A GENERAL VIEW
OF THE
ORIGIN AND NATURE
OF
THE
Constitution and Government of the
United States,
DEDUCED FROM THE
POLITICAL HISTORY AND
CONDITION
OF THE
COLONIES AND STATES, FROM 1774 UNTIL
1788
AND
The Decisions of the Supreme Court of
the United States
TOGETHER WITH
Opinions in the Cases decided at January
Term, 1837,
ARISING ON THE
Restraints on the Powers of the
States.
________________
BY HENRY BALDWIN,
One of the Associate Justices of the
Supreme Court of the United States.
_______________________
PHILADELPHIA:
PRINTED BY JOHN C. CLARK, 60 DOCK
STREET
1837.
INDEX
TO
THE PRINCIPAL
MATTERS.
The only Topics copied from the
book so far:
A GENERAL VIEW,
&C.
THE CONSTITUTION IS A GRANT.
THE TERM "STATE," AND "UNITED STATES," AND "THE PEOPLE," DEFINED AND
EXPLAINED.
THE ADOPTION OF THE CONSTITUTION.. VII.
THE PRACTICAL EFFECT AND
OPERATION OF THE CONSTITUTION.
A GENERAL VIEW,
&C.
________
If there are any cases, in which the
judges of a Court of the last resort may, without apology, present the grounds
of their judgment in detail, they are those which arise on an alleged repugnance
between a law or act of a state, and the constitution of the United States.
There are none which deserve such minute examination of fundamental principles,
which bear on the grants and restrictions of powers, and when developed, impose
their uniform applications under higher obligations, than those which rest upon
this Court, and all its members. In such cases, it is peculiarly necessary to
recur to safe principles, to sustain them, and when sustained, to make them the
tests of the arguments to be examined; these principles are few and simple, and
though somewhat obscured by too much refinement upon them, can be easily
ascertained by the same mode in which we find the principles of other machines,
a reference to the first moving power which gives the impulse to
government.
As my opinions, on constitutional
questions, are founded on a course of investigation different from that which is
usually taken, I cannot in justice to myself, submit them to the profession
without a full explanation of what may be deemed my peculiar views of the
constitution. By taking it as the grant of the people of the several states, I
find an easy solution of all questions arising under it; whereas, in taking it
as the grant of the people of the United States in the aggregate, I am wholly
unable to make its various provisions consistent with each other, or to find any
safe rule of interpreting them separately. In a matter of such importance as
this, I cannot assume a proposition on which all my opinions depend, but
must establish it by all the authority that can be brought to support it,
against opposing opinions of great weight, and which are those most commonly
received. Without doing this, my premises would be at once declared unfounded,
and my conclusions of course erroneous: it is therefore necessary for me to take
this course, or withhold any publication of my opinions.
HENRY BALDWIN.
________
Briscoe and others v. The Commonwealth
Bank of Kentucky.
Proprietors of Charles River Bridge v.
Proprietors of Warren Bridge.
Poole and others v. Lessee of Fleeger
and others.
The Mayor, &c. of New York v.
Miln.
Though none of the judges who have
concurred with the majority of the Court in their judgment in these cases, have
delivered any separate opinion; and though, having been more anxious as to the
result, than the course of reasoning, the illustrations or authority which led
to it, it was my intention to have been content with a silent concurrence; yet
reasons which have since occurred, have determined me to present my views in
each case to the profession. In all of them the result has accorded with my
opinions, formed when the cases were first presented for our decision at former
terms, and my most deliberate judgment at the present; but in this respect my
situation is peculiar, as none of the judges who sat during the former
arguments, concur in all the present opinions of the majority. In the case of
the Commonwealth Bank of Kentucky, I was in the minority; in the Charles River
Bridge case, I now appears that I stood alone after the argument in 1831; the
Tennessee Boundary Case hung in doubtful scales; and in the New York Case, I was
one of a bare majority. By changes of judges and of opinions, there is now but
one dissentient in three of the cases; and though my opinion still differs from
that of three of my brethren, who sat in the fourth, six years ago, it is
supported by the three who have since been appointed. Placed in a position as
peculiar now as it was then and since, I feel called upon to defend it, and to
explain the reasons why it was then assumed and is now retained.
In the fiftieth year after the frame of
the constitution had been agreed on in convention, and submitted to the people
for their ratification, this Court was called upon to decide four constitutional
questions of deep interest; which had been long depending, and which neither
counsel or judges deemed to have been settled by any authoritative exposition of
those parts of the constitution that bore directly upon them, or came within any
established principles and rules of construction of this Court which would
govern them.
These questions were, 1st,
What is a contract - its obligations, and what impairs it? 2d, What are bills of
credit? 3d, What is commerce with foreign nations - what is not; and what is the
internal police of a state? 4th, What is the effect of a compact of
boundary, made between two states, with the consent of congress? On all of which
there had long been, and continued to be, great diversity of opinion among the
judges; which did not cease to exist after they were decided, and may exist in
future, when the same or similar questions shall occur.
