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contingencies, would be placing the whole too explained, the consent of each State would much under the control of the parts, to remedy have been requisite to any additional grant of which, this great additional power was given power, or o her amendment of the Constitution. to the amending, or repairing power--this vis While, then, nullification would enable a State medicatrix of the system. to arrest the exercise of a power not delegated,

To understand correctly the nature of this the right of self government, if unmodified, concession, we must not confound it with the would enable her to prevent the grant of a powdelegated powers conferred on the General er not delegated; and, thus, her conception of Government, and to be exercised by it, as the what power ought to be granted, would be as joint agent of the States. They are essentially conclusive against the co-states, as her condifferent. The former is, in fact, but a modifi-struction of the powers granted, is against the cation of the original sovereign power, residing General Government. In that case, the danger in the people of the several States of the creating would be on the side of the States or reserved or Constitution making power itself, intended, as powers. The amending power, in effect, corstated, to facilitate and strengthen its action, and rects this danger. In virtue of these provinot change its character. Though modified, it is sions which it contains, the resistance of a State not delegated. It still resides in the States and is still to a power, cannot finally prevail, unless she to be exercised by them, and not by the Government. be sustained by one fourth of the co-States; I propose next to consider this important mo- and in the same degree that her resistance is dification of the sovereign powers of the States, weakened, the power of the General Governin connection with the right of nullification. ment, on the side of the delegated powers, is It is acknowledged on all sides, that the du-sirengthened. It is true that the right of a State ration and stability of our system depends on to arrest an unconstitutional act, is, of itself, maintaing the equilibrium between the States complete against the Government; but it is and the General Government, the reserved and equally so, that the controversy may, in effect, delegated powers. We know that the conven- be determined against her, by a grant of the tion which formed the Constitution, and the va contested powers, by three fourths of the rious State conventions which adopted it, as far States. It is thus by this simple, and apparentas we are informed of their proceedings, felt ly incidental contrivance, the right of a State to the deepest solicitude on this point. They nullify an unconstitutional act, so essential to saw and felt that there would be an incessant the protection of the reserved rights, but cnoflict between them,which would menace the which, unchecked, might too much debilitate existence of the system itself, unless properly the Government, is counterpoised, not by weakguarded. The contest between the States and ening the energy of a State in her direct resistGeneral Government, the reserved and delega- ance to the encroachment of the Government, ted rights, will, in truth, be a conflict between or by giving to the latter a direct control over the great predominant interests of the Union on the States as proposed in the convention, but one side, controlling and directing the move-in a manner infinitely more safe, and, if I may ments of the Government, and seeking to en- be permitted so to express myself, scientific, by large the delegated powers, and thereby ad-strengthening the amending or repairing power, vance their power and prosperity; and, on the the power of correcting all abuses or derangeother, the minor interests rallying on the re.ments by whatever cause, or from whatever served powers as the only means of protecting quarter.

themselves against the encroachment and op To sum all in a few words. The General Govpression of the other. In such a contest, with- ernment has the right, in the first instance, of out the most effectual check, the stronger will construing its own powers, which if final and absorb the weaker interests; while, on the other conclusive, as is supposed by many, would have hand, without an adequate provision of some placed the reserved powers at the mercy of the description or other, the efforts of the weaker delegated, and thus destroy the equilibrium of to guard against the encroachments and oppres- the system. Against that, a State has the right sion of the stronger, might permanently de- of nullification. This right on the part of the range the system. State, if not counterpoised, might tend too On the side of the reserved powers, no check strongly to weaken the General Government more effectual can be found or desired than and derange the system. To correct this, the nullification, or the right of arresting, within amending or repairing power is strengthened. the limits of a State, the exercise by the Gene- The former cannot be made too strong, if the ral Government of any powers but the delega- latter be proportionably so. The increase of the ted; a right which, if the States be true to latter is, in effect, the decrease of the former. themselves, and faithful to the Constitution, will Give to a majority of the States a right of aever prove, on the side of the reserved powers, mendment, and the asserting power on the an effectual protection to both. part of the State, would, in fact, be annulled.

