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twenty-three entertain an opinion as well as the twenty-fourth? And, if it be their right, in their own opinion, as expressed in the common council, to enforce the law against her, how is she to say that her right and her opinion are to be every thing, and their right and their opinion nothing ?
Mr. President, if we are to receive the Constitution as the text, and then to lay down, in its margin, the contradictory commentaries which have been, and which may be, made by different States, the whole page would be a polyglot indeed. It would speak with as many tongues as the builders of Babel, and in dialects as much confused, and mutually as unintelligible. The very instance now before us presents a practical illustration. The law of the last session is declared Unconstitutional in South Carolina, and obedience to it is refused. In other States, it is admitted to be strictly Constitutional. You walk over the limit of its authority, therefore, when you pass a State line. On one side, it is law; on the other side, a nullity; and yet it is passed by a common Government, having the same authority in all the States.
Such, Sir, are the inevitable results of this doctrine. Beginning with the original error, that the Constitution of the United States is nothing but a compact between sovereign States; asserting, in the next step, that each State has a right to be its own sole judge of the extent of its own obligations, and consequently of the Constitutionality of laws of Congress; and, in the next, that it may oppose whatever it sees fit to declare unconstitutional, and that it decides for itself on the mode and measure of redress,-the argument arrives at once at the conclusion, that what a State dissents from, it may nullify ; what it opposes, it may oppose by force; what it decides for itself, it may execute by its own power; and that, in short, it is, itself, supreme over the legislation of Congress, and supreme over the decisions of the National Judicature; supreme over the Constitution of the country, supreme over the supreme law of the land. However it seeks to protect itself against these plain inferences, by saying that an unconstitutional law is no law, and that it only opposes such laws as are unconstitutional, yet this does not, in the slightest degree, vary the result; since it insists on deciding this question for itself; and, in opposition to reason and argument, in opposition to practice and experience, in opposition to the judgment of others, having an equal right to judge, it says, only, “ Such is my opinion, and my opinion shall be my law, and I will support it by my own strong hand. I denounce the law; I declare it unconstitutional; that is enough; it shall not be executed. Men in arms are ready to resist its execution. An attempt to enforce it shall cover the land with blood. Elsewhere, it may be binding; but here, it is trampled under foot.”
This, Sır, is practical nullification.
And now, Sir, against all these theories and opinions, I maintain
1. That the Constitution of the United States is not a league, confederacy, or compact, between the people of the several States in their sovereign capacities; but a government proper, founded on the adoption of the people, and creating direct relations between itself and individuals.
2. That no State authority has power to dissolve these relations; that nothing can dissolve them but revolution; and that, consequently, there can be no such thing as secession without revolution.
3. That there is a supreme law, consisting of the Constitution of the United States, acts of Congress passed in pursuance of it, and treaties; and that, in cases not capable of assuming the character of a suit in law or equity, Congress must judge of, and finally interpret, this supreme law, so often as it has occasion to pass acts of legislation ; and, in cases capable of assurning, and actually assuming, the character of a suit, the Supreme Court of the United States is the final interpreter.
4. That an attempt by a State to abrogate, annul, or nullify, an act of Congress, or to arrest its operation within her limits, on the ground that, in her opinion, such law is unconstitutional, is a direct usurpation on the just powers of the General Government, and on the equal rights of other States; a plain violation of the Constitution, and a proceeding essentially revolutionary in its character and tendency.
Whether the Constitution be a compact between States in their sovereign capacities, is a question which must be mainly argued from what is contained in the instrument itself. We all agree that it is an instrument which has been, in some way, clothed with power. We all admit that it speaks with authority. The first question, then, is, What does it say of itself? What does it purport to be? Does it style itself a league, confederacy, or compact, between sovereign States ? It is to be remembered, Sir, that the Constitution began to speak only after its adoption. Until it was ratified by nine States, it was but a proposal, ihe mere draught of an instrument. It was like a deed drawn, but not executed. The Convention had framed it ; sent it to Congress, then sitting under the Confederation ; Congress had transmitted it to the State Legislatures ; and by these last it was laid before conventions of the people in the several States. All this while it was inoperative paper. It had received no stamp of authority, no sanction; it spoke no language. But when ratified by the people in their respective conventions, then it had a voice, and spoke authentically. Every word in it had then received the sanction of the popular will, and was to be received as the expression of that will. What the Constitution says of itself, therefore, is as conclusive as what it says on any other point. Does it call itself a “compact”? Certainly not. It uses the word compact but once, and that is when it declares that the States shall enter into no compact. Does it call itself a " league," a “confederacy," a "subsisting treaty between the States”? Certainly not. There is not a particle of such language in all its pages. But it declares itself a CONSTITUTION. What is a constitution ? Certainly not a league, compact, or confederacy, but a fundamental law. That fundamental regulation which determines the manner in which the public authority is to be executed, is what forms the constitution of a State. Those primary rules which concern the body itself, and the very being of the political society, the form of government, and the manner in which power is to be exercised-all, in a word, which form together the constitution of a State, these are the fundamental laws. This, Sir, is the language of the public writers. But do we need to be informed, in this country, what a constitution is? Is it not an idea perfectly familiar, definite, and well settled? We are at no loss to understand what is meant by the constitution of one of the States; and the Constitution of the United States speaks of itself as being an instrument of the same nature. It says, this Constitution shall be the law of the land, any thing in any State constitution to the contrary notwithstanding. And it speaks of itself, too, in plain contradistinction from a confederation; for it says that all debts contracted, and all engagements entered into by the United States, shall be as valid under this Constitution, as under the Confederation. It does not say, as valid under this compact, or this league, or this confederation, as under the former confede
ration, but as valid under this Constitution. · This, then, Sir, is declared to be a constitution. A constitution
is the fundamental law of the state ; and this is expressly declared to be the supreme law. It is as if the people had said, "we prescribe this fundamental law,” or “this supreme law," for they do say that they establish this Constitution, and that it shall be the supreme law. They say that they ordain and establish it. Now, Sir, what is the common application of these words? We do not speak of ordaining leagues and compacts. If this was intended to be a compact or league, and the States to be parties to it, why was it not so said? Why is there found no one expression in the whole instrument indicating such intent? The old Confederation was expressly called a league ; and into this league it was declared that the States, as States, severally entered. Why was not similar language used in the Constitution, if a similar intention had existed? Why was it not said, “the States enter into this new league,” “the States form this new confederation," or "the States agree to this new compact”? Or why was it not said, in the language of the gentleman's resolution, that the people of the several States acceded to this compact in their sovereign capacities ? What reason is there for supposing that the framers of the Constitution rejected expressions appropriate to their own meaning, and adopted others wholly at war with that meaning ?
