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Chapter 9:

  • The same subject continued
  • -- the tenth amendment -- fallacies exposed -- “Constitution,” “Government,” and “people” distinguished from each other -- theories refuted by facts -- characteristics of sovereignty -- sovereignty identified -- never thrown away.

If any lingering doubt could have existed as to the reservation of their entire sovereignty by the people of the respective states when they organized the federal Union, it would have been removed by the adoption of the tenth amendment to the Constitution, which was not only one of the amendments proposed by various states when ratifying that instrument, but the particular one in which they substantially agreed, and upon which they most urgently insisted. Indeed, it is quite certain that the Constitution would never have received the assent and ratification of Massachusetts, New Hampshire, New York, North Carolina, and perhaps other states, but for a well-grounded assurance that the substance of this amendment would be adopted as soon as the requisite formalities could be complied with. That amendment 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.

The full meaning of this article may not be as clear to us as it was to the men of that period, on account of the confusion of ideas by which the term “people”—plain enough to them—has since been obscured, and also the ambiguity attendant upon the use of the little conjunction or, which has been said to be the most equivocal word in our language, and for that reason has been excluded from indictments in the English courts. The true intent and meaning of the provision, however, may be ascertained from an examination and comparison of the terms in which it was expressed by the various states which proposed it, and whose ideas it was intended to embody.

Massachusetts and New Hampshire, in their ordinances of ratification, expressing the opinion “that certain amendments and alterations in the said Constitution would remove the fears and quiet the apprehensions of many of the good people of this Commonwealth [State (New Hampshire) ], and more effectually guard against an undue administration of the Federal Government,” each recommended several such amendments, putting this at the head in the following form:

That it be explicitly declared that all powers not expressly delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised.


Of course, those stanch republican communities meant the people of the states—not their governments, as something distinct from their people.

New York expressed herself as follows:

That the powers of government may be reassumed by the people whenever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the people of the several States, or to their respective State governments, to whom they may have granted the same; and that those clauses in the said Constitution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers or as inserted merely for greater caution.

South Carolina expressed the idea thus:

This Convention doth also declare that no section or paragraph of the said

Constitution warrants a construction that the States do not retain every power not expressly relinquished by them and vested in the General Government of the Union.

North Carolina proposed it in these terms:

Each State in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States or to the departments of the General Government.

Rhode Island gave in her long-withheld assent to the Constitution, “in full confidence” that certain proposed amendments would be adopted, the first of which was expressed in these words:

That Congress shall guarantee to each State its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Constitution expressly delegated to the United States.

This was in May, 1790, when nearly three years had been given to discussion and explanation of the new government by its founders and others, when it had been in actual operation for more than a year, and when there was every advantage for a clear understanding of its nature and principles. Under such circumstances, and in the “full confidence” that this language expressed its meaning and intent, the people of Rhode Island signfied their “accession” to the “Confederate republic” of the states already united.

No objection was made from any quarter to the principle asserted in these various forms, or to the amendment in which it was finally expressed, although many thought it unnecessary, as being merely declaratory of what would have been sufficiently obvious without it—that the [126] functions of the government of the United States were strictly limited to the exercise of such powers as were expressly delegated, and that the people of the several states retained all others.

Is it compatible with reason to suppose that people so chary of the delegation of specific powers or functions could have meant to surrender or transfer the very basis and origin of all power—their inherent sovereignty—and this, not by express grant, but by implication?

Everett, following, whether consciously or not, in the line of Webster's ill-considered objection to the term “compact,” takes exception to the sovereignty of the states on the ground that “the word ‘sovereignty’ does not occur” in the Constitution. He admits that the states were sovereign under the Articles of Confederation. How could they relinquish or be deprived of their sovereignty without even a mention of it—when the tenth amendment confronts us with the declaration that nothing was surrendered by implication—that everything was reserved unless expressly delegated to the United States or prohibited to the states? Here is an attribute which they certainly possessed—which nobody denies, or can deny, that they did possess—and of which Everett says no mention is made in the Constitution. In what conceivable way, then, was it lost or alienated?

