A Brief Enquiry into the Nature and Character of our Federal Government/VII

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A Brief Enquiry into the Nature and Character of our Federal Government by Abel P. Upshur
Chapter VII
Chapter breaks are not found in the original; they were added in an 1868 edition. References to "our author" or "the author" refer to Joseph Story, the author of the work being critiqued by Upshur.

The third division of the work commences with a history of the adoption of the constitution. This also is given in an abridged form; but it omits nothing which can be considered material to the enquiry. Perhaps the author has fallen into one error, an unimportant one, certainly, in stating that "at the time and place appointed, the representatives of twelve States assembled." When the deputies first met in Philadelphia, in May, 1787, the representatives of only nine States appeared; they were, soon after, joined by those of three others. The author next proceeds to state the various objections which were urged against the constitution, with the replies thereto; to examine the nature of that instrument; to ascertain whether it be a compact or not; to enquire who is the final judge or interpreter in constitutional controversies; to lay down rules of interpretation; and, finally, to examine the constitution in its several departments and separate clauses. In the execution of this part of his task, he has displayed great research, laborious industry, and extensive judicial learning. The brief summary which he has given of the arguments by which the constitution was assailed on the one hand, and defended on the other, is not only interesting as matter of history, but affords great aid in understanding that instrument. We should be careful, however, not to attach to these discussions an undue importance. All the members of the [ *49 ] *various conventions did not engage in the debates, and, of course, we have no means of determining by what process of reasoning they were led to their conclusions. And we cannot reasonably suppose that the debaters always expressed their deliberate and well weighed opinions in all the arguments, direct and collateral, by which they sought to achieve a single great purpose. We are not, therefore, to consider the constitution as the one thing or the other, merely because some of the framers, or some of the adopters of it, chose so to characterize it in their debates. Their arguments are valuable as guides to our judgments, but not as authority to bind them.

In the interpretation of the constitution, the author founds himself, whenever he can, upon the authority of the supreme court. This was to be expected; for, in so doing, he has, in most cases, only reiterated his own judicial decisions. We could not suppose that one, whose opinions are not lightly adopted, would advance, as a commentator, a principle which he rejected as a judge. In most cases, too, no higher authority in the interpretation of the constitution is known in our systems, and none better could be desired. It is only in questions of political power, involving the rights of the States in reference to the federal government, that any class of politicians are disposed to deny the authority of the judgments of the supreme court. We shall have occasion to examine this subject more at large, in a subsequent part of this review.

In discussing the various clauses of the constitution, the author displays great research, and a thorough acquaintance with the history of that instrument. It is not perceived, however, that he has presented any new views of it, or offered any new arguments in support of the constructions which it has heretofore received. As a compendium of what others have said and done upon the subject, his work is very valuable. It facilitates investigation, whilst, at the same time, it is so full of matter, as to render little farther investigation necessary. Even in this view of the subject, however, it would have been much more valuable if it had contained references to the authorities on which its various positions are founded, instead of merely extracting their substance. The reader who, with this book as his guide, undertakes to acquaint himself with the Constitution of the United States, must take the authority of the author as conclusive, in most cases; or else he will often find himself perplexed to discover the sources from which he derives his information. This is a great defect in a work of this sort, and is the less excusable, because it might have been easily avoided. A writer who undertakes to furnish a treatise [ *50 ] *upon a frame of government, in relation to which great and contested political questions have arisen, owes it alike to his reader and to himself, to name the sources whence he draws whatever information he ventures to impart, and the authorities upon which he founds whatever opinions he ventures to inculcate. The reader requires this for the satisfaction of his own judgment; and the writer ought to desire it as affording the best evidence of his own truth and candor.

In this division of the work, the author pursues the idea cautiously hinted in the first division, and more plainly announced in the second; and he now carries it boldly out in its results. Having informed us that, as colonies, we were "for many purposes one people," and that the declaration of independence made us "a nation de facto" he now assumes the broad ground that this "one people," or nation de facto, formed the constitution under which we live. The consequences of this position are very apparent throughout the remainder of the work. The inferences fairly deduced from it impart to the constitution its distinctive character, as the author understands it; and, of course, if this fundamental position be wrong, that instrument is not, in many of its provisions what he represents it to be. The reader, therefore, should settle this question for himself in the outset; because, if he differ from the author upon this point, he will be compelled to reject by far the most important part of the third and principal division of these commentaries.

The opinion, that the constitution was formed by "the people of the United States," as contradistinguished from the people of the several States, that is, as contradistinguished from the States as such, is founded exclusively on the particular terms of the preamble. The language is, "We, the people of the United States, do ordain and establish this Constitution for the United States of America." "The people do ordain and establish, not contract and stipulate with each other. The people of the United States, not the distinct people of a particular State with the people of the other States." In thus relying on the language of the preamble, the author rejects the lights of history altogether. I will endeavour in the first place to meet him on his own ground.

It is an admitted rule, that the preamble of a statute may be resorted to in the construction of it; and it may, of course, be used to the same extent in the construction of a constitution, which is a supreme law. But the only purpose for which it can be used is to aid in the discovery of the true object and intention of the law, where these [ *51 ] *would otherwise be doubtful. The preamble can, in no case, be allowed to contradict the law, or to vary the meaning of its plain language. Still less can it be used to change the true character of the lawmaking power. If the preamble of the Constitution had declared that it was made by the people of France or England, it might, indeed, have been received as evidence of that fact, in the absence of all proof to the contrary; but surely it would not be so received against the plain testimony of the instrument itself, and the authentic history of the transaction. If the convention which formed the Constitution was not, in point of fact, a convention of the people of the United States, it had no right to give itself that title; nor had it any right to act in that character, if it was appointed by a different power. And if the Constitution, when formed, was adopted by the several States, acting through their separate conventions, it is historically untrue that it was adopted by the aggregate people of the United States. The preamble, therefore, is of no sort of value in settling this question; and it is matter of just surprise that it should be so often referred to, and so pertinaciously relied on, for that purpose. History alone can settle all difficulties upon this subject.

