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so enlarged them, that the body politic is apparently lost in its own creation.
The government ordained and established in the Constitution of the United States is not to be ranked with either of these extremes. It is limited indeed. Very many legislative and administrative powers are withheld from it; but those conferred are national in their essence and in their extent; while the nationality of the body which created it, appears in characters too plain to be misunderstood. It should also be remembered that, at the time of the adoption of the Constitution, ideas of state sovereignty were very prevalent, and had for a time been generally accepted ; and that, as the Constitution that is, the form and functions of the governmentwas the result of a compromise between the advocates of two contending principles, we shall find in its provisions evident traces of the doctrine of separate state sovereignty. But this fact does not militate against our position ; for, in truth, the whole organic law might bave been framed so as to leave the administration of affairs entirely in the hands of the individval states, and yet have been the work of one sovereign body politic.
THE IMPORTANT AND DISTINCTIVE NATIONAL ELEMENTS IN THE
CONSTITUTION ITSELF; IN THE ATTRIBUTES AND FUNCTIONS OF
$ 92. The immediate subject upon which we are engaged, to wit: the independent and paramount sovereignty of the nation, which is the people of the United States, will be concluded by a brief reference to those portions of the organic law wherein that fact is either openly and directly expressed and declared, or tacitly admitted.
1. The Preamble. $93. The Constitution opens with the grand announcement, confirming the result of our historical analysis, that this fundamental law, and the government created thereby, are the
work of the people of the United States, ordained and established by them and not by the several states; and as an inevitable consequence, that the powers conferred on this newmade government were not delegated by the states in any sovereign independent capacity of theirs, but by the people of the United States as a municipium or nation.
“ We, the people of the United States, in order to form a more perfect union, establish justice, ensure 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."
§ 94. Here is the calm, sublime statement of self-existence, of inherent and unlimited
power, a power of national and fundamental legislation for the purposes of protection to themselves as a body politic, and not to the states as separate political societies. No amplification or argument can add force to this short and simple expression of an organic will. However much the states may have exercised usurped attributes of sovereignty during the unhappy Confederation ; however much
1 the conception of one people acting as an unit may have been forgotten or abandoned amid the jealousies and destructive rivalries of the commonwealths claiming substantial independence; the people had now arisen, reasserted the original idea, repudiated the assumptions of local supremacy, and uttered their organic will in terms which we hope will have a meaning and a power to the end of time. This is the rock upon which many of the great champions of nationality among American statesmen have planted themselves in their conflicts with opposing schools, and from which they were never dislodged by the fiercest assaults of extreme or moderate partisans of state sovereignty.
§ 95. Finally, this solemn preamble was understood to be so complete an answer to the claims of the separate commonwealthis to any independent supremacy, that when the seceding southern states, asserting this claim, and basing their right to act thereon, met to frame a new constitution for their confed. eracy, they rejected the preamble set forth by their fathers, and adopted one which reads as follows: por We, the people of the Confederate States, each state acting in its sovereign and independent character, in order to form a permanent federal government, establish justice,
do ordain and establish this constitution for the confederate states of Ameri
Thus have the opponents of our nationality, by their most solemn and deliberate acts, conceded the correctness of the construction which has been placed upon this utterance of the sovereign people of the United States.
2. The Enacting Clauses. $ 96. If we pass from this preamble or preface, to the substantial grants of power contained in the Constitution itself, we shall find equally strong evidence of nationality in the essential character of these powers. It must be remembered, however, that it is not the form but the attributes of the ment, that testify as to the nature of the political society which creates it, and over which it dominates. There is nothing in the threefold division into Executive, Legislative, and Judicial departments, which necessarily implies the existence of sovereignty. The government of each state, and of many cities, is formed upon the same model. It is the jurisdiction
. of these several departments — that which they may lawfully do, or that from which they are bound to forbear — which stamps their authors as sovereign or subordinate.
$97. It is a maxim of political as well as of private law, that an agent cannot hold and exercise functions transcending those possessed by the principal who appoints him and authorizes him to act. The powers he enjoys may be less in extent and fewer in number than those which inhere in that principal, but they cannot be greater or more numerous. When, therefore, we find the government of the United States clothed with functions which the several states have never possessed, either before or since the Declaration of Independence, we may infer without hesitation, that such functions were not derived from them. We are now prepared to examine some of the most important of these features of the Constitution and attributes of the government which testify to the nationality of the one body politic, and against any assumed sovereignty of the several commonwealths.
1 See Appleton's Ann. Am. Cyclo. for 1861, p. 158.
$ 98. I. The Declaration of Supremacy. — First and foremost : “ 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 ir the constitution or laws of any state to the contrary notwith.
What is the full import of this often-quoted declaration ? I means that so far as the people of the United States, the nation, have seen fit to delegate a portion of their own inherent powers of legislation and government to their appointed rulers, just so far those appointed rulers are supreme throughout the land in the exercise of those delegated powers. It confers an absolute supremacy upon the general government, commensurate with the capacities which are granted at all. also recognizes and proceeds upon the truth that the political society which assumed thus to transfer legislative and administrative functions to its creature, had the right to make such a transfer, - in a word, had inherent and absolute sovereignty in itself.
99. It should be noticed also that this affixing the character of absolute supremacy to the laws of the United States, made in pursuance of the Constitution, is not confined to the direct legislation of Congress. According to the political organization which we have in common with England, a portion only of the actual law-making is done by the Congress or the legislature. The courts are also possessed of a function not only to expound and apply rules already known and recognized, but in reality to enact others whenever a proper occasion may arise in the decision of cases before them. A very large part of the law which regulates the affairs of business and the private rights of persons, has never received the sanction of the legislature, but has found its sources and authors in the independent judiciary.' The judgments of the United States courts, expounding a statute, construing the Constitution, or adding a new rule to the vast body of judicial legislation within their especial jurisdiction, are as much laws of the United States as the formal acts which have been passed by Congress and have received the assent of the President. The character of supremacy belongs to all these; the language of the Constitution is general, and includes every form and species of legislation which can exert a binding force upon the citizen. This is a truth which most writers have either entirely overlooked, or have failed to consider with the care that its importance demands.
1 Constitution, Art. VI. & 2.
$100. Interpretation of the Tenth Article of the Amendments. — The force of the constitutional provision which we are considering (Art. VI. § 2), is not at all weakened by the tenth article of the Amendments, when the latter is correctly read and understood. This amendment is in the following words : “ The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” That a true construction may be put upon this amendment, it should be read in connection with the one which immediately precedes it, and which was adopted at the same time, as follows: “ The enum
66 eration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” 2
$ 101. The tenth article just quoted is often assumed to be a clear recognition of the former sovereignty of the separate states ; but nothing can be more unfounded and fallacious than this claim. Those who insist upon this meaning must alter
1 See Pomeroy's Introduction to Municipal Law, Part I. chap. ïïi., where this subject of judicial legislation is considered at large.
See also Austin's Province of Jurisprudence, Vol. 2, Lects. XXXVII. and XXXVIII., in which the character of judicial decision as law is demonstrated, its peculiarities explained, and its merits and demerits, as compared with statute law, are set forth. The theory of Blackstone, that courts only declare what has always been law, and do not create, is conclusively shown to be not only false, but absurd.
» Ninth Art. of the Amendments.