Nor is the check on the side of the delega--The amending power and the powers of ted, less perfect. Though less strong, it is am- the Government would, in that case, be, in ple to guard against encroachments; and is as reality, in the same hands. The same majority strong as the nature of the system would bear, that controlled the one, would the other; and as will appear in the sequel. It is to be found the power arrested, as not granted, would be in the amending power." Without the modifi- immediately restored in the shape of a grant. cation which it contains of the rights of self this modification of the right of self-governgovernment on the part of the States, as already ment, on the part of the States is, in fact, the

pivot of the system. By shifting its position, as to the nature and genius of our system, to assume the preponderance is on one side or the other, powers not delegated, than to resume those that or to drop the simile by increasing or diminish-are; and less hostile, that a State, sustained by ing the energy of the repairing power, effected one-fourth of her Co states, should prevent the ex by diminishing or increasing the number of ercise of power really intended to be granted, tha States necessary to amend the constitution, the that the General Government should assume the equilibrium between the reserved and the dele-exercise of powers not intended to be delegated. gated rights may be preserved or destroyed at In the latter case, the usurpation of power pleasure. would be against the fundamental principle of I am aware it is objected that, according to our system, the original rights of the States a this view, one-fourth of the States may in reali-self-government; while, in the former, if it be ty change the constitution, and thus take away usurpation at all, it would be, if so bold as expowers which have been unanimously granted pression may be used, an usurpation in the by all the States. The objection is more spe-spirit of the Constitution itself--the spirit cious than solid. The right of a State is not to daining that the utmost extent of our Union resume delegated powers but to prevent the re- should be limited by the will of any number of served from being assumed by the Government. States, exceeding a fourth, and that most wisely. It is, however, certain the right may be abused, In a country having so great a diversity of and thereby powers be resumed, which were geographical and political interest, with so vast in fact delegated; and it is also true, if sustained a territory, to be filled in a short time with by one-fourth of the co-States, such resumption almost countless millions, --a country, of which may be successfully and permanently made by the parts will equal empires; an union more the State. This is the danger, and the utmost ex-intimate than that ordained in the Constitution, tent of the danger, from the side of the reserved and so intimate, of course, that it might be perpowers. It would, I acknowledge, be desira-manently hostile to the feelings of more than a ble to avoid or lessen it; but neither can be ef- fourth of the States, instead of strengthening, fected, without increasing a greater and oppos struction. There is a deep and profound phiwould have exposed the system to certain deing danger.

If the right be denied to the State to defend losophy, which he who best knows our nature her reserved power, for fear she might resume will the most highly appreciate, that would the delegated, that denial would, in effect, yield make the intensity of the Union, if I may so to the General Government the power, under express myself, inversely to the extent of the the colour of construction, to assume, at plea- territory and the population of a country, and sure, all the reserved powers. It is, in fact, a the diversity of its interests, geographical and question between the danger of the States re- political, and which would hold in deeper suming the delegated powers on one side, and dread the assumption of reserved rights by the the General Government assuming the reserved agent appointed to execute the delegated, than on the other. Passing over the far greater the resumption of the delegated, by the autoprobability of the latter than the former, which rity which granted the powers and ordained the I endeavored to illustrate in the address of last agent to administer them. There appears, summer, I shall confine my remarks to the strik- indeed, to be a great and prevailing principle, ing difference between them, viewed in con- that tends to place the delegated power in nexion with the genius and theory of our Gov't. opposition to the delegating; the created to the The right of a State, originally, to complete creating power--reaching far beyond man and self-government, is a fundamental principle in his works, up to the universal source of all our system, in virtue of which, the grant of power. The earliest pigs of sacred history power required the consent of all the States, record the rebellion of the archangels gunst while to withhold power, the dissent of a single State was sufficient. It is true that this original and absolute power of self-government has been modified by the Constitution, as already stated, so that three-fourths of the States may now grant power, and, consequently, it requires more than one-fourth to withhold. The boundary between the reserved and the delegated powers, marks the limits of the Union. The States are united to the extent of the latter, and separated beyond that limit. It is then clear, that it was not intended that the States should If the views presented be correct, it follows, be more united than the will of one-fourth of that on the interposition of a State in favor of them, or rather one more than a fourth, would the reserved rights, it would be the duty of permit. It is worthy of remark, that it was the General Government to abandon the conproposed in the convention to increase the tested power, or to apply to the States them— confederated powers, as it may be called, by selves, the source of all political suthority, for vesting two-thirds of the States with the right the power, in one of the two modes prescribal of amendment; so as to require more than a in the Constitution. If the case be a simple third, instead of a fourth--to withhold power. [one, embracing a single power, aod that in as The proposition was rejected; and three-fourths nature easily adjusted, the more ready and unanimously adopted. It is, then, more hostile appropriate mode would be an amendment in

the high authority of Heaven itself, and ancient mythology the war of the Titans against Jupiter, which, according to its narrative, m-naced the universe with destruction. This all-pervading principle is at work in our system--the created warring against the creating power; and unless the Government be bolted and chained down with links of adamant by the hand of the States which created it, the creature will usurp the place of the creator, and universal political idolatry overspread the land.