The history of the preamble itself ought to have convinced our author, that the inference which he draws from it could not be allowed. On the 6th of August, 1787, the committee appointed for that purpose reported the first draft of a constitution. The preamble was in these words: "We, the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, do ordain, declare and establish the following constitution, for the government of ourselves and our posterity." (1 Elliott's Debates, 255.) On the very next day this preamble was unanimously adopted; and the reader will at once perceive, that it carefully preserves the distinct sovereignty of the States, and discountenances all idea of consolidation. (Ib. 263.) The draft of the constitution thus submitted was discussed, and various alterations and amendments adopted, (but without any change in the preamble,) until the 8th of September, 1787, when the following resolution was passed: "It was moved and seconded to appoint a committee of five, to revise the style of, and arrange the articles agreed to, by the house; which passed in the affirmative." (Ib. 324.) It is manifest that this committee had no power to change the meaning of any thing which had been adopted, but were authorized merely to "revise the style," and arrange the matter in proper order. On the 12th of the same [ *52 ] *month they made their report. The preamble, as they reported it, is in the following words: "We, the people of the United States, in order to form a more perfect union, to 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." (Ib. 326.) It does not appear that any attempt was made to change this phraseology in any material point, or to reinstate the original. The presumption is, therefore, that the two were considered as substantially the same, particularly as the committee had no authority to make any change, except in the style. The difference in the mere phraseology of the two was certainly not overlooked; for on the 13th September, 1787, "it was moved and seconded to proceed to the comparing of the report from the committee of revision, with the articles which were agreed to by the house, and to them referred for arrangement; which passed in the affirmative. And the same was read by paragraphs, compared, and, in some places, corrected and amended." (Ib. 338.) In what particulars these corrections and amendments were made, we are not very distinctly informed. The only change which was made in the preamble, was by striking out the word "to," before the words "establish justice;" and the probability is, that no other change was made in any of the articles, except such as would make "the report of the committee of revision" "correspond with the articles agreed to by the house." The inference, therefore, is irresistible, that the convention considered the preamble reported by the committee of revision, as substantially corresponding with the original draft, as unanimously "agreed to by the house."

There is, however, another and a perfectly conclusive reason for the change of phraseology, from the States by name, to the more general expression "the United States;" and this, too, without supposing that it was intended thereby to convey a different idea as to the parties to the constitution. The revised draft contained a proviso, that the constitution should go into operation when adopted and ratified by nine States. It was, of course, uncertain whether more than nine would adopt it, or not, and if they should not, it would be altogether improper to name them as parties to that instrument. As to one of them, Rhode Island, she was not even represented in the convention, and, consequently, the others had no sort of right to insert her as a party. Hence it became necessary to adopt a form of expression which would apply to those who should ratify the constitution, and [ *53 ] *and not to those who should refuse to do so. The expression actually adopted answers that purpose fully. It means simply, "We, the people of those States who have united for that purpose, do ordain," &c. This construction corresponds with the historical fact, and reconciles the language employed with the circumstances of the case. Indeed, similar language was not unusual, through the whole course of the revolution. "The people of his majesty's colonies," "the people of the united colonies," "the people of the United States," are forms of expression which frequently occur, without intending to convey any other idea than that of the people of the several colonies or States.

It is, perhaps, not altogether unworthy of remark, in reference to this enquiry, that the word "people" has no plural termination in our language. If it had, the probability is that the expression would have been "we, the peoples," conveying, distinctly, the idea of the people of the several States. But, as no such plural termination is known in our language, the least that we can say is, that the want of it affords no argument in favor of the author's position.

This brief history of the preamble, collected from the Journals of the Convention, will be sufficient to show that the author has allowed it an undue influence in his construction of the constitution. It is not from such vague and uncertain premises, that conclusions, so important and controlling, can be wisely drawn. The author, however, is perfectly consistent with himself in the two characters in which he appears before us; the commentator takes no ground which the judge does not furnish. It is remarkable that although this question was directly presented in the case of Martin vs. Hunter's Lessees, and although the fact, that the Constitution of the United States "was ordained and established, not by the States in their sovereign capacities, but emphatically by the people of the United States," is made the foundation of the judgment of the supreme court in that case; yet, Judge Story, in delivering the opinion of the court, rests that position upon the preamble alone, and offers no other argument whatever to support it. And this too, although, in his own opinion, upon the right decision of that case rested "some of the most solid principles which have hitherto been supposed to sustain and protect the Constitution of the United States." It is much to be regretted, that principles so important should be advanced as mere dogmas, either by our judges, or by the instructors of our youth.

In this case, as in others, however, we ought not to be satisfied with simply proving that the author's conclusions are not warranted by the facts and arguments from which he derives them. Justice [ *54 ] *to the subject requires a much more full and detailed examination of this important and fundamental question. I have endeavored to show, in the preceding part of this review, that the people of the several States, while in a colonial condition, were not "one people" in any political sense of the terms; that they did not become so by the declaration of independence, but that each State became a complete and perfect sovereignty within its own limits; that the revolutionary government, prior to the establishment of the confederation, was, emphatically, a government of the States as such, through congress, as their common agent and representative, and that, by the articles of confederation, each State expressly reserved its entire sovereignty and independence. In no one of the various conditions, through which we have hitherto traced them, do we perceive any feature of consolidation; but their character as distinct and sovereign States is always carefully and jealously preserved. We are, then, to contemplate them as sovereign States, when the first movements towards the formation of the present constitution were made.

