CONSTITUTION OF THE UNITED STATES
NATURE OF THE CONSTITUTION -- WHETHER A COMPACT
§ 306. Having thus sketched out a general history of the origin and adoption of the constitution of the United States, and a summary of the principal objections and difficulties, which it had to encounter, we are at length arrived at the point at which it may be proper to enter upon the consideration of the actual structure, organization, and powers, which belong to it. Our main object will henceforth be to unfold in detail all its principal provisions, with such commentaries, as may explain their import and effect, and with such illustrations, historical and otherwise, as will enable the reader fully to understand the objections, which have been urged against each of them respectively; the amendments, which have been proposed to them; and the arguments, which have sustained them in their present form.
§ 307. Before doing this, however, it seems necessary, in the first place, to bestow some attention upon several points, which have attracted a good deal of discussion, and which are preliminary in their own nature; and in the next place to consider, what are the true rules of interpretation belonging to the instrument.
§ 308. In the first place, what is the true nature and import of the instrument? Is it a treaty, a convention, a league, a contract, or a compact? Who are the parties to it? By whom was it made? By whom was it ratified? What are its obligations? By whom, and in what manner may it be dissolved? Who are to determine its validity and construction? Who are to decide upon the supposed infractions and violations of it? These are questions often asked, and often discussed, not merely for the purpose of theoretical speculation; but as matters of practical importance, and of earnest and even of vehement debate. The answers given to them by statesmen and jurists are often contradictory, and irreconcilable with each other; and the consequences, deduced from the views taken of some of them, go very deep into the foundations of the government itself, and expose it, if not to utter destruction, at least to evils, which threaten its existence, and disturb the just operation of its powers.
§ 309. It will be our object to present in a condensed form, some of the principal expositions, which have been insisted on at different times, as to the nature and obligations of the constitution, and to offer some of the principal objections, which have been suggested against those expositions. To attempt a minute enumeration would, indeed, be an impracticable task; and considering the delicate nature of others, which are still the subject of heated controversy, where the ashes are scarcely yet cold, which cover the concealed fires of former political excitements, it is sufficiently difficult to detach some of the more important from the mass of accidental matter, in which they are involved.
§ 310. It has been asserted by a learned commentator, that the constitution of the United States is an original, written, federal, and social compact, freely, voluntarily, and solemnly entered into by the several states, and ratified by the people thereof respectively; whereby the several states, and the people thereof, respectively have bound themselves to each other, and to the federal government of the United States, and by which the federal government is bound to the several states and to every citizen of. the United States. The author proceeds to expound every part of this definition at large. It is (says he) a compact, by which it is distinguished from a charter or grant, which is either the act of a superior to an inferior, or is founded upon some consideration moving from one of the parties to the other, and operates as an exchange or sale. But were the contracting parties, whether considered as states in their political capacity and character, or as individuals, are all equal; nor is there any thing granted from one to another; but each stipulates to part with, and receive the same thing precisely without any distinction or difference between any of the parties.
§ 311. It is a federal compact. Several sovereign and independent states may unite themselves together by a perpetual confederation, without each ceasing to be a perfect state. They will together form a federal republic. The deliberations in common will offer no violence to each member, though they may in certain respects put some constraint on the exercise of it in virtue of voluntary engagements. The extent, modifications, and objects of the federal authority are mere matters of discretion. So long, as the separate organization of the members remains; and, from the nature of the compact, must continue to exist both for local and domestic, and for federal purposes, the union is in fact, as well as in theory, an association of states, or a confederacy.
§ 312. It is, also, to a certain extent, a social compact. In the act of association, in virtue of which a multitude of men form together a state or nation, each individual is supposed to have entered into engagements with all, to procure the common welfare; and all are supposed to have entered into engagements with each other, to facilitate the means of supplying the necessities of each individual, and to protect and defend him. And this is what is ordinarily meant by the original contract of society. But a contract of this nature actually existed in a visible form between the citizens of each state in their several constitutions. It might, therefore, be deemed somewhat extraordinary, that in the establishment of a federal republic, it should have been thought necessary to extend its operation to the persons of individuals, as well as to the states composing the confederacy.
§ 313. It may be proper to illustrate the distinction between federal compacts and obligations, and such as are social, by one or two examples. A federal compact, alliance, or treaty, is an act of the state or body politic, and not of an individual. On the contrary, a social compact is understood to mean the act of individuals about to create, and establish a state or body politic among, themselves. If one nation binds itself by treaty to pay a certain tribute to another; or if all the members of the same confederacy oblige themselves to furnish their quo[as of a common expense, when required; in either of these cases, the state or body politic only, and not the individual, is answerable for this tribute or quota. This is, therefore, a federal obligation. But, where by any compact, express or implied, a number of persons are bound to contribute their proportions of the common expenses, or to submit to all laws made by the common consent; and where in default of compliance with these engagements the society is authorized to levy the contribution, or to punish the person of the delinquent; this seems to be understood to be more in the nature of a social, than a federal obligation.
§ 314. It is an original compact. Whatever political relation existed between the American colonies antecedent to the Revolution, as constituent parts of the British empire, or as dependencies upon it, that relation was completely dissolved, and annihilated from that period. From the moment of the Revolution they became severally independent and sovereign slates, possessing all the lights, jurisdictions, and authority, that other sovereign states, however constituted, or by whatever title denominated, possess; and bound by no ties, but of their own creation, except such, as all other civilized nations are equally bound by, and which together constitute the customary law of nations.
§ 315. It is a written compact. Considered as a federal compact or alliance between the states, there is nothing new or singular in this circumstance, as all national compacts since the invention of letters have probably been reduced to that form. But considered in the light of an original social compact, the American Revolution seems to have given birth to this new political phenomenon. In every state a written constitution was framed, and adopted by the people both in their individual and sovereign capacity and character.
§ 316. It is a compact freely, voluntarily, and solemnly entered into by the several states, and ratified by the people thereof respectively; freely, there being neither external nor internal force or violence to influence, or promote the measure; the United States being at peace with all the world and in perfect tranquility in each state; voluntarily, because the measure had its commencement in the spontaneous acts of the state legislatures, prompted by a due sense of the necessity of some change in the existing confederation; and solemnly, as having been discussed, not only in the general convention, which proposed and framed it; but afterwards in the legislatures of the several states; and finally in the conventions of all the states, by whom it was adopted and ratified.
§ 317. It is a compact, by which the several states and the people thereof respectively have bound themselves to each other, and to the federal government. The constitution had its commencement with the body politic of the several states; and its final adoption and ratification was by the several legislatures referred to, and completed by conventions especially, called and appointed for that purpose in each state. The acceptance of the constitution was not only an act of the body politic of each state, but of the people thereof respectively in their sovereign character and capacity. The body politic was competent to bind itself, so far as the constitution of the state permitted. But not having power to bind the people in cases beyond their constitutional authority, the assent of the people was indispensably necessary to the validity of the compact, by which the rights of the people might be diminished, or submitted to a new jurisdiction, or in any manner affected. From hence, not only the body politic of the several states, but every citizen thereof, may be considered as parties to the compact, and to have bound themselves reciprocally to each other for the due observance of it; and also to have bound themselves to the federal government, whose authority has been thereby created and established.
