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ART. V.-Journal, Acts and Proceedings of the Convention, as
sembled at Philadelphia, on Monday, the 14th of May, and dissolved on Monday, the 17th of September, 1787, which formed the Constitution of the United States. Published under the direction of the President of the United States, conformably to a Resolution of Congress of March 27, 1818. I Vol. 8vo.
1 Boston. 1819.
The nature of the association between the states of this union, has given rise to much discussion of late years, and must be offered as a sufficient excuse for putting at the head of this article, a work which has been, for such a length of time, before the public. Our Constitution was certainly formed by compromise, not only between parties, having, in many respects, very different interests, but by statesmen having widely different views of the principles on which a federal government ought to be constructed. It was not until after much discussion, in a session of some months, that the present Constitution was agreed to. That there were many views of this instrument which did not, at that time, develope themselves, we think probable, if not evident. Neither can this create surprise. In a compact of such magnitude, comprehending such vast powers, and various and complicated objects and operations, formed too by the demands and concessions of various interests, it is impossible to suppose that any individual could see all the bearings which the Constitution would have when carried into effect, or correctly. anticipate all the constructions that should or might be put upon it, when brought into contact with subordinate powers, or the diversity of subjects upon which it was to operate. Hence, the various and discordant predictions which were made as to its operations and results, and the hesitation which appeared in many states to adopt it, even after the contemporaneous commentary, and the positive declarations of many of its most efficient advocates and authors, seemed to have left no doubt as to the intention of the parties, and the limits which they supposed to have been conclusively established by the charter itself.
It has been the frequent boast of our country that by the invention of written constitutions in this age of civil liberty, in which the fundamental principles of government are embodied and recorded in known and familiar language; and by the organization of the representative system, and the fair extension of the elective franchise, we had discovered the best possible
mode of securing the enjoyment of free institutions, and of perpetuating their blessings to an indefinite posterity; we had unfolded the mystery hitherto hidden from the world, by which the rights of man could be effectually secured, and a system of rational government established and maintained. It is conceded even by the most sceptical, that if these two objects can be practically secured, our American experiment will have been successfuland satisfactory. Independently, however, of those causes froin which a failure has confidently been predicted by our enemies, such as the extent of our territory, the separate interests and distinct views which may arise on the exterior regions of our confederacy, and the danger that ambitious men may avail themselves of these views and interests to create and perpetuate, unfriendly, if not hostile feelings between different portions of the confederacy-a new difficulty which was scarcely anticipated, has arisen that threatens to bring to an early developement, the principles of discord which may have been secretly lurking in our system.
We have already had occasion to remark how much the people of this country were becoming accustomed to rely on forms, and confide in the virtue of written Constitutions. In the simplicity of their faith, they seemed to suppose that such a charter had not only a "charmed life," but the inherent power of preserving and protecting its own principles. They little expected that construction might not only give a new direction to its action, but leaving its outward and visible form unchanged, might derange its vital functions, and give it a morbid energy, an irregular, diseased and pernicious operation ; that a Constitution, settled upon fair and mutual and liberal compromise and concession, might become unfit for the very purposes for which it was organized, might break down every barrier which had been created to restrain it, might assume those very powers which were intended to be withheld, and which, if they had been granted, would have assured its rejection, and this, by the technical construction of some doubtful expressions. Such is the vanity of human expectations, and such the feeble bulwark, which, without incessant vigilance on the part of the people, a written Constitution can oppose to the operation of interest and ambition. Could any other result, however, be rationally expected! If the holy volume of inspiration can, by construction, by interpretation, by force of subtle exegesis, be made to speak in senses so various and so opposite, what may not be expected of a human production, though penned by the ablest men, and apparently, with the greatest anxiety to speak with simplicity and precision. VOL. II.--NO. 4.
For a long series of years, while carrying into effect the undisputed powers of our government, the integrity of our councils, the march of our prosperity, and the success of our political institutions, while they justified the boldness of our experiment, had nearly exterminated all the doubts of our friends, and baffled the predictions of our enemies. It was, indeed, to be expected, that, in the first stages of a new government, somewhat original in its plan, and therefore aided by no exact precedents, complex in its structure, and diffusive in detail, difficulties would arise, and practical questions spring up, that would exercise the judgment and divide the opinions of men.
