The second, so far from sustaining the doctrine, clearly refutes it. It is read as if it reserved to the States, or the people, all rights not prohibited by it to the States.
Such is not, however, its language or its purpose.
It certainly does not reserve rights prohibited, but it does more, and if it had not, the whole scheme of Government would have failed at once.
Certain powers, with a view to the benefit of all, were found indispensable to be vested in the Government
For want of these, the whole were suffering great, and, as was believed, if not obviated, fatal mischief.
These powers in their very nature were such as the States could not beneficially exercise.
They were to be vested, therefore, if to exist at all, in the Government
To reserve them to the States, or the people of the States, would destroy the very object of placing them elsewhere.
The amendment, therefore, does not do such a silly, suicidal act. The powers delegated
are not reserved.
On the contrary, these, by the very words of the amendment, are as clearly excluded as the power prohibited.
The language is “the powers not
delegated to the United States
by the Constitution
,” &c. are reserved.
A delegated power consequently, like a prohibited power, is not within the reservation.
If, therefore, the Constitution
delegates to the Government
certain powers to be executed in a State, she has no right to resist them under this amendment.
The fact of delegation, as well as the fact of express prohibition, is the exclusion of all State power.
If then the Constitution
is in any sense a compact, it is a compact creating and establishing a Government, and its powers are as supreme and exclusive as if they had been vested and established by the whole people in the aggregate.
But it is in no sense a compact, except as every Government is a compact, implied in the correlative obligations of protection and allegiance.
This is clear upon the authority of the great names that assisted in forming it.
The doctrine of compact in the days of South Carolina
nullification, (she has been before restive and troublesome, perhaps from not having much else to do than to theorize and grumble and scold,) was relied upon in support of that heresy.
Ever alive to the fame of a work in great measure his own, Mr. Madison
, in a few masterly letters, rich with the perspicuity of his style, and with the patriotism which ever adorned him, exposed its fallacy to a demonstration.
His motives were beyond suspicion, if unworthy motives could ever have been attached to his pure nature.
His public career was run. He had greatly contributed to his country's prosperity and renown, in every high official station.
He had seen the various defects of the Confederation, and to correct them, had successfully exerted his transcendent abilities in establishing for us the Constitution
which he came from his honored retreat to defend.
His years were many; his race on earth nearly at an end. But he loved his native land with all his original ardor, and seeing how sure the doctrine was to involve it in the calamities certain to have resulted from the Government
which the Constitution
displaced, and displaced in order to avoid, he exposed and denounced it as a fatal heresy, full of the very perils which it was the very purpose of the Convention
I have not time to give you more than an extract or two from the correspondence.
But these will be enough for my object.
Writing to Mr. M. L. Hurlburt
in May, 1830, who had sent him a pamphlet of his own on the subject, he says, in order to discover its true nature:
The facts of the case which must decide its true character, a character without a prototype, are that the Constitution was created by the people, but by the people as composing distinct States and acting by a majority of each; that, being derived from the same source as the Constitution of the States, it has within each State the same authority as the Constitution of the State, and is as much a Constitution, in the strict sense of the term, as the Constitution of the State; that, being a compact among the States in their highest sovereign capacity, and constituting the people thereof one people for certain purposes, it is not revocable or alterable at the will of these States individually, as the Constitution of a State is revocable and alterable at its individual will.
That the sovereign or supreme powers of Government are divided into the separate depositories of the Government of the United States and the Governments of the individual States.
That the Government of the United States is a Government, in as strict a sense of the term, as the Governments of the States; being, like them, organized into a legislative, executive, and judicial department, operating, like them, directly on persons and things, and having, like them, the command of a physical force for executing the powers committed to it.
He writes Mr. Rives
, in December, 1828: “Were some of the Southern
doctrines latterly advanced valid, our political system would not be a Government, but a mere league, in which the members have given up no part whatever of their sovereignty to a common Government, and retain, moreover, a right in each to dissolve the compact when it pleases.
It seems to be forgotten, that in the case of a mere league there must be as much right on one side to assert and maintain its obligations as on the other to cancel it, and prudence ought to calculate the tendency of such a conflict.
It is painful to observe so much real talent, and at bottom, doubtless, so much real patriotism, as prevail in the Southern
quarter, so much misled by the sophistry of the passions.”
To Mr. N. P. Trist
, February, 1830:
The Constitution of the United States divides the sovereignty, the portions surrendered