§ 318. Lastly. It is a compact, by which the federal government is bound to the several states, and to every citizen of the United States. Although the federal government can in no possible view be considered as a party to a compact made anterior to its existence, and by which it was in fact created; yet, as the creature of that compact, it must be bound by it to its creators, the several states in the union, and the citizens thereof. Having no existence, but under the constitution, nor any rights, but such as that instrument confers; and those very rights being, in fact duties, it can possess no legitimate power, but such as is absolutely necessary for the performance of a duty prescribed, and enjoined by the constitution. Its duties then became the exact measure of its powers; and whenever it exerts a power for any other purpose, than the performance of a duty prescribed by the constitution, it transgresses its proper limits, and violates the public trust. Its duties being moreover imposed for the general benefit and security of the several states in their political character, and of the people, both in their sovereign and individual capacity, if these objects be not obtained, the government does not answer the end of its creation. It is, therefore, bound to the several states respectively, and to every citizen thereof, for the due execution of those duties, and the observance of this obligation is enforced under the solemn sanction of an oath from those, who administer the government.
§ 319. Such is a summary of the reasoning of the learned author, by which he has undertaken to vindicate his views of the nature of the constitution. That reasoning s been quoted at large, and for the most part in his own words; not merely as his own, but as representing, in a general sense, the opinions of a large body of statesmen and jurists in different parts of the Union, avowed and acted upon in former times; and recently revived under circumstances, which have given them increased importance, if not a perilous influence.
§ 320. It is wholly beside our present purpose to engage in a critical commentary upon the different parts of this exposition. It will be sufficient for all the practical objects we have in view, to suggest the difficulties of maintaining its leading positions, to expound the objections, which have been urged against them, and to bring into notice those opinions, which rest on a very different basis of principles.
§ 321. The obvious deductions, which may be, and indeed have been, drawn from considering the constitution as a compact between the states, are, that it operates as a mere treaty, or convention between them, and has an obligatory force upon each state no longer, than suits its pleasure, or its consent continues; that each state has a right to judge for itself in relation to the nature extent, and obligations. Of the instrument, without being at all bound by the interpretation of the federal government, or by that of any other state; and that each retains the power to withdraw from the confederacy and to dissolve the connexion, when such shall be its choice; and may suspend the operations of the federal government, and nullify its acts within its own territorial limits, whenever, in its own opinion, the exigency of the case may require. These conclusions may not always be avowed; but they flow naturally from the doctrines, which we have under consideration. They go to the extent of reducing the government to a mere confederacy during pleasure; and of thus presenting the extraordinary spectacle of a nation existing only at the will of each of its constituent parts.
§ 322. If this be the true interpretation of the instrument, it has wholly railed to express the intentions of its framers, and brings back, or at least may bring back, upon us all the evils of the old confederation, from which we were supposed to have had a safe deliverence. For the power to operate upon individuals, instead of operating merely on states, is of little consequence, though yielded by the constitution, if that power is to depend for, its exercise upon the continual consent of all the members upon every emergency. We have already seen, that the framers of the instrument contemplated no such dependence. Even under the confederation it was deemed a gross heresy to maintain, that a party to a compact has a right to revoke that compact; and the possibility of a question of this nature was deemed to prove the necessity of laying the foundations of our national government deeper, than in the mere sanction of delegated authority. "A compact between independent sovereigns, founded on acts of legislative authority, can pretend to no higher validity, than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach committed by either of the parties absolves the others, and authorizes them, if they please, to pronounce the compact violated and void." Consequences like these, which place the dissolution of the government in the hands of a single state, and enable it at will to defeat, or suspend the operation of the laws of the union, are too serious, not to require us to scrutinize with the utmost care and caution the principles, from which they flow, and by which they are attempted to be justified.
§ 323. The word "compact," like many other important words in our language, is susceptible of different shades of meaning, and may be used in different senses. It is sometimes used merely to express a deliberate and voluntary assent to any act or thing. Thus, it has been said by Dr. South, that " in the beginnings of speech, there was an implicit compact founded upon common consent, that such words, voices, or gestures, should be signs, whereby they would express their thoughts;" where, it is obvious, that nothing more is meant, than a mutual and settled appointment in the use of language. It is also used to express any agreement or contract between parties, by which they are bound, and incur legal obligations. Thus we say, that one person has entered into a compact with another, meaning, that the contracting parties have entered into some agreement, which is valid in point of law, and includes mutual rights and obligations between them. And it is also used, in an emphatic sense, to denote those agreements and stipulations, which are entered into between nations, such as public treaties, conventions, confederacies, and other solemn acts of national authority.1 When we speak of a compact in a legal sense, we naturally include in it the notion of distinct contracting parties, having mutual rights, and remedies to enforce the obligations arising therefrom. We suppose, that each party has an equal and independent capacity to enter into the contract, and has an equal right to judge of its terms, to enforce its obligations, and to insist upon redress for any violation of them. This, in a general sense, is true under our systems of municipal law, though practically, that law stops short of maintaining it in all the variety of forms, to which modern refinement has pushed the doctrine of implied contracts.
§ 324. A compact may, then, be said in its most general sense to import an agreement according to Lord Coke's definition, aggregatio mentium, an aggregation or consent of minds; in its stricter sense to import a contract between parties, which creates obligations, and rights capable of being enforced, and contemplated, as such, by the parties, in their distinct and independent characters. This is equally true of them; whether the contract be between individuals, or between nations. The remedies are, or may be, different; but the right to enforce, as accessory to the obligation, is equally retained in each case. It forms the very substratum of the engagement.
§ 325. The doctrine maintained by many eminent writers upon public law in modern times is, that civil society has its foundation in a voluntary consent or submission; and, therefore, it is often said to depend upon a social compact of the people composing the nation. And this, indeed, does not, in substance, differ from the definition of it by Cicero, Multitudo, juris consensu et utilitatis communione sociata; that is, (as Burlamaqui gives it,) a multitude of people united together by a common interest, and by common laws, to which they submit with one accord.
§ 326. Mr. Justice Blackstone has very justly observed, that the theory of an original contract upon the first formation of society is a visionary notion. "But though society had not its formal beginning from any convention of individuals actuated by their wants and fears; yet it is the sense of their weakness and imperfection, that keeps mankind together; that demonstrates the necessity of this union; and that, therefore, is the solid and natural foundation, as well as the cement of civil society. And this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet, in nature and reason, must always be understood, and implied in the very act of associating together; namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member; and that in return for this protection each individual should submit to the laws of the community." It is in this sense, that the preamble of the constitution of Massachusetts asserts, that "the body politic is formed by a voluntary association of individuals; that it is a social compact, by which the whole people covenants with each citizen and each citizen with the whole people, that all shall be governed by certain laws for the common good;" and that in the same preamble, the people acknowledge with grateful hearts, that Providence had afforded them an opportunity "of entering into an original, explicit, and solemn compact with each other, and of forming a new constitution of civil government for themselves and their posterity." It is in this sense too, that Mr. Chief Justice Jay is to be understood, when he asserts, that "every state constitution is a compact made by and between the citizens of a state to govern themselves in a certain manner; and the constitution of the United States is, likewise, a compact made by the people of the United States, to govern themselves as to general objects in a certain manner." He had immediately before stated, with reference to the preamble of the constitution, "Mere we see the people acting, as sovereigns of the whole country; and in the language of sovereignty, establishing a constitution, by which it was their will, that the state governments should be bound, and to which the state constitutions should be made to conform."
