Part 15

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, uses 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 was increased by a difference _among the several States_ as to their situation, extent, habits, and particular interests. In all our deliberations on this subject, we kept steadily in our view that which appears to us the greatest interest of every true American, THE CONSOLIDATION OF OUR UNION, in which is involved our prosperity, felicity, safety, perhaps our national existence.”

These famous words were in harmony with the constant sentiments of Washington. Here is additional evidence, from a letter to John Jay, during the summer of 1786:--

“We have errors to correct. We have probably had too good an opinion of human nature, in forming our Confederation. Experience has taught us that men will not adopt and carry into execution measures the best calculated for their own good, _without the intervention of a coercive power_. I do not conceive we can exist long as a nation without having lodged somewhere a power which will pervade the whole Union _in as energetic a manner as the authority of the State governments extends over the several States_.”

These are the words of Washington; and he then proceeds:--

“To be fearful of investing Congress, constituted as that body is, with ample authorities for national purposes, appears to me the very climax of popular absurdity and madness.”[184]

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 to remove 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_ essential to prosperity, felicity, safety, and perhaps national existence.

The unity of the Government was expressed in the term “Constitution,” instead of “Articles of Confederation and Perpetual Union between the States,” and in the idea of “a more perfect union,” instead of “a firm 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 specific local control which is essential to the convenience and business of life, while to the United States, as 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. In the debates of the Virginia Convention, Patrick Henry protested against consolidated power.

“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 demonstrable 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_’?”[185]

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.”[186]

In the same Convention, another patriotic opponent of the Constitution, George Mason, following Patrick Henry, said:--

“Whether the Constitution be good or bad, the present clause clearly discovers that it is a National Government, and no longer a Confederation.”[187]

But against all this opposition, and in 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 National 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.”[188]

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.”[189]

On another occasion, Mr. Madison said,--

“I hold it for a fundamental point, that an individual independence of the States is utterly irreconcilable with the idea of an aggregate sovereignty.”[190]

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 nor lasting.”[191]

The argument was unanswerable then. It is unanswerable now. You cannot elevate the sovereignty of the States over the Constitution of the United States. It would be even more odious than the early pretension of sovereign power over 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._”[192]

But the Constitution is our Magna Charta, which can bear no sovereign but itself, as you will see at once, if you 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.”[193]

* * * * *

In the exercise of its sovereignty, Congress is intrusted with large and peculiar powers. Take notice of them, and you will see how little of “sovereignty” is left to the States. Their simple enumeration is an argument against this pretension. Congress may “lay and collect taxes, duties, imposts, and excises, to pay the debts and _provide for the common defence and general welfare of the United States_”; it may “borrow money on the credit of the United States”; “regulate commerce with foreign nations, and _among the several States_, and with the Indian tribes”; “establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies, _throughout the United States_”; “coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures”; “provide for the punishment of counterfeiting the securities and current coin of the United States”; “establish post-offices and post-roads”; “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”; “constitute tribunals inferior to the Supreme Court”; “define and punish piracies and felonies committed on the high seas, and offences against the Law of Nations”; “declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water”; “raise and support armies”; “provide and maintain a navy”; “make rules for the government and regulation of the land and naval forces”; “provide for calling forth the militia to execute _the laws of the Union_, suppress insurrections, and repel invasions”; “provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia _according to the discipline prescribed by Congress_”; “exercise exclusive legislation, in all cases whatsoever, over the seat of the government of the United States, and like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings”; and “make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.”

Such are the ample and diversified powers of Congress, embracing all those agencies which enter into sovereignty. With this concession to the United States, there seems to be little for the several States. In the power to “declare war” and to “raise and support armies” Congress possesses an exclusive power, in itself immense and infinite, over persons and property in the several States, while, by the power to “regulate commerce,” it may put limits round about the business of the several States; and even in the case of the militia, which is the original military organization of the people, nothing is left to the States except “the appointment of the officers,” and the authority to train it “according to the discipline _prescribed by Congress_.” Thus these great functions are all intrusted to the United States, while the several States are subordinated to their exercise.

