States, and the Constitution as thus adopted, was a complete obligation and bound the State sovereignties.1

$ 27.

1 VIEWS OF MARSHALL AND STORY AS EXPRESSED BY GEORGE TICKNOR CURTIS.

"When we turn to the views of the nature of the Constitution that have always been held and acted upon by the Supreme Court of the United States, it becomes at once apparent that they have admitted of no place for the doctrine which is implied in the idea of state resistance, or organized resistance of any kind. Beginning with the earliest judicial interpretations of the Constitution, and coming down to the latest, we shall find that they have been uniform and consistent.

"When the Supreme Court was composed of Marshall as chief justice, Bushrod Washington, Story, and their associates, it became necessary for them to speak positively concerning the nature of the Constitution, because it was then claimed, in the particular controversy which they had to decide, that the Constitution was established by the states in their sovereign capacities. This doctrine was distinctly negatived by the court in the following terms: The Constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by the people of the United States. There can be no doubt that it was competent to the people to invest the government with all the powers which they might deem proper and necessary, to extend or restrain those powers according to their own good pleasure, and to give them permanent and supreme authority.' (Martin vs. Hunter, STORY, J., 1 Wheaton, 304.)

"A few years later, Chief Justice Marshall, speaking for the whole bench, said: "The government of the Union is a government of the people; it emanates from them; its powers are granted by them, and are to be exercised on them and for their benefit. . . The government of the Union, though limited in its powers, is supreme within its sphere of action; and its laws, when made in pursuance of the Constitution, form the supreme law of the land.' (McCulloch vs. The State of Maryland, 4 Wheaton, 316.)

"Did Story, in referring to the preamble of the Constitution, or did Marshall, in speaking of the people, mean that the Constitution was ordained and established by the people of the United States regarded as a nation? It is quite apparent that the preamble, in using the words 'We, the people of the United States . . do ordain and establish this Constitution for the United States of America,' meant that the people of the several states do this great political act. It is, too, made certain that the very eminent jurists and magistrates, whose language I am now considering, did not regard the Constitution as ordained and established by that mass of people of whom we commonly speak as the People of the United States when we refer to them as a nation. This is apparent from what was said by Chief Justice Marshall." Mr. Curtis then quotes a long extract from McCulloch vs. Maryland,

§ 28. Views of Chancellor Kent and Joseph Story.-These views were held by Mr. Justice Story, who expressed them in

in the course of which the following occurs which seems to indicate that Chief Justice Marshall considered that, while the people acted as people of the States, they did so in a manner that was superior to the governments of the States themselves.

"In discussing this question, the counsel for the state of Maryland have deemed it of some importance in the construction of the Constitution, to consider that instrument, not as emanating from the people, but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign, and must be exercised in subordination to the states, who alone possess supreme dominion. It would be difficult

to sustain this proposition. The convention which framed the Constitution was, indeed, elected by the state legislatures. But the instrument when it came from their hands was a mere proposal, without obligation or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might be submitted to a convention of delegates, chosen in each state, by the people thereof, under the recommendation of its legislature for their assent and ratification.' This mode of proceeding was adopted; and by the Convention, by Congress, and by the state legislatures the instrument was submitted to the people.

666

They acted upon it, in the only manner in which they can safely, effectively, and wisely on such a subject, by assembling in convention. It is true, they assembled in their several states; and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is ordained and established' in the name of the people; and is declared to be ordained 'in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity.' The assent of the states, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final.

"It required not the affirmance, and could not be negatived, by the state governments. The Constitution, when thus adopted, was of complete obligation and bound the state sovereignties.

"It has been said that the people had already surrendered all their powers to the state sovereignties and had nothing more to give. But surely the question whether they may resume and modify the powers granted to government does not remain to be settled in this country.

Martin vs. Hunter as quoted at length in the foot-note to the preceding section, to the effect that "the Constitution

Much more might the legitimacy of the general government be doubted had it been created by the states. The powers delegated to the state sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves. To the formation of a league such as was the Confederation, the state sovereignties were certainly competent. But when, in order to form a more perfect union,' it was deemed necessary to change the alliance into an effective government possessing great and sovereign powers and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union, then (whatever may be the influence of this fact on the case), is emphatically and truly a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them and for their benefit.'" Curtis' Constitutional History of the United States, vol. II., pp. 71-74.

VIEWS OF PROFESSOR VON HOLST.