§ 327. But although in a general sense, and theoretically speaking, the formation of civil societies and states may thus be said to be founded in a social compact or contract, that is, in the solemn, express or implied consent of the individuals composing them; yet the doctrine itself requires many limitations and qualifications, when applied to the actual condition of nations, even of those, which are most free in their organization. Every state, however organized, embraces many persons in it, who have never assented to its form of government; and many, who are deemed incapable of such assent, and yet who are held bound by its fundamental institutions and laws. Infants, minors, married women, persons insane, and many others, are deemed subjects of a country, and bound by its laws; although they have never assented thereto, and may by those very laws be disabled from such an act. Even our most solemn instruments of government, framed and adopted as the constitutions of our state governments, are not only not founded upon the assent of all the people within the territorial jurisdiction; but that assent is expressly excluded by the very manner, in which the ratification is required to be made. That ratification is restricted to those, who are qualified voters; and who are, or shall be qualified voters, is decided by the majority in the convention or other body, which submits the constitution to the people. All of the American constitutions have been formed in this manner. The assent of minors, of women, and of unqualified voters has never been asked or allowed; yet these embrace a majority of the whole population in every organized society, and are governed by its existing institutions. Nay more; a majority only of the qualified voters is deemed sufficient to change the fundamental institutions of the state, upon the general principle, that the majority has at all times a right to govern the minority, and to bind the latter to obedience to the will of the former. And if more than a plurality is, in any case, required, to amend or change the actual constitution of the society, it is a matter of political choice with the majority for the time being, and not of right on the part of the minority.
§ 328. It is a matter of fact, therefore, in the history of our own forms of government, that they have been formed without the consent, express or implied, of the whole people; and that, although firmly established, they owe their existence and authority to the simple will of the majority of the qualified voters. There is not probably a single state in the Union, whose constitution has not been adopted against the opinions and wishes of a large minority, even of the qualified voters; and it is notorious, that some of them have been adopted by a small majority of votes. How, then, can we assert with truth, that even in our free constitutions the government is founded in fact on the assent of the whole people, when many of them have not been permitted to express any opinion, and many have expressed a decided dissent? In what manner are we to prove, that every citizen of the state has contracted with all the other citizens, that such constitution shall be a binding compact between them, with mutual obligations to observe and keep it, against such positive dissent? If it be said, that by entering into. the society an assent is necessarily implied to submit to the majority, how is it proved, that a majority of all the people of all ages and sexes were ever asked to assent, or did assent to such a proposition? And as to persons subsequently born, and subjected by birth to such society, where is the record of such assent in point of law or fact?
§ 329. In respect to the American revolution itself, it is notorious, that was brought about against the wishes and resistance of a formidable minority of the people; and that the declaration of independence never had the universal assent of all the inhabitants of the country. So, that this great and glorious change in the organization of our government owes its whole authority to the efforts of a triumphant majority. And the dissent on the part of the minority was deemed in many cases a crime, carrying along with it the penalty of confiscation, forfeiture, and personal, and even capital punishment; and in its mildest form was deemed an unwarrantable outrage upon the public rights, and a total disregard of the duties of patriotism.
§ 330. The truth is, that the majority of every organized society has always claimed, and exercised the right to govern the whole of that society, in the manner pointed out by the fundamental laws, which from time to time have existed in such society. Every revolution, at least when not produced by positive force, has been founded upon the authority of such majority. And the right results from the very necessities of our nature; for universal consent can never be practically required or obtained. The minority are bound, whether they have assented or not; for the plain reason, that opposite wills in the same society, on the same subjects, cannot prevail at the same time; and, as society is instituted for the general safety and happiness, in a conflict of opinion the majority must have a right to accomplish that object by the means, which they deem adequate for the end. The majority may, indeed, decide, how far they will respect the rights or claims of the minority; and how far they will, from policy or principle, insist upon or absolve them from obedience. But this is a matter, on which it decides for itself, according to its own notions of justice or convenience. In a general sense the will of the majority of the people is absolute and sovereign, limited only by its means and power to make its will effectual. The declaration of independence (which, it is historically known, was not the act of the whole American people) puts the doctrine on its true grounds; Men are endowed, it declares, with certain unalienable rights, and among these are life, liberty, and the pursuit of happiness. To secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. Whenever any form of government becomes destructive of these ends, it is the right of the people (plainly intending, the majority of the people) to alter, or to abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such forms, as to them shall seem most likely to effect their safety and happiness.
§ 331. But whatever may be the true doctrine, as to the nature of the original compact of society, or of the subsequent institution and organization of governments consequent thereon, it is a very unjustifiable course of reasoning to connect with the theory all the ordinary doctrines applicable to municipal contracts between individuals, or to public conventions between nations. We have already seen, that the theory itself is subject to many qualifications; but whether true or not, it is impossible, with a just regard to the objects and interests of society, or the nature of compacts of government, to subject them to the same constructions and conditions, as belong to positive obligations, created between independent parties, contemplating, a distinct and personal responsibility. One of the first elementary principles of all contracts is, to interpret them according, to the intentions and objects of the parties. they are not to be so construed, as to subvert the obvious objects, for which they were made; or to lead to results wholly beside the apparent intentions of those, who framed them.
§ 332. Admitting, therefore, for the sake of argument, that the institution of a government is to be deemed, in the restricted sense already suggested, an original compact or contract between each citizen and the whole community, is it to be construed, as a continuing contract after its adoption, so as to involve the notion of there being still distinct and independent parties to the instrument, capable, and entitled, as matter of right, to judge and act upon its construction, according, to their own views of its import and obligations? To resist the enforcement of the powers delegated to the government at the good pleasure of each? To dissolve all connexion with it, whenever there is a supposed breach of it on the other side? These are momentous questions, and go to the very foundation of every government founded on the voluntary choice of the people; and they should be seriously investigated, before we admit the conclusions, which may be drawn from one aspect of them.
§ 333. Take, for instance, the constitution of Massachusetts, which in its preamble contains the declaration already quoted, that government "is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole government;" are we to construe that compact, after the adoption of the constitution, as still a contract, in which each citizen is still a distinct party, entitled to his remedy for any breach of its obligations, and authorized to separate himself from the whole society, and to throw off all allegiance, whenever he supposes, that any of the fundamental principles of that compact are infringed, or misconstrued? Did the people intend, that it should be thus in the power of any individual to dissolve the whole government at his pleasure, or to absolve himself from all obligations and duties thereto, at his choice, or upon his own interpretation of the instrument? If such a power exists, where is the permanence or security of the government? In what manner are the rights and property of the citizens to be maintained or enforced? Where are the duties of allegiance or obedience? May one withdraw his consent to-day, and re-assert it to-morrow? May one claim the protection and assistance of the laws and institutions to-day, and to-morrow repudiate them? May one declare war against all the others for a supposed infringement of the constitution? If he may, then each one has the same right in relation to all others; and anarchy and confusion, and not order and good government and obedience, are the ingredients, which are mainly at work in all free institutions, founded upon the will, and choice, and compact of the people. The existence of the government, and its peace, and its vital interests will, under such circumstances, be at the mercy and even at the caprice of a single individual. It would not only be vain, but unjust to punish him for disturbing society, when it is but by a just exercise of the original rights reserved to him by the compact. The maxim, that in every government the will of the majority shall, and ought to govern the rest, would be thus subverted; and society would, in effect, be reduced to its original elements. The association would be temporary and fugitive, like those voluntary meetings among barbarous and savage communities, where each acts for himself, and submits only, while it is his pleasure.