Such was the question on the treaty-making power, whether treaties made, although the supreme law of the land, were also a supreme law to the popular branch of the Legislature, which was bound for their execution, without a right in that branch to discuss and rejudge their merits. Such also was the agitated question, whether the power in the President to nominate and appoint to office, implied, in all cases, where the Constitution was silent as to the tenure, the correlative power of removal. These and some other topics were discussed both in and out of Congress, with great ability-but with these discussions were intermingled no sinister views, no sectional interests, no distempered feelings springing out of geographical divisions. However the matter might terminate, nothing was likely to be violated but the pride of opinion, no permanent dissatisfaction was likely to be generated in any quarter of the Union. Thus for a series of years was our Constitution in a state of hopeful and promising experiment. Whatever our parties were, they were found in every portion of the country, and asperity of feeling was every where tempered by daily intercourse in the city, the village, or the neighbourhood.
But times are changing-political parties no longer pervade the whole mass of the people in every department of society, but are becoming geographically distinct, are assuming a sectional character which may leave to the minority no alternative but absolute ruin or open resistance. From the choice between such evils we would be spared. It is, therefore, that we exhort those, who are recklessly pressing on the doctrines of unlimited construction to pause and look forward to the ultimate results of the measures they are so eagerly pursuing. The Convention wisely, and as they supposed, effectually reserved to the respective States the entire control of their domesticarrangements, and transferred to the general Government only those powers which the States separately were not competent to administer. But if bounties, under the disguise of duties, can be granted to certain favoured and privileged occupations-if, under
this same mask, taxes, partial and oppressive, can be imposed on certain portions of the country, taxes, which though fair and uniform in their appearance, are known to be sectional in their operation--if roads and canals can be extended at pleasure, the soil occupied by compulsion or purchase-if “exclusive jurisdiction" is no longer to be confined to districts and places ceded by particular States, “or purchased by the consent of the Legislatures for the erection of forts, magazines, arsenals, dockyards, and other needful buildings," as specially set forth in the Constitution, but may be established in every place that the Federal Government may designate-if these powers can all be implied and exercised under a pretext of regulating commerce or providing for the common defence, or as appertaining to national benefit and general welfare, it may well be asked, but cannot be answered, what powers, rights or jurisdiction can, with any certainty, remain to the individual States ? Even the poor privilege of remonstrance in their aggregate capacity is now denied. Though the interests that have conjured up much of this mighty all-pervading power are sectional, yet it is boldly contended that the counteracting power must not be sectional, that the Legislatures of the States where the oppression is felt, and to whom the people have committed the guardianship of their rights, are bound to acquiesce silently, and leave the remedy in the people at large, where, in a diffusive and unconnected state, all political responsibility is resolved. In England there exists not a local nor municipal corporation that possesses not more power than some are now disposed to accord to the States. This is a point that requires some examination, and to an inquiry as to the reserved power and sovereignty of the States, we shall confine ourselves in the sequel of this paper.
In the course of the celebrated opinion in the case of M'Culloch vs. the State of Maryland, the following remarks were made by the Court :
“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 recommen:lation 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. They acted upon it in the only manner in which they can act 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, ensure 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."
'This opinion we shall now examine, and inquire particularly into the accuracy of the doctrine, " that the Constitution required not the affirmance, and could not have been negatived by the State Governments.”
It will not be denied that all legitimate power that can emanate from any settled and established government, must be derived from the regular government as organized by the people; and no powers to establish any new, or to control the old government, can be given by the people without a revolution or subversion of the old government. Or, in other words, the only legal acts of any free people possessing a constitutional government, are those proceeding from the regular organized powers of such government. Every people has the right of revolution whenever the majority think fit; the people being the source of all power, and so far as respects the distribution of
power, the sovereign or supreme arbiter, as they can give and take
away, at the pleasure of the majority. It is somewhat curious that the earliest claim to this right of the people, in modern times, was commenced and most strenuously urged by the Jesuits. It