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All the rest belongs to the State Governments or to the People themselves. So far as the People have restrained State sovereignty, by the expression of their will, in the Constitution of the United States, so far, it must be admitted, State Sovereignty is effectually controlled. I do not contend that it is, or ought to be, controlled farther."
" In Carolina, the tariff is a palpable, deliberate usurpation; Carolina, therefore, may nullify it, and refuse to pay the duties. In Pennsylvania, it is both clearly constitutional, and highly expedient; and there, the duties are to be paid. And yet we live under a government of uniform laws, and under a Constitution, too, which contains an express provision, as it happens, that all duties shall be equal in all the States! Does not this approach absurdity.
“ If there be no power to settle such questions, independently of either of the States, is not the whole Union a rope of sand? Are we not thrown back again, precisely, upon the old Confederation ?
“ It is too plain to be argued. Four and twenty interpreters of constitutional law, each with a power to decide for itself, and none with authority to bind any body else, and this constitutional law the only bond of their Union. What is such a state of things, but a mere connexion during pleasure, or, to use the phraseology of the times, during feeling? And that feeling, too, not the feeling of the People, who established the Constitution, but the feeling of the State Governments.”
“ The People, then, Sir, erected this Government. They gave it a Constitution, and in that Constitution they have enumerated the powers which they bestow on it. They have made it a limited Government. They have defined its authority. They have restrained it to the exercise of such powers as are granted; and all others they declare are reserved to the States or the People. But, Sir, they have not stopped here. If they had, they would have accomplished but half their work. No definition can be so clear, as to avoid possibility of doubt; no limitation so precise, as to exclude all uncertainty. Who, then, shall construe this grant of the People? Who shall interpret their will, where it may be supposed they have left it doubtful? With whom do they leave this ultimate right of deciding on the powers of the Government? Sir, they have settled all this in the fullest manner. They have left it with the Government itself, in its appropriate branches. Sir, the very chief end, the main design, for which the whole Constitution was framed and adopted, was to establish a Government that should not long be obliged to act through State agency, or depend on State opinion, and State discretion. The People had had quite enough of that kind of Government under the Confederacy. Under that system the legal action-the application of law to individuals, belonged exclusively to the States. Congress could only recommend-their acts were not of binding force, till the States had adopted and sanctioned them. Are we in that condition still? Are we yet at the mercy of State disVOL. VI.--N0. 11.
cretion, and State construction? Sir, if we are, then vain will be our attempt to maintain the Constitution under which we sit.
“ But, Sir, the People have wisely provided in the Constitution itself, a proper suitable mode, and tribunal for settling questions of constitutional law. There are in the Constitution, grants of powers to Congress; and restrictions on these powers. There are also prohibitions on the States. Some authority must therefore necessarily exist, having. the ultimate jurisdiction to fix and ascertain the interpretation of these grants, restrictions, and prohibitions. The Constitution, has itself pointed out, ordained, and established that authority. How has it accomplished this great and essential end? By declaring, Sir, that the Constitution and the laws of the United States, made in pursuance thereof, shall be the supreme law of the land, anything in the Constitution or laws of any State to the contrary notwithstanding.'
“ This, Sir, was the first great step. By this, the supremacy of the Constitution aud laws of the United States is declared. The People so will it. No State law is to be valid which comes in conflict with the Constitution or any law of the United States. But who shall decide this question of interference? To whom lies the last appeal ? This, Sir, the Constitution itself decides, also by declaring, that the Judicial
power shall extend to all cases arising under the Constitution and Laws of the United States.' These two provisions, Sir, cover the whole ground. They are in truth, the key-stone of the arch. With these, it is a Constitution; without them, it is a Confederacy. In pursuance of these clear and express provisions, Congress established at its very
first session, in the Judicial act, a mode for carrying them into full effect, and for bringing all questions of Constitutional power to the final decision of the Supreme Court. It then, Sir, became a Government. It then had the means of self-protection; and but for this it would in all probability, have been now among things which are past. Having constituted the Government and declared its powers, the People have further said, that since somebody must decide on the extent of these powers, the Government shall itself decide: subject always like other popular Governments, to its responsibility to the People. And now, Sir, I repeat, how is it, that a State Legislature acquires any right to interfere? Who, or what gives them any right to say to the People: we, who are your agents and servants for one purpose, will undertake to decide, that your agents and servants, appointed by you for another purpose, have transcended the authority you gave them? The reply, would be, I think, not impertinent— Who made you a Judge over another's servants. To their own masters, they stand or fall.
"Sir, I deny this power of State Legislatures altogether. It cannot stand the test of exainination. Gentlemen may say, that in an extreme case, a State Government might protect the People from intolerable oppression. Sir, in such a case, the People might protect themselves, without the aid of the State Governments. Such a case warrants revolution. It must make, when it comes, a law for itself. A nullifying act of a State Legislature, cannot alter the case, nor make resistance any more lawful. In maintaining these sentiments, Sir, I am but assert
ing the rights of the People. I state what they have declared, and insist on their right to declare it. They have chosen to repose this powor in the General Government, and I think it my duty to support it, like other constitutional powers."