Constantly, and in everything, we behold the constitutional subordination of the States. But there are other provisions by which the States are expressly deprived of important powers. For instance: “No State shall enter into any treaty, alliance, or confederation; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts.” Or, if the States may exercise certain powers, it is only with the consent of Congress. For instance: “No State shall, _without the consent of Congress_, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State or with a foreign power.” Here is a magistral power accorded to Congress utterly inconsistent with the pretensions of State Rights. Then again: “No State shall, _without the consent of the Congress_, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports or exports shall be for the use of the treasury of the United States; _and all such laws shall be subject to the revision and control of the Congress_.” Here, again, is a similar magistral power accorded to Congress; and as if still further to deprive the States of their much vaunted sovereignty, the laws which they make with the consent of Congress are expressly declared to be subject “to the revision and control of the Congress.” There is still another instance. According to the Constitution, “Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State”; but here mark the controlling power of Congress, which is authorized to “prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

There are five other provisions of the Constitution by which its supremacy is positively established. (1.) “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” As Congress has the exclusive power to establish “an uniform rule of naturalization,” it may, under these words of the Constitution, secure for its newly entitled citizens “all privileges and immunities of citizens in the several States,” in defiance of State Rights. (2.) “New States may be admitted _by the Congress_ into this Union.” According to these words, the States cannot even determine their associates, but are dependent in this respect upon the will of Congress. (3.) Not content with taking from the States these important functions of sovereignty, it is solemnly declared that the Constitution, and the laws of the United States made in pursuance thereof, and all treaties under the authority of the United States, “SHALL BE THE SUPREME LAW OF THE LAND,--_anything in the Constitution or laws of any State to the contrary notwithstanding_.” Thus are State Rights again subordinated to the National Constitution, which is erected into the paramount authority. (4.) This is done again by another provision, which declares that “_the members of the several State Legislatures_, and all executive and judicial officers both of the United States and of _the several States_, shall be bound by oath or affirmation to support this Constitution”; so that not only State laws are subordinated to the National Constitution, but the makers of State laws and all other State officers are constrained to declare allegiance to this Constitution, thus placing the State, alike through its acts and its agents, in complete subordination to the sovereignty of the United States. (5.) This sovereignty is further proclaimed in the solemn injunction, that “the United States shall guaranty to every State in this Union a republican form of government, and shall protect each of them against invasion.” Here are duties of guaranty and protection imposed upon the United States, by which their position is fixed as the supreme power. There can be no such guaranty without the implied right to examine and consider the governments of the several States, and there can be no such protection without a similar right to examine and consider the condition of the several States, subjecting them to the rightful supervision and superintendence of the National Government.

Thus, whether we regard the large powers vested in Congress, the powers denied to the States absolutely, the powers denied to the States without the consent of Congress, or those other provisions which accord supremacy to the United States, we find the pretension of State sovereignty without foundation, except in the imagination of its partisans. Before the Constitution such sovereignty may have existed; it was declared in the Articles of Confederation; but since then it has ceased. It has disappeared and been lost in the supremacy of the National Government, so that it can no longer be recognized. Perverse men, insisting that it still existed, and weak men, mistaking the shadow of former power for the reality, have made arrogant claims in its behalf. When the Constitution was proclaimed, and George Washington took his oath to support it as President, our career as a nation began, with all the unity of a nation. The States remained as living parts of the body, important to the national strength, and essential to those currents which maintain national life, but plainly subordinate to the United States, which then and there stood forth a nation, one and indivisible.