the ordinary form, on a proposition of two perfection of their institutions, and is essential thirds of both Houses of Congress, to be ratifi-to the very existence of liberty.

ed by three-fourths of the States; but, on the When, then, it is said, that a majority has the contrary, should the derangement of the system right to govern, there are too modes of estimatbe great, embracing many points difficult to ing the majority, to either of which the expresadjust, the States ought to be convened in a sion is applicable. The one in which the general convention, the most august of all as-whole community is regarded in the aggregate semblies, representing the united sovereignty and the majority is estimated in reference to the of the confederated States, and having power entire mass. This may be called, the majority and authority to correct every error, and to of the whole, or the absolute majority. The repair every dilapidation or injury, whether other, in which it is regarded, in referet ce to caused by time or accident, or the conflicting its different political interests, whether commovement of the bodies which compose the posed of different classes, of different commusystem. With institutions every way so fortunities, formed into one general confederated nate, possessed of means so well calculated to community, and in which the majority is estiprevent disorders, and so admirable to correct mated, not in reference to the whole, but to them, when they cannot be prevented, he who each class or community of which it is composwould prescribe for our political disease, dis-ed, the assent of each, taken separately, and union on the one side, coercion of a State, in the the concurrence of all constituting the majority. assertion of its rights, on the other, would de- A majority thus estimated may be called the serve and will receive the execrations of this and concurring majority.

all future generations.

When it is objected to nullification, that it is

I have now finished what I had to say on the opposed to the principle that a majority ought subject of this communication, in its immediate to govern, he who makes the objection, must connection with the Constitution. In the dis-mean the absolute, as distinguished from the cussion, I have advanced nothing but on the concurring. It is only in the sense of the formauthority of the Constitution itself, or that offer the objection can be applied. In that of recorded and unquestionable facts, connected the concurring, it would be absurd, as the conwith the history of its origin and formation; curring assent of all the parts, (with us all the and have made no deduction, but such as rest-States,) is of the very essence of such majority. ed on principles which I believe to be unques- Again, it is manifest, that in the sense it would tionable; but it would be idle to expect, in the be good against nullification, it would be equal. present state of the public mind, a favorable ly so against the Constitution itself; for, in reception of the conclusions to which I have whatever light that instrument may be regardbeen carried. There are too many miscon-ed, it is clearly, not the work of the absolute, ceptions to encounter, too many prejudices to but of the concurring majority. It was formed combat, and, above all, too great a weight of and ratified by the concurring assent of all the interest to resist. I do not propose to investi. States, and not by the majority of the whole gate these great impediments to the reception taken in the aggregate, as has already been of the truth, though it would be an interesting stated. Thus the acknowledged right of each subject of inquiry to trace them to their cause, State in reference to the Constitution is unquesand to measure the force of their impending tionably the same right which nullification atpower; but there is one among them of so mark- tributes to each, in reference to the unconstitued a character, and which operates so extensively, that I cannot conclude without making it the subject of a few remarks, particularly as they will be calculated to throw much light on what has already been said.

tional acts of the Government; and, if the latter be opposed to the right of a majority to govern, the former is equally so. I go farther. The objection might with equal truth be applied to all free States that have ever existed, I mean Of all the impediments, opposed to a just States deserving the haine, and excluding of conception of the nature of our political sys- course those which, after a fact ous and anarchi tem, the impression that the right of a State to cal existence of a few years, have sunk under arrest an unconstitutional act of the General the yoke of tyranny, or the dominion of some Government, is inconsistent with the great and foreign power. There is not, with this excep. fundamental principle of all free States, that a tion, a single free State, whose institutions were majority has the right to govern, is the greatest.not based on the principle of the concurring Thus regarded, nullification is, without further majority-not one, in which the community reflection, denounced as the most dangerous was not regarded in reference to its different and monstrous of all political heresies, as in political interests, and which did not, in some truth it would be, were the objection as well form or other, take the assent of each in the opfounded, as in fact it is destitute of all founda-eration of the Government, tion, as I shall now proceed to show.