Much has been said of the “prohibition” of the exercise by the states of certain functions of sovereignty, such as making treaties, declaring war, coining money, etc. This is only a part of the general compact, by which the contracting parties covenant, one with another, to abstain from the separate exercise of certain powers, which they agree to entrust to the management and control of the union or general agency of the parties associated. It is not a prohibition imposed upon them from without, or from above, by any external or superior power, but is self-imposed by their free consent. The case is strictly analogous to that of individuals forming a mercantile or manufacturing copartnership, who voluntarily agree to refrain, as individuals, from engaging in other pursuits or speculations, from lending their individual credit, or from the exercise of any other right of a citizen, which they may think proper to subject to the consent, or entrust to the management of the firm.

The prohibitory clauses of the Constitution referred to are not at all a denial of the full sovereignty of the states, but are merely an agreement among them to exercise certain powers of sovereignty in concert, and not separately and apart.

There is one other provision of the Constitution, which is generally [127] adduced by the friends of centralism as antagonistic to state sovereignty This is found in the second clause of the sixth article, as follows:

This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

This enunciation of a principle, which, even if it had not been expressly declared, would have been a necessary deduction from the acceptance of the Constitution itself, has been magnified and perverted into a meaning and purpose entirely foreign to that which plain interpretation is sufficient to discern. Motley thus dilates on the subject:

Could language be more imperial? Could the claim to State “sovereignty” be more completely disposed of at a word? How can that be sovereign, acknowledging no superior, supreme, which has voluntarily accepted a supreme law from something which it acknowledges as superior?1

The mistake which Motley—like other writers of the same school— makes is one which is disposed of by a very simple correction. The states, which ordained and established the Constitution, accepted nothing besides what they themselves prescribe. They acknowledged no superior. The supremacy was both in degree and extent only that which was delegated by the states to their common agent.

There are some other considerations which may conduce to a clearer understanding of this supremacy of the Constitution and the laws made in pursuance thereof:

1. In the first place, it must be remembered that, when the federal Constitution was formed, each then existing state already had its own constitution and code of statute laws. It was, no doubt, primarily with reference to these that the provision was inserted, and not in the expectation of future conflicts or discrepancies. It is in this light alone that Madison considers it in explaining and vindicating it in the Federalist.2

2. Again, it is to be observed that the supremacy accorded to the general laws of the United States is expressly limited to those enacted in conformity with the Constitution, or, to use the exact language, “made in pursuance thereof.” Hamilton, in another chapter of the Federalist, calls particular attention to this, saying (and the italics are all his own) “that the laws of the Confederacy, as to the enumerated and legitimate objects of its jurisdiction, will become the supreme law of the land,” and that the state functionaries will cooperate in their observance and [128] enforcement with the general government, “as far as its just and constitutional authority extends.”3

3. In the third place, it is not the government of the United States that is declared to be supreme, but the Constitution and the laws and treaties made in accordance with it. The proposition was made in the convention to organize a government consisting of “supreme legislative, executive, and judicial powers,” but it was not adopted. Its deliberate rejection is much more significant and conclusive than if it had never been proposed. Correction of so gross an error as that of confounding the government with the Constitution ought to be superfluous, but so crude and confused are the ideas which have been propagated on the subject, that no misconception seems to be too absurd to be possible. Thus, it has not been uncommon of late years to hear, even in the highest places, the oath to support the Constitution, which is taken by both state and federal officers, spoken of as an oath “to support the government”—an obligation never imposed upon anyone in this country, and which the men who made the Constitution, with their recent reminiscences of the Revolution, the battles of which they had fought with halters around their necks, would have been the last to prescribe. Could any assertion be less credible than that they proceeded to institute another supreme government which it would be treason to resist?

