66

§ 366. But supposing that it were to be deemed such a compact among the people of the several States, let us see what the enlightened statesman, who vindicates that opinion, holds as the appropriate deduction from it. Being thus derived (says he) from the same source as the constitutions of the States, it has within each State the same authority as the constitution of the State; and is as much a constitution within the strict sense of the term, within its prescribed sphere, as the constitutions of the States are within their respective spheres. But with this obvious and essential difference, that, being a compact among the States in their highest sovereign capacity, and constituting the people thereof one people for certain purposes, it cannot be altered or anperfectly sovereign and independent of the national government. Had the people of the several States incorporated themselves into one community, they must have remained such; their constitution becoming then, like the constitutions of the several States, incapable of change until altered by the will of the majority. In the institution of a State government by the citizens of a State, a compact is formed to which all and every citizen are equal parties. They are also the sole parties, and may amend it at pleasure. In the institution of the government of the United States by the citizens of every State, a compact was formed between the whole American people, which has the same force, and partakes of all the qualities, to the extent of its powers, as a compact between the citizens of a State in the formation of their own constitution. It cannot be altered, except by those who formed it, or in the mode prescribed by the parties to the compact itself.

"This Constitution was adopted for the purpose of remedying all the defects of the confederation; and in this it has succeeded beyond any calculation that could have been formed of any human institution. By binding the States together, the Constitution performs the great office of the confederation, but it is in that sense only that it has any of the properties of that compact, and in that it is more effectual to the purpose, as it holds them together by a much stronger bond, and in all other respects, in which the confederation failed, the Constitution has been blessed with complete success. The confederation was a compact between separate and independent States; the execution of whose articles, in the powers which operated internally, depended on the State governinents. But the great office of the Constitution by incorporating the people of the several States, to the extent of its powers, into one community, and enabling it to act directly on the people, was to annul the powers of the State governments to that extent, except in cases where they were concurrent, and to preclude their agency in giving effect to those of the general government. The government of the United States relies on its own means for the execution of its powers, as the State governments do for the execution of theirs; both governments having a common origin or sovereign, the people, the State governments, the people of each State; the national government, the people of every State, and being amenable to the power which created it. It is by executing its functions as a government, thus originating and thus acting, that the Constitution of the United States holds the States together, and performs the office of a league. It is owing to the nature of its powers and the high source from whence they are derived, the people, that it performs that office better than the confederation or any league which ever existed, being a compact, which the State governments did not form, to which they are not parties, and which executes its own powers independently of them."

nulled at the will of the States individually, as the constitution of a State may be at its individual will.”1

§ 367. The other branch of the proposition we have been considering is, that it is not only a compact between the several States and the people thereof, but also a compact between the States and the Federal government; and e converso between the Federal government and the several States and every citizen of the United States.2 This seems to be a doctrine far more involved and extraordinary and incomprehensible than any part of the preceding. The difficulties have not escaped the observation of those by whom it has been advanced. Although (says the learned commentator) the Federal government can, in no possible view, be considered as a party to a compact made anterior to its existence, yet, as the creature of that compact, it must be bound by it to its creators, the several States in the Union and the citizens thereof." 3 If by this no more were meant than to state that the Federal government cannot lawfully exercise any powers except those conferred on it by the Constitution, its truth could not admit of dispute. But it is plain that something more was in the author's mind. At the same time that he admits that the Federal government could not be a party to the compact of the Constitution "in any possible view," he still seems to insist upon it as a compact by which the Federal government is bound to the several States and to every citizen; that is, that it has entered into a contract with them for the due execution of its duties.

