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ing point for a discussion of the principles which to a certain extent form the foundation of the whole constitution, as well as of the rules which control its interpretation and construction. The “people of the United States” name themselves as the framers of the constitution, that is, as the possessors of political omnipotence, of sovereignty. But who, then, are the people of the United States? This question was the formal beginning of the struggle between two political schools which culminated in the civil war, and is still carried on to-day with tongue and pen, though in a far milder way.
$ 8. THE DOCTRINE OF STATE SOVEREIGNTY. The premise of the argument of the so called state’s-rights 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 nullification, 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-rights 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
1 See my book about him in the series of biographies edited by John T. Morse, under the general name of “ American Statesmen."
2 The doctrine in its beginnings goes back to the last years of the eighteenth century. The hated alien and sedition laws, whose unconstitutionality will scarcely be questioned by anyone to-day, gave the legislatures of Virginia and Kentucky the opportunity to proclaim the doctrine officially. When the anti-federalists in 1801 obtained the mastery, and the policy of the United States in the struggle with England seriously embarrassed the industrial interests, especially those of the New England states, the parties changed their standpoints. The federalists were now champions of state's rights. During the war with England they inserted in their political manifestoes the leading clauses of the Virginia and Kentucky resolutions, word for word. But it was under the pressure of the special interests of the slave-holders that the doctrine of state sovereignty was. first fully framed, thought out to a logical end, and finally, with the most terrible zeal, transferred from theory to practice.
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 involved 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.