In support of this assertion, I might begin Those who make the objection,seem to suppose with our own Government and go back to that that the right of a majority to govern is a princi- of Sparta, and show, conclusively, that there is ple too simple to admit of any distinction; & yet, not one on the list, whose institutions were not if I do not mistake, it is susceptible of the most organized on the principle of the concurring important distinction-entering deeply into the majority, and in the operation of which, the construction of our system, and, I may add, in-sense of each great interest was not separately to that of all free States, in proportion to the consulted. The various devices which have been contrived for this purpose, with the pecu

liar operation of each, would be a curious and all its interests be more fully represented and highly important subject of investigation. I protected. But with this great advantage, can only allude to some of the most prominent. united with the means of the most just any The principle of the concurring majority has perfect local administration through the agenc sometimes been incorporated in the regular of the States, and combined with the capacity and ordinary operation of the Government, each of embracing within its limits the greatest ex interest having a distinct organization, and a tent of territory and variety of interests, it is combination of the whole forming the Govern- liable to one almost fatal objection, the tardi. ment; but still requiring the consent of each, ness and feebleness of its movements—a defect within its proper sphere, to give validity to the difficult to be remedied; and when not, so measures of Government. Of this modification great as to render a form of Government, in the British and Spartan Governments are by other respects so admirable, almost worthless. far the most memorable and perfect examples. To overcome this difficulty was the great desi In others, the right of acting-ot making and deratum in political science, and the most dif executing the laws-was vested in one interest, cult problem within its circle. To us belangs and the right of arresting, or nullifying, in an- the glory of its solution, if, indeed, our expe other. Of this description the Roman Govern riment (for such it must yet be called) shall ment is much the most striking instance. In prove, that we have overcome it, as I sincerely others, the right of originating or introducing believe and hope it will, on account of our own projects of laws was in one, and of enacting as well as the liberty and happiness of our race. them in another, as at Athens, where the Areo pagus proposed and the general Assembly of the people enacted laws.

Our first experiment in Government was on the old form, of a simple confederacy, unmodi fied, and extending the principle of the con These devices were all resorted to with the curring majority alike to the Constitution, (the intention of consulting the separate interests, article of Union,) and to the Government which of which the several communties were com-it constituted. It failed; and the present struc posed; and against all of which, the objection ture was reared in its place, combining for the to nullification, that it is opposed to the will of first time in a confederation, the absolute with a majority, could be raised with equal force-the concurring majority; and thus uniting the as strongly, and I may say much more so, justice of the one with the energy of the other. against the unlimited, unqualified, and uncon- The new Government was reared on the troulable veto of a single tribune out of ten, foundation of the old, strengthened, but not at Rome, on all laws, and the execution of laws, changed. It stands on the same solid basis of as against the same right of a sovereign State, the concurring majority, perfected by the sanc (one of the twenty-four tribunes of this Union,) tion of the people of the States directly given, limited, as the right is, to the unconstitutional and not indirectly, through the State Govern acts of the General Government, and liable, as ments, as their representatives, as in the old. in effect it is, to be controlled by three-fourths confederation. With that difference, the auof the co-States; and yet the Roman Republic thority which made the two Constitutionsand the other States to which I have referred, which granted their powers, and ordained and are the renowned among free States, whose ex-organized their respective Governments to exeamples have diffused the spirit of liberty over cute them, is the same. But, in passing from the world, and which, if struck from the list, the Constitution to the Government, (the lawwould leave behind but little to be admired or making and law-administering powers,) the dif imitated. There indeed would remain one ference between the two becomes radical and class deserving from us particular notice, as essential. There, in the present, the concur ours belongs to it; I mean confederacies, but, ring majority is dropped, and the absolute subas a class, heretofore far less distinguished for stituted. Ia determining, then, what powers power and prosperity, than those already al- ought to be granted, and how the Government luded to; though I trust, with the improve-appointed for their execution ought to be or ments we have made, destined to be placed at ganized, the separate and concurring voice of the very head of the illustrious list of States, the States was required; the Union being which have blessed the world with examples garded, for this purpose, in reference to its va of well regulated liberty; and which stand as rious and distinct interests; but in the execu so many oases in the midst of the desert of op- tion of these powers (delegated only because pression and despotism which occupy so vast a all the States had a common interest in their ex space in the chart of Governments. That such ercise) the Union is no longer regarded in refer will be the great and glorious destiny of our ence to its parts, but as forming, to the extent system, I feel assured, provided we do not of its delegated powers, one great community, permit our Government to degenerate into the to be governed by a common will, just as the worst of all possible forms, a consolidated Go-States are in reference to their separate intet vernment, swayed by the will of an absolute ests, and by a Government organized ou princi majority. But to proceed.

ples similar to their's. By this simple, but Viewing a confederated community, as com fortunate arrangement, we have engrafted the posed of as many distinct political interests as absolute on the concurring majority, thereby there are States, and as requiring the consent giving to the administration of the powers of of each to its measures, no government can be the Government, where they were required, conceived, in which the sense of the whole all the energy and promptness belonging to the community can be more perfectly taken, and former, while we have retained in the power

granting and organizing authority, (if I may so a protection, and the former as a restraint, and, express myself,) the principle of the concur- of course, accompanied with all the impatient ring majority, and with it, that justice, mode- feelings, with which restrictions on cupidity ration, and full and perfect representation of and ambition are ever regarded by those unruly all the interests of the community which be passions. Under their influence, the Consti longs exclusively to it. tution will be viewed by the majority, not as

