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those governments, were not authorized, they were not competent to ratify the compact, to establish the national government proposed.* They are in each, but servants of the people, trustees for administering the powers instituted in the constitution, which is to them the supreme law; every act not warranted by that law, or act done in violation of it, is null and void. By the ratification of the constitution, and the establishment of a general government over the whole, many important alterations were to be made in the state constitutions ; many of the powers and rights in which consisted the sovereignty of the individual states, were to be surrendered. It will be sufficient to mention but two or three instances. It is declared in the constitution that no state shall enter into any treaty of alliance or confederation,-grant letters of marque and reprisal,-nor, without the consent of congress, enter into any compact with any other state, or engage in war, unless actually invaded or in snch imminent danger as will not admit of delay. All, therefore, that the governments of the several states could do, they did. According to the recommendation of the general convention, and of congress, each submitted the constitution to the people from whom they derived their powers respectively, and by whom those powers were limited. According to the first principles of our political institutions, it was necessary and proper that the constitution of the general government should be submitted to the people of the United States for ratification, because the laws of that government were intended to operate generally and to be carried into effect, not on the states as such, but on the people as citizens of the United States. It was also necessary that it should be submitted to the people of each state separately, because to any beneficial effect of the national government, it was necessary that important alterations should be made in the state constitutions, and that as far as it related to that government, they should be reduced to a uniformity. This was proposed to be effected by provisions inserted in the general constitution which being adopted and ratified by the only competent authority, the people of each state by themselves, all the necessary alterations and limitations of power in the several state constitutions would be effected, and the
*I find that it has lately been asserted by an authority, from whom I would dissent with reluctance, and certainly, not without great consideration, that the constitution is not in strictness of language, a compact, but is acknowledged to be founded on compact, meaning nothing more by compact than voluntary consent or agreement,-that it is the result of a contract, meaning nothing more by contract, than assent. Certainly nothing more can be meant, nor can more forcible words be used than consent, and assent, taken in their technical sense, which they always are, when applied to the act of contracting. After every consideration which I have been able to bestow on the subject, it appears to me that the distinction taken, was irrelevant to the point in debate, which was, whether the several states in the character of independent sovereigns, or the people of the United States were the actual parties to the constitution. Now if the constitution be founded on compact, of whatever nature it may be, it will amount to the same thing, to consider the states as parties to that compact; and if the states cannot be parties to the constitution because it is not a compact, neither can the people, nor can there be any parties at all for the same reason. I think it also incorrect. The word agreement, as well as compact, contract, and many other words in the language, are often used to express the cause, and to express the effect ;-to express an action, and the subject matter of that action ; although to express the action, we often use another manner, and say to agree, to contract,—to make an agreement, a contract or compact, but always call the subject matter simply-an agreement, contract, or compact. If the agreement be reduced to writing, assented
to hy the parties, the instrument is properly called the agreement or contract as containing the subject matter agreed or assented to. The subject matter contained in the instrument, is indeed the result of the act of agreeing, and that result is the agreement itself, completed by the act of the parties. The constitution of the state, has for centuries been denominated by all political writers and publicists, (Mr. Paley, as far as I recollect, alone excepted,) a compact and by way of distinction, the civil compact. I have always considered the constitution of the United States as a compact, to which the people of the United States were the only efficient parties. Every constitution of government is a compact sui generis. One thing that distinguishes it from ordinary compacts is, that in and by it is instituted a power to make laws and rules for the conduct of the citizens, and a power to enforce obedience to those laws; — essential powers of government. These powers are instituted by provisions contained in certain articles of the compact, the constitution, which were agreed and ratified with the whole. If we look at the doings of the conventions, we find that they all, in their final act, used words of compact, that they “agree to, and ratify” or “ assent to and ratify” the constitution. The word “ratify” is more appropriate to public bodies, and functionaries, concluding and giving final effect to public compacts, as to ratify a treaty; and from its solemn use, it strikes the mind with more force, and seems to give a higher sanction to the compact, than the common words of agreement.
requisite uniformity produced. But the people of one state can have no right or power to act with the people of another state in framing or making alterations in their constitution. It was therefore necessary that for this purpose, the conventions of the people in each state should act separately, and that at the same time, as it relates to the establishment of a national union and a national government, each, to render the act binding on all, or even on any, should act in concurrence with all. Such was the mode proposed, and is contained in substance, in the seventh and last article of the constitution.