"Sec. 8. The Doctrine of State Sovereignty. The premise of the argument of the so-called state's-right school is that there never has been, either in point of fact or in point of law, one people of the United States. The argument proceeds as follows: The people of each state, without being bound in any way by the action or the non-action of the other states, decided for themselves, through their authorized representatives, whether or not they would accept the draft of the Philadelphia convention. That the constitution is a work of states is, therefore, a fact which cannot be gotten rid of on the plea that the constitution begins with the words: We, the people of the United States.' If these words do not contain an evident falsehood, then must the phrase 'United States' be read here as 'states united;' but so read they say simply that the states, in order to better protect their interests, have entered into a new compact to regulate everything in regard to those matters as to which they wish to form one commonwealth. The political existence of the Union was not changed. The states were sovereign afterwards as well as before, and they alone were sovereign because a partition of sovereignty is impossible from its very meaning. It would be to turn nature upside down if the creator were made subordinate to the creature. There was no common judge standing above the federal powers and the states. If a conflict of authority broke out between them, the decisive judgment was left to the states, that is, to each of them for itself, as to what rights they had reserved for themselves and what powers they had given to the Union. If the federal government, in the opinion of a single state, exceeded its constitutional authority, that state was justified in declaring the particular law, so far as it came in question, to be null and void. John C. Calhoun, of South Carolina, who with great logical acuteness developed into a complete system this so-called doctrine of nulli

of the United States was ordained and established, not by the States in their sovereign capacities, but emphatically, as

fication, declared that nullification was an 'eminently conservative remedy,' and affirmed that it, and it alone, could prevent the dissolution of the Union. The younger school of the southern state's-right men did not stand by him in this. The doctrine of nullification was constantly pushed into the background and often completely rejected, and on the other hand, again and again and more unconditionally the last consequences were deduced from the premises of the state's-school. Since the constitution is a compact between sovereign states, they said, the states have the power to cut loose from the Union if the compact is broken, either by the national government or by the other states,—if it changes from a means of protection and of advancement into a source of destruction and certain ruin. Sovereignty is not only indivisible, but cannot be parted with, and the states, bound only through an act of their own free will, can be bound only as long as their will does not change; that is, as they wish to be bound. Secession is thus not a right under the constitution, that is, a constitutional right, but it is inherent in the nature of the states, and therefore could not possibly be given up by the adoption of the constitution. The attempt to prevent by force the secession of a state is not a suppression of a rebellion, but an international war. Others did not go as far, and thought they had found a middle course. They admitted that secession was a revolutionary act, but affirmed that the federal government was not empowered to use force against the sovereign states. This was the non-coercion theory. They claimed that the sovereign states had the right of neutrality; that is, that although they had not cut loose from the Union, they were justified in standing on one side as spectators during a conflict fought out with the sword between the federal government and the seceded states.

"The result of the civil war made this one of the dead and gone doctrines of history. After its champions had appealed to the ultima ratio and had been completely conquered, it had no more political vitality. And it will never again have it. The victorious north did not even consider it necessary to guard itself against the possibility of the revival of this doctrine by inserting in the constitution a new express declaration against it. The opposite doctrine is thus unquestionably valid constitutional law to-day, whatever one may think on the question as to what originally was constitutional law. There is no need here of any further critical examination of the doctrine of state sovereignty. This is involved in the statement of the opposite doctrine, which is the constitutional law of to-day.

"Sec. 9. The People of the United States of course did not act as one uniform whole when they gave themselves this constitution. The people, that is, the part of the population of each state endowed with full political rights, acted for themselves, and had absolute freedom of decision. They could accept the draft of the Philadelphia convention through their authorized representatives, or they could reject it, and therewith cut loose from the Union, if the projected organization of the

the preamble of the Constitution declares 'by the people of the United States." "1

Chancellor Kent, in his Lectures on the Government and Constitutional Jurisprudence, which forms the second part

$ 28.

STORY, J. See note 3 to preceding section and also see chap. V. § 138, et seq.

1 Martin vs. Hunter, U. S. Sup. Ct. 18, 1816, 1 Wheaton, 304, p. 324, latter were accomplished. But their ratification did not make the draft a constitution. Their ratification was simply a declaration, binding in law, that if the people of at least eight other states came to the same conclusion, the organization of the Union should therewith become an accomplished fact; so that, for the states concerned, this draft should be good as a constitution given by the people of the United States to the United States. Only by and through the choice of its own people did each state become a constituent member of the Union. This, however, did not happen through an act of will of any single state, but the Philadelphia draft first became a constitution by the equal and cooperating consent of the people of nine states, and the states which ratified it afterwards evidently acquired by their ratification exactly the same legal status in the Union. Chief Justice Chase was unquestionably right when he said that 'the Union of the states never was a purely artificial and arbitrary relation.' This fact, however, did not settle the matter at issue. Whether the states were or were not sovereign from the time of the declaration of independence, by common consent every one of them decided as a sovereign upon the adoption of the constitution, that is, upon its own entrance into the Union. On the other hand, whatever their legal status in the confederation and their political nature up to this time might have been, they were not sovereign by common consent, that is, according to the constitution, as members of the new Union. The Philadelphia convention began its labor by the adoption of a resolution which declared that a national government ought to be established, consisting of a supreme legislative, executive and judiciary.' If a state adopted the draft, its people thereby declared that they, as far and as widely as this draft provided, should be fused with the people of the other states into one people of the United States; and by the concurrent decision of all, this declaration, put in this way, was placed at the beginning of the constitution, so that this proclaimed itself as the work of this one people of the United States.

"Sec. 10. The Constitution is not a compact between the states, but it is, as it declares itself to be, a constitution, and in truth, the constitution of the United States, that is, of the Union, of the commonwealth formed out of the states. Therefore, it is unconditionally binding, as well for the whole people as for the states as such. No room for doubt is left, for the second section of the sixth article reads: "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,