Such is the solidity and beauty of our admi- the source of their authority, as it should be, rable system, but which, it is perfectly obvi- but as shackles on their power. To them it ous, can only be preserved by maintaining the will have no value as the means of protection. ascendency of the CONSTITUTION-MAKING AU-As a majority, they require none. The numTHORITY OVER THE LAW-MAKING THE CONCUR- ber and strength, and not the Constitution, are RING OVER THE ABSOLUTE MAJORITY. Nor is it their protection; and, of course, if I may so less clear, that this can only be effected by the speak, their instinct will be to weaken and deright of a State to annul the unconstitutional stroy the restrictions, in order to enlarge the acts of the Government-a right confounded powers. He must have a very imperfect knowwith the idea of a minority governing a majo-ledge of the human heart, who does not see, in rity, but which, so far from being the case, is this state of things, an incessant conflict beindispensable to prevent the more energetic, tween the Government, or the law-making pow but imperfect najority, which controls the er, and the Constitution making power. Nor movements of the Government, from usurping is it less certain that in the contest, the advanthe place of that more perfect and just majori- tage will be exclusively with the former. ty, which formed the Constitution, and ordained Government to execute its powers.

The law-making power is organised and in constant action, having the control of the honNor need we to apprehend this check, as ors and emoluments of the country, and armed powerful as it is, will prove excessive. This with the power to punish and reward; the othdistinction between the Constitution and the er, on the contrary, is unorganised, lying dorlaw-making powers, so strongly marked in our mant in the great inert mass of the community, institutions, may yet be considered as a new till called into action on extraordinary occasions, and untried experiment. It can scarcely be and at distant intervals, and then bestowing no said to have existed at all, before our system honors, exercising no patronage, having neither of Government. We have yet much to learn, the faculty to reward nor to punish, but enas to its practical operation, and among other dowed simply with the attribute to grant powthings, if I do not mistake, we are far from ers and ordain the authority to execute them. realizing the many and great difficulties of hold. The result is inevitable. With so strong an ing the latter subordinate to the former, and instinct on the part of the Government to throw without which, it is obvious the entire scheme off the restrictions of the Constitution, and to of constitutional government, at least in our enlarge its powers; and with such powerful facsense, must prove abortive. Short as has been ulties to gratify this instinctive impulse, the our experience, some of these, of a very formi- law-making must necessarily encroach on the dable character, have begun to disclose them-Constitution-making power, unless restrained selves; particularly between the Constitution by the most efficient check, at least as strong and the Government of the Union. The two as that for which we contend. It is worthy of powers there, represent very different inter- remark, that all other circumstances being equal, ests; the one, that of all the States taken se- the more dissimilar the interests represented by parately; and the other, that of a majority of the two, the more powerful will be this tenden-. the States, as forming a confederated commu-cy to encroach; and it is from this among other nity. Each acting under the impulse of these causes, that is so much stronger between the respective and very different interests, must Government and the Constitution making pownecessarily strongly tend to come into collision; ers of the Union, where the interests are so and in the conflict, the advantage will be found, very dissimilar, than between the two in the almost exclusively, on the side of the Govern- several States. ment or law-making power. A few remarks will be sufficient to illustrate these positions.

That the framers of the Constitution were aware of the danger which I have described, we The Constitution, while it grants powers to have conclusive proof, in the provision to which the Government, at the same time imposes re- phave so frequently alluded, I mean that which strictions on its action, with the intention of provides for amendments to the Constitution. confining it within a limited range of powers I have already remarked on that portion of this and of the means of executing them. The ob. provision, which with the view of strengthening ject of the powers is, to protect the rights and the confederated power conceded to three fourths promote the interests of all; and of the restric- of the States a right to amend, which otherwise tions, to prevent the majority, or the dominant could only have been exercised by the unaniinterests of the Government, from perverting mous consent of all. It is remarkable, that powers intended for the common good, into the while this provision thus strengthend the amendmeans of oppressing the minor interests of the ing power, as it regards the States, it imposed community. Thus circumstanced, the domi-impediments on it, as far as the Government was nant interest in possession of the powers of concerned. The power of acting as a general the Government and the minor interests, on rule is invested in the majority of Congress, whom they are exercised, must regard these re-but instead of permitting a majority to propose strictions in a very different light; the latter as amendments, the provision requires, for that

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