Again, Sir, the Constitution speaks of that political system which it established as “the Government of the United States.” Is it not doing strange violence to language to call a league or a compact between sovereign powers a government? The government of a State is that organization in which the political power resides. It is the political being created by the constitution or fundamental law. The broad and clear difference between a government and a league, or compact, is, that a government is a body politic; it has a will of its own; and it possesses powers and faculties to execute its own purposes. Every compact looks to some power to enforce its stipulations. Even in a compact between sovereign communities, there always exists this ultimate reference to a power to ensure its execution; although, in such case, this power is but the force of one party against the force of another ; that is to say, the power of war. But a government executes its decisions by its own supreme authority. Its use of force in compelling obedience to its own enactments, is not war. It contemplates no opposing party having a right of resistance. It rests on its own power to enforce its own will; and, when it ceases to possess this power, it is no longer a government.
Mr. President, I concur so generally in the very able speech of the gentleman from Virginia, near me [Mr. Rives), that it is not without diffidence and regret that I venture to differ with him on any point. His opinions, Sir, are redolent of the doctrines of a very distinguished school, for which I have the highest regard, of whose doctrines I can say, what I also can say of the gentleman's speech, that, while I concur in the results, I must be permitted to hesitate about some of the premises. I do not agree that the Constitution is a compact between States in their sovereign capacities. I do not agree that, in strictness of language, it is a compact at all. But I do agree, that it is founded on consent, or agreement, or on compact, if the gentleman prefers that word, and means no more by it than voluntary consent or agreement. The Constitution, Sir, is not a contract, but the result of a contract ; meaning, by contract, no more than assent. Founded on consent, it is a government proper. Adopted by the agreement of the people of the United States, when adopted, it has become a Constitution. The people have agreed to make a Constitution ; but when made, that Constitution becomes what its name imports. It is no longer a mere agreement. Our laws, Sir, have their founda
tion in the agreement or consent of the two Houses of Congress. We say, habitually, that one House proposes a bill, and the other. agrees to it; but the result of this agreement is not a compact, but a law. The law, the statute, is not the agreement, but something created by the agreement; and something which, when created, has a new character, and acts by its own authority. So the Constitution of the United States, founded in or on the consent of the people, may be said to rest on compact, or consent; but it is itself not the compact, but its result. When a people agree to erect a government, and actually erect it, the thing is done, and the agreement is at an end. The compact is executed, and the end designed by it attained. Henceforth, the fruit of the agreement exists, but the agreement itself is merged in its own accomplishment; since there can be no longer a subsisting agreement, or compact, to form a constitution or government, after that constitution or government has been actually formed and established.
It appears to me, Mr. President, that the plainest account of the establishment of this Government presents the most just and philosophical view of its foundation. The people of the several States had their separate State Governments; and between the States there also existed a Confederation. With this condition of things the people were not satisfied, as the Confederation had been found not to full its intended objects. It was proposed, therefore, to erect a new, Common Government, which should possess certain definite powers, such as regarded the prosperity of the people of all the States, and to be formed upon the general model of American constitutions. This proposal was assented to, and an instrument was presented to the people of the several States for their consideration. They approved it, and agreed to adopt it, as a Constitution. They executed that agreement; they adopted the Constitution as a Constitution, and henceforth it must stand as a Constitution until it shall be altogether destroyed. Now, Sir, is not this the truth of the whole matter? And is not all that we have heard of compact between sovereign States, the mere effect of a theoretical and artificial mode of reasoning upon the subject? a mode of reasoning which disregards plain facts, for the sake of hypothesis ?
Mr. President, the nature of sovereignty, or sovereign power, has been extensively discussed by gentlemen on this occasion, as it generally is, when the origin of our Government is debated. But I confess myself not entirely satisfied with arguments and illustrations drawn from that topic. The sovereignty of government is an idea belonging to the other side of the Atlantic. No such thing is known in North America. Our governments are all limited. In Europe, sovereignty is of feodal origin, and imports no more than the state of the sovereign. It comprises his rights, du
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