2. That a compact between two, with authority reserved to one to
interpret its terms, would be a surrender to that one of all power
whatever.
3. Therefore, (such is his inference,) the general government does not
possess the authority to construe its own powers.
Now, Sir, who does not see, without the aid of exposition or detection,
the utter confusion of ideas involved in this so elaborate and
systematic argument.
The Constitution, it is said, is a compact _between States_; the States,
then, and the States only, _are parties_ to the compact. How comes the
general government itself _a party_? Upon the honorable gentleman's
hypothesis, the general government is the result of the compact, the
creature of the compact, not one of the parties to it. Yet the argument,
as the gentleman has now stated it, makes the government itself one of
its own creators. It makes it a party to that compact to which it owes
its own existence.
For the purpose of erecting the Constitution on the basis of a compact,
the gentleman considers the States as parties to that compact; but as
soon as his compact is made, then he chooses to consider the general
government, which is the offspring of that compact, not its offspring,
but one of its parties; and so, being a party, without the power of
judging on the terms of compact. Pray, Sir, in what school is such
reasoning as this taught?
If the whole of the gentleman's main proposition were conceded to
him,--that is to say, if I admit, for the sake of the argument, that the
Constitution is a compact between States,--the inferences which he draws
from that proposition are warranted by no just reasoning. If the
Constitution be a compact between States, still that Constitution, or
that compact, has established a government, with certain powers; and
whether it be one of those powers, that it shall construe and interpret
for itself the terms of the compact, in doubtful cases, is a question
which can only be decided by looking to the compact, and inquiring what
provisions it contains on this point. Without any inconsistency with
natural reason, the government even thus created might be trusted with
this power of construction. The extent of its powers, therefore, must
still be sought for in the instrument itself.
If the old Confederation had contained a clause, declaring that
resolutions of the Congress should be the supreme law of the land, any
State law or constitution to the contrary notwithstanding, and that a
committee of Congress, or any other body created by it, should possess
judicial powers, extending to all cases arising under resolutions of
Congress, then the power of ultimate decision would have been vested in
Congress under the Confederation, although that Confederation was a
compact between States; and for this plain reason,--that it would have
been competent to the States, who alone were parties to the compact, to
agree who should decide in cases of dispute arising on the construction
of the compact.
For the same reason, Sir, if I were now to concede to the gentleman his
principal proposition, namely, that the Constitution is a compact
between States, the question would still be, What provision is made, in
this compact, to settle points of disputed construction, or contested
power, that shall come into controversy? And this question would still
be answered, and conclusively answered, by the Constitution itself.
While the gentleman is contending against construction, he himself is
setting up the most loose and dangerous construction. The Constitution
declares, that _the laws of Congress passed in pursuance of the
Constitution shall be the supreme law of the land_. No construction is
necessary here. It declares, also, with equal plainness and precision,
_that the judicial power of the United States shall extend to every case
arising under the laws of Congress_. This needs no construction. Here is
a law, then, which is declared to be supreme; and here is a power
established, which is to interpret that law. Now, Sir, how has the
gentleman met this? Suppose the Constitution to be a compact, yet here
are its terms; and how does the gentleman get rid of them? He cannot
argue the _seal off the bond_, nor the words out of the instrument. Here
they are; what answer does he give to them? None in the world, Sir,
except, that the effect of this would be to place the States in a
condition of inferiority; and that it results from the very nature of
things, there being no superior, that the parties must be their own
judges! Thus closely and cogently does the honorable gentleman reason on
the words of the Constitution. The gentleman says, if there be such a
power of final decision in the general government, he asks for the grant
of that power. Well, Sir, I show him the grant. I turn him to the very
words. I show him that the laws of Congress are made supreme; and that
the judicial power extends, by express words, to the interpretation of
these laws. Instead of answering this, he retreats into the general
reflection, that it must result _from the nature of things_, that the
States, being parties, must judge for themselves.
I have admitted, that, if the Constitution were to be considered as the
creature of the State governments, it might be modified, interpreted, or
construed according to their pleasure. But, even in that case, it would
be necessary that they should _agree_. One alone could not interpret it
conclusively; one alone could not construe it; one alone could not
modify it. Yet the gentleman's doctrine is, that Carolina alone may
construe and interpret that compact which equally binds all, and gives
equal rights to all.
