STATE RIGHTS.

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."

The Atlantic Monthly, Volume 12, No. 72, October, 1863 A Magazine of Literature, Art, and Politics · 第 48 / 62 题