§ 334. It can readily be understood, in what manner contracts, entered into by private persons, are to be construed, and enforced under the regular operations of an organized government. Under such circumstances, if a breach is insisted on by either side, the proper redress is administered by the sovereign power, through the medium of its delegated functionaries, and usually by the judicial department, according to the principles established by the laws, which compose the jurisprudence of that country. In such a case no person supposes, that each party is at liberty to insist absolutely and positively upon his own construction, and to redress himself accordingly by force or by fraud. He is compellable to submit the decision to others, not chosen by himself, but appointed by the government, to secure the rights, and redress the wrongs of the whole community. In such cases the doctrine prevails, inter leges silent arma. But the reverse maxim would prevail upon the doctrine, of which we are speaking, inter arma silent Ieges. It is plain, that such a resort is not contemplated by any of our forms of government, by a suit of one citizen against the whole for a redress of his grievances, or for a specific performance of the obligations of the constitution. He may have, and doubtless in our forms of administering justice has, a complete protection of his rights secured by the constitution, when they are invaded by any other citizen. But that is in a suit by one citizen against another; and not against the body politic, upon the notion of contract.
§ 335. It is easy, also, to understand, how compacts between independent nations are to be construed, and violations of them redressed. Nations, in their sovereign character, are all upon an equality; and do not acknowledge any superior, by whose decrees they are bound, or to whose opinions they are obedient. Whenever, therefore, any differences arise between them, as to the interpretation of a treaty, or of the breach of its terms, there is no common arbiter, whom they are bound to acknowledge, having authority to decide them. There are but three modes, in which these differences can be adjusted; first, by new negotiations, embracing and settling the matters in dispute; secondly, by referring the same to some common arbitor, pro hac vice, whom they invest with such power; or thirdly, by a resort to arms, which is the ultima ratio regum, or the last appeal between sovereigns.
§ 336. It seems equally plain,' that in our forms of government, the constitution cannot contemplate either of these modes of interpretation or redress. Each citizen is not supposed to enter into the compact, as a sovereign with all the others as sovereign, retaining an independent and coequal authority to Judge, and decide for himself. He has no authority reserved to institute new negotiations; or to suspend the operations of the constitution, or to compel the reference to a common arbiter; or to declare war against the community, to which he belongs.
§ 337. No such claim has ever (at least to our knowledge) been asserted by any jurist or statesman, in respect to any of our state constitutions. The understanding is general, if not universal, that, having been adopted by the majority of the people, the constitution of the state binds the whole community proprio vigore; and is unalterable, unless by the consent of the majority of the people, or at least of the qualified voters of the state, in the manner prescribed by the constitution, or otherwise provided for by the majority. No right exists, or is supposed to exist, on the part of any town, or county, or other organized body within the state, short of a majority of the whole people of the state, to alter, suspend, resist, or dissolve the operations of that constitution, or to withdraw themselves from its jurisdiction. Much less is the compact supposed liable to interruption, or suspension, or dissolution, at the will of any private citizen upon his own notion of its obligations, or of any infringements of them by the constituted authorities.1 The only redress for any such infringements, and the only guaranty of individual rights and property, are understood to consist in the peaceable appeal to the proper tribunals constituted by the government for such purposes; or if these should fail, by the ultimate appeal to the good sense, and integrity, and justice of the majority of the people. And this, according to Mr. Locke, is the true sense of the original compact, by which every individual has surrendered to the majority of the society the right permanently to control, and direct the operations of government therein.
§ 338. The true view to be taken of our state constitutions is, that they are forms of government, ordained and established by the people in their original sovereign capacity to promote their own happiness, and permanently to secure their rights, property, independence, and common welfare. The language of nearly all these state constitutions is, that the people do ordain and establish this constitution; and where these terms are not expressly used, they are necessarily implied in the very substance of the frame of government. They may be deemed compacts, (though not generally declared so on their face,) in the sense of their being founded on the voluntary consent or agreement of a majority of the qualified voters of the state. But they are not treated as contracts and conventions between independent individuals and communities, having no common umpire. The language of these instruments is not the usual or appropriate language for mere matters resting, and forever to rest in contract. In general the import is, that the people "ordain and establish," that is, in their sovereign capacity, meet and declare, what shall be the fundamental LAW for the government of themselves and their posterity. Even in the constitution of Massachusetts, which, more than any other, wears the air of contract, the compact is declared to be a "mere constitution of civil government," and the people "do agree on, ordain, and establish the following declaration of rights, and frame of government, as the constitution of government." In this very bill of rights, the people are declared " to have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state"; and that "they have an incontestible, unalienable, and indefeasible right to institute government, and to reform, alter, or totally change the same, when their protection, safety, prosperity, and happiness require it." It is, and accordingly has always been, treated as a fundamental law, and not as a mere contract of government, during the good pleasure of all the persons; who were originally bound by it, or assented to it.
§ 339. A constitution is in fact a fundamental law or basis of government, and falls strictly within the definition of law, as given by Mr. Justice Blackstone. It is a rule of action, prescribed by the supreme power in a state, regulating the rights and duties of the whole community. It is a rule, as contradistinguished from a temporary or sudden order; permanent, uniform, and universal. It is also called a rule, to distinguish it from a compact, or agreement; for a compact (he adds) is a promise. proceeding from us; law is a command directed to us. The language of a compact is, I will, or will not do this; that of a law is, Thou shalt, or shalt not do it. "In compacts we ourselves determine and promise, what shall be done, before we are obliged to do it. In laws, we are obliged to act without ourselves determining, or promising any thing at all." It is a rule prescribed; that is, it is laid down, promulgated, and established. It is prescribed by the supreme power in a state, that is, among us, by the people, or a majority of them in their original sovereign capacity. Like the ordinary municipal laws, it may be founded upon our consent, or that of our representatives; but it derives its ultimate obligatory force, as a law, and not as a compact.
§ 340. And it is in this light, that the language of the constitution of the United States manifestly contemplates it; for it declares (article 6th), that this constitution and the laws, &c. and treaties made under the authority of the United States, "shall be the supreme LAW of the land." This (as has been justly observed by the Federalist) results from the very nature of political institutions. A law, by the very meaning of the terms, includes supremacy. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws, which the latter may enact, pursuant to the powers entrusted to it by its constitution, must be supreme over those societies, and the individuals, of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for political power and supremacy. A state constitution is then in a just and appropriate sense, not only a law, but a supreme law, for the government of the whole people, within the range of the powers actually contemplated, and the rights secured by it. It would, indeed, be an extraordinary use of language to consider a declaration of rights in a constitution, and especially of rights, which it proclaims to be "unalienable and indefeasible," to be a matter of contract, and resting, on such a basis, rather than a solemn recognition and admission of those rights, arising from the law of nature, and the gift of Providence, and incapable of being, transferred or surrendered.
