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which the friends of the Constitution supported these amendments evince the good faith and sincerity of their opinions, and increase our reverence for their labors, as well as our sense of their wisdom and patriotism.
1 [The Constitution was accepted and put in force in anticipation of, and in reliance upon, the adoption of these amendments, and by them the instrument was completed. “I dwell,” said Mr. Choate, “on that time from 1780 to 1789, because that was our age of civil greatness. Then first we grew to be one. In that time our nation was born. That which went before made us independent. Our better liberty, our law, our order, our union, our credit, our commerce, our rank among the nations, our page in the great history, we owe to this. Independence was the work of the higher passions. The Constitution was the slow product of wisdom.” Lecture on Jefferson, Burr, and Hamilton, 1858.]
NATURE OF THE CONSTITUTION,
WHETHER A COMPACT.
§ 306. HAVING thus sketched out a general history of the origin and adoption of the Constitution of the United States, and a summary of the principal objections and difficulties which it had to encounter, we approach the point at which it may be proper to enter upon the consideration of the actual structure, organization, and powers which belong to it. Our main object will henceforth be to unfold in detail all its principal provisions, with such commentaries as may explain their import and effect, and with such illustrations, historical and otherwise, as will enable the reader fully to understand the objections which have been urged against each of them respectively, the amendments which have been proposed to them, and the arguments which have sustained them in their present form.
§ 307. Before doing this, however, it seems necessary in the first place to bestow some attention upon several points which have attracted a good deal of discussion, and which are preliminary in their own nature ; and in the next place to consider what are the true rules of interpretation belonging to the instrument.
$ 308. In the first place, what is the true nature and import of the instrument? Is it a treaty, a convention, a league, a contract, or a compact? Who are the parties to it? By whom was it made? By whom was it ratified? What are its obligations ? By whom and in what manner may it be dissolved? Who are to decide upon the supposed infractions and violations of it? These are questions often asked, and often discussed, not merely for the purpose of theoretical speculation, but as matters of practical importance, and of earnest and even of vehement debate. The answers given to them by statesmen and jurists are often contradictory and irreconcilable with each other; and the consequences deduced from the views taken of some of them go very deep into the foundations of the government itself, and expose it, if not to utter destruction, at least to evils which threaten its existence and disturb the just operation of its powers.
$ 309. It will be our object to present in a condensed form some of the principal expositions which have been insisted on at different times as to the nature and obligations of the Constitution, and to offer some of the principal objections which have been suggested against those expositions. To attempt a minute enumeration would indeed be an impracticable task; and considering the delicate nature of others, which are still the subject of heated controversy, where the ashes are scarcely yet cold which cover the concealed fires of former political excitements, it is sufficiently difficult to detach some of the more important from the mass of accidental matter in which they are involved.
$310. It has been asserted by a learned commentator, that the Constitution of the United States is an original, written, federal, and social compact, freely, voluntarily, and solemnly entered into by the several States, and ratified by the people thereof, respectively; whereby the several States and the people thereof respectively have bound themselves to each other and to the Federal government of the United States, and by which the Federal government is bound to the several States and to every citizen of the United States. The author proceeds to expound every part of this definition at large. It is (says he) a compact, by which it is distinguished from a charter or grant, which is either the act of a superior to an inferior, or is founded upon some consideration moving from one of the parties to the other, and operates as an exchange or sale. But here the contracting parties, whether considered as States in their political capacity and character, or as individuals, are all equal ; nor is there anything granted from one to another, but each stipulates to part with and receive the same thing precisely without any distinction or difference between any of the parties.
§ 311. It is a Federal compact. Several sovereign and independent States may unite themselves together by a perpetual confederation without each ceasing to be a perfect State. They will together form a Federal republic. The deliberations in common will offer no violence to each member, though they may in certain respects put some constraint on the exercise of it in virtue of voluntary engagements. The extent, modifications, and objects of the Federal authority are mere matters of discretion. So long as the separate organization of the members remains, and, from the nature of the compact, must continue to exist, both for local and domestic and for Federal purposes, the Union is in fact, as well as in theory, an association of States, or a confederacy.
1 i Tucker's Black. Comm. App. note D, p. 140 et seq. 2 1 Tucker's Black. Comm. App. note D, p. 141.
