A Recapitulation.--Remarkable Propositions of Mr. Gouverneur
Morris in the Convention of 1787, and their Fate.--Further
Testimony.--Hamilton, Madison, Washington, Marshall, etc.--Later
Theories.--Mr. Webster: his Views at Various Periods.--Speech at
Capon Springs.--State Rights not a Sectional Theory.
Looking back for a moment at the ground over which we have gone, I think
it may be fairly asserted that the following propositions have been
clearly and fully established:
1. That the States of which the American Union was formed, from the
moment when they emerged from their colonial or provincial condition,
became severally sovereign, free, and independent States--not one State,
or nation.
2. That the union formed under the Articles of Confederation was a
compact between the States, in which these attributes of "sovereignty,
freedom, and independence," were expressly asserted and guaranteed.
3. That, in forming the "more perfect union" of the Constitution,
afterward adopted, the same contracting powers formed an _amended
compact_, without any surrender of these attributes of sovereignty,
freedom, and independence, either expressed or implied: on the contrary,
that, by the tenth amendment to the Constitution, limiting the power of
the Government to its express grants, they distinctly guarded against
the presumption of a surrender of anything by implication.
4. That political sovereignty resides, neither in individual citizens,
nor in unorganized masses, nor in fractional subdivisions of a
community, but in the people of an organized political body.
5. That no "republican form of government," in the sense in which that
expression is used in the Constitution, and was generally understood by
the founders of the Union--whether it be the government of a State or of
a confederation of States--is possessed of any sovereignty whatever, but
merely exercises certain powers delegated by the sovereign authority of
the people, and subject to recall and reassumption by the same authority
that conferred them.
6. That the "people" who organized the first confederation, the people
who dissolved it, the people who ordained and established the
Constitution which succeeded it, the only people, in fine, known or
referred to in the phraseology of that period--whether the term was used
collectively or distributively--were the people of the respective
States, each acting separately and with absolute independence of the
others.
7. That, in forming and adopting the Constitution, the States, or the
people of the States--terms which, when used with reference to acts
performed in a sovereign capacity, are precisely equivalent to each
other--formed a new _Government_, but no new _people_; and that,
consequently, no new sovereignty was created--for sovereignty in an
American republic can belong only to a people, never to a
government--and that the Federal Government is entitled to exercise only
the powers delegated to it by the people of the respective States.
8. That the term "people," in the preamble to the Constitution and in
the tenth amendment, is used distributively; that the only "people of
the United States" known to the Constitution are the people of each
State in the Union; that no such political community or corporate unit
as one people of the United States then existed, has ever been
organized, or yet exists; and that no political action by the people of
the United States in the aggregate has ever taken place, or ever can
take place, under the Constitution.
The fictitious idea of _one_ people of the United States, contradicted
in the last paragraph, has been so impressed upon the popular mind by
false teaching, by careless and vicious phraseology, and by the
ever-present spectacle of a great Government, with its army and navy,
its custom-houses and post-offices, its multitude of office-holders, and
the splendid prizes which it offers to political ambition, that the
tearing away of these illusions and presentation of the original fabric,
which they have overgrown and hidden from view, have no doubt been
unwelcome, distasteful, and even repellent to some of my readers. The
artificial splendor which makes the deception attractive is even
employed as an argument to prove its reality.
The glitter of the powers delegated to the agent serves to obscure the
perception of the sovereign power of the principal by whom they are
conferred, as, by the unpracticed eye, the showy costume and conspicuous
functions of the drum-major are mistaken for emblems of
chieftaincy--while the misuse or ambiguous use of the term "Union" and
its congeners contributes to increase the confusion.
So much the more need for insisting upon the elementary truths which
have been obscured by these specious sophistries. The reader really
desirous of ascertaining truth is, therefore, again cautioned against
confounding two ideas so essentially distinct as that of _government_,
which is derivative, dependent, and subordinate, with that of the
_people_, as an organized political community, which is sovereign,
without any other than self-imposed limitations, and such as proceed
from the general principles of the personal rights of man.