* * * * *

The new Government had hardly been inaugurated before it was disturbed by the pestilent pretension of State Rights, which has never ceased to disturb it since. Discontent with the treaty between the United States and Great Britain, negotiated by that purest patriot, John Jay, under instructions from Washington, in 1794, led Virginia, even at that early day, to commence an opposition to its ratification, _in the name of State Rights_. Shortly afterwards appeared the famous resolutions of Virginia and of Kentucky, usually known as the “Resolutions of ’98,” declaring that the National Government was founded on compact between the States, and claiming for the States the right to sit in judgment on the National Government, and to interpose, if they thought fit: all this, as you will see, _in the name of State Rights_. This pretension increased, till, at last, on the mild proposition to attach a prospective prohibition of Slavery as a condition to the admission of Missouri into the Union as a new State, the opposition raged furiously, even to the extent of menacing the existence of the Union; and this, too, was done _in the name of State Rights_. Ten years later the pretension took the famous form of Nullification, insisting that the National Government was only a compact of States, any one of which was free to annul an Act of Congress at its own pleasure; and all this _in the name of State Rights_. For a succession of years afterwards,--at the presentation of petitions against Slavery, petitions for the recognition of Hayti, at the question of Texas, at the Wilmot Proviso, at the admission of California as a Free State, at the discussion of the Compromises of 1850, at the Kansas Question,--the Union was menaced; and always _in the name of State Rights_. The menace was constant; and it sometimes showed itself on small as well as great occasions, but always _in the name of State Rights_. When it was supposed that Fremont was about to be chosen President the menace became louder, and mingling with it was the hoarse mutter of war; and all this audacity was _in the name of State Rights_.

But in the autumn of 1860, on the election of Abraham Lincoln, the case became much worse. Scarcely was the result known by telegraph, before the country was startled by other intelligence, to the effect that certain States at the South were about to put in execution the long pending threat of Secession, of course _in the name of State Rights_. First came South Carolina, which, by Ordinance adopted in a State Convention, undertook to repeal the original Act by which the Constitution was adopted in this State, and to declare that South Carolina had ceased to be one of the States of the Union. At the same time a Declaration of Independence was put forth by the State, which proceeded to organize as an independent community. This example was followed successively by other States, which, by formal Acts of Secession, undertook to dissolve relations with the Union, always, be it understood, _in the name of State Rights_. A new Confederation was formed by these States, with a new Constitution, and Jefferson Davis at its head; and the same oaths of loyalty by which the local functionaries of all these States had been bound to the Union were now transferred to this new Confederation, of course in utter violation of the Constitution of the United States, but always _in the name of State Rights_. The Ordinances of Secession were next maintained by war, which, beginning with the assault upon Fort Sumter, convulsed the whole country, till, at last, all the States of the new Confederation were in open rebellion, which the Government of the United States is now exerting its energies, mustering its forces, and taxing its people to suppress. The original claim, _in the name of State Rights_, has swollen to all the proportions of an unparalleled war, which, _in the name of State Rights_, now menaces the national life.

The pretensions in the name of State Rights are not all told. While the Ordinances of Secession were maturing, and before they were yet consummated, Mr. Buchanan, who was then President, declined to interfere, on the ground that what had been done was by States, and that it was contrary to the theory of our Government “to coerce a State,” thus making the pretension of State Rights the apology for imbecility. Had the President then interfered promptly and loyally, it cannot be doubted that this whole intolerable crime might have been trampled out forever. And now, when it is proposed that Congress shall organize governments in these States, which are absolutely without loyal governments, we are met by the objection founded on State Rights. The same disastrous voice which from the beginning of our history has sounded in our ears still makes itself heard; but, alas! it is now on the lips of friends. Just in proportion as it prevails, it is impossible to establish the Constitution again throughout the Rebel States. State Rights are fully triumphant, if, first, in their name Rebel governments can be organized, and then again in their name Congressional governments to replace the Rebel governments can be resisted. If they can be employed, first to sever the States from the Union, and then to prevent the Union from extending its power over them, State Rights are at once sword and buckler to the Rebellion. It was through the imbecility of Mr. Buchanan that the States were allowed to use the sword: God forbid that now, through any similar imbecility of Congress, they shall be allowed to use the buckler!

* * * * *