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treating it, it is possible to maintain the rights and dignities of the States on the one hand, and the integrity of the confederation on the other.
It is nothing to the American people how persons abroad shall see them. Whether the General Government is regarded as the embodiment of power and the aggregation of legal authority or not, is of no consequence. We are viewing the structure of our insti. tutions, not a picture exhibiting their lights and shadows from a distant standpoint. They are extremely complicated, and, as we have found, most difficult of enforcement. The latter is due to the practical recognition, by the States, of two distinct, and in many respects, antagonistic polities.
It may seem anomalous, and extra-speculative, to maintain, in the face of what has been written, said, and done by the people, that, instead of two systems, we have, in reality, but one. Nevertheless, if we regard the true structure of the States, and the objects they sought to accomplish in ordaining the Union, it seems impossible to come to any other conclusion. As we have departed from this vital doctrine of union, by recognizing the independent power and authority of the General Government, making it not only supreme over delegated interests, but building it up as a colossal foreign state, in many respects, so have the signs of discord and civil commotion multiplied upon us.
It is folly, and something worse, to suppose that two schemes of independent government can be maintained. We must have unity in fact as well as name. It is not in the power of human wisdom and integrity to maintain independent government in the States, and the independent government of the Union, unless it be on the basis that the latter is purely the government of the States, having no separate mission whatever.
Accountability, except as to those matters which have been delegated to the Union, must ever be to the States. They remain in the confederation as its only sustaining power. They fill, from their citizens, all its offices, executive, legislative, and judicial. It is their duty to see that its laws are faithfully executed, because it is their government for specific national purposes—wbat Mr. Hamilton called their political, in con tradistinction to their civil or State Governments. It is their duty to see that its powers shall be executed just as they were delegated; because that was their agreement. Just as they were delegated! It is as much a violation of the compact to exercise the least Federal authority not delegated, as to refuse to carry into effect the delegated powers. To refuse to send Senators and Members of Congress to the Federal capital, to neglect to appoint a Federal judiciary, would be a violation of the Constitution, but no more so, than for the Senators and Members of Congress and judiciary to assume to exercise unwarranted authority. Concerning all delegated powers, the judiciary is made the exclusive judge. That is the agreement. But in respect to the prohibited powers, the States have retained the right of exclusive judgment. From the character of the compact, the parties to it, and the ends sought to be accomplished, we hold this law of construction to be equally necessary and reasonable. It is necessary, because the parties to the compact remain in the Union, as sovereign, independent States. These attributes make it clear that they ought to retain the exclusive right to judge of all matters affecting their systems of local government, which they did not expressly delegate. This right cannot be relinquished without placing it in the power of the Union to sweep away all State institutions and laws. Self-preservation demands that they shall retain it. It is the vital element of local freedom and independence.
The best reasons of State policy also demand it. It is just as necessary that the Union should be kept within the strict letter and spirit of its organic law as that the States should preserve their freedom and independence. We need not be told that the extinguishment of either of these elements of State government would result only in their transfer to the Union, and not in their destruction. That, we know, is the theory of many persons intrusted with the discharge of Federal duties. But it is not the theory of the Union. It is dominion, which such men want, not a free system of laws-it is individual, discretionary government, and not the ancient free institutions of this country, without which, in all their integrity, it will be found impossible, for many years, to rescue the people from anarchy and bloodshed.
This rule of construction will be found, too, on examination, to be entirely consistent with the provisions of the Constitution.
It is hardly necessary to say that that compact delegates certain powers to the United States ; declares that none other shall be exercised; and that the powers not delegated nor prohibited to the States, shall be retained by them respectively or the people. After enumerating all the delegated powers, and prescribing, in many cases, in what manner, where and how, they shall be executed, a schedule of probibitions is added. It is declared, for instance, that “the freedom of speech and of the press shall not be abridged."
This is the declaration of the States to the General Government, a declaration which constitutes no part of that government, conferring no power upon it, intended, not only to limit its authority over persons and property, in respect to free speech and a free press, but to affirm the exclusive jurisdiction over both by the States. It is manifest, then, that the Federal judiciary and all Federal officers, of whatever character, are utterly prohibited from the least control over these rights of the people: first, because they are natural, or what the Constitution denominates reserved rights ; and secondly, because the governments of the States never delegated to the Union the least control over them.
