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were not reserved by the several states to themselves; for, as these states as such did not grant any powers, they could not
But they were reserved by the People of the United States to themselves, or to the several states. Thus the People of the United States, ás a nation, is the ultimate source of all power, both that conferred upon the general government, that conferred upon each state as a separate political society, and that retained by themselves.
29. This, in substance, is the view of the Constitution advocated by Hamilton, by Jay, by Marshall, by Story, by Webster, and upheld by the judgments of the Supreme Court during its earliest years, and while it continued under the leadership of its most illustrious head, Chief Justice Marshall, I would not be understood as claiming that all these great men have maintained the whole of the foregoing propositions in an unqualified manner; and particularly it is conceded that the last of the series — that which relates to the reservation of powers to the states by the People of the United States, and not by the states themselves — has rather been implied, than clearly and dogmatically stated, by many of the adherents of this school. Even Marshall and Webster, the great champions of the inherent nationality of the People of the United States, have sometimes used language more appropriate to advocates of the theory to be thirdly stated. 'But I give the foregoing abstract, without hesitation, as embodying necessary and legitimate conclusions from the whole course of their reasoning; while, by most of the earlier expounders, all these results were reached without hesitation, and were set forth in language pointed and cogent, and in a manner unreserved. In the most recent times, this theory has been developed with great precision and fulness by writers and juridical students of eminent ability and learning. Among these may be mentioned John Codman Hurd, in his “ Essay on the Law of Freedom and Bondage in the United States," — a treatise which, more than any other American work, has received the
, commendation of European jurists; 0. A. Brownsen, in his “ American Republic"; and George P. Marsh, in a series of letters communicated to the Nation."
§ 30. II. The second theory denies that the United States is now, or ever was, in any true sense of the term, a nation. It assumes that, by the revolt of the colonies, there resulted thirteen independent and sovereign states or nations; that these thirteen states retained their separate sovereignty during the confederation ; and that they did not resign this high attribute under the present Constitution. It does not regard that Constitution as an organic and fundamental Law for a single body-politic, but as a compact, as an instrument in the nature of a league, treaty, or articles of association between the separate, independent, sovereign states. It represents these several sovereign states as granting or delegating a portion of the supreme powers which they possessed to the government of the United States, which they had thus constituted as a limited agent, for all and for each of them, to fulfil certain well-defined duties, and assume certain well-understood functions, which this agent could advantageously fulfil and assume. As a consequence, this agent — the general government possesses no powers but those given in express terms, or by implication absolutely necessary. Nor has it the capacity by itself, or by any of its departments, — legislative, executive, or judicial, — to decide, with authority and as a finality, of the
extent of those delegated powers; but the sole capacity to determine this most momentous question rests with each particular state for itself. In the practical operation of this capacity of determination, no state is in the least bound by act of Congress, order of President, or judgment of Supreme Court, nor even by the decisions of its sister commonwealths, but may judge finally and conclusively for itself. As a further consequence of this inherent capacity of determination, any state, after it has authoritatively decided that the general government has transcended its proper limits, has assumed and exercised functions not belonging to it, may treat the compact as broken, the trust as forfeited, the agency as ended; and inay retire from the confederacy, thus resuming all the powers which it had before delegated to the United States. Lastly, as the several independent, sovereign states were the principals which intrusted a portion of their attributes to the genera'
government, they reserved to themselves the residuum not thus expressly parted with ; and are therefore, in theory and in fact, the source of all political functions both of themselves and of the United States. We are, then, not one nation, one people, but an assemblage of nations, united for some specific purposes by a friendly league into a loose federation. No citizen, therefore, owes allegiance to the United States, as Mr. Mason, of Virginia, observed in the Senate ; but each person owes allegiance only to the State of which he is a member. $31. This theory found friends and advocates at the
very earliest period of our existence as an Union, and has continued to receive the support of a large number of public men down to the present time. Mr. Jefferson gave it the aid of his powerful influence in his private correspondence and in many of his public acts, although, while at the head of the nation as President, he practically abandoned it. It received a new impetus from the vigorous, keen, impracticable intellect of Mr. Calhoun, in whose writings it was pushed to its logical consequences, and whose disciples have most zealously propagated their faith until it became an acknowledged article in the political creed of most Southern statesmen, and did not want believers in all other sections of the country. It has, however, never received the assent of Congress, or of the Executive, or of the Judiciary of the United States, although many representatives and senators, and a few judges, have attempted to commit their respective departments to its cause. Baffled in the legislature and the courts, it finally sought the field; and, as it appealed to the sword, may not American citizens in all portions of our common country unite in the devout hope that it has perished by the sword ?