It had long been to me a subject of
deep regret, that notwithstanding the numerous, consistent, most solemn, and,
(with some few, and mostly late exceptions,) to my mind most satisfactory
adjudications of this Court, in expounding the constitution, its meaning yet
remains as unsettled, in political, professional, and judicial opinion, as it
was immediately after its adoption. If one is to judge of the next, by the
results of the past half century, there is but a slight assurance that that
instrument will be better understood at the expiration, than it is at the
beginning of the period. It is indeed to be feared, that unless some mode of
interpretation, different from what has been usually pursued in argument, is
adopted; the present uncertainty must become utter confusion. In reviewing the
course of argument on both sides in these cases, the remark is fully justified,
that we have been referred for the true interpretation of the constitution to
books, essays, arguments, opinions, speeches, debates in conventions and
legislative bodies, by jurists and statesmen, and by some who were neither;
which would not be offered, or suffered to be read in any court, as entitled to
respect in construing an ordinary act of legislation, or a contract between
individuals. This reference has not been confined to expositions contemporaneous
or near to the time of the adoption of the constitution, the views of its
framers, or those opinions to which courts of justice can consistently with
their duty defer their own; but the range has been of the widest kind, embracing
whatever has appeared in print on the various subjects involved, either here or
abroad, and up to the present time, while these suits have been depending in
this Court for re-argument. The history and spirit of the times, past and
present, admonish us that new versions of the constitution will be promulgated,
to meet the ever varying course of political events, or aspirations of power;
and that if we suffer our judgments to be influenced by what has been pressed
upon us as authority for present adjudication, we must pay the same respect to
the same kind of authority, when future opinions shall be formed, and new
expositions be announced. We have listened to the disquisitions of late writers
on the constitution of England, to the decisions of their courts, nay, to the
opinions of their judges given within the last year; as rules to guide us to the
true intention of the framers of the constitution, in a most solemn instrument,
carefully and most deliberately reduced to writing, in 1787. If we look to these
as safe sources whence to now draw our knowledge of constitutional law, or
respect them as a rule of present decision, they must be so taken in future; and
though the legislative authority of Westminster-hall over us has been
extinct for more than sixty years, this tribunal must continue to still look to
its emanations, whether in treatises or judicial decrees, to ascertain the
meaning of our own supreme law. I have long since been convinced that there are
better and safer guides to professional and judicial inquiries after truth, on
constitutional questions, than those which have been so often resorted to,
without effecting the desired result; a clear and settled understanding of the
terms and provisions of an instrument of writing, which operates with supreme
authority wherever it applies. To me it seems that it can be made intelligible
in all its parts, by applying to it those established rules and maxims of the
common law, in the construction of statutes, and those accepted definitions of
words, terms, and language, in which they had been used, and been received, as
well known and understood, in their ordinary, or legal sense, according to the
subject matter. In appealing to the common law, as the standard of exposition,
in all doubts as to the meaning of written instruments; there is safety,
certainty, and authority. The institution of the colonies were based upon it; it
was their system of jurisprudence, with only local exceptions, to suit the
condition of the colonists, who claimed it as their birth-right and inheritance,
9 Cr. 333, in its largest sense, as including the whole system of English
jurisprudence, 1 Gall. 493; the inexhaustible fountain from which we draw our
laws, 9 S. & R. 330, 39, 58. So it continued after the colonies became
states, in most of which the common law was adopted by acts of assembly, which
gave it the force of a statute, from the time of such adoption, and as it was
then; so that in the language of this Court-"At the adoption of the
constitution, there were no states in this Union, the basis of whose
jurisprudence was not essentially, that of the common law in its widest meaning;
and probably no states were contemplated, in which it would not exist." 3 Pet.
446, 8. It is also the basis on which the federal system of jurisprudence was
erected by the constitution, the judiciary and process acts, which refer to
"cases in law and in equity," "suits at common law," "the
common law, the principles and usages of law," as they had at the time been
defined and settled in England; 5 Cr. 222; 3 Wh. 221; 4 Wh. 115, 16; 7 Wh. 45;
10 Wh. 29, 32, 56, 8; 1 Pet. 613: and were adopted as then understood by the old
states.
From the very beginning, till the
consummation of the revolution, the people of the colonies and states, in all
successive congresses, took their stand upon the common law and constitution of
England, as the "heirs of freedom;" "English freemen, whose custom it is,
derived from their ancestors, to make those tremble who dare to think of making
them miserable." 1 Journ. Cong. 60, 65, 138. In the spirit and like the
descendants of Britain, ib. 143, 9, who procured "the inestimable advantages of
a free English constitution of government, which it is the privilege of all
English subjects to enjoy." "Englishmen reared up this fabric," "of such
strength as for ages to defy time, treachery, internal and foreign wars." " They
gave the people of their colonies the form of their own government." "In this
form, the first grand right is, that of the people having a share in their own
government, by their representatives chose by themselves," &c. 1 Journ. 56.
It is a bulwark defending their property, as trial by jury and the writ of
habeas corpus defends their liberty; "as a part of our mild system of
government, that sending its equitable energies through all classes and ranks of
men; defends the poor from the rich, the weak from the powerful, the industrious
from the rapacious, the peaceable