Our author has given a correct history of the preparatory steps towards the call of a convention. It was one of those remarkable events, (of which the history of the world affords many examples,) which have exerted the most important influence upon the destiny of mankind, and yet have sprung from causes which did not originally look to any such results. It is true, the defects of the confederation, and its total inadequacy to the purposes of an effective government, were generally acknowledged; but I am not aware that any decisive step was taken in any of the States, for the formation of a better system, prior to the year 1786. In that year, the difficulties and embarrassments under which our trade suffered, in consequence of the conflicting and often hostile commercial regulations of the several States, suggested to the legislature of Virginia the necessity of forming among all the States a general system, calculated to advance and protect the trade of all of them. They accordingly appointed commissioners, to meet at Annapolis commissioners from such of the other States as should approve of the proceeding, for the purpose of preparing a uniform plan of commercial regulations, which was to be submitted to all the States, and, if by them ratified and adopted, to be executed by congress. Such of the commissioners as met, however, soon discovered that the execution of the particular trust with which they were clothed, involved other subjects not within their commission, and which could not be properly adjusted without a great [ *55 ] *enlargement of their powers. They therefore simply reported this fact, and recommended to their respective legislatures to appoint delegates to meet in general convention in Philadelphia, for the purpose not merely of forming a uniform system of commercial regulations, but of reforming the government in any and every particular in which the interests of the States might require it. This report was also transmitted to congress, who approved of the recommendation it contained, and on the 21st of February, 1787, resolved, "that in the opinion of congress, it is expedient that, on the second Monday in May next, a convention of delegates who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the articles of confederation, and reporting to congress and the several legislatures, such alterations and provisions therein, as shall, when agreed to in congress, and confirmed by the States, render the federal constitution adequate to the exigencies of government, and the preservation of the union." (1 Elliott's Debates, 155.)

Such was the origin of the convention of 1787. It is apparent that the delegates to that body were to be "appointed by the several States," and not by "the people of the United States;" that they were to report their proceedings to "congress and the several legislatures," and not to "the people of the United States;" and that their proceedings were to be part of the constitution, only when "agreed to in congress and confirmed by the States," and not when confirmed by "the people of the United States." Accordingly, delegates were, in point of fact, appointed by the States; those delegates did, in point of fact, report to congress and the States; and congress did, in point of fact, approve, and the States did, in point of fact, adopt, ratify and confirm the constitution which they formed. No other agency than that of the States as such, and of congress, which was strictly the representative of the States, is to be discerned in any part of this whole proceeding. We may well ask, therefore, from what unknown source our author derives the idea, that the constitution was formed by "the people of the United States," since the history of the transaction, even as he has himself detailed it, proves that "the people of the United States" did not appoint delegates to the convention, were not represented in that body, and did not adopt and confirm its act as their own!

Even, however, if the question now before us be not, merely and exclusively, a question of historical fact, there are other views of it scarcely less decisive against our author's position. In the first place, I have to remark, that there were no such people as "the people of the United States," in the sense in which he uses those terms. The [ *56 ] *articles of confederation formed, at that time, the only government of the United States; and, of course, we are to collect from them alone the true nature of the connexion of the States with one another. Without deeming it necessary to enumerate all the powers which they conferred on congress, it is sufficient to remark that they were all exercised in the name of the States, as free, sovereign and independent States. Congress was, in the strictest sense, the representative of the States. The members were appointed by the States, in whatever mode each State might choose, without reference either to congress or the other States. They could, at their own will and pleasure, recall their representatives, and send others in their places, precisely as any sovereign may recall his minister at a foreign court. The members voted in congress by States, each State having one vote, whatever might be the number of its representatives. There was no president, or other common executive head. The States alone, as to all the more important operations of the government, were relied on to execute the resolves of congress. In all this, and in other features of the confederation which it is unnecessary to enumerate, we recognize a league between independent sovereignties, and not one nation composed of all of them together. It would seem to follow, as a necessary consequence, that if the States, thus united together by league, did not form one nation, there could not be a citizen or subject of that nation. Indeed, congress had no power to make such citizen, either by naturalization or otherwise. It is true, the citizens of every State were entitled, with certain exceptions, such as paupers, vagabonds, &c., to all the privileges of citizens of every other State, when within the territories thereof; but this was by express compact in the articles of confederation, and did not otherwise result from the nature of their political connexion. It was only by virtue of citizenship in some particular State, that its citizens could enjoy within any other State the rights of citizens thereof. They were not known as citizens of the United States, in the legislation either of congress or of the several States. He who ceased to be a citizen of some particular State, without becoming a citizen of some other particular State, forfeited all the rights of a citizen in each and all of the States. There was no one right which the citizen could exercise, and no one duty which he could be called on to perform, except as a citizen of some particular State. In that character alone could he own real estate, vote at elections, sue or be sued; and in that character alone could he be called on to bear arms, or to pay taxes.

What, then, was this citizenship of the United States, which [ *57 ] *involved no allegiance, conferred no right and subjected to no duty? Who were "the people of the United States?" Where was their domicil, and what were the political relations, which they bore to one another? What was their sovereignty, and what was the nature of the allegiance which it claimed? Whenever these questions shall be satisfactorily answered without designating the people of the several States, distinctively as such, I shall feel myself in posession of new and unexpected lights upon the subject.