This confusion of ideas pervades the treatment of the whole subject of sovereignty. Webster has said, and very justly so far as these United States are concerned: “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 feudal origin, and imports no more than the state of the sovereign. It comprises his rights, duties, exemptions, prerogatives, and powers. But with us all power is with the people. They alone are sovereign, and they erect what governments they please, and confer on them such powers as they please. None of these governments are sovereign, in the European sense of the word, all being restrained by written constitutons.4

But the same intellect, which can so clearly discern and so lucidly define the general proposition, seems to be covered by a cloud of thick darkness when it comes to apply it to the particular case in issue. Thus, a little afterward, we have the following:

There is no language in the whole Constitution applicable to a confederation of States. If the States be parties, as States, what are their rights, and what their [129] respective covenants and stipulations? and where are their rights, covenants, and stipulations expressed? In the Articles of Confederation they did make promises, and did enter into engagements, and did plight the faith of each State for their fulfillment; but in the Constitution there is nothing of that kind. The reason is that, in the Constitution, it is the people who speak and not the States. The people ordain the Constitution, and therein address themselves to the States and to the Legislatures of the States in the language of injunction and prohibition.5

It is surprising that such inconsistent ideas should proceed from a source so eminent. Its author falls into the very error which he had just before so distinctly pointed out, in confounding the people of the states with their governments. In the vehemence of his hostility to state sovereignty, he seems—as all of his disciples seem—unable even to comprehend that it means the sovereignty, not of state governments, but of people who make them. With minds preoccupied by the unreal idea of one great people of a consolidated nation, these gentlemen are blinded to the plain and primary truth that the only way in which the people ordained the Constitution was as the people of States. When Webster says that “in the Constitution it is the people who speak, and not the States,” he says what is untenable. The states are the people. The people do not speak, never have spoken, and never can speak, in their sovereign capacity (without a subversion of our whole system), otherwise than as the people of states.

There are but two modes of expressing their sovereign will known to the people of this country. One is by direct vote—the mode adopted by Rhode Island in 1788, when she rejected the Constitution. The other is the method, more generally pursued, of acting by means of conventions of delegates elected expressly as representatives of the sovereignty of the people. Now, it is not a matter of opinion or theory of speculation, but a plain, undeniable, historical fact, that there never has been any act or expression of sovereignty in either of these modes by that imaginary community, “the people of the United States in the aggregate.” Usurpations of power by the government of the United States, there may have been, and may be again, but there has never been either a sovereign convention or a direct vote of the “whole people” of the United States to demonstrate its existence as a corporate unit. Every exercise of sovereignty by any of the people of this country that has actually taken place has been by the people of states as states. In the face of this fact, is it not the merest self-stultification to admit the sovereignty of the people and deny it to the states, in which alone they have community existence?

This subject is one of such vital importance to a right understanding [130] of the events which this work is designed to record and explain that it can not be dismissed without an effort in the way of recapitulation and conclusion, to make it clear beyond the possibility of misconception.

According to the American theory, every individual is endowed with certain unalienable rights, among which are “life, liberty, and the pursuit of happiness.” He is entitled to all the freedom, in these and in other respects, that is consistent with the safety and the rights of others and the weal of the community, but political sovereignty, which is the source and origin of all the powers of government—legislative, executive, and judicial—belongs to, and inheres in, the people of an organized political community. It is an attribute of the whole people of such a community. It includes the power and necessarily the duty of protecting the rights and redressing the wrongs of individuals, of punishing crimes, enforcing contracts, prescribing rules for the transfer of property and the succession of estates, making treaties with foreign powers, leving taxes, etc. The enumeration of particulars might be extended, but these will suffice as illustrations.

These powers are of course exercised through the agency of governments, but the governments are only agents of the sovereign—responsible to it, and subject to its control. This sovereign—the people, in the aggregate, of each political community—delegates to the government the exercise of such powers, or functions, as it thinks proper, but in an American republic never transfers or surrenders sovereignty. That remains, unalienated and unimpaired. It is by virtue of this sovereignty alone that the Government, its authorized agent, commands the obedience of the individual citizen, to the extent of its derivative, dependent, and delegated authority. The allegiance of the citizen is due to the sovereign alone.