§ 341. The resolution of the convention of the peers and commons in 1688 which deprived King James the Second of the throne of England, may perhaps be thought by some persons to justify the doctrine of an original compact of government in the sense of those, who deem the constitution of tile United States a treaty or league between the states, and resting merely in contract; It is in the following words: "Resolved, that King James the Second, having endeavoured to subvert the constitution of the kingdom by breaking the original contract between king and people; and by the advice of Jesuits and other wicked persons having violated the fundamental laws, and withdrawn himself out of the kingdom, hath abdicated the government, and that the throne is thereby become vacant."
§ 342. It is well known, that there was a most serious difference of opinion between the house of peers and the house of commons upon the language of this resolution, and especially upon that part, which declared the abdication and vacancy of the throne. In consequence of which a free conference was held by committees of both houses, in which the most animated debates took place between some of the most distinguished men in the kingdom. But the commons adhering to their vote, the lords finally acceded to it. The whole debate is preserved; and the reasoning on each side is given at large. In the course of the debate notice was frequently taken of the expression of breaking the original contract between king and people. The Bishop of Ely said, "I may say, that this breaking the original contract is a language, that hath not been long used in this place, nor known in any of our law books or public records. It is sprung up, but as taken from some late authors, and those none of the best received; and the very phrase might bear a great debate, if that were now to be spoken to." -- "The making of new laws being as much a part of the original compact, as the observing old ones, or any thing else, we are obliged to pursue those laws, till altered by the legislative power, which, singly or jointly, without the royal assent, I suppose we do not pretend to." -- "We must think sure that meant of the compact, that was made at first time, when the government was first instituted, and the conditions, that each part of the government should observe on their part; of which this was most fundamental, that king, lords, and commons in parliament assembled shall have the power of making new laws and altering of old ones." Sir George Treby said, "We are gone too far, when we offer to inquire into the original contract, whether any such thing is known, or understood in our law or constitution, and whether it be new language among us." First, it is a phrase used by the learned Mr. Hooker in his book of Ecclesiastical Polity, whom I mention as a valuable authority, &c. "But I have yet a greater authority than this to influence this matter, and that is your lordship's own, who have agreed to all the vote, but this word, abdicated, and the vacancy of the throne." He then supposes the king to say, "The title of kingship I hold by original contract, and the fundamental constitutions of the government, and my succession to, and possession of the crown on these terms is a part of that contract. This part of the contract I am weary of," &c. The Earl of Nottingham said, "I know no laws, as laws, but what are fundamental constitutions, as the laws are necessary so far to support the foundation." Sir Thomas Lee said, "The contract was to settle the constitution, as to the legislature; and it is true, that it is a part of the contract, the making of laws, and that those laws should oblige all sides when made. But yet not so as to exclude this original constitution in all governments, that commence by compact, that there should be a power in the states to make provision in all times, and upon all occasions for extraordinary cases of necessity, such as ours now is." Sir George Treby again said, "The laws made are certainly part of the original contract, and by the laws made, &c. we are tied up to keep in the hereditary line," Mr. Sergeant Holt (afterwards Lord Chief Justice) said, "The government and magistracy are all under a trust, and any acting contrary to that trust is a renouncing of the trust, though it be not a renouncing by formal deed. Or it is a plain declaration by act and deed, though not in writing, that he, who hath the trust, acting contrary, is a disclaimer of the trust." Mr. Sergeant Maynard said, "The constitution, notwithstanding the vacancy, is the same. The laws, that are the foundations and rules of that constitution, are the same. But if there be in any instance a breach of that constitution, that will be an abdication, and that abdication will confer a vacancy." Lord Nottingham said, "Acting against a man's trust (says Mr. Sergeant Holt) is a renunciation of that trust. I agree, it is a violation of his trust to act contrary to it. And he is accountable for that violation to answer, what the trust suffers out of his own estate. But I deny it to be presently a renunciation of the trust, and that such a one is no longer a trustee."
§ 343. Now it is apparent from the whole reasoning of all the parties, that they were not considering, how far the original institution of government was founded in compact, that is, how far society itself was founded upon a social compact. It was not a question brought into discussion, whether each of the people contracted with the whole people, or each department of the government with all others, or each organized community within the realm with all others, that there should be a frame of government, which should form a treaty between them, of which each was to judge for himself, and from which each was at liberty to withdraw at his pleasure, whenever he or they supposed it broken. All of the speakers on all sides were agreed, that the constitution was not gone; that it remained in full force, and obligatory upon the whole people, including the laws made under it, notwithstanding the violations by the king.
§ 344. The real point before them was upon a contract of a very different sort, a contract, by which the king upon taking upon himself the royal office undertook, and bound himself to the whole people to govern them according to the laws and constitution of the government. It was, then, deemed a contract on his part singly with the whole people, they constituting an aggregate body on the other part. It was a contract or pledge by the executive, called upon to assume an hereditary, kingly authority, to govern according to the rules prescribed by the form of government, already instituted by the people. The constitution of government and its limitations of authority were supposed to be fixed (no matter whether in fiction only, or in fact) antecedently to his being chosen to the kingly office. We can readily understand, how such a contract may be formed, and continue even to exist. It was actually made with William the Third, a few days afterwards; it has been recently made in France by King Louis Philippe, upon the expulsion of the old line of the Bourbons. But in both these cases the constitution of government was supposed to exist independent of, and antecedent to, this contract. There was a mere call of a particular party to the throne, already established in the government, upon certain fundamental conditions, which, if violated by the incumbent, he broke his contract, and forfeited his right to the crown. But the constitution of government remained, and the only point left was to supply the vacancy by a new choice.
§ 345. Even in this case a part of the people did not undertake to declare the compact violated, or the throne vacant. The declaration was made by the peers in their own right, and by the commons by their representatives, both being assembled in convention expressly to meet the exigency. "For," says Blackstone, "whenever a question arises between the society at large, and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of that society itself. There is not upon earth any other tribunal to resort to."
§ 346. This was precisely the view entertained by the great revolutionary whigs in 1688. They did not declare the government dissolved, because the king had violated the fundamental laws and obligations of the constitution. But they declared, that those acts amounted to a renunciation and abdication of the government by him; and that the throne was vacant, and must be supplied by a new choice. The original contract with him was gone. He had repudiated it; and lost all rights under it. But these violations did not dissolve the social organization, or vary the existing constitution and laws, or justify any of the subjects in renouncing their own allegiance to the government; but only to King James." In short, the government was no more dissolved, than our own would be, if the president of the United States should violate his constitutional duties, and, upon an impeachment and trial, should be removed from office.
§ 347. There is no analogy whatsoever between that case, and the government of the United States, or the social compact, or original constitution of government adopted by a people. If there were any analogy, it would follow, that every violation of the constitution of the United States by any department of the government would amount to a renunciation by the incumbent or incumbents of all rights and powers conferred on that department by the constitution, ipso facto, leaving a vacancy to be filled up by a new choice; a doctrine, that has never yet been broached, and indeed is utterly unmaintainable, unless that violation is ascertained in some mode known to the constitution, and a removal takes place accordingly. For otherwise such a violation by any functionary of the government would amount to a renunciation of the constitution by all the people of the United States, and thus produce a dissolution of the government eo instanti; a doctrine so extravagant, and so subversive of the rights and liberties of the people, and so utterly at war with all principles of common sense and common Justice, that it could never find its way into public favour by any ingenuity of reasoning, or any vagaries of theory.
