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other hand, again and again and more unconditionally the last consequences were deduced from the premises of the state's-rights 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 in volved in the statement of the opposite doctrine, which is the constitutional law of to-day.
$ 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 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 co-operating 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 un
questionably 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.
§ 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
1 Texas vs. White, Wallace, VII., 724.
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, anything in the constitution or laws of any state to the contrary notwithstanding.” The constitution is thus the law, and, moreover, the supreme law of the land. The constitutions of the separate states are their fundamental laws only in regard to those matters which are not submitted by the federal constitution to federal authority. This provision makes the constitution an integral part of the constitution of each state. If there is a conflict between them, then the provision of the state constitution opposed to the federal constitution is ipso facto null and void. All judges, and therefore, evidently, all other state officers, and all citizens of the state, are absolutely bound down to this fundamental principle. He who seeks to overthrow it lays hands on the fundamental law of the land. The federal government, which is bound to give the constitution life and being by law, is therefore not only empowered but directed to break down any opposition ;- if possible, by the ordinary and peaceful powers of the state as provided by the constitution, but in case of need, by force.
$ 11. The Right AND THE DUTY OF USING FORCE follow directly from the ideas of “law” and “government." They are, moreover, set forth in the constitution in a way quite beyond doubt. The third section of the second article provides that the president“shall take care that the laws be faithfully executed.” The constitution is the supreme law of the land, and the president's highest duty is therefore to take care that it shall be executed everywhere and under all circumstances. It provides in the
1 Taylor vs. Taintor, Wallace, XVI., 366.
seventh paragraph of the first section of the second article that he shall, upon entering office, take the following oath: “I do solemnly swear (or affirm) that I will faithfully execute the office of president of the United States, and will, to the best of my ability, preserve, protect and defend the constitution of the United States.” If the constitution laid upon him this duty, it must also have intended that he should have, or should be able to obtain, the means by which to fulfill the duty in all cases. Whether and how far it is his privilege to decide for himself whether the application of force is necessary in a given case, and actually to use force, need not be discussed at this point, where only questions of general principles are at issue. Here it is sufficient to show that if, and so far as, he is not authorized to do this, the law-making power is. Article I., section 8, paragraph 18, says that congress shall have power “to 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." It is the president's duty, and therefore also within his power, to preserve, protect and defend the constitution, and congress is therefore bound to give him the means to use this power, that is, to come up to this duty. In case that not only individuals but states as such should rebel against the laws or the constitution, the right of the federal government to use force can be in no way questioned; and if other means are not sufficient, it is so much the more bound to use force because the political order or the very existence of the Union is endangered in so much higher a degree. If the federal government seeks by force to command obedience to the laws and the constitution, and the opposition becomes in substance and form a war, this war