Thus far, I think, all will agree. No American statesman or publist would venture to dispute it. Notwithstanding the inconsiderate or ill-considered expressions thrown out by some persons about the unity of the American people from the beginning, no respectable authority has ever had the hardihood to deny that, before the adoption of the federal Constitution, the only sovereign political community was the people of the state—the people of each state. The ordinary exercise of what are generally termed the powers of sovereignty was by and through their respective governments; when they formed a confederation, a portion of those powers was entrusted to the general government, or agency. Under the confederation, the Congress of the United States represented the collective power of the states; still, the people of each state alone [131] possessed sovereignty, and consequently were entitled to the allegiance of the citizen.

When the Articles of Confederation were amended, when the new Constitution was substituted in their place and the general government reorganized, its structure was changed, additional powers were conferred upon it, and thereby subtracted from the powers theretofore exercised by the state governments; the seat of sovereignty—the source of all those delegated and dependent powers—was not disturbed. There was a new government or an amended government—it is entirely immaterial in which of these lights we consider it—but no new people was created or constituted. The people, in whom alone sovereignty inheres, remained just as they had been before. The only change was in the form, structure, and relations of their governmental agencies.

No doubt the states—the people of the states—if they had been so disposed, might have merged themselves into one great consolidated state, retaining their geographical boundaries merely as matters of convenience. But such a merger must have been distinctly and formally stated, not left to deduction or implication.

Men do not alienate even an estate, without positive and express terms and stipulations. But in this case not only was there no express transfer—no formal surrender—of the preexisting sovereignty, but it was expressly provided that nothing should be understood as even delegated—that everything was reserved, unless granted in express terms. The monstrous conception of the creation of a new people, invested with the whole or a great part of the sovereignty which had previously belonged to the people of each state, has not a syllable to sustain it in the Constitution, but is built up entirely upon the palpable misconstruction of a single expression in the preamble.

In denying that there is any such collective unit as the people of the United States in the aggregate, of course I am not to be understood as denying that there is such a political organization as the United States, or that there exists, with large and distinct powers, a government of the United States; but it is claimed that the Union, as its name implies, is constituted of states. As a British author,6 referring to the old Teutonic system, has expressed the same idea, the states are the integers, the United States the multiple which results from them. The government of the United States derives its existence from the same source, and exercises its functions by the will of the same sovereignty that creates and confers authority upon the state governments. The people of each state [132] are, in either case, the source. The only difference is that, in the creation of the state governments, each sovereign acted alone; in that of the federal government, they acted in cooperation with the others. Neither the whole nor any part of their sovereignty has been surrendered to either government.

To whom, in fine, could the states have surrendered their sovereignty? Not to the mass of the people inhabiting the territory possessed by all the states, for there was no such community in existence, and they took no measures for the organization of such a community. If they had intended to do so, the very style, “United States,” would have been a palpable misnomer, nor would treason have been defined as levying war against them. Could it have been transferred to the government of the Union? Clearly not, in accordance with the ideas and principles of those who made the Declaration of Independence, adopted the Articles of Confederation, and established the Constitution of the United States; in each and all of these the corner stone is the inherent and inalienable sovereignty of the people. To have transferred sovereignty from the people to a government would have been to have fought the battles of the Revolution in vain—not for the freedom and independence of the states, but for a mere change of masters. Such a thought or purpose could not have been in the heads or hearts of those who molded the Union, and could have found lodgment only when the ebbing tide of patriotism and fraternity had swept away the landmarks which they erected who sought by the compact of union to secure and perpetuate the liberties then possessed. The men who had won at great cost the independence of their respective states were deeply impressed with the value of union, but they could never have consented, like “the base Judean,” to fling away the priceless pearl of state sovereignty for any possible alliance.

1 Rebellion Record, Vol. I, Documents, p. 213.

2 Federalist, No. Xliv.

3 Federalist, No. Xxvii.

4 Congressional Debates, Vol. IX, Part I, p. 565.

5 Ibid., p. 566.

6 Sir Francis Palgrave, quoted by Calhoun, Congressional Debates, Vol. IX, Part I, p. 541.

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