Even, however, if we concede that there was such a people as "the people of the United States," our author's position is still untenable. I admit that the people of any country may, if they choose, alter, amend or abrogate their form of government, or establish a new one, without invoking the aid of their constituted authorities. They may do this, simply because they have the physical power to do it, and not because such a proceeding would be either wise, just, or expedient. It would be revolution in the strictest sense of the term. Be this as it may, no one ever supposed that this course was pursued in the case under consideration. Every measure, both for the calling of the convention and for the ratification of the constitution, was adopted in strict conformity with the recommendations, resolutions and laws of congress and the State legislatures. And as "the people of the United States" did not, in point of fact, take the subject into their own hands, independent of the constituted authorities, they could not do it by any agency of those authorities. So far as the federal government was concerned, the articles of confederation, from which alone it derived its power, contained no provision by which "the people of the United States" could express authoritatively a joint and common purpose to change their government. A law of congress authorizing them to do so would have been void, for want of right in that body to pass it. No mode, which congress might have prescribed for ascertaining the will of the people upon the subject, could have had that sanction of legal authority, which would have been absolutely necessary to give it force and effect. It is equally clear that there was no right or power reserved to the States themselves, by virtue of which any such authoritative expression of the common will and purpose of the people of all the States could have been made. The power and jurisdiction of each state were limited to its own territory; it had no power to legislate for the people of any other State. No single State, therefore, could have effected such an object; and if they had all concurred in it, each acting, as it was only authorized to act, for itself, that would have been strictly the action of the States as such, and as [ *58 ] *contradistinguished from the action of the mass of the people of all the States. If "the people of the United States" could not, by any aid to be derived from their common government, have effected such a change in their constitution, that government itself was equally destitute of all power to do so. The only clause in the articles of confederation, touching this subject, is in the following words: "And the articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration, at any time hereafter, be made in any of them, unless such alteration be agreed to in congress of the United States, and be afterwards confirmed by the legislature of every State." Even if this power had been given to congress alone, without subjecting the exercise of it to the negative of the States, it would still have been the power of the States in their separate and independent capacities, and not the power of the people of the United States, as contradistinguished from them. For congress was, as we have already remarked, strictly the representative of the States; and each State, being entitled to one vote, and one only, was precisely equal, in the deliberations of that body, to each other State. Nothing less, therefore, than a majority of the States, could have carried the measure in question, even in congress. But, surely there can be no doubt that the power to change their common government was reserved to the States alone, when we see it expressly provided that nothing less than their unanimous consent, as States, should be sufficient to effect that object.

There is yet another view of this subject. It results from the nature of all government, freely and voluntarily established, that there is no power to change, except the power which formed it. It will scarcely be denied by any one, that the confederation was a government strictly of the States, formed by them as such, and deriving all its powers from their consent and agreement. What authority was there, superior to the States, which could undo their work? What power was there, other than that of the States themselves, which was authorized to declare that their solemn league and agreement should be abrogated? Could a majority of the people of all the States have done it? If so, whence did they derive that right? Certainly not from any agreement among the States, or the people of all the States; and it could not be legitimately derived from any other source. If, therefore, they had exercised such a power, it would have been a plain act of usurpation and violence. Besides, if we may judge from the apportionment of representation as proposed in the convention, a majority of the people of all the States were to be found in the four [ *59 ] *States of Massachusetts, New York, Pennsylvania and Virginia; so, that, upon this idea, the people of less than one-third of all the States could change the articles of confederation, although those articles expressly provided that they should not be changed without the consent of all the States! There was, then, no power superior to the power of the States; and, consequently, there was no power which could alter or abolish the government which they had established. If the Constitution has superseded the articles of confederation, it is because the parties to those articles have agreed that it should be so. If they have not so agreed, there is no such Constitution, and the articles of confederation are still the only political tie among the States. We need not, however, look beyond the attestation of the Constitution itself, for full evidence upon this point. It professes to have been "done by the unanimous consent of the States present, &c.," and not in the name or by the authority of "the people of the United States."

But it is not the mere framing of a constitution which gives it authority as such. It becomes obligatory only by its adoption and ratification; and surely that act, I speak of free and voluntary government, makes it the constitution of those only who do adopt it. Let us ascertain then, from the authentic history of the times, by whom our own constitution was adopted and ratified.

The resolution of congress already quoted, contemplates a convention "for the sole and express purpose of revising the articles of confederation," and reporting suitable "alterations and provisions therein." The proceedings of the convention were to be reported to congress and the several legislatures, and were to become obligatory, only when "agreed to in congress and confirmed by the States." This is precisely the course of proceeding prescribed in the articles of confederation. Accordingly, the new constitution was submitted to congress; was by them approved and agreed to, and was afterwards, in pursuance of the recommendation of the convention, laid before conventions of the several States, and by them ratified and adopted. In this proceeding, each State acted for itself, without reference to any other State. They ratified at different periods; some of them unconditionally, and others with provisoes and propositions for amendment. This was certainly State action, in as distinct a form as can well be imagined. Indeed, it may well be doubted whether any other form of ratification, than by the States themselves would have been valid. At all events, none other was contemplated, since the Constitution itself provides, that it shall become obligatory, when ratified by "nine States," between the States ratifying the same. "The [ *60 ] *people of the United States," as an aggregate mass, are no where appealed to, for authority and sanction to that instrument. Even if they could have made it their constitution, by adopting it, they could not, being as they were separate and distinct political communities, have united themselves into one mass for that purpose, without previously overthrowing their own municipal governments; and, even then, the new constitution would have been obligatory only on those who agreed to and adopted it, and not on the rest.