It has been said, in a foregoing chapter, that the authors of the
Constitution could scarcely have anticipated the idea of such a
community as the people of the United States in one mass. Perhaps this
expression needs some little qualification, for there is rarely a
fallacy, however stupendous, that is wholly original. A careful
examination of the records of the Convention of 1787 exhibits one or
perhaps two instances of such a suggestion--both by the same person--and
the result in each case is strikingly significant.
The original proposition made concerning the office of President of the
United States contemplated his election by the Congress, or, as it was
termed by the proposer, "the national Legislature." On the 17th of July,
this proposition being under consideration, Mr. Gouverneur Morris moved
that the words "national Legislature" be stricken out, and "citizens of
the United States" inserted. The proposition was supported by Mr. James
Wilson--both of these gentlemen being delegates from Pennsylvania, and
both among the most earnest advocates of centralism in the Convention.
Now, it is not at all certain that Mr. Morris had in view an election by
the citizens of the United States "in the aggregate," voting as _one
people_. The language of his proposition is entirely consistent with the
idea of as election by the citizens of each State, voting separately and
independently, though it is ambiguous, and may admit of the other
construction. But this is immaterial. The proposition was submitted to a
vote, and received the approval of only _one State_--Pennsylvania, of
which Mr. Morris and Mr. Wilson were both representatives. _Nine_ States
voted against it.[80]
Six days afterward (July 23d), in a discussion of the proposed
ratification of the Constitution by Conventions of the people of each
State, Mr. Gouverneur Morris--as we learn from Mr. Madison--"moved that
the reference of the plan [i.e., of the proposed Constitution] be made
to one General Convention, chosen and authorized by the people, to
consider, amend, and establish the same."[81]
Here the issue seems to have been more distinctly made between the two
ideas of people of the States and one people in the aggregate. The fate
of the latter is briefly recorded in the two words, "not seconded." Mr.
Morris was a man of distinguished ability, great personal influence, and
undoubted patriotism, but, out of all that assemblage--comprising, as it
did, such admitted friends of centralism as Hamilton, King, Wilson,
Randolph, Pinckney, and others--there was not one to sustain him in the
proposition to incorporate into the Constitution that theory which now
predominates, the theory on which was waged the late bloody war, which
was called a "war for the Union." It failed for want of a second, and
does not even appear in the official journal of the Convention. The very
fact that such a suggestion was made would be unknown to us but for the
record kept by Mr. Madison.
The extracts which have been given, in treating of special branches of
the subject, from the writings and speeches of the framers of the
Constitution and other statesmen of that period, afford ample proof of
their entire and almost unanimous accord with the principles which have
been established on the authority of the Constitution itself, the acts
of ratification by the several States, and other attestations of the
highest authority and validity. I am well aware that isolated
expressions may be found in the reports of debates on the General and
State Conventions and other public bodies, indicating the existence of
individual opinions seemingly inconsistent with these principles; that
loose and confused ideas were sometimes expressed with regard to
sovereignty, the relations between governments and people, and kindred
subjects; and that, while the plan of the Constitution was under
discussion, and before it was definitely reduced to its present shape,
there were earnest advocates in the Convention of a more consolidated
system, with a stronger central government. But these expressions of
individual opinion only prove the existence of a small minority of
dissentients from the principles generally entertained, and which
finally prevailed in the formation of the Constitution. None of these
ever avowed such extravagances of doctrine as are promulgated in this
generation. No statesman of that day would have ventured to risk his
reputation by construing an obligation to support the Constitution as an
obligation to adhere to the Federal Government--a construction which
would have insured the sweeping away of any plan of union embodying it,
by a tempest of popular indignation from every quarter of the country.
None of them suggested such an idea as that of the amalgamation of the
people of the States into one consolidated mass--unless it was suggested
by Mr. Gouverneur Morris in the proposition above referred to, in which
he stood alone among the delegates of twelve sovereign States assembled
in convention.