3 Mr. Jefferson asserts that the Constitution of the United States is a compact between the States. “ They entered into a compact," says he, (in a paper designed to be adopted by the legislature of Virginia as a solemn protest,)“ which is called the Constitution of the United States of America, by which they agreed to unite in a single government, as to their relations with each, and with foreign nations, and as to certain other articles particularly specified.” 4 Jefferson's Corresp. 415. It would, I imagine, be very difficult to point out when and in what manner any such compact was made. The Constitution was neither made nor ratified by the States as sovereignties or political, communities. It was framed by a convention, proposed to the people of the States for their adoption by Congress; and was adopted by State conventions, the immediate representatives of the people. (Mr. Calhoun has enlarged upon the view here taken by Mr. Jefferson in two elaborate papers : the “Discourse on the Constitution and Government of the United States,” Works, I. 111; and the “ Address on the Relations of the States to the General Government,” Works, VI. 59. See also the review of this work by Judge A. P. Upshur, (Petersburg, Va., 1840.) If, however, anything can be regarded as settled in the constitutional law of any people, it must now be looked upon as placed beyond further controversy, that the Constitution of the United States is an instrument of government, agreed upon and established in the several States by the people thereof, through representatives empowered for the purpose, operative upon the people individually and collectively, and, within the sphere of its powers, upon the government of the States also. And that the Union which is perfected by means of it is indissoluble through any steps contemplated by, or admissible under, its provisions or on the principles on which it is based, and can only be overthrown by physical force effecting a revolution. Such has been the view of the judicial department from the first, and the practice of the legislative and executive departments has corresponded thereto; Mr. Jefferson himself, as Mr. Calhoun mournfully concedes, (Calhoun's Works, I. 359,) having failed as President to offer practical resistance to this construction of the Constitution. And finally the people of the country, when some of the States endeavored to treat the Constitution as a compact from which they might withdraw when they deemed its provisions violated, have resisted this doctrine with the utmost expenditure of military force, and at an immense sacrifice of life and treasure have overthrown its adherents. In the courts, therefore, in the Cabinet, in the halls of legislation, and in the arbitrament of arms, the national view has invariably prevailed. It may be added, also, that the last great struggle has had the effect which able minds had anticipated as the result of the war, (see Life, &c., of Gouverneur Morris, III. 260; Calhoun's Works, I. 361,) -- to strengthen considerably and in some directions to extend the national authority. Something of this has come from constitutional changes introduced for this express purpose; something from the great increase in Federal offices, patronage, and expenditures; but more than all from the public mind becoming familiarized with the employment by the Federal government of tremendous discretionary powers during the existence of hostilities, and of unusual and somewhat arbitrary measures afterwards in suppressing disorders in the territory lately in rebellion, and in reconstructing the shattered fabrics of State government. The constitution of any nation is practically what it has become by the practical construction of those in authority, acquiesced in by the people; and if doubtful points have been covered by that construction for purposes apparently beneficial, and under circumstances which incline the people to approval or indifference, there is very great probability that the ground thus occupied will be permanently possessed, and instead of being afterwards abandoned voluntarily, may not even be contested by those who might have done so with vigor and effect under other circumstances. How far this should be so we do not discuss; that it is so in fact is unquestionable.]
§ 312. It is also, to a certain extent, a social compact. In the act of association, in virtue of which a multitude of men form together a state or nation, each individual is supposed to have entered into engagements with all to procure the common welfare ; and all are supposed to have entered into engagements with each other to facilitate the means of supplying the necessities of each individual, and to protect and defend him. And this is what is ordinarily meant by the original contract of society. But a contract of this nature actually existed in a visible form between the citizens of each State in their several constitutions. It might, therefore, be deemed somewhat extraordinary, that in the establishment of a Federal republic it should have been thought necessary to extend its operation to the persons of individuals, as well as to the States composing the confederacy.
$ 313. It may be proper to illustrate the distinction between federal compacts and obligations and such as are social, by one or two examples.2 A federal compact, alliance, or treaty is an act of the state or body politic, and not of an individual. On the contrary, a social compact is understood to mean the act of individuals about to create and establish a state or body politic among themselves. If one nation binds itself by treaty to pay a certain tribute to another, or if all the members of the same confederacy oblige themselves to furnish their quotas of a common expense when required, -in either of these cases the state or body politic only, and not the individual, is answerable for this tribute or quota. This is, therefore, a federal obligation. But where by any compact, express or implied, a number of persons are bound to contribute their proportions of the common expenses, or to submit to all laws made by the common consent, and where in default of compliance with these engagements the society is authorized to levy the contribution or to punish the person of the delinquent, this seems to be understood to be more in the nature of a social than a federal obligation.3
§ 314. It is an original compact. Whatever political relation existed between the American colonies antecedent to the Revolu
1 i Tucker's Black. Comm. App. note D, p. 144.
2 Id. p. 145.
8 Id. 145.