[204] though he quoted, in terms, the “distinct article” of the Confederation to which he referred, he entirely omitted to quote, in terms, the amendment to the Constitution upon which he relied as “placing beyond any pretence of doubt the reservation by the States of all their rights and powers, not expressly delegated to the United States by the Constitution.” When he stood in the world's forum, and appealed to the world as judge, why suppress a material fact in the case? Why hold out to view one clause and hide the other, when he asks mankind to pass an “intelligent and impartial judgment” ? Could he not trust them with the whole truth? If not, why keep back any? Such is not the act of a man conscious of rectitude and a righteous cause. No; he knew that the constitutional amendment to which he referred, without quoting it, did not, like the Articles of Confederation, declare “the reservation by the States of all their sovereign rights and powers, not expressly delegated to the United States by the Constitution;” and it therefore suited not his purpose to set it side by side with the “distinct article” of the Confederation which he had recited. It would have been too apparent to all reflecting men that the two clauses were widely different in terms and effect; as we can now see by placing them together. The second Article of the Confederation is in these words:
Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled.The tenth amendment of the Constitution is in these words:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.Now note that while the former declares that each State retains its sovereignty and independence, the latter does not. The omission to preserve so important a feature, when, according to Mr. Davis, the constitutional amendment was adopted under a feeling of “alarm” in the States, “lest this omission should be construed into an abandonment of their cherished principle,” is a fact of clear and great force. Why did they not reiterate the former declaration? Manifestly because the idea of State sovereignty and independence, except in a very limited internal sense, had been exploded by the acknowledged failure of the Confederation; and the people, convinced that it was inconsistent with the sovereignty of the Nation, repudiated it in the formation of the Constitution. Well might they ask: Why declare a reservation of the sovereignty and independence of the States, when the people of those very States had deliberately disrobed them of almost every badge of sovereignty, and declared their dependence, in most essential points, on the Government of the Nation? The letter of Washington, before referred to, communicating the Constitution to the Congress of the Confederation, uses language that is conclusive as to the view then entertained by the Convention of the actual surrender of State sovereignty, involved in the adoption of that instrument. “It is obviously impracticable (says the letter) in the Federal Government of these States, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals, entering into society, must give up a share of liberty to preserve the rest.” With the true character and effect of the Constitution thus distinctly announced, the people of every State ratified and established it, and in so doing, proclaimed the will of the Nation, that the States should no longer claim to be sovereign and independent, as they had under the Confederation. Equally forcible is the omission of the word “expressly” from the constitutional amendment above cited. Under the Confederation, every power, jurisdiction, and right, not expressly delegated to the United States, was retained by the States. Unless it could be found written down in plain terms in the Articles of Confederation, that any given power might be exercised by the Federal Government, it could not be exercised. Hence the Confederation was feeble from its very stringency. The following language addressed to the public in 1786, by one of the leading writers of that day, strikingly exhibits the results of the restricted terms of the Confederation:
By this political compact the United States in Congress have exclusive power for the following purposes, without being able to execute one of them: They may make and conclude treaties; but can only recommend the observance of them. They may appoint ambassadors; but cannot defray even the expenses of their tables. They may borrow money in their own name on the faith of the Union; but cannot pay a dollar. They may coin money; but they cannot purchase an ounce of bullion. They may make war, and determine what number of troops are necessary; but cannot raise a single soldier. In short, they may declare every thing, but do nothing.Why was the Confederation so powerless? Mainly because the Congress could do nothing but what was expressly authorized. Legitimate inference of a power not named, from those expressly given, was not allowed. To every attempt to deduce by necessity an inferred power, the answer was--“Is it so nominated in the bond?” Hence, when, with more enlightened views, the people essayed to create a real and efficient government instead of a rickety and powerless league, their Constitution, after enumerating certain defined powers of Congress, added, that that body should have power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United ”
