And here it becomes important to consider the operation of the Rebellion
in opening the way to this question. To this end we must understand the
relations between the States and the National Government, under the
Constitution of the United States. As I approach this question of
singular delicacy, let me say on the threshold, that for all those
rights of the States which are consistent with the peace, security, and
permanence of the Union, according to the objects grandly announced in
the Preamble of the Constitution, I am the strenuous advocate, at all
times and places. Never through any word or act of mine shall those
rights be impaired; nor shall any of those other rights be called in
question by which the States are held in harmonious relations as well
with each other as with the Union. But while thus strenuous for all that
justly belongs to the States, I cannot concede to them immunities
inconsistent with that Constitution which is the supreme law of the
land; nor can I admit the impeccability of States.
From a period even anterior to the Federal Constitution there has been a
perverse pretension of State Rights, which has perpetually interfered
with the unity of our government. Throughout the Revolution this
pretension was a check upon the powers of Congress, whether in respect
to its armies or its finances; so that it was too often constrained to
content itself with the language of advice or persuasion rather than of
command. By the Declaration of Independence it was solemnly declared
that "these United Colonies are, and of right ought to be, free and
independent _States_, and that, as such, they have full powers to levy
war, to contract alliances, to establish commerce, and to do all other
acts which independent _States_ may of right do." Thus by this original
charter the early colonies were changed into independent States, under
whose protection the liberties of the country were placed.
Early steps were taken to supply the deficiencies of this government,
which was effective only through the generous patriotism of the people.
In July, 1778, two years after the Declaration, Articles of
Confederation were framed, but they were not completely ratified by all
the States till March, 1781. The character of this new government, which
assumed the style of "The United States of America," will appear in the
title of these Articles, which was as follows:--"Articles of
Confederation and Perpetual Union _between the States_ of New Hampshire,
Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut,
New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North
Carolina, South Carolina, and Georgia." By the second article it was
declared, that "_each State retains its sovereignty_, freedom, and
independence, and every power, jurisdiction, and right which is not by
this Confederation expressly delegated to the United States in Congress
assembled." By the third article it was further declared, that "the said
_States_ hereby severally enter into _a firm league_ of friendship with
each other, for their common defence, the security of their liberties,
and their mutual and general welfare." By another article, a "committee
of the _States_, or any nine of them," was authorized in the recess to
execute the powers of Congress. The government thus constituted was a
compact between _sovereign States_,--or, according to its precise
language, "a firm league of friendship" between _these States_,
administered, in the recess of Congress, by a "committee of _the
States_." Thus did State Rights triumph.
But its imbecility from this pretension soon became apparent. As early
as December, 1782, a committee of Congress made an elaborate report on
the refusal of Rhode Island, one of the States, to confer certain powers
on Congress with regard to revenue and commerce. In April, 1783, an
address of Congress to _the States_ was put forth, appealing to their
justice and plighted faith, and representing the consequence of a
failure on their part to sustain the Government and provide for its
wants. In April, 1784, a similar appeal was made to what were called
"the several States," whose legislatures were recommended to vest "the
United States in Congress assembled" with certain powers. In July, 1785,
a committee of Congress made another elaborate report on the reason why
the States should confer upon Congress powers therein enumerated, in the
course of which it was urged, that, "unless _the States_ act together,
there is no plan of policy into which they can separately enter, which
they will not be separately interested to defeat, and, of course, all
their measures must prove vain and abortive." In February and March,
1786, there were two other reports of committees of Congress, exhibiting
the failure of _the States_ to comply with the requisitions of Congress,
and the necessity for a complete accession of _all the States_ to the
revenue system. In October, 1786, there was still another report, most
earnestly renewing the former appeals to _the States_. Nothing could be
more urgent.
As early as July, 1782, even before the first report to Congress,
resolutions were adopted by the State of New York, declaring "that the
situation of _these States_ is in a peculiar manner critical," and "that
the radical source of most of our embarrassments is _the want of
sufficient power in Congress_ to effectuate that ready and perfect
cooperation of _the different States_ on which their immediate safety
and future happiness depend." Finally, in September, 1786, at Annapolis,
commissioners from several States, after declaring "the situation of the
United States delicate and critical, calling for an exertion of the
united virtue and wisdom of all the members of the Confederacy,"
recommended the meeting of a Convention "to devise such further
provision as shall appear necessary to render the Constitution of the
Federal Government adequate to the exigencies of the Union." In
pursuance of this recommendation, the Congress of the Confederation
proposed a Convention "for the purpose of revising the Articles of
Confederation and Perpetual Union between the United States of America,
and reporting such alterations and amendments of the said Articles of
Confederation as the representatives met in such Convention shall judge
proper and necessary to render them adequate to the preservation and
support of the Union."
In pursuance of the call, delegates to the proposed Convention were duly
appointed by the legislatures of the several States, and the Convention
assembled at Philadelphia in May, 1787. The present Constitution was the
well-ripened fruit of their deliberations. In transmitting it to
Congress, General Washington, who was the President of the Convention,
in a letter bearing date September 17, 1787, made use of this
instructive language:--
"It is obviously impracticable in the Federal Government of _these
States to secure all rights of independent sovereignty to each_,
and yet provide for the interest and safety of all. Individuals
entering into society must give up a share of liberty to preserve
the rest. The magnitude of the sacrifice must depend as well on
situation and circumstance as on the object to be obtained. It is
at all times difficult to draw with precision the line between
those rights which must be surrendered and those which may be
reserved; and on the present occasion this difficulty will be
increased by a difference _among the several States_ as to their
situation, extent, habits, and particular interests. In all our
deliberations we kept steadily in view that which appears to us
the greatest interest of every true American,--THE CONSOLIDATION
OF OUR UNION,--in which is involved our prosperity, safety,
perhaps our national existence.