$32. III. A third system of construction occupies a middle ground between these two extremes, and, while avoiding the pernicious and destructive consequences of the latter, does not adopt all of the enlarged and national views of the former. This theory regards the states as originally independent, sovereign commonwealths, but as having surrendered to the United States a portion of their sovereignty, to be held, not at the will and pleasure of the single states, but absolutely
and irrevocably. While the states, therefore, and not the people of the nation as a political unit, are the source of all power given in the Constitution, that instrument was not designed as a mere compact or league between independent sovereignties, but as a firm and lasting organic Law for the newly created political body, and is to be expounded, construed, and interpreted by the governmental authorities therein established. All powers, however, not expressly granted by the states are reserved and held by themselves ; and to that extent they retain their ancient sovereignty.
$ 33. It may be asked how this last theory practically differs from the first. I answer, in some respects not at all ; in most respects widely and radically. According to both, the United States is a nation, - by the former, to all intents, and with all powers within the scope of the functions committed to the government or reserved to themselves by the People ; by the latter, to a limited intent, with only those special powers conferred
government by the states. Following the former, we naturally adopt an enlarged and liberal mode of interpretation ; following the latter, we are compelled to restrain and narrow the development of national life. The former looks to the United States as the country, the home, the centre of hopes, ambition, patriotism, and devotion; the latter
; rather regards the individual state as possessing the first place in our affections, and ourselves as children of the particular commonwealth rather than of the mighty Union one and indivisible. On the other hand, both deny the right of a state to exalt its own judgment as the sole criterion by which the duties of its members are to be measured ; both
pronounce the assumed privilege of seceding from the Union as a political heresy of the deepest dye; both regard the Constitution, and the laws made in pursuance thereof, as paramount over all local and state legislation.
$ 34. Among the leading supporters of the last theory may be named Madison and Jackson. It also lies at the basis of the judgments of the Supreme Court upon constitutional ques- . tions rendered during the presidency of Chief Justice Taney. It had perhaps been adopted by a very large portion, if not indeed by a majority, of politicians. The events of the last six years, and especially those growing out of the close of the war and the readjustment of disturbed relations, would seem to have brought the first theory into greater prominence; and it may probably become the one accepted by the government and the people.
MEANING OF THE TERMS “NATION” AND “POLITICAL SOVEREIGNTY."
35. To put each of the foregoing theories separately to the test would involve needless repetition. A single analysis will be sufficient to disclose the essential nature of the Constitution, and of the body-politic which lies behind it. This analysis will consist of two separate and independent branches, namely,
1st. A historical sketch of the political movements which terminated in the adoption of the Constitution ; and,
2d. An examination of the provisions of that instrument itself.
But, as a preliminary to this investigation, it is absolutely necessary to form clear and accurate conceptions of the mean ing of certain terms, – terms much used in ordinary discourse, but yet often employed in a vague and doubtful manner. Very much of the difficulty in all verbal disputes arises from the want of accurate definitions; and this is true in politics as well as in philosophy and religion.
$36. Let us at the outset, therefore, attempt to obtain some correct and fixed notions of the term “ Nation,"] and of its indispensably related term, “Political Sovereignty.” The facts represented by these words necessarily imply or presuppose each other. There can be no nation without political sovereignty, and no political sovereignty without a nation. I shall
1 Writers on public law use the word State" in the sense in which I have employed the word “ Nation." But as the word “ State has been indissolubly connected with our local commonwealths, great confusion would result from the employment of it, in this discussion, in its more general sense.