of their respective rights, that they attached bills of rights to their assent, or proposed amendments to restrict the general government; the incorporation of which into the Constitution was earnestly insisted upon.
It has now been demonstrated that with jealous vigilance the States retained their separateness as sovereign communities in all the forms of political existence through which they passed. That they adopted their separate State constitutions in their sovereign character is indisputable. That the deputies who framed the federal constitution were appointed by the several States each on its own authority; that they voted in the convention by States; that their votes were counted by States; that when framed the instrument was submitted to the people of the several States for their independent ratification; that the States ratified and adopted, each for itself, as distinct sovereign communities; that the Constitution had no binding force over a State or its citizens except in consequence of this adoption; that it was valid as a covenant of union, the federal compact, only as between the States so ratifying the same; are facts alike incontestable. All these acts were by the States and for the States, without any participation on the part of the people regarded in the aggregate as forming a nation. Our controversy arose, not so much from these historical incidents (although historians, judges, editors and congressmen have denied or misinterpreted them all) as from the import and effect and construction of the agreement so formally and cautiously made.
Did the act of ratification of itself, or does the Constitution in its grants, divest the States of their character as separate political communities and merge them all into one nation, one American people? The Constitution superseded the Articles of Confederation because the parties to those articles agreed that it should be so. If they have not so agreed, the articles are still binding on the States. In point of fact the Constitution did become obligatory as a compact of government by the voluntary and separate ratification and adoption of the several states. Massachusetts and New Hampshire, in their ratification, call the Constitution a compact, and the federal Union must be so, or the result of a compact, because sovereign States would not otherwise have agreed and expressed their agreement. Some made provisos, others suggested amendments, which make plain the intention of the fathers in entering the Union. The apprehensions of consolidation were so strong that to guard against such a possible evil, provisions to prevent were incorporated in the acts of assent. The right to resume surrendered powers, as affirmed by three of the States, has been mentioned. Massachusetts, South Carolina, New Hampshire and Virginia were so alarmed at the liability to absorption of unsurrendered powers, that they proposed an amendment to the effect that each State shall respectively retain every power, jurisdiction and right which had not been delegated in the Constitution. This was modified and adopted in regular constitutional form and is known as the Ninth article. All the suggestions were in the nature of limitations and restrictions, showing distrust of centralization and a determined purpose to preserve from invasion or impairment the rights of the States. It was felt that time and experience would show the wisdom of changes and of adaptations to new environments, and thus it was wisely provided that amendments might be made but should be valid only ‘when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof.’ As the States only could make a constitution, so three-fourths of them, as separate political corporations, could amend the instrument. The favorite theory of many, that the States were merged into the government of the Union, into an aggregated unit, is an assumption totally irreconcilable with the fact that this same people can neither alter nor amend their government. When that essential function has to be performed, it is indispensable to summon into new life and activity those very State sovereignties, which, by the supposition, lost their individual power and vitality by the very act creating the instrument which they are required to amend. Had the Constitution originated from the people inhabiting the territories of the whole Union, its amendment would have remained to them, as the amendment of a State constitution belongs to the people of a State. But as such a body of associated people is a myth, a figment of the brain, the power of amendment is left in the hands of the existing bodies politic, the creators of the Constitution and of the Union. The positive supervising power bestowed by the compact upon the State governments and the people over the whole Federal government flatly contradicts the idea that the same compact designed constructively to bestow a supervising power upon Congress, or other department, over the State governments.
The government was organized in 1789 and assumed its place among the nations of the earth. Soon, amendments proposed by the ratifying States were submitted, as the Constitution prescribed, to the respective States and adopted by them. These amendments have no direct relation to the immediate objects for which the Union was formed, and, with few exceptions, were intended to guard against improper constructions of the Constitution, or the abuse of the delegated powers, or to protect the government itself in the exercise of its proper functions. They sought to guard the people and the States against Federal usurpation, and one of them Jefferson pronounced ‘the corner stone of the Constitution.’ The ninth amendment prohibits a construction by which the rights retained by the people shall be denied or disparaged by the enumeration, but the tenth, in language that tyranny cannot pervert or dispute, ‘reserves to the States respectively or to the people the powers not delegated to the United States, nor prohibited to the States.’ Could any language more conclusively show the ultimate authority of the States, or that the general government has no more right to enforce its decisions against those of the several States where they disagree as to the extent of their respective powers than the latter have of enforcing their decisions in like cases? This reservation was incorporated from a caution deemed unnecessary and excessive by some, because such a reservation is of the very essence and structure of the Constitution, but it has been vindicated as a marked demonstration of the wisdom and sagacity of the fathers. Instead of receiving powers the States had bestowed them, and in confirmation of their original authority most carefully reserved every right they had not relinquished. The powers reserved by those who possessed them, the distinct people of each State, are those not delegated or prohibited, and were intended to remove a suspicion of a tendency in the Constitution toward consolidation which had been vigorously charged by some of those who had opposed the ratification. It cannot be reiterated too often that the people do not derive their rights from government. In England, Magna Charta and other franchises were granted by kings and residuary rights remain in and with the government; here, ungranted rights remain with the grantors and these are the people of the States.
Relation of States to the Union under the Constitution.
We are now prepared to consider the action of the South which rested upon the relation which the States and the Federal government bore to each other. What the South maintained was that the Union, or general government, emanated from the people of the several States, acting in their separate and sovereign capacity, as distinct political communities; that the Constitution being a compact to which each State was a party for the purpose of good government and the protection of life, liberty and property, the several States had the right to judge of infractions of the Constitution, or of the failure of the common government to subserve its covenanted ends, and to interpose by secession or otherwise for protecting the great residuary mass of undelegated powers, and for maintaining within their respective limits the authorities, rights and liberties appertaining to them. The third Virginia resolution of 1798, drawn by Madison, puts this very clearly—‘That this assembly doth explicitly and peremptorily declare that it views the powers of the Federal government as resulting from the compact to which the States and parties, as limited by the plain sense and intention of the instrument constituting that compact; as no further valid than they are authorized by the grants enumerated in the compact; and that in case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the States, who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights and liberties appertaining to them.’ The States, in adopting the Constitution and surrendering many attributes of sovereignty, might have surrendered all their powers and even their separate existence. Were they guilty of this felo de se, or did each retain the equal right to judge of the failure of the government to accomplish stipulated objects as well as of the mode and measure of redress, and the means of protecting its citizens? We have held that the obvious and chief purpose of the Constitution was to