1 Mr. Madison's Letter, North American Review, October, 1830, p. 538. Mr. Paterson (afterwards Mr. Justice Paterson), in the convention which framed the Constitution, held the doctrine that, under the confederation, no State had a right to withdraw from the Union without the consent of all. "The confederation (said he) is in the nature of a compact; and can any State, unless by the consent of the whole, either in politics or law, withdraw their powers? Let it be said by Pennsylvania and the other large States, that they for the sake of peace assented to the confederation; can she now resume her original right without the consent of the donee ? Yates's Debates, 4

Elliot's Debates, 75. Mr. Dane unequivocally holds the same language in respect to the Constitution. "It is clear (says he) the people of any one State alone never can take or withdraw power from the United States, which was granted to it by all, as the people of all the States can do rightfully in a justifiable revolution, or as the people can do in the manner their Constitution prescribes." Dane's App. § 10, p. 21.

The ordinance of 1787, for the government of the Northwestern territory, contains (as we have seen) certain articles declared to be "articles of compact"; but they are also declared to "remain forever unalterable, except by common consent." So that there may be a compact, and yet by the stipulations neither party may be at liberty to withdraw from it, or absolve itself from its obligations. Ante, p. 269.

21 Tucker's Black. Comm. 169, 170.

3 1 Tucker's Black. Comm. 170.

§ 368. And a doctrine of a like nature, viz. that the Federal government is a party to the compact, seems to have been gravely entertained on other solemn occasions.1 The difficulty of maintaining it, however, seems absolutely insuperable. The Federal government is the result of the Constitution, or (if the phrase is deemed by any person more appropriate) the creature of the compact. How, then, can it be a party to that compact to which it owes its own existence? 2 How can it be said that it has entered into a contract, when at the time it had no capacity to contract, and was not even in esse? If any provision was made for the general government's becoming a party and entering into a compact after it was brought into existence, where is that provision to be found? It is not to be found in the Constitution itself. Are we at liberty to imply such a provision, attaching to no power given in the Constitution? This would be to push the doctrine of implication to an extent truly alarming; to draw inferences, not from what is, but from what is not stated in the instrument. But if any such implication could exist, when did the general government signify its assent to become such a party? When did the people authorize it to do so? Could the government do so without the express authority of the people? These are questions which are more easily asked than answered.

3

§ 369. In short, the difficulties attendant upon all the various theories under consideration, which treat the Constitution of the United States as a compact, either between the several States, or between the people of the several States, or between the whole people of the United States and the people of the several States, or between each citizen of all the States and all other citizens, are, if not absolutely insuperable, so serious, and so wholly founded upon mere implication, that it is matter of surprise that they should have been so extensively adopted and so zealously propagated. These theories, too, seem mainly urged with a view to draw conclusions which are at war with the known powers and reasonable objects of the Constitution; and which, if successful, would reduce the government to a mere confederation. They are objectionable, then, in every way: first, because they are not jus

1 Debate in the Senate, in 1830, on Mr. Foot's resolution, 4 Elliot's Debates, 315 to 331.

2 Webster's Speeches, 429; 4 Elliot's Debates, 324.

3 Dane's App. § 32, p. 41 ; Id. § 38, p. 46.

tified by the language of the Constitution; secondly, because they have a tendency to impair, and indeed to destroy, its express powers and objects; and, thirdly, because they involve consequences which, at the will of a single State, may overthrow the Constitution itself. One of the fundamental rules in the exposition of every instrument is, so to construe its terms, if possible, as not to make them the source of their own destruction or to make them utterly void and nugatory. And if this be generally true, with how much more force does the rule apply to a constitution of government framed for the general good and designed for perpetuity? Surely, if any implications are to be made beyond its terms, they are implications to preserve, and not to destroy it.1

§ 370. The cardinal conclusion for which this doctrine of a compact has been, with so much ingenuity and ability, forced into the language of the Constitution (for the language nowhere alludes to it), is avowedly to establish that, in construing the Constitution, there is no common umpire; but that each State, nay, each department of the government of each State, is the supreme judge for itself of the powers and rights and duties arising under that instrument. Thus, it has been solemnly asserted on more than one occasion, by some of the State legislatures, that there is no common arbiter or tribunal authorized to decide in the last resort upon the powers and the interpretation of the Constitution. And the doctrine has been recently revived with extraordinary zeal and vindicated with uncommon vigor. A majority of the