The distinction between the people of the several States and the people of the United States, as it is to be understood in reference to the present subject, is perfectly plain. I have already explained the terms "a people," when used in a political sense. The distinction of which I speak may be illustrated by a single example. If the Constitution had been made by "the people of the United States," a certain portion of those people would have had authority to adopt it. In the absence of all express provision to the contrary, we may concede that a majority would, prima facie, have had that right. Did that majority, in fact, adopt it? Was it ever ascertained whether a majority of the whole people were in favor of it or not? Was there any provision, either of law or constitution, by which it was possible to ascertain that fact? It is perfectly well known that there was no such provision; that no such majority was ever ascertained, or even contemplated. Let us suppose that the people of the States of Massachusetts, New York, Pennsylvania and Virginia, containing, as we have seen they probably did, a majority of the whole people, had been unanimous against the Constitution, and that a bare majority of the people in each of the other nine States, acting in their separate character as States, had adopted and ratified it. There can be no doubt, that it would have become the constitution of the United States; and that, too, by the suffrages of a decided minority, probably not exceeding one-fourth of the aggregate people of all the States. This single example shows, conclusively, that the people of the United States, as contradistinguished from the people of the several States, had nothing to do, and could not have had any thing to do with the matter.

This brief history of the formation and adoption of the Constitution, which is familiar to the mind of every one who has attended to the subject at all, ought, as it seems to me, to be perfectly satisfactory and conclusive; and should silence for ever, all those arguments in favor of consolidation, which are founded on the preamble to that instrument. I do not perceive with what propriety [ *61 ] *it can be said, that the "people of the United States," formed the Constitution, since they neither appointed the convention, nor ratified their act, nor otherwise adopted it as obligatory upon them. Even if the preamble be entitled to all the influence which has been allowed to it, our author's construction of its language is not, as has already been remarked, the only one of which it is susceptible. "We, the people of the United States," may, without any violence to the rules of fair construction, mean "we, the people of the States united." In this acceptation, its terms conform to the history of the preamble itself, to that of the whole Constitution, and those who made it. In any other acceptation, they are either without meaning, or else they affirm what history proves to be false.

It would not, perhaps, have been deemed necessary to bestow quite so much attention on this part of the work, if it were not evident that the author himself considered it of great consequence, not as matter of history, but as warranting and controlling his construction of the Constitution, in some of its most important provisions. The argument is not yet exhausted, and I am aware that much of what I have said is trite, and that little, perhaps no part of it, is new. Indeed, the subject has been so often and so ably discussed, particularly in parliamentary debates, that it admits very few new views, and still fewer new arguments in support of old views. It is still, however, an open question, and there is nothing in the present condition of public opinion, to deprive it of any portion of its original importance. The idea that the people of these States were, while colonists, and, consequently, are now, "one people," in some sense which has never been explained, and to some extent which has never been defined, is constantly inculcated by those who are anxious to consolidate all the powers of the States in the federal government. It is remarkable, however, that scarcely one systematic argument, and very few attempts of any sort, have yet been made to prove this important position. Even the vast and clear mind of the late chief justice of the United States, which never failed to disembarrass and elucidate the most obscure and intricate subject, appears to have shrunk from this. In all his judicial opinions in which the question has been presented, the unity or identity of the people of the United States has been taken as a postulatum, without one serious attempt to prove it. The continued repetition of this idea, and the boldness with which it is advanced, have, I am induced to think, given it an undue credit with the public. Few men, far too few, enquire narrowly into the subject, and even those who do, are not in general sceptical enough to doubt [ *62 ] *what is so often and so peremptorily asserted; and asserted, too, with that sort of hardy confidence which seems to say, that all argument to prove it true would be supererogatory and useless. It is not, therefore, out of place, nor out of time, to refresh the memory of the reader, in regard to those well established historical facts, which are sufficient in themselves, to prove that the foundation on which the consolidationists build their theory is unsubstantial and fallacious.

I would not be understood as contending, in what I have already said, that the Constitution is necessarily federative, merely because it was made by the States as such, and not by the aggregate people of the United States. I readily admit, that although the previous system was strictly federative, and could not have been changed except by the States who made it, yet there was nothing to prevent the States from surrendering, in the provisions of the new system which they adopted, all their power, and even their separate existence, if they chose to do so. The true enquiry is, therefore, whether they have in fact done so, or not; or, in other words, what is the true character, in this respect, of the present Constitution. In this enquiry, the history of their previous condition, and of the Constitution itself, is highly influential and important.

The author, carrying out the idea of a unity between the people of the United States, which, in the previous part of his work, he had treated as a postulatum, very naturally, and indeed necessarily, concludes that the Constitution is not a compact among sovereign States. He contends that it is "not a contract imposing mutual obligations, and contemplating the permanent subsistence of parties having an independent right to construe, control and judge of its obligations. If in this latter sense, it is to be deemed a compact, it must be, either because it contains, on its face, stipulations to that effect, or because it is necessarily implied, from the nature and objects of a frame of government."