So, then, Sir, even supposing the Constitution to be a compact between
the States, the gentleman's doctrine, nevertheless, is not maintainable;
because, first, the general government is not a party to that compact,
but a _government_ established by it, and vested by it with the powers
of trying and deciding doubtful questions; and secondly, because, if the
Constitution be regarded as a compact, not one State only, but all the
States, are parties to that compact, and one can have no right to fix
upon it her own peculiar construction.
So much, Sir, for the argument, even if the premises of the gentleman
were granted, or could be proved. But, Sir, the gentleman has failed to
maintain his leading proposition. He has not shown, it cannot be shown,
that the Constitution is a compact between State governments. The
Constitution itself, in its very front, refutes that idea; it declares
that it is ordained and established _by the people of the United
States_. So far from saying that it is established by the governments of
the several States, it does not even say that it is established by the
people _of the several States_; but it pronounces that it is established
by the people of the United States, in the aggregate. The gentleman
says, it must mean no more than the people of the several States.
Doubtless, the people of the several States, taken collectively,
constitute the people of the United States; but it is in this, their
collective capacity, it is as all the people of the United States, that
they establish the Constitution. So they declare; and words cannot be
plainer than the words used.
When the gentleman says the Constitution is a compact between the
States, he uses language exactly applicable to the old Confederation. He
speaks as if he were in Congress before 1789. He describes fully that
old state of things then existing. The Confederation was, in strictness,
a compact; the States, as States, were parties to it. We had no other
general government. But that was found insufficient, and inadequate to
the public exigencies. The people were not satisfied with it, and
undertook to establish a better. They undertook to form a general
government, which should stand on a new basis; not a confederacy, not a
league, not a compact between States, but a _Constitution_; a popular
government, founded in popular election, directly responsible to the
people themselves, and divided into branches with prescribed limits of
power, and prescribed duties. They ordained such a government, they gave
it the name of a _Constitution_, and therein they established a
distribution of powers between this, their general government, and their
several State governments. When they shall become dissatisfied with this
distribution, they can alter it. Their own power over their own
instrument remains. But until they shall alter it, it must stand as
their will, and is equally binding on the general government and on the
States.
The gentleman, Sir, finds analogy where I see none. He likens it to the
case of a treaty, in which, there being no common superior, each party
must interpret for itself, under its own obligation of good faith. But
this is not a treaty, but a constitution of government, with powers to
execute itself, and fulfil its duties.
I admit, Sir, that this government is a government of checks and
balances; that is, the House of Representatives is a check on the
Senate, and the Senate is a check on the House, and the President a
check on both. But I cannot comprehend him, or, if I do, I totally
differ from him, when he applies the notion of checks and balances to
the interference of different governments. He argues, that, if we
transgress our constitutional limits, each State, as a State, has a
right to check us. Does he admit the converse of the proposition, that
we have a right to check the States? The gentleman's doctrines would
give us a strange jumble of authorities and powers, instead of
governments of separate and defined powers. It is the part of wisdom, I
think, to avoid this; and to keep the general government and the State
government each in its proper sphere, avoiding as carefully as possible
every kind of interference.
Finally, Sir, the honorable gentleman says, that the States will only
interfere, by their power, to preserve the Constitution. They will not
destroy it, they will not impair it; they will only save, they will only
preserve, they will only strengthen it! Ah! Sir, this is but the old
story. All regulated governments, all free governments, have been broken
by similar disinterested and well-disposed interference. It is the
common pretence. But I take leave of the subject.
[Footnote 1: Mr. Sprague.]
[Footnote 2: Mr. Calhoun, when this speech was made, was President of
the Senate, and Vice-President of the United States.]
[Footnote 3: Mr. Forsyth.]
[Footnote 4: Mr. McDuffie.]
[Footnote 5: The letter of the Federal Convention to the Congress of the
Confederation transmitting the plan of the Constitution.]
[Footnote 6: Mr. Hillhouse, of Connecticut.]