3

1 The following strong language is extracted from Instructions given to some representatives of the State of Virginia by their constituents in 1787, with reference to the confederation: "Government without coercion is a proposition at once so absurd and self-contradictory that the idea creates a confusion of the understanding. It is form without substance; at best a body without a soul. If men would act right, governments of all kinds would be useless. If states or nations, who are but assemblages of men, would do right, there would be no wars or disorders in the universe. Bad as individuals are, states are worse. Clothe men with public authority, and almost universally they consider themselves as liberated from the obligations of moral rectitude, because they are no longer amenable to justice." 1 Amer. Mus. 290.

2 Madison's Virginia Report, January, 1800, p. 6, 7, 8, 9; Webster's Speeches, 407 to 409, 410, 411, 419 to 421.

3 The legislature of Virginia, in 1829, resolved "that there is no common arbiter to construe the Constitution of the United States; the Constitution being a federative compact between sovereign States, each State has a right to construe the compact for itself." Georgia and South Carolina have recently maintained the same doctrine; and it has been asserted in the Senate of the United States with an uncommon display of eloquence and pertinacity. 8 Dane's Abridg. ch. 187, art. 20, § 13, p. 589, &c., 591; Dane's App. 52 to 59, 67 to 72; 3 American Annual Register, Local Hist. 131. It is

States, however, have never assented to this doctrine; and it has been, at different times, resisted by the legislatures of several of the States, in the most formal declarations.1

§ 371. But if it were admitted that the Constitution is a compact, the conclusion that there is no common arbiter would neither be a necessary nor natural conclusion from that fact standing alone. To decide upon the point, it would still behoove us to examine the very terms of the Constitution and the delegation of powers under it. It would be perfectly competent even for confederated States to agree upon and delegate authority to construe the compact to a common arbiter. The people of the United States had an unquestionable right to confide this power to the government of the United States or to any department thereof, if they chose so to do. The question is whether they have done it. If they have, it becomes obligatory and binding upon all the States.

§ 372. It is not, then, by artificial reasoning founded upon theory, but upon a careful survey of the language of the Constitution itself, that we are to interpret its powers and its obligations. not a little remarkable that, in 1810, the legislature of Virginia thought very differently, and then deemed the Supreme Court a fit and impartial tribunal. North American Review, October, 1830, p. 509, 512; 6 Wheat. R. 320, 358. Pennsylvania at the same time, though she did not deny the court to be, under the Constitution, the appropriate tribunal, was desirous of substituting some other arbiter. North American Review, id. 507, 508. The recent resolutions of her own legislature (in March, 1831) show that she now approves of the Supreme Court as the true and common arbiter. One of the expositions of the doctrine is, that if a single State deny a power to exist under the Constitution, that power is to be deemed defunct, unless three fourths of the States shall afterwards reinstate that power by an amendment to the Constitution. 4 Elliot's Debates, 321. What, then, is to be done, where ten States resolve that a power exists, and one that it does not exist? See Mr. Vice-President Calhoun's Letter of 28th August, 1832, to Governor Hamilton.

1 Massachusetts openly opposed it in the resolutions of her legislature of the 12th of February, 1799, and declared "that the decision of all cases in law and equity arising under the Constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the judicial courts of the United States." Dane's App. 58. Six other States, at that time, seem to have come to the same result. North American Review, October, 1830, p. 500. And on other occasions a larger number have concurred on the same point. Dane's App. 67; Id. 52 to 59. Similar resolutions have been passed by the legislatures of Delaware and Connecticut in 1831, and by some other States. How is it possible for a moment to reconcile the notion that each State is the supreme judge for itself of the construction of the Constitution with the very first resolution of the convention which formed the Constitution: " Resolved, &c., that a national government ought to be established, consisting of a supreme, legislative, judiciary, and executive"? Journals of Convention, 83; 4 Elliot's Deb. 59.