There is a want of appositeness and accuracy in the first sentence of this extract, which renders it somewhat difficult to determine whether the author designed it as a single proposition, or as a series of independent propositions. If the first, there is not one person in the United States, it is presumed, who would venture to differ from him. I confess, however, that I do not very clearly discern what bearing it has on the question he was examining. It involves no point of difference between political parties, nor does it propound any question which has heretofore been contested, or which may be expected to arise hereafter, touching the true nature of the Constitution. If he [ *63 ] *designed a series of propositions, then the two first are so obviously false, that the author himself would not venture to maintain them, and the last is so obviously true, that no one would dream of denying it. For example. He can scarcely mean to say that our government is not a "contract," whether made by the States as such, or by "the people of the United States;" and it is perfectly clear that it "contemplates the permanent subsistence of the parties to it," whoever those parties may be. These two propositions, therefore, taken distinctly, are not true in themselves, and neither of them was necessary, as qualifying or forming a part of the third. And, as to the third, it is not easy to see why he announced it, since it never entered into the conception of any one, that the parties to the Constitution had "an independent right," as a general right, "to construe, control or judge of its obligations." We all admit that the power and authority of the federal government, within its constitutional sphere, are superior to those of the States, in some instances, and co-ordinate in others, and that every citizen is under an absolute obligation to render them respect and obedience; and this simply because his own State, by the act of ratifying the Constitution, has commanded him to do so. We all admit it to be true, as a general proposition, that no citizen nor State has an independent right to "construe," and still less to "control," the constitutional obligations of that government, and that neither a citizen nor a State can "judge," that is, decide, on the nature and extent of those obligations, with a view to control them. All that has ever been contended for is, that a State has a right to judge of its own obligations, and, consequently, to judge of those of the federal government, so far as they relate to such State itself, and no farther. It is admitted on all hands, that when the federal government transcends its constitutional power, and when, of course, it is not acting within its "obligations," the parties to that government, whoever they may be, are no longer under any duty to respect or obey it. This has been repeatedly affirmed by our courts, both State and federal, and has never been denied by any class of politicians. Who then is to determine, whether it has so transcended its constitutional obligations or not? It is admitted that to a certain extent the supreme court is the proper tribunal in the last resort, because the States, in establishing that tribunal, have expressly agreed to make it so. The jurisdiction of the federal courts extends to certain cases, affecting the rights of the individual citizens, and to certain others affecting those of the individual States. So far as the federal government is authorized to act on the individual citizen, the powers of the one and the rights of [ *64 ] *the other, are properly determinable by the federal courts. And the decision is binding too, and absolutely final, so far as the relation of the citizen to the federal government is concerned. There is not, within that system, any tribunal of appeal, from the decisions of the supreme court. And so also of those cases in which the rights of the States are referred to the federal tribunals. In this sense, and to this extent, it is strictly true that the parties have not "an independent right to construe, control and judge, of the obligations" of the federal government, but they are bound by the decisions of the federal courts, so far as they have authorized and agreed to submit to them. But there are many cases involving the question of federal power which are not cognizable before the federal courts; and, of course, as to these, we must look out for some other umpire. It is precisely in this case that the question, who are the parties to the constitution, becomes all important and controlling. If the States are parties as sovereign States, then it follows, as a necessary consequence, that each of them has the right which belongs to every sovereignty, to construe its own contracts and agreements, and to decide upon its own rights and powers. I shall take occasion, in a subsequent part of this review, to enter more fully into the question, who is the common umpire. The statement here given, of the leading point of difference between the great political parties of the country, is designed only to show that the author's proposition does not involve it. That proposition may mislead the judgment of the reader, but cannot possibly enlighten it, in regard to the true nature of the Constitution.

He has been scarcely less unfortunate in the next proposition. Taking his words in their most enlarged sense, he is probably correct in his idea, though he is not accurate in his language; but in the sense in which his own reasoning shows that he himself understands them, his proposition is wholly untenable. If, by the words "stipulations to that effect," he means simply that the effect must necessarily result from the provisions of the Constitution, he has merely asserted a truism which no one will dispute with him. Certainly, if it does not result from the nature of all government, that it is a compact, and if there be nothing in our Constitution to show that it is so, then it is not a compact. His own reasoning, however, shows that he means by the word "stipulations," something in the nature of express agreement or declaration; and, in that sense, the proposition is obviously untrue, and altogether defective as a statement for argument. It is very possible that our Constitution may be a compact, even though it contain no express agreement or declaration so denominating it, and [ *65 ] *though it may not "result from the nature and objects of a frame of government," that it is so; and this simply because it may "result from the nature and objects of our government" that it is a compact, whether such be the result of other governments or not. If the author designed to take this view of the subject, the examination which he has given of the Constitution, in reference to it, is scarcely as extended and philosophical as we had a right to expect from him. He has not even alluded to the frame and structure of the government in its several departments, nor presented any such analysis of it in any respect, as to enable the reader to form any satisfactory conclusion as to its true character in the particular under consideration. Every thing which he has urged as argument to prove his proposition, may well be true, and every sentence of the Constitution, which he has cited for that purpose, may be allowed its full effect, and yet our government may be a compact, even in the strictest sense in which he has understood the term.

His first argument is, that the "United States were no strangers to compacts of this nature," and that those who ratified the Constitution, if they had meant it as a compact, would have used "appropriate terms" to convey that idea. I have already shown that if he means by this, that the Constitution would have contained some express declaration to that effect, he is altogether inaccurate. He himself knows, as a judge, that a deed, or other instrument, receives its distinctive character, not from the name which the parties may choose to give to it, but from its legal effect and operation. The same rule applies to constitutions. Ours is a compact or not, precisely as its provisions make it so, or otherwise. The question, who are the parties to it, may influence, and ought to influence, the construction of it in this respect; and I propose presently to show, from this and other views of it, that it is, in its nature, "a mere confederation," and not a consolidated government, in any one respect. It does, therefore, contain "appropriate terms," if we take those words in an enlarged sense, to convey the idea of a compact.

Our author supposes, however, that a "conclusive" argument upon this subject is furnished by that clause of the Constitution which declares that "This Constitution, 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, any thing in the constitution or laws of any State to the contrary notwithstanding." Hence he concludes that "the [ *66 ] *people of any State cannot, by any form of its own constitution or laws, or other proceedings, repeal, or abrogate or suspend it."

