconsiderate or
ill-considered expressions thrown out by some persons about the unity of
the American people from the beginning, no respectable authority has
ever had the hardihood to deny that, before the adoption of the Federal
Constitution, the only sovereign political community was the people of
the State--the people of _each State_. The ordinary exercise of what are
generally termed the powers of sovereignty was by and through their
respective governments; and, when they formed a confederation, a portion
of those powers was intrusted to the General Government, or agency.
Under the Confederation, the Congress of the United States represented
the collective power of the States; but the people of each State alone
possessed sovereignty, and consequently were entitled to the allegiance
of the citizen.
When the Articles of Confederation were amended, when the new
Constitution was substituted in their place and the General Government
reorganized, its structure was changed, additional powers were conferred
upon it, and thereby subtracted from the powers theretofore exercised by
the State governments; but the seat of sovereignty--the source of all
those delegated and dependent powers--was not disturbed. There was a new
Government or an amended Government--it is entirely immaterial in which
of these lights we consider it--but no new PEOPLE was created or
constituted. The people, in whom alone sovereignty inheres, remained
just as they had been before. The only change was in the form,
structure, and relations of their governmental agencies.
No doubt, the States--the people of the States--if they had been so
disposed, might have merged themselves into one great consolidated
State, retaining their geographical boundaries merely as matters of
convenience. But such a merger must have been distinctly and formally
stated, not left to deduction or implication.
Men do not alienate even an estate, without positive and express terms
and stipulations. But in this case not only was there no express
transfer--no formal surrender--of the preëxisting sovereignty, but it
was expressly provided that nothing should be _understood_ as even
_delegated_--that everything was reserved, unless granted in express
terms. The monstrous conception of the creation of a new people,
invested with the whole or a great part of the sovereignty which had
previously belonged to the people of each State, has not a syllable to
sustain it in the Constitution, but is built up entirely upon the
palpable misconstruction of a single expression in the preamble.
In denying that there is any such collective unit as the people of the
United States in the aggregate, of course I am not to be understood as
denying that there is such a political organization as the United
States, or that there exists, with large and distinct powers, a
_Government_ of the United States; but it is claimed that the Union, as
its name implies, is constituted of States. As a British author,[79]
referring to the old Teutonic system, has expressed the same idea, the
States are the integers, the United States the multiple which results
from them. The Government of the United States derives its existence
from the same source, and exercises its functions by the will of the
same sovereignty that creates and confers authority upon the State
governments. The people of each State are, in either case, the source.
The only difference is that, in the creation of the State governments,
each sovereign acted alone; in that of the Federal Government, they
acted in coöperation with the others. Neither the whole nor any part of
their sovereignty has been surrendered to either Government.
To whom, in fine, _could_ the States have surrendered their sovereignty?
Not to the mass of the people inhabiting the territory possessed by all
the States, for there was no such community in existence, and they took
no measures for the organization of such a community. If they had
intended to do so, the very style, "United States," would have been a
palpable misnomer, nor would treason have been defined as levying war
against _them_. Could it have been transferred to the Government of the
Union? Clearly not, in accordance with the ideas and principles of those
who made the Declaration of Independence, adopted the Articles of
Confederation, and established the Constitution of the United States;
for in each and all of these the corner-stone is the inherent and
inalienable sovereignty of the people. To have transferred sovereignty
from the people to a Government would have been to have fought the
battles of the Revolution in vain--not for the freedom and independence
of the States, but for a mere change of masters. Such a thought or
purpose could not have been in the heads or hearts of those who molded
the Union, and could have found lodgment only when the ebbing tide of
patriotism and fraternity had swept away the landmarks which they
erected who sought by the compact of union to secure and perpetuate the
liberties then possessed. The men who had won at great cost the
independence of their respective States were deeply impressed with the
value of union, but they could never have consented, like "the base
Judean," to fling away the priceless pearl of State sovereignty for any
possible alliance.
[Footnote 74: "Rebellion Record," vol. i, Documents, p. 213.]
[Footnote 75: "Federalist," No. xliv.]
[Footnote 76: "Federalist," No. xxvii.]
[Footnote 77: "Congressional Debates," vol. ix, Part I, p. 565.]
[Footnote 78: Ibid., p. 566.]
[Footnote 79: Sir Francis Palgrave, quoted by Mr. Calhoun,
"Congressional Debates," vol. ix, Part I, p. 541.]