§ 348. In short, it never entered into the heads of the great men, who accomplished the glorious revolution of 1688, that a constitution of government, however originating, whether in positive compact, or in silent assent and acquiescence, after it was adopted by the people, remained a mere contract or treaty, open to question by all, and to be annihilated at the will of any of them for any supposed or real violations of its provisions. They supposed, that from the moment it became a constitution, it ceased to be a compact, and became a fundamental law of absolute paramount obligation, until changed by the whole people in the manner prescribed by its own rules, or by the implied resulting power, belonging to the people in all cases of necessity to provide for their own safety. Their reasoning was addressed, not to the constitution, but to the functionaries, who were called to administer it. They deemed, that the constitution was immortal, and could not be forfeited; for it was prescribed by and for the benefit of the people. But they deemed, and wisely deemed, that magistracy is a trust, a solemn public trust; and he, who violates his duties, forfeits his own right to office, but cannot forfeit the rights of the people.
§ 349. The subject has been, thus far, considered chiefly in reference to the point, how far government is to be considered as a compact, in the sense of a contract, as contradistinguished from an act of solemn acknowledgment or assent; and how far our state constitutions are to be deemed such contracts, rather than fundamental laws, prescribed by the sovereign power. The conclusion, to which we have arrived, is, that a state constitution is no farther to be deemed a compact, than that it is a matter of consent by the people, binding them to obedience to its requisitions; and that its proper character is that of a fundamental law, prescribed by the will of the majority of the people of the stale, (who are entitled to prescribe it,) for the government and regulation of the whole people. It binds them, as a supreme compact, ordained by the sovereign power, and not merely as a voluntary contract, entered into by parties capable of contracting and binding, themselves by such terms, as; they choose to select. If this be a correct view of the subject, it will enable us to enter upon the other parts of the proposed discussion with principles to guide us in the illustration of the controversy.
§ 350. In what light, then, is the constitution of the United States to be regarded? Is it a mere compact, treaty, or confederation of the states composing the Union, or of the people. thereof, whereby each of the several states, and the people thereof, have respectively bound themselves to each other? Or is it a form of government, which, having been ratified by a majority of the people in all the states, is obligatory upon them, as the prescribed rule of conduct of the sovereign power, to the extent of its provisions?
§ 351. Let us consider, in the first place, whether it is to be deemed a compact? By this, we do not mean an act of solemn assent by the people to it, as a form of government, (of which there is no room for doubt;) but a contract imposing mutual obligations, and contemplating the permanent subsistence of parties having an independent right to construe, control, and judge of its obligations. If in this latter sense it is to be deemed a compact, it must be, either because it contains on its face stipulations to that effect, or because it is necessarily implied from the nature and objects of a frame of government.
§ 352. There is nowhere found upon the face of the constitution any clause, intimating it to be a compact, or in anywise providing for its interpretation, as such. On the contrary, the preamble emphatically speaks of it, as a solemn ordinance and establishment of government. The language is, "We, the people of the United States, do ordain and establish this constitution for the United States of America." The people do ordain and establish, not contract and stipulate with each other. The people of the United States, not the distinct people of a particular state with the people of the other states. The people ordain and establish a "constitution," not a "confederation." The distinction between a constitution and a confederation is well known and understood. The latter, or at least a pure confederation, is a mere treaty or league between independent states, and binds no longer, than during, the good pleasure of each. It rests forever in articles of compact, where each is, or may be the supreme judge of its own rights and duties. The former is a permanent form of government, where the powers, once given, are irrevocable, and cannot be resumed or withdrawn at pleasure. Whether formed by a single people, or by different societies of people, in their political capacity, a constitution, though originating in consent, becomes, when ratified, obligatory, as a fundamental ordinance or law. The constitution of a confederated republic, that is, of a national republic formed of several states, is, or at least may be, not less an irrevokable form of government, than the constitution of a state formed and ratified by the aggregate of the several counties of the state.
§ 353. If it had been the design of the framers of the constitution or of the people, who ratified it, to consider it a mere confederation, resting on treaty stipulations, it is difficult to conceive, that the appropriate terms should not have been found in it. The United States were no strangers to compacts of this nature. They had subsisted to a limited extent before the revolution. The articles of confederation, though in some few respects national, were mainly of a pure federative character, and were treated as stipulations between states for many purposes independent and sovereign. And yet (as has been already seen) it was deemed a political heresy to maintain, that under it any state had a right to withdraw from it at pleasure, and repeal its operation; and that a party to the compact had a right to revoke that compact. The only places, where the terms, confederation or compact, are found in the constitution, apply to subjects of an entirely different nature, and manifestly in contradistinction to constitution. Thus, in the tenth section of the first article it is declared, that "no state shall enter into any treaty, alliance, or confederation;" "no state shall, without the consent of congress to enter into any agreement or compact with another state, or with a foreign power." Again, in the sixth article it is declared, that "all debts contracted, and engagements entered into, before the adoption of this constitution, shall be as valid against the United States under this constitution, as under the confederation." Again, in the tenth amendment it is declared, that "the powers not delegated by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." A contract can in no just sense be called a delegation of powers.
§ 354. But that, which would seem conclusive on the subject, (as has been already stated,) is, the very language of the constitution itself, declaring it to be a supreme fundamental law, and to be of judicial obligation, and recognition in the administration of justice. "This constitution," says the sixth article, "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, any thing in the constitution or law of any state to the contrary notwithstanding." If it is the supreme law, how can the people of any state, either by any form of its own constitution, or laws, or other proceedings, repeal, or abrogate, or suspend it?
§ 355. But, if the language of the constitution were less explicit and irresistible, no other inference could be correctly deduced from a view of the nature and objects of the instrument. The design is to establish a form of government. This, of itself, imports legal obligation, permanence, and uncontrollability by any, but the authorities authorized to alter, or abolish it. The object was to secure the blessings of liberty to the people, and to their posterity. The avowed intention was to supercede the old confederation, and substitute in its place a new form of government. We have seen, that the inefficiency of the old confederation forced the states to surrender the league then existing, and to establish a national constitution. The convention also, which framed the constitution, declared this in the letter accompanying it. "It is obviously impracticable in the federal government of these states," says that letter, "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." "In all our deliberations on this subject, we kept steadily in our view that, which appeared to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence." Could this be attained consistently with the notion of an existing treaty or confederacy, which each at its pleasure was at liberty to dissolve?
§ 356. It is also historically known, that one of the objections taken by the opponents of the constitution was, " that it is not a confederation of the states, but a government of individuals." It was, nevertheless, in the solemn instruments of ratification by the people of the several states, assented to, as a constitution. The language of those instruments uniformly is, "We, do assent to, and ratify the said constitution." The forms of the convention of Massachusetts and New Hampshire are somewhat peculiar in their language. "The convention, &c. acknowledging, with grateful hearts, the goodness of the Supreme Ruler of the Universe in affording the people of the United States, in the course of his providence, an opportunity, deliberately and peaceably, without force or surprise, of entering into an explicit and solemn compact with each other, by assenting to, and ratifying a new constitution, do assent to, and ratify the said constitution." And although many declarations of rights, many propositions of amendments, and many protestations of reserved powers are to be found accompanying the ratifications of the various conventions, sufficiently evincive of the extreme caution and jealousy or those bodies, and of the people at large, it is remarkable, that there is nowhere to be found the slightest allusion to the instruments as a confederation or compact of states in their sovereign capacity, and no reservation of any right, on the part of any state, to dissolve its connexion, or to abrogate its assent, or to suspend the operations of the constitution, as to itself. On the contrary, that of Virginia, which speaks most pointedly to the topic, merely declares, "that the powers granted under the constitution, being derived from the people of the United States, may be resumed by them [not by any one of the states] whenever the same shall be perverted to their injury or oppression."