The ratification of nine states shall be sufficient for the establishment of this constitution between the states so ratifying
All the thirteen states did finally concur in ratifying the constitution. But, if after the ratification by nine states, the remaining four states, or any of them had ultimately refused to concur, those refusing would have continued sovereign and independent, each with all the rights of an independent nation; and the confederation being dissolved, they would have stood connected among themselves, and with all other independent states by the laws of nature and nations only. If, however, a different mode had been adopted, and the people of the several states, had, as a preliminary step, made the same alterations in their respective constitutions, which were effected by the constitution of the United States, and then sent their delegates to a general convention, with powers for that purpose, and such convention had ratified the constitution as proposed, this act would have been equally binding on the people of the states and their respective governments; the force of the compact would have been the same, and the parties would have been the same as they now are ; it is not in the power of human ingenuity to make or to find any available distinction. Indeed every article of the constitution of the United States that any way affects the constitutions of the several states, whether by a prohibition or modification of powers, or an injunction of duties is to all intents and purposes a part of their several state constitutions, as much as though it had been inserted in each by the direct act of the sovereign people. There is, however, this difference, that all the articles and provisions of the state constitutions, not any way affecting the constitution of the general
government, may be altered and changed at the sovereign pleasure of the people of each state respectively, but not so as to affect any article of that constitution without the consent of two thirds of all the states in the manner prescribed.
From this brief, but I trust, clear and distinct view of the subject, it must be evident to every unprejudiced mind in the least capable of comprehending the subject, that the several states acting in the capacity of independent sovereigns were not, the real parties to the national compact; but that the people acting in the capacity of their primary sovereignty were the real and efficient parties; that such was the intention apparent in the constitution, is expressed in the report of the general convention to congress, and in the resolution of congress recommending to the state legislatures to submit that instrument for ratification to the people of their respective states, and that the several legislatures by submitting it accordingly, fully complied with that intention, and provided for its full effect. The great point, however, is not so much what precise character the states sustained at that time, as whether the compact was executed by a power in each state, competent to bind the community and all its members, and, in concurrence with the same power in all the states, to bind the whole in a national union, under a national government. This point cannot be successfully controverted, nor that such power resides in the sovereign people only, without sapping the very foundations of all our civil institutions.
Of the relation established by the Constitution of the United States, between
the general government and the several states composing the union.
In the last chapter we discussed the question, whether the several states in their capacities of independent sovereigns which they then sustained, were parties to that compact by which the constitution of the national government was established, and, I trust, have demonstrated that the states were not parties in that or any other character, but that the people in their character of primary sovereignty, were the only acting and efficient, indeed the only competent parties. But there is presented another question more important in its consequences, what character the several states now sustain, in what relation they are now placed to the national government. It has been strenuously contended by many, of very high character as statesmen and political jurists, not only that the several states in the character of independent sovereigns were the original parties to the constitution, but that they still retain that character with all the rights and powers pertaining to it, and that as between independent sovereigns, no common judge can be authoritatively interposed without impairing, and even annihilating the sovereignty each state retains—the sovereign right to judge for itself of all the acts of the general government, and to interpose its authority to suspend and annul all the acts of that government which it shall judge to be unconstitutional, or a dangerous usurpation of power not granted. This presents, indeed, an interesting question. Still it is of little consequence what character the several states sustained under the confederation, or at the time of establishing the general government,