Having thus presented the views of Mr. Hayne and Mr. Webster, we propose now, in summing up, to offer, with all proper deference, a few suggestions of our own.
It will be seen, that Mr. Webster considers, to all intents and purposes, our government as national, not federal. That this is the scope and object of his argument, is too obvious to admit of a doubt; for he declares, that "it is the people's constitution, the people's government, made for the people, made by the people.” But the question arises, the people of what the United States as one aggregate whole, or the people of each State, as forming a separate sovereignty, or the people of the States, as composing separate sovereignties. That the two last form the only just interpretation, sufficiently appears from the contemporaneous expositions of the Constitution. We shall begin with the “Federalist,” and with the authority of Alexander Hamilton, a name, surely in no disrepute by those who contend for a plenitude of power in the federal head. In the thirty-ninth number of the “Federalist," he says, “on the one hand, the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose ; but on the other, this assent and ratifi-' cation are to be given by the people not as individuals comprising one entire nation, but as comprising distinct and independent States, to which they respectively belong; it is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act.” And in order to make this position, " that the adoption of the Constitution, will be a federal, and not a national act,” still more clear, the same authority goes on to say, "the act of the people as forming so many independent States, not as forming one aggregate nation, iş obvious from this single consideration, that it is to result neither from a majority of the people of the Union, or from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent, than in its being expressed, not by the legislative authority, but by the people themselves. Were the people regarded in this transaction as forming one
nation, the will of the majority of the whole people of the United States would bind the minority in the same manner, as the majority of each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as the evidence of the will of the majority of the people of the United States. Neither of these rules has been adopted. Each State, in ratifying the Constitution, is considered as a SOVEREIGN BODY, independent of all others, and only to be bound by its voluntary act. In this relation, the new Constitution will, if established, be a federal and not a national Constitution.” This exposition is so exceedingly clear, that however abundant the authorities, it would be scarcely possible to add any thing to it. It might seem at first sighi, to be very unimportant to fix the right interpretation to be given to the origin of the power which gave authority to the Constitution, as it might be said that it matters not whether the people of the United States adopted and ratified the Constitution, either aggregately, or by the operation of their sovereign will, throngh the functions of their State governments, there the Constitution stands; whether the people or the States adopted it, neither augments or diminishes its powers. But is this, indeed, so immaterial? Why then bas M,. Webster contended so stoutly, that the Constitution emanated from the people of the United States, and not from the States? Why has the Supreme Court enunciated so solemnly that the General Government “is truly and emphatically a government of the people?” Why has this tribunal seized on the preamble of this instrument as explaining its origin as well as its text? Why has so much stress been laid on
We, the people of the United States,” in this preamble? For the plain and manifest reason, that if it can once be estabJished that the Constitution of the United States is the work of . a majority of the people of the United States, the right of control on the part of the States, as sovereigns, is destroyed, and, under an acquiescence of the Supreme Court, in the usurpations of the General Government, the will of a majority in Congress is supreme without the possibility of redress or even appeal, on the part of the States.
There is, therefore, no axiom so cardinal or of such inestimable value, (pushed out to all its consequences, to whatever extent they may lead) than that the General Government is the result of a compact (not a purty to it) between sovereign States, who, in the words of Judge Rowan, "made the Constitution, and thereby rendered the Union more perfect than it was under the
articles of confederation; that the individuality and sovereignty of the States were not at all impaired by that instrument—that the States remain plenary sovereignis as much so as they were before the formation of the Constitution—that they have not, by that instrument, parted with a jot of their sovereign power. The States have agreed, as plenary sovereigns, by the Constitution, (which is but their compact of union) that they would unite in exerting the powers therein specified and defined, for the purposes and objects therein designated, and through the agency of the machinery therein created. The power exercised by the functionaries of the General Government, is not inherent in them, but in the States, whose agents they are. The Constitution is their power of attorney lo do certain acts, and contains (connected with their authority to act) their letters of instructions as to the manner in which they shall act." These opinions of Mr. Rowan embrace the catholic faith of that party who look to the control of the States as being the only safe and salutary check on the operations of the General Government; and in order that this check inay be placed beyond the danger of being drawn in question, they have maintained and do maintain that the compact was not only the work of co-equal and co-ordinate sovereigns, but that there is no truth in the assumption, that the government itself, formed by the compact, is a party to it, which "would be to suppose it to have existence before it could have a right to exist."
It is not new to us that there was a party in the convention which formed the Constitution, decidedly in favour of making the government entirely national in its character, for, probably, very nearly the saine purposes that Mr. Webster would now desire to make it national in its origin. The government which they desired to form, is not, in all probability, unlike the government which construction and implication, without the intervention of the people, have formed after the lapse of forty years. The friends of the rights of the States, had to say then, as they have to say now, "the thirteen States are thirteen distinct political and individual existences;" or, in the still stronger declaration of Patrick Henry, “what right had the framers of the Constitution to say, we, the people,' instead of we, the States. States are the characteristics and soul of a confederacy. If the States be not the agents of this compact, it inust be one great consolidated, national government of the people of all the States.” Or, what is still more important, in the words of Mr. Madison, in reply to this question, “who are the parties to the government ?" "the people, but not the people