Here again the author displays a want of proper definiteness and precision, in the statement of his proposition. The people who make a law, can, upon the principles of all our institutions, either "repeal or abrogate or suspend it;" and if, as he supposes, our constitution was made by "the people of the United States," in the aggregate, then "the people of any State," or of half a State, may repeal, or abrogate, or suspend it, if they happen to be a majority of the whole. The argument, therefore, if we are to take it in the full latitude in which it is laid down, is not sound, upon the author's own principles; and it can avail nothing, except upon the very supposition which he disallows; to wit, that the Constitution was formed by the States, and not by the people of the United States. Even in this acceptation, however, I am at a loss to perceive how it establishes the proposition with which he set out; to wit, that the Constitution is not a compact. Certainly it is very possible so to frame a compact, that no party to it shall have a right either to "repeal or abrogate or suspend it;" and if it be possible to do so, then the mere absence of such right does not even tend to disprove the existence of compact. Our own Constitution, even in the opinion of those who are supposed by the author to be least friendly to it, is a compact of precisely this nature. The Nullifier contends only for the right of a State to prevent the Constitution from being violated by the general government, and not for the right either to repeal, abrogate or suspend it. The Seceder asserts only that a State is competent to withdraw from the Union whenever it pleases; but does not assert that in so doing it can repeal, or abrogate or suspend the Constitution, as to the other States. Secession would, indeed, utterly destroy the compact as to the seceding party; but would not necessarily affect its obligation as to the rest. If it would, then the rest would have no right to coerce the seceding State, nor to place her in the attitude of an enemy. It is certain, I think, they would not have such right; but those who assert that they would—and the author is among the number—must either abandon that idea, or they must admit that the act of secession does not break up the Constitution, except as to the seceding State. For the moment the Constitution is destroyed, all the authorities which it has established cease to exist. There is no longer such a government as that of the United States, and, of course, they cannot, as such, either make any demand, or assert any right, or enforce any claim.

The conclusion, however, to which our author has arrived, upon [ *67 ] *this point, is not that to which he originally designed that his premises should conduct him. The question of the right of a party to a compact, to repeal or abrogate or suspend it, does not enter into his original proposition, nor result from the argument which he had immediately before used to sustain it. The proposition is, that our Constitution is not a compact, and the argument is, that it is not a compact, because it is a supreme law. The same idea is substantially reaffirmed, in the next argument by which he proposes to prove the main proposition. "The design" (of the Constitution) "is to establish a government. This, of itself, imports legal obligation, permanence, and uncontrollability by any, but the authorities authorized to alter or abolish it."

Admitting, as I cheerfully do, that all this is strictly true, I am yet unable to perceive how it demonstrates that our Constitution is not a compact. May not a compact between sovereign States, be a government? Is there any such necessary restraint upon, or incident of, sovereign power, that it cannot, in any possible exercise of it, produce such a result? If there is, then it was incumbent on the author to show it, because, if there is not, his argument is of no force; and he himself will admit, that the proposition, to say the least of it, is not quite clear enough to be taken as a postulate. His own historical information, if he had drawn on its ample funds, must have furnished him with numerous instances of governments established by compact. He need, not, however, have gone beyond our own Confederation, which, although a compact among sovereign States, in the strictest sense, was yet treated as a government by the people at home, and recognized as such by all foreign powers. It was also "supreme," within its prescribed sphere of action; its rights and powers over the most important subjects of general concern were not only superior to those of the States, but were exclusive. The author's proposition and argument, reduced to their simple terms, may be thus stated. "Our Constitution is not a compact, because it is a government, and because that government is the supreme law." There are few minds, I think, prepared to embrace this conclusion, or to discern the connection which it has with the premises. There are still fewer who will not feel surprise, that our author should have formed such a conclusion, since an instance to disprove it, furnished by the history of his own country, and existing in his own times, had but just passed under his critical examination and review.

The remaining arguments upon this point are merely inferences drawn from the absence of express words in the Constitution, or from [ *68 ] *the opinions of members of the various conventions, expressed in the debates concerning it. These have already been sufficiently examined. Taking his whole chapter upon this subject together, the reader will probably think that it does not answer the expectations which the public have formed upon the author's powers as a reasoner. His political opponents will be apt to think, also, that he has done something less than justice to them, in the view which he has given of their principles. After laboring, in the way we have seen, to prove that our Constitution is not a compact, he informs us that "The cardinal conclusion for which this doctrine of a compact has been, with so much ingenuity and ability, forced into the language of the Constitution, (for the latter no where alludes to it,) is avowedly to establish that, in construing the Constitution, there is no common umpire; but that, each State, nay, each department of the government of each State, is the supreme judge for itself, of the powers and rights and duties arising under that instrument."

The author must excuse me—I mean no disrespect to him—if I express my unfeigned astonishment that he should have admitted this passage into a grave and deliberate work on the Constitution. He must, indeed, have been a most careless observer of passing events, and a still more careless reader of the publications of the last ten years, upon this very point, if he has found either in the one or the other, the slightest authority for the opinion which is here advanced. The most ultra of those who have contended for the rights of the States have asserted no such doctrine as he has imputed to them. Neither is it the necessary or legitimate consequence of any principle which they have avowed. I cannot impute to an author of his acknowledged ability, the weakness of stating a proposition merely for the sake of the poor triumph of refuting it. With what other motive, then, did he make a statement which is unsupported, as matter of fact; which involves no disputed or doubted question of constitutional law, and which attributes to a large class of his fellow-citizens opinions which would justly expose them to the scorn of all correct thinkers? That class profess to hold, in their utmost latitude and in their strictest applications, the doctrines of the State Rights' school of politics. They believe that those doctrines contain the only principle truly conservative of our Constitution; that without them there is no effective check upon the federal government, and, of course, that that government can increase its own powers to an indefinite extent; that this must happen in the natural course of events, and that, ultimately, the whole character of our government will be so changed, that even [ *69 ] *its forms will be rejected, as cumbrous and useless, under the monarchy, in substance, into which we shall have insensibly glided. It is, therefore, because they are lovers of the Constitution and of the Union, that they contend strenuously for the rights of the States. They are no lovers of anarchy nor of revolution. Their principles will cease to be dear to them, whenever they shall cease to subserve the purposes of good order, and of regular and established government. It is their object to preserve the institutions of the country as they are, sincerely believing that nothing more than this is necessary to secure to the people all the blessings which can be expected from any government whatever. They would consider themselves but little entitled to respect as a political party, if they maintained the loose, disjointed, and worse than puerile notions, which the author has not thought it unbecoming to impute to them.