As to the features of centralism, or nationalism, which they did
advocate, all the ability of this little minority of really gifted men
failed to secure the incorporation of any one of them into the
Constitution, or to obtain their recognition by any of the ratifying
States. On the contrary, the very men who had been the leading advocates
of such theories, on failing to secure their adoption, loyally accepted
the result, and became the ablest and most efficient supporters of the
principles which had prevailed. Thus, Mr. Hamilton, who had favored the
plan of a President and Senate, both elected to hold office for life (or
during good behavior), with a veto power in Congress on the action of
the State Legislatures, became, through the "Federalist," in conjunction
with his associates, Mr. Madison and Mr. Jay, the most distinguished
expounder and advocate of the Constitution, as then proposed and
afterward ratified, with all its Federal and State-rights features. In
the ninth number of that remarkable series of political essays, he
quotes, adopts, and applies to the then proposed Constitution,
Montesquieu's description of a "CONFEDERATE REPUBLIC," a term which he
(Hamilton) repeatedly employs.
In the eighty-first number of the same series, replying to apprehensions
expressed by some that a State might be brought before the Federal
courts to answer as defendant in suits instituted against her, he repels
the idea in these plain and conclusive terms. The italics are my own:
"It is inherent in the nature of _sovereignty_ not to be
amenable to the suit of any individual without its consent. This
is the general sense and the general practice of mankind; and
the exemption, as one of the _attributes of sovereignty_, is now
enjoyed by the government of _every State in the Union_. Unless,
therefore, there is _a surrender of this immunity_ in the plan
of the Convention, _it will remain with the States_, and the
danger intimated must be merely ideal.... The contracts between
_a nation_ and individuals are only binding on the conscience of
_the sovereign_, and have no pretensions to a compulsive force.
They confer no right of action, independent of _the sovereign
will_. To what purpose would it be to authorize suits against
States for the debts they owe? How could recoveries be enforced?
It is evident that it could not be done without _waging war_
against the contracting State; and to ascribe to the Federal
courts, by mere implication, and in destruction of a preëxisting
right of the State governments, a power which would involve such
a consequence, would be altogether forced and unwarranted."[82]
This extract is very significant, clearly showing that Mr. Hamilton
assumed as undisputed propositions, in the first place, that the State
was _the_ "SOVEREIGN"; secondly, that this sovereignty could not be
alienated, unless by express surrender; thirdly, that no such surrender
had been made; and, fourthly, that the idea of applying coercion to a
State, even to enforce the fulfillment of a duty, would be equivalent to
waging war against a State--it was "altogether forced and
unwarrantable."
In a subsequent number, Mr. Hamilton, replying to the objection that the
Constitution contains no bill or declaration of rights, argues that it
was entirely unnecessary, because in reality the people--that is, of
course, the people, respectively, of the several States, who were the
only people known to the Constitution or to the country--had surrendered
nothing of their inherent sovereignty, but retained it unimpaired. He
says: "Here, in strictness, the people _surrender nothing_; and, as they
_retain everything_, they have no need of particular reservations." And
again: "I go further, and affirm that bills of rights, in the sense and
to the extent they are contended for, are not only unnecessary in the
proposed Constitution, but would be absolutely dangerous. They would
contain various exceptions to _powers not granted_, and on this very
account would afford a colorable pretext to claim more than were
granted. For why declare that things shall not be done, which there is
no power to do?"[83] Could language be more clear or more complete in
vindication of the principles laid down in this work? Mr. Hamilton
declares, in effect, that the grants to the Federal Government in the
Constitution are not surrenders, but delegations of power by the people
of the States; that sovereignty remains intact where it was before; and
that the delegations of power were strictly limited to those expressly
granted--in this, merely anticipating the tenth amendment, afterward
adopted.