§ 357. So that there is very strong negative testimony against the notion of its being a compact or confederation, of the nature of which we have spoken, founded upon the known history of the times, and the acts of ratification, as well as upon the antecedent articles of confederation. The latter purported on their face to be a mere confederacy. The language of the third article was, "The said states hereby severally enter into a firm league of friendship with each other for their common defence, &c. binding themselves to assist each other." And the ratification was by delegates of the state legislatures, who solemnly plighted and engaged the faith of their respective constituents, that they should abide by the determination of the United States in congress assembled on all questions, which, by the said confederation, are submitted to them; and that the articles thereof should be inviolably observed by the states they respectively represented.
§ 358. It is not unworthy of observation, that in the debates of the various conventions called to examine and ratify the constitution, this subject did not pass without discussion. The opponents, on many occasions, pressed the objection, that it was a consolidated government, and contrasted it with the confederation. None of its advocates pretended to deny, that its design was to establish a national government, as contradistinguished from a mere league or treaty, however they might oppose the suggestions, that it was a consolidation of the states. In the North Carolina debates, one of the members laid it down, as a fundamental principle of every sale and free government, that "a government is a compact between the rulers and the people." This was most strenuously denied on the other side by gentlemen of great eminence. They said, "A compact cannot be annulled, but by the consent of both parties. Therefore, unless the rulers are guilty of oppression, the people, on the principles of a compact, have no right to new-model their government. This is held to be the principle of some monarchical governments in Europe. Our government is founded on much nobler principles. The people are known with certainty to have originated it themselves. Those in power are their servants and agents. And the people, without their consent, may new-model the government, whenever they think proper, not merely because it is oppressively exercised, but because they think another form will be more conducive to their welfare."
§ 359. Nor should it be omitted, that in the most elaborate expositions of the constitution by its friends, its character, as a permanent form of government, as a fundamental law, as a supreme rule, which no state was at liberty to disregard, suspend, or annul, was constantly admitted, and insisted on, as one of the strongest reasons, why it should be adopted in lieu of the confederation. It is matter of surprise, therefore, that a learned commentator should have admitted the right of any state, or of the people of any state, without the consent of the rest, to secede from the Union at its own pleasure. The people of the United States have a right to abolish, or alter the constitution of the United States; but that the people of a single state have such a right, is a proposition requiring some reasoning beyond the suggestion, that it is implied in the principles, on which our political systems are founded. It seems, indeed, to have its origin in the notion of all governments being founded in compact, and therefore liable to be dissolved by the parties, or either of them; a notion, which it has been our purpose to question, at least in the sense, to which the objection applies.
§ 360. To us the doctrine of Mr. Dane appears far better founded, that "the constitution of the United States is not a compact or contract agreed to by two or more parties, to be construed by each for itself, and here to stop for the want of a common arbiter to revise the construction of each party or state. But that it is, as the people have named and called it, truly a Constitution; and they properly said, ' We, the people of the United States, do ordain and establish this constitution,' and not, we, the people of each state." And this exposition has been sustained by opinions of some of our most eminent statesmen and judges. It was truly remarked by the Federalist, that the constitution was the result neither from the decision of a majority of the people of the union, nor from that of a majority of the states. It resulted from the unanimous assent of the several states that are parties to it, differing no otherwise from their ordinary assent, than its being expressed, not by the legislative authority but by that of the people themselves.
§ 361. But if the constitution could in the sense, to which we have alluded, be deemed a compact, between whom is it to be deemed a contract? We have already seen, that the learned commentator on Blackstone, deems it a compact with several aspects, and first between the states, (as contradistinguished from the people of the states) by which the several states have bound themselves to each other, and to the federal government. The Virginia Resolutions of 1798, assert, that "Virginia views the powers of the federal government, as resulting from the compact, to which the states are parties." This declaration was, at the time, matter of much debate and difference of opinion among the ablest representatives in the legislature. But when it was subsequently expounded by Mr. Madison in the celebrated Report of January, 1800, after admitting, that the term "states" is used in different senses, and among others, that it sometimes means the people composing a political society in their highest sovereign capacity, he considers the resolution unobjectionable, at least in this last sense, because in that sense the constitution was submitted to the "states"; in that sense the "states" ratified it; and in that sense the states are consequently parties to the compact, from which the powers of the federal government result. And that is the sense, in which he considers the states parties in his still later and more deliberate examinations.
§ 362. This view of the subject is, however, wholly at variance with that, on which we are commenting; and which, having no foundation in the words of the constitution, is altogether a gratuitous assumption, and therefore inadmissible. It is no more true, that a state is a party to the constitution, as such, because it was framed by delegates chosen by the states, and submitted by the legislatures thereof to the people of the states for ratification, and that the states are necessary agents to give effect to some of its provisions, than that for the same reasons the governor, or senate, or house of representatives, or judges, either of a state or of the United States, are parties thereto. No state, as such, that is the body politic, as it was actually organized, had any power to establish a contract for the establishment of any new government over the people thereof, or to delegate the powers of government in whole, or in part to any other sovereignty. The state governments were framed by the people to administer the state constitutions, such as they were, and not to transfer the administration thereof to any other persons, or sovereignty. They had no authority to enter into any compact or contract for such a purpose. It is no where given, or implied in the state constitutions; and consequently, if actually entered into, (as it was not,) would have had no obligatory force. The people, and the people only, in their original sovereign capacity, had a right to change their form of government, to enter into a compact, and to transfer any sovereignty to the national government.1 And the states never, in fact, did in their political capacity, as contradistinguished from the people thereof, ratify the constitution. They were not called upon to do it by congress; and were not contemplated, as essential to give validity to it.
§ 363. The doctrine, then, that the states are parties is a gratuitous assumption. In the language of a most distinguished statesman, "the constitution itself in its very front refutes that. It declares, that it is ordained and established by the PEOPLE of the United States. So far from saying, that it is established by the governments of the several states, it does not even say, that it is established by the people of the several states. But it pronounces, that it is established by the people of the United States in the aggregate. Doubtless the people of the several states, taken collectively, constitute the people of the United States. But it is in this their collective capacity, it is as all the people of the United States, that they establish the constitution."
§ 364. But if it were admitted, that the constitution is a compact between the states, "the inferences deduced from it," as has been justly observed by the same statesman, "are warranted by no just reason. Because, if the constitution be a compact between the states, still that constitution or that compact has established a government with certain powers; and whether it be one of these powers, that it shall construe and interpret for itself the terms of the compact in doubtful cases, can only be decided by looking to the compact, and inquiring, what provisions it contains on that point. Without any inconsistency with natural reason, the government even thus created might be trusted with this power of construction. The extent of its powers must, therefore, be sought in the instrument itself." "If the constitution were the mere creation of the state governments, it might be modified, interpreted, or construed according to their pleasure. But even in that case, it would be necessary, that they should agree. One alone could not interpret it conclusively. One alone could not construe it. One alone could not modify it." "If all the states are parties to it, one alone can have no right to fix upon it her own peculiar construction."
