Volume I Part 12 (2/2)

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 rea.s.sumed by the people whenever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Const.i.tution 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 Const.i.tution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is ent.i.tled to any powers not given by the said Const.i.tution; 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 Const.i.tution 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 Const.i.tution delegated to the Congress of the United States or to the departments of the General Government.”

[pg 148]

Rhode Island gave in her long-withheld a.s.sent to the Const.i.tution, ”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 Const.i.tution 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 circ.u.mstances, 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 a.s.serted 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 Const.i.tution. 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 [pg 149] 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 n.o.body denies, or can deny, that they did possess-and of which Mr. Everett says no mention is made in the Const.i.tution. 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 a.s.sociated. 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 a.n.a.logous to that of individuals forming a mercantile or manufacturing copartners.h.i.+p, 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 Const.i.tution 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 Const.i.tution, 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 Const.i.tution, 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 Const.i.tution or laws of any State to the contrary notwithstanding.”

[pg 150]

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 Const.i.tution 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 Const.i.tution, 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 Const.i.tution and the laws made in pursuance thereof:

1. In the first place, it must be remembered that, when the Federal Const.i.tution was formed, each then existing State already had its own Const.i.tution 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 Const.i.tution, 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 [pg 151] of its jurisdiction, will become the supreme law of the land,” and that the State functionaries will cooperate in their observance and enforcement with the General Government, ”as far as its just and const.i.tutional authority extends.”76

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