Finally, in the concluding article of the "Federalist," he bears
emphatic testimony to the same principles, in the remark that "every
Constitution for the United States must inevitably consist of a great
variety of particulars, in which _thirteen independent States_ are to be
accommodated in their interests or opinions of interest.... Hence the
necessity of molding and arranging all the particulars, which are to
compose the whole, in such a manner as to satisfy _all the parties_ to
the compact."[84] There is no intimation here, or anywhere else, of the
existence of any such idea as that of the aggregated people of one great
consolidated state. It is an incidental enunciation of the same truth
soon afterward asserted by Madison in the Virginia Convention--that the
people who ordained and established the Constitution were "not the
people as composing one great body, but the people as composing thirteen
sovereignties".
Mr. Madison, in the Philadelphia Convention, had at first held views of
the sort of government which it was desirable to organize, similar to
those of Mr. Hamilton, though more moderate in extent. He, too, however,
cordially conformed to the modifications in them made by his colleagues,
and was no less zealous and eminent in defending and expounding the
Constitution as finally adopted. His interpretation of its fundamental
principles is so fully shown in the extracts which have already been
given from his contributions to the "Federalist" and speeches in the
Virginia Convention, that it would be superfluous to make any additional
citation from them.
The evidence of Hamilton and Madison--two of the most eminent of the
authors of the Constitution, and the two preeminent contemporary
expounders of its meaning--is the most valuable that could be offered
for its interpretation. That of all the other statesmen of the period
only tends to confirm the same conclusions. The illustrious Washington,
who presided over the Philadelphia Convention, in his correspondence,
repeatedly refers to the proposed Union as a "Confederacy" of States, or
a "confederated Government," and to the several States as "acceding," or
signifying their "accession," to it, in ratifying the Constitution. He
refers to the Constitution itself as "a compact or treaty," and
classifies it among compacts or treaties between "men, bodies of men, or
countries." Writing to Count Rochambeau, on January 8, 1788, he says
that the proposed Constitution "is to be submitted to conventions chosen
by _the people in the several States_, and by them approved or
rejected"--showing what _he_ understood by "the people of the United
States," who were to ordain and establish it. These same people--that
is, "the people of the several States"--he says, in a letter to
Lafayette, April 28, 1788, "retain everything they do not, by express
terms, give up." In a letter written to Benjamin Lincoln, October 26,
1788, he refers to the expectation that North Carolina will accede to
the Union, and adds, "Whoever shall be found to enjoy the confidence of
_the States_ so far as to be elected Vice-President," etc.--showing that
in the "confederated Government," as he termed it, the States were still
to act independently, even in the selection of officers of the General
Government. He wrote to General Knox, June 17, 1788, "I can not but hope
that the States which may be disposed to make a secession will think
often and seriously on the consequences." June 28, 1788, he wrote to
General Pinckney that New Hampshire "had acceded to the new
Confederacy," and, in reference to North Carolina, "I should be
astonished if that State should withdraw from the Union."
I shall add but two other citations. They are from speeches of John
Marshall, afterward the most distinguished Chief Justice of the United
States--who has certainly never been regarded as holding high views of
State rights--in the Virginia Convention of 1788. In the first case, he
was speaking of the power of the States over the militia, and is thus
reported:
"The State governments did not derive their powers from the
General Government; but each government derived its powers from
the people, and each was to act according to the powers given
it. Would any gentleman deny this?... Could any man say that
this power was not retained by the States, as they had not given
it away? For (says he) does not a power remain till it is given
away? The State Legislatures had power to command and govern
their militia before, and have it still, undeniably, unless
there be something in this Constitution that takes it away....
"He concluded by observing that the power of governing the
militia was not vested in the States by implication, because,
being possessed of it antecedently to the adoption of the
Government, and not being divested of it by any grant or
restriction in the Constitution, they must necessarily be as
fully possessed of it as ever they had been, and it could not be
said that the States derived any powers from that system, but
retained them, though not acknowledged in any part of it."[85]
In the other case, the special subject was the power of the Federal
judiciary. Mr. Marshall said, with regard to this: "I hope that no
gentleman will think that a State can be called at the bar of the
Federal court. Is there no such case at present? Are there not many
cases, in which the Legislature of Virginia is a party, and yet the
State is not sued? Is it rational to suppose that the sovereign power
shall be dragged before a court?"[86]
Authorities to the same effect might be multiplied indefinitely by
quotation from nearly all the most eminent statesmen and patriots of
that brilliant period. My limits, however, permit me only to refer those
in quest of more exhaustive information to the original records, or to
the "Republic of Republics," in which will be found a most valuable
collection and condensation of the teaching of the fathers on the
subject. There was no dissent, at that period, from the interpretation
of the Constitution which I have set forth, as given by its authors,
except in the objections made by its adversaries. Those objections were
refuted and silenced, until revived, long afterward, and presented as
the true interpretation, by the school of which Judge Story was the most
effective founder.