A reference to the delegated powers will render this conclusion still more satisfactory.
The Federal system embraces exclusive authority over the revenues, postal accommodation, the coinage of money, weights and measures, and a few other interests of a general nature. These are Federal matters, not because they differ essentially from others reserved to the people, but because their management was turned over to the Union. They are the subjects of its jurisdiction. It would be folly to question the authority of the United States over any of the delegated powers; but a much greater folly to concede the least authority over subjects not delegated, and worse still over matters specifically reserved or prohibited.
These reservations and prohibitions mean nothing, if they do not assert the exclusive jurisdiction of the State over all the subject matters embraced in them. The States must take care of their citizens, when their liberty and rights are taken away. The policy
government, and that it would be impossible to maintain it in this country, we hold to be equally clear. And if this is true of the whole, it is true of every part of it. We are entitled to absolute freedom, in respect to all the interests referred to, or we are entitled to none.
The people are supreme, under the forms of their own established government, or the government is supreme over them. There is no middle ground to be occupied in this matter.
There is, we are aware, a wide distinction between a free people and a free system of laws. We are discussing the latter on the bases of the existing institutions of the States and of the Union, neither embracing, by any fair construction, the least jurisdiction or legal control over the liberties or property of the citizen. All that was sought to be accomplished was the establishment of rules regulating and governing the ordinary relations of the people, so that each individual member of the body politic might be protected in person and property. We have passed from a mere democracy to a government of laws. We have surrendered the control of majorities to the domination of an agreement, by which all matters of state are to be determined. This agreement was not entered into for the purpose of protecting majorities, for they can take care of themselves, but for the purpose of protecting minorities, even down to the least worthy citizen of the commonwealth.
The former, in the absence of legal restraint, are absolute, or, rather, their action is itself law. It is so simply because, in such case, majorities can be held to no account—they are the state. There are neither moral nor logical elements in such a system of government. Personal liberty and popular tyranny, absolute freedom and the most degrading bondage, unrestrained dominion and hopeless subjection, are rudely blended into one scheme of administration.
A government of laws, whether free or otherwise, is impossible on any other basis than the protection of minorities. That of the States and the Union exhibits this principle perhaps more perfectly than any other known to history. We speak, of course, of the theory and philosophy of the polity, and not of its practical workings; for in the latter we find far more acts tending to its subversion than its maintenance. Judged by what we have done since the adoption of the Federal Constitution, it would seem that, instead of a government of States, bound together for certain specified general purposes, we have a government of majorities; instead of a free system of laws, carefully guarding the rights of minorities, and limiting the power of majorities, we have a government of majorities. Their actual control of the administration, at least, is incontestable. Their right to govern is also widely asserted. This right can be contested only by showing that the Union was adopted on another basis-that the voice of a majority is entitled to no more weight than that of the smallest minority, in support of any measure which violates the Constitution of the United States, or the rights of the people of the States which have been reserved. The controlling power is in the compact of union. Majorities can legally govern only within the scope of that compact.
It must not be assumed that we regard majorities as always in the wrong, or disposed to act in opposition to the public welfare. Far from it, especially in a country like this, where the people have the amplest means of acquiring information of public affairs. It is, perhaps, the misfortune of an elective republic, that when the majority-rule once gets control of the government, in opposition to its organic law, it is capable of tainting the whole scheme. And justly so, because it shows not only a determination not to abide by the agreement, but a spirit of shameless persecution of those who insist upon its fulfilment. It may be that the majority is quite in the right, judged by any other standard than that of the compact. It would be great folly to maintain the perfection of any system of government. But if errors exist in the system, it is far better to effect its modification in a legal way, than to overthrow it by the despotic will of majorities.
A complete illustration of these reflections is found in the career of the States and the Union touching the slavery question.
It must be admitted that a majority of the people of the States are hostile to slavery; but it is equally true, that under the Constitution of the United States, the Government of the Union could, in no manner and in no place, except in the District of Columbia, gain jurisdiction of slavery. There is not one provision of the