§ 365. Then, is it a compact between the people of the several states, each contracting with all the people of the other states? It may be admitted, as was the early exposition of its advocates, "that the constitution is founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but that this assent and ratification is to be given by the whole people, not as individuals, composing one entire nation, but as composing the distinct and independent states, to which they respectively belong. It is to be the assent and ratification of the several states, derived from the supreme authority in each state, the authority of the people themselves. The act, therefore, establishing the constitution will not be [is not to be] a national, but a federal act." "It may also be admitted," in the language of one of its most enlightened commentators, that "it was formed, not by the governments of the component states, as the federal government, for which it was substituted, was formed. Nor was it formed by a majority of the people of the United States, as a single community, in the manner of a consolidated government. It was formed by the states, that is, by the people in each of the states acting m their highest sovereign capacity; and formed consequently by the same authority, which formed the state constitutions." But this would not necessarily draw after it the conclusion, that it was to be deemed a compact, (in the sense, to which we have so often alluded,) by which each state was still, after the ratification, to act upon it, as a league or treaty, and to withdraw from it at pleasure. A government may originate in the voluntary compact or assent of the people of several states, or of a people never before united, and yet when adopted and ratified by them, be no longer a matter resting in compact; but become an executed government or constitution, a fundamental law, and not a mere league. But the difficulty in asserting it to be a compact between the people of each state, and all the people of the other states is, that the constitution itself contains no such expression, and no such designation of parties. We, "the people of the United States, do ordain, and establish this constitution," is the language; and not we, the people of each state, do establish this compact between ourselves, and the people of all the other states. We are obliged to depart from the words of the instrument, to sustain the other interpretation; an interpretation, which can serve no better purpose, than to confuse the mind in relation to a subject otherwise clear. It is for this reason, that we should prefer an adherence to the words of the constitution, and to the judicial exposition of these words according to their plain and common import.
§ 366. But supposing, that it were to be deemed such a compact among the people of the several states, let us see what the enlightened statesman, who vindicates that opinion, holds as the appropriate deduction from it. "Being thus derived (says he) from the same source, as the constitutions of the states, it has, within each state, the same authority, as the constitution of the state; and is as much a constitution within the strict sense of the term, within its prescribed sphere, as the constitutions of the states are, within their respective spheres. But with this obvious and essential difference, that being a compact among the states in their highest sovereign capacity, and constituting the people thereof one people for certain purposes, it cannot be altered, or annulled at the will of the states individually, as the constitution of a state may be at its individual will."
§ 367. The other branch of the proposition, we have been considering, is, that it is not only a compact between the several states, and the people thereof, but also a compact between the states and the federal government; and between the federal government, and the several states, and every citizen of the United States. This seems to be a doctrine far more involved, and extraordinary, and incomprehensible, than any part of the preceding. The difficulties have not escaped the observation of those, by whom it has been advanced. "Although (says the learned commentator) the federal government can, in no possible view, be considered as a party to a compact made anterior to its existence; yet, as the creature of that compact, it must be bound by it to its creators, the several states in the Union, and the citizens thereof." If by this, no more were meant than to state, that the federal government cannot lawfully exercise any powers, except those conferred on it by the constitution, its truth could not admit of dispute. But it is plain, that something more was in the author's mind. At the same time, that he admits, that the federal government could not be a party to the compact of the constitution "in any possible view," he still seems to insist upon it, as a compact, by which the federal government is bound to the several states, and to every citizen; that is, that it has entered into a contract with them for the due execution of its duties.
§ 368. And a doctrine of a like nature, viz. that the federal government is a party to the compact, seems to have been gravely entertained on other solemn occasions. The difficulty of maintaining it, however, seems absolutely insuperable. The federal government is the result of the constitution, or (if the phrase is deemed by any person more appropriate) the creature o the compact. How, then, can it be a party to that compact, to which it owes its own existence? How can it be said, that it has entered into a contract, when at the time it had no capacity to conduct; and was not even in esse? If any provision was made for the general government's becoming a party, and entering into a compact, after it was brought into existence, where is that provision to be found? It is not to be found in the constitution itself. Are we at liberty to imply such a provision, attaching to no power given in the constitution? This would be to push the doctrine of implication to an extent truly alarming; to draw inferences, not from what is, but from what is not, stated in the instrument. But, if any such implication could exist, when did the general government signify its assent to become such a party? When did the people authorize it to do so? Could the government do so, without the express authority of the people? These are questions, which are more easily asked, than answered.
§ 369. In short, the difficulties attendant upon all the various theories under consideration, which treat the constitution of the United States, as a compact, either between the several states, or between the people of the several states, or between the whole people of the United States, and the people of the several states, or between each citizen of all the states, and all other citizens, are, if not absolutely insuperable, so serious, and so wholly founded upon mere implication, that it is matter of surprise, that they should have been so extensively adopted, and so zealously propagated. These theories, too, seem mainly urged with a view to draw conclusions, which are at war with the known powers, and reasonable objects of the constitution; and which, if successful, would reduce the government to a mere confederation. They are objectionable, then, in every way; first, because they are not justified by the language of the constitution; secondly, because they have a tendency to impair, and indeed to destroy, its express powers and objects; and thirdly, because they involve consequences, which, at the will of a single state, may overthrow the constitution itself. One of the fundamental rules in the exposition of every instrument is, so to construe its terms, if possible, as not to make them the source of their own destruction, or to make them utterly void, and nugatory. And if this be generally true, with how much more force does the rule apply to a constitution of government, framed for the general good, and designed for perpetuity? Surely, if any implications are to be made beyond its terms, they are implications to preserve, and not to destroy it.
§ 370. The cardinal conclusion, for which this doctrine of a compact has been, with so much ingenuity and ability, forced into the language of the constitution, (for the language no where alludes to it,) is avowedly to establish, that in construing the constitution, there is no common umpire; but that each state, nay each department of the government of each state, is the supreme judge for itself, of the powers, and rights, and duties, arising under that instrument. Thus, it has been solemnly asserted on more than one occasion, by some of the state legislatures, that there is no common arbiter, or tribunal, authorized to decide in the last resort, upon the powers and the interpretation of the constitution. And the doctrine has been recently revived with extraordinary zeal, and vindicated with uncommon vigour. A majority of the states, however, have never assented to this doctrine; and it has been, at different times, resisted by the legislatures of several of the states, in the most formal declarations.
§ 371. But if it were admitted, that the constitution is a compact, the conclusion, that there is no common arbiter, would neither be a necessary, nor natural conclusion from that fact standing alone. To decide upon the point, it would still behove us to examine the very terms of the constitution, and the delegation of powers under it. It would be perfectly competent even for confederated states to agree upon, and delegate authority to construe the compact to a common arbiter. The people of the United States had an unquestionable right to confide this power to the government of the United States, or to any department thereof, if they chose so to do. The question is, whether they have done it. If they have, it becomes obligatory and binding upon all the states.
§ 372. It is not, then, by artificial reasoning founded upon theory, but upon a careful survey of the language of the constitution itself, that we are to interpret its powers, and its obligations. We are to treat it, as it purports on its face to be, as a CONSTITUTION of government; and we are to reject all other appellations, and definitions of it, such, as that it is a compact, especially as they may mislead us into false constructions and glosses, and can have no tendency to instruct us in its real objects.