"GEORGE WASHINGTON."
The Constitution was duly transmitted by Congress to the several
legislatures, by which it was submitted to conventions of delegates
"chosen in each State by the people thereof," who ratified the same.
Afterwards, Congress, by resolution, dated September 13, 1788, setting
forth that the Convention had reported "a Constitution _for the people
of the United States_" which had been duly ratified, proceeded to
authorize the necessary elections under the new government.
The Constitution, it will be seen, was framed in order to remove the
difficulties arising from _State Rights_. So paramount was this purpose,
that, according to the letter of Washington, it was kept steadily in
view in all the deliberations of the Convention, which did not hesitate
to declare _the consolidation of our Union_ as essential to our
prosperity, safety, and perhaps our national existence.
The unity of the government was expressed in the term "Constitution,"
instead of "Articles of Confederation between the States," and in the
idea of "a more perfect union," instead of a "league of friendship." It
was also announced emphatically in the Preamble:--
"_We, the people of the United States, in order to form a more perfect
union_, establish justice, insure domestic tranquillity, provide for the
common defence, promote the general welfare, and secure the blessings of
liberty to ourselves and our posterity, do ordain and establish this
Constitution for the United States of America."
Not "we, the States," but "we, the people of the United States." Such is
the beginning and origin of our Constitution. Here is no compact or
league between States, involving the recognition of State rights; but a
government ordained and established by the people of the United States
for themselves and their posterity. This government is not established
_by the States_, nor is it established _for the States_; but it is
established _by the people_, for themselves and their posterity. It is
true, that, in the organization of the government, the existence of the
States is recognized, and the original name of "United States" is
preserved; but the sovereignty of the States is absorbed in that more
perfect union which was then established. There is but one sovereignty
recognized, and this is the sovereignty of the United States. To the
several States is left that special local control which is essential to
the convenience and business of life, while to the United States, as a
_Plural Unit_, is allotted that commanding sovereignty which embraces
and holds the whole country within its perpetual and irreversible
jurisdiction.
This obvious character of the Constitution did not pass unobserved at
the time of its adoption. Indeed the Constitution was most strenuously
opposed on the ground that the States were absorbed in the Nation.
Patrick Henry protested against consolidated power. In the debates of
the Virginia Convention he exclaimed:--
"And here I would make this inquiry of those worthy characters who
composed a part of the late Federal Convention. I am sure they were
fully impressed with the necessity of forming a great consolidated
government, instead of a confederation. _That this is a consolidated
government is demonstrably clear_; and the danger of such a government
is to my mind very striking. I have the highest veneration for those
gentlemen; but, Sir, give me leave to demand, What right had they to
say, '_We, the people'?_ Who authorized them to speak the language of
'_We, the people_,' instead of '_We, the States_'?"[14]
And again, at another stage of the debate, the same patriotic opponent
of the Constitution declared succinctly:--
"The question turns, Sir, on that poor little thing, the expression,
'We, _the people_,' instead of _the States_ of America."[15]
In the same convention another patriotic opponent of the Constitution,
George Mason, following Patrick Henry, said:--
"Whether the Constitution is good or bad, the present clause clearly
discovers that it is a National Government, and no longer a
Confederation."[16]
But against all this opposition, and in the face of this exposure, the
Constitution was adopted, in the name of the people of the United
States. Much, indeed, was left to the States; but it was no longer in
their name that the government was organized, while the miserable
pretension of State "sovereignty" was discarded. Even in the discussions
of the Federal Convention Mr. Madison spoke thus plainly:--
"Some contend that States are _sovereign_, when, in fact, they are only
political societies. The States never possessed the essential rights of
sovereignty. These were always vested in Congress."
Grave words, especially when we consider the position of their author.
They were substantially echoed by Elbridge Gerry of Massachusetts,
afterwards Vice-President, who said:--
"It appears to me that the States never were independent. They had only
corporate rights."
Better words still fell from Mr. Wilson of Pennsylvania, known
afterwards as a learned judge of the Supreme Court, and also for his
Lectures on Law:--
"Will a regard to State rights justify the sacrifice of the rights of
men? If we proceed on any other foundation than the last, our building
will neither be solid or lasting."
The argument was unanswerable then. It is unanswerable now. Do not
elevate the sovereignty of the States against the Constitution of the
United States. It is hardly less odious than the early pretension of
sovereign power against Magna Charta, according to the memorable words
of Lord Coke, as recorded by Rushworth:--
"Sovereign power is no Parliamentary word. In my opinion, it weakens
Magna Charta and all our statutes; for they are absolute without any
saving of sovereign power. And shall we now add it, we shall weaken the
foundation of law, and then the building must needs fall. Take we heed
what we yield unto. _Magna Charta is such a fellow that he will have no
sovereign._"[17]
But the Constitution is our Magna Charta, which can bear no sovereign
but itself, as you will see at once, if you will consider its character.
And this practical truth was recognized at its formation, as may be seen
in the writings of our Rushworth,--I refer to Nathan Dane, who was a
member of Congress under the Confederation. He tells us plainly, that
the terms "sovereign States," "State sovereignty," "State rights,"
"rights of States," are not "constitutional expressions."