At an earlier period--but when he had already served for several years
in Congress, and had attained the full maturity of his powers--Mr.
Webster held the views which were presented in a memorial to Congress of
citizens of Boston, December 15, 1819, relative to the admission of
Missouri, drawn up and signed by a committee of which he was chairman,
and which also included among its members Mr. Josiah Quincy. He speaks
of the States as enjoying "_the exclusive possession of sovereignty_"
over their own territory, calls the United States "the American
Confederacy," and says, "The only _parties to the Constitution_,
contemplated by it originally, were the _thirteen confederated States_."
And again: "As between the original States, the representation rests on
_compact and plighted faith_; and your memorialists have no wish that
that compact should be disturbed, or that plighted faith in the
slightest degree violated."
It is satisfactory to know that in the closing year of his life, when
looking retrospectively, with judgment undisturbed by any extraneous
influence, he uttered views of the Government which must stand the test
of severest scrutiny and defy the storms of agitation, for they are
founded on the rock of truth. In letters written and addresses delivered
during the Administration of Mr. Fillmore, he repeatedly applies to the
Constitution the term "compact," which, in 1833, he had so vehemently
repudiated. In his speech at Capon Springs, Virginia, in 1851, he says:
"If the South were to violate any part of the Constitution
intentionally and systematically, and persist in so doing year
after year, and no remedy could be had, would the North be any
longer bound by the rest of it? And if the North were,
deliberately, habitually, and of fixed purpose, to disregard one
part of it, would the South be bound any longer to observe its
other obligations?...
"How absurd it is to suppose that, when different parties enter
into a compact for certain purposes, either can disregard any
one provision, and expect, nevertheless, the other to observe
the rest!...
"I have not hesitated to say, and I repeat, that, if the
Northern States refuse, willfully and deliberately, to carry
into effect that part of the Constitution which respects the
restoration of fugitive slaves, and Congress provide no remedy,
the South would no longer be bound to observe the compact. A
bargain can not be broken on one side, and still bind the other
side."[87]
The principles which have been set forth in the foregoing chapters,
although they had come to be considered as peculiarly Southern, were not
sectional in their origin. In the beginning and earlier years of our
history they were cherished as faithfully and guarded as jealously in
Massachusetts and New Hampshire as in Virginia or South Carolina. It was
in these principles that I was nurtured. I have frankly proclaimed them
during my whole life, always contending in the Senate of the United
States against what I believed to be the mistaken construction of the
Constitution taught by Mr. Webster and his adherents. While I honored
the genius of that great man, and held friendly personal relations with
him, I considered his doctrines on these points--or rather the doctrines
advocated by him during the most conspicuous and influential portions of
his public career--to be mischievous, and the more dangerous to the
welfare of the country and the liberties of mankind on account of the
signal ability and magnificent eloquence with which they were argued.
[Footnote 80: Elliott's "Debates," vol. i, p. 239; "Madison Papers," pp.
1119-1124.]
[Footnote 81: "Madison Papers," p. 1184.]
[Footnote 82: "Federalist," No. lxxxi.]
[Footnote 83: "Federalist," No. lxxxiv.]
[Footnote 84: Ibid., No. lxxxv.]
[Footnote 85: Elliott's "Debates," vol. iii, pp. 389-391.]
[Footnote 86: Elliott's "Debates," vol. iii, p. 503.]
[Footnote 87: Curtis's "Life of Webster," chap. xxxvii, vol. ii, pp.
518, 519.]