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States, as such, have any control over the United States, or the government established under the Constitution, that instrument is full of provisions by which the States are prohibited from the exercise of powers which they would otherwise possess, and their authority as States is made subject and subordinate to the authority of the United States. In many important particulars, to the extent to which powers are granted to the government established by the Constitution, to the same extent the sovereignty of the States is expressly taken
away; the powers granted being exclusive in the United States. In other particulars this is so by a necessary implication, because a power being expressly granted to the United States, the exercise of a similar power by a State would be inconsistent with the grant.
The Constitution declares that itself, the laws of the United States made in pursuance of it, and treaties made under its authority, shall be the supreme law of the land, by which the judges of every State shall be bound, anything in the laws or constitution of the State to the contrary notwithstanding. It is a perversion of terms to call the “ supreme law of the land” a compact between the States, which any State may rescind at pleasure. It is not itself an agreement, but is the result of an agreement. And in the absence of an express declaration, or reservation, it is an entire subversion of all legal principles to maintain that the subordinate may at pleasure set itself free from the restrictions imposed upon it by the fundamental law constituting the superior, even if the subordinate have in other particulars an uncontrolled authority. The judges of each State being expressly bound by the Constitution and laws of the United States, anything in the constitution or laws of the State to the contrary, how can a State law (or ordinance, which is but another name for a law) relieve them from the obligation? And if they are bound, the State and the people are bound also. The judges are expressly named, the more surely to prevent a conflict of jurisdiction and decision.
The clause of the Constitution providing for amendments adds another to the arguments which show it to have the character of an organic law, and not of a compact. Whether regarded as the one or the other, it is clear that it could not become obligatory upon a State, or the people of a State, until adopted by them. The people of one State could not ratify and adopt it for the people of another State. But, being adopted by all, it contains a clause binding upon all, providing that “the Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to the Constitution, or, on application of the legislatures of two thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, when ratified by the legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress.”
Now, considered as an organic law, the Constitution may be altered and amended in any mode which may be agreed upon and prescribed by the instrument itself; and this is a mode by which, through the action of certain political bodies, and certain legislative or popular majorities of a required number, the whole people are represented in the adoption of amendments, which become parts of the organic law. This mode, rather than a direct vote of the whole people, was doubtless agreed upon in order to make reasonable assurance that no amendment should be adopted affecting the rights and interests of the States, except by such a concurrence of State action as would fairly guard State interests, at the same time that there was a suitable representation of the whole people. It may be regarded as combining a representation of the States and of the people. It is an exemplification of the democratic dogma that the majority represent and express the will of the people, – the mode of expression provided in this case being supposed to be that best adapted to the particular purpose.
But if the Constitution is a compact between the States, any amendment which becomes a part of the Constitution is also a zoo compact between the States, and the question arises, How is it that three fourths of the States, voting in favor of an amendment, are to make a compact with the other fourth, voting at the same time against it, and thus refusing to enter into the compact? How is it that the States voting to adopt, represent the States refusing to adopt, so that, by the vote of adoption, they make a compact between themselves and the others, against the will of the others expressed at the same time. Those voting to adopt act in their own behalf, thereby being one party to the bargain, and thus far it is well; but, on the compact theory, they must at the same time represent those who vote against the adoption, and thus make them another party to the bargain; when the others at the same time represent themselves, and refuse to make the bargain. Or if we state the compact theory with somewhat more of precision, each State is a party to the compact, agreeing with all the others, and one agrees with all the others notwithstanding she and several of the others refuse to agree. Thus, South Carolina, for instance, votes against a proposed amendment, and thereby refuses to enter into the new compact, but does still become a party to that compact, and agrees with the other States to adopt it, being represented by the others, several of them also voting against it, and at the same time not only making the contract for themselves, but aiding in making it for South Carolina also. Will the advocate of the compact theory say that the provision relative to amendments, in the Constitution as first adopted, constitutes the States agents of one another, so that three fourths of the whole number may thus make an agreement for all, against the will of their principals, acting at the same time and dissenting 2 If this is so, we must add a new chapter to the law of Agency. But without extending the argument, two or three illustrations may serve to exemplify the utter absurdity of a construction of the Constitution which should sanction the
The judicial department is rightfully divided into circuits and districts, embracing several States in a circuit, and mainly limited by State lines; not because the States have any control of the courts, but because State lines furnish convenient limits for such circuits and districts, except when there is a necessity for districting a State. Suits are instituted from time to time in these courts, questions are tried, verdicts are rendered, judgments entered, and cases are carried from these courts, and also from the State courts in certain cases, to the Supreme Court of the United States, sitting at Washington for the correction of errors. Now suppose a State is allowed to secede at its pleasure, what is the effect? If it may do so rightfully, then the judicial department of the United States holds all its powers, and even its existence, practically, within the limits of any State, at the pleasure of that State ; for all its action is arrested at the point of time when the State pleases to secede. The witness on the stand is stopped in the midst of his testimony, on the passage of the act of secession; the juror, who has been sworn to try the case, goes his way without rendering a verdict; appeals are summarily and effectually dismissed, and writs of error quashed, by a nullification of the jurisdiction of the Supreme Court; the property seized by the marshal upon execution drops from his grasp ; he and the district judge are removed from office; the State makes a general jail delivery of United States prisoners within her limits; and the pirate and murderer, under sentence of death, rejoice in a secession pardon. There is no escape from these conclusions.
The power to make treaties is, by the Constitution, vested in the President, with the advice and consent of the Senate, who may lawfully, in virtue of that power, enter into stipulations with foreign nations, which can be executed, according to their terms, only within the limits of a particular State. Suppose a treaty with Great Britain, containing a stipulation by which, in consideration of a concession by her of a right
to American citizens to navigate the Thames, her subjects should have a similar right to navigate the Hudson, for a term of years; with various other stipulations relative to matters of high political and commercial interest having a connection with this stipulation, or entered into in consequence of that agreement. It is an entire compact consisting of several parts. That treaty exists at the pleasure of the State of New York, which, although she cannot by any direct act close the navigable waters within her limits, may by an act of secession deprive British subjects of their rights under the treaty, and thus effectually break it, and by the infraction give Great Britain just cause for war, — not against her, for she did not make the compact, and merely exercises her lawful right, — but against the United States. If such may be the result, all treaties ought to contain a provision for a peaceable termination of their provisions on the secession of any State.
Not to multiply instances of the superlative folly of such an interpretation of the Constitution, let us make one more supposition. The debt which must be contracted in
suppressing the present insurrection is likely to be large; Mississippi would be willing to repudiate her share, and Mr. Jefferson Davis would doubtless justify her in so doing, although she and he have had a large agency in causing it to be contracted. Suppose, instead of such a catastrophe, that all the States except New Hampshire, Vermont, Rhode Island, New Jersey, and Delaware should secede, and thus relieve their people from the obligation of the debt. The States named, remaining loyal and true, and in such case constituting the United States, would have rather a large load to carry, considering their resources and means of payment; but the burden must, by legitimate consequence, fall upon their shoulders, as they could not tax the people of the seceding States, nor very conveniently concentrate their forces so as to compel a contribution. We should ask pardon of the other loyal States for stating this supposition, were it made otherwise than as an effective illustration.