It is the peculiar misfortune of the political party to which I have alluded, to be misunderstood and misrepresented in their doctrines. The passage above quoted affords not the least striking instance of this. It is a great mistake to suppose that they have ever contended that the right of State interposition was given in the express terms of the Constitution; and, therefore, they have not "forced this principle into the language of that instrument. The right in question is supposed to belong to the States, only because it is an incident of their sovereignty, which the Constitution has not taken away. The author, it is presumed, could scarcely have failed to perceive the difference of the two propositions, nor could he have been unconscious that they did not depend upon the same course of investigation or reasoning. And it is not true, so far as my information extends, that any political party has ever asserted, as a general proposition, that, in construing the Constitution, there is no common umpire. Cases have already been stated, in which the supreme court is universally admitted to be the common umpire, and others will be stated when we come more directly to that part of our subject. In the broad sense, then, in which the author lays down the proposition, it has never been contended for by any political party whatever. Neither is it true, as he is pleased to assert, that any political party has ever supposed, that "each department of the government of each State" had a right to "judge for itself, of the powers, rights and duties, arising under" the Constitution. By the word "judge," he must be understood to mean decide finally; and, in this sense, I venture to affirm that no political party, nor political partizan, even in the wildest dream of political phrensy, has ever entertained the absurd notion here attributed to them. It is difficult [ *70 ] *to suppose that the author could have been uninformed of the fact, that nothing short of the power of all the State, acting through its own constituted authorities, has ever been deemed of the least force in this matter. The better and more prevalent opinion is, that a State cannot properly so act, except by a convention called for that express purpose. This was the course pursued by South Carolina; but in the case of the alien and sedition laws, Virginia acted through her ordinary legislature. As to this matter, however, the legislature was very properly considered as representing the power of the whole State.

Thus, in the short paragraph above quoted, the author has fallen into three most remarkable errors, proving that he has, in the strangest way imaginable, misunderstood the principles which he attempted to explain. The young and plastic minds to which he addressed himself, with the professed object of instructing them in the truths of constitutional interpretation, will look in vain for the publication or other authority which sustains him. And the political party whose principles he has endeavored to hold up to reproach, has a right to demand of him, why he has chosen to attribute to them absurd and revolutionary notions, unworthy alike of their patriotism and their reason.

It is submitted to the reader's judgment to determine how far the reasoning of the author, which we have just examined, supports his position that our Constitution is not a compact. The opinion of that congress which recommended the call of the convention seems to have been very different; they, at least, did not suppose that a compact could not be a government. Their resolution recommends the call of a convention, for the purpose of "revising the articles of confederation, and reporting such alterations and provisions therein, as would render the federal constitution adequate to the exigencies of government, and the preservation of the Union." In the opinion of congress, the articles of confederation, which were clearly a compact, were an inadequate constitution, and therefore, they recommended such alterations and provisions therein, as would make that same compact an adequate constitution. Nothing is said about forming a new government, or changing the essential character of the existing one; and, in fact, no such thing was contemplated at the time. "The sole and exclusive purpose" of the convention was so to amend, or add to, the provisions of the articles of confederation, as would form "a more perfect union, &c.," upon the principles of the union already existing. It is clear, therefore, that, in the opinion of congress, and of all the States that adopted their recommendation, that union or compact was a constitution of government.

[ *71 ] *It is worthy of remark, that of the States, New Hampshire and the author's own State of Massachusetts, expressly call the Constitution a compact, in their acts of ratification; and no other State indicates a different view of it. This tends to prove that public opinion at the time had not drawn the nice distinction which is now insisted on, between a government and a compact; and that those who for eight years had been living under a compact, and forming treaties with foreign powers by virtue of its provisions, had never for a moment imagined that it was not a government.

But little importance, however, ought to be attached to reasoning of this kind. Those who contend that our Constitution is a compact, very properly place their principles upon much higher ground. They say that the Constitution is a compact, because it was made by sovereign States, and because that is the only mode in which sovereign States treat with one another. The conclusion follows irresistibly from the premises; and those who would deny the one, are bound to disprove the other. Our adversaries begin to reason at the very point at which reasoning becomes no longer necessary. Instead of disproving our premises, they assume that they are wrong, and then triumphantly deny our conclusion also. If we establish that the Constitution was made by the States, and that they were, at the time, distinct, independent and perfect sovereignties, it follows that they could not treat with one another, even with a view to the formation of a new common government, except in their several and sovereign characters. They must have maintained the same character when they entered upon that work, and throughout the whole progress of it. Whatever the government may be, therefore, in its essential character, whether a federative or a consolidative government, it is still a compact, or the result of a compact, because those who made it could not make it in any other way. In determining its essential character, therefore, we are bound to regard it as a compact, and to give it such a construction as is consistent with that idea. We are not to presume that the parties to it designed to change the character in which they negotiated with one another. Every fair and legitimate inference is otherwise. Its sovereignty is the very last thing which a nation is willing to surrender; and nothing short of the clearest proof can warrant us in concluding that it has surrendered it. In all cases, therefore, where the language and spirit of the Constitution are doubtful, and even where their most natural construction would be in favor of consolidation, (if there be any such case,) we should still incline against it, and in favor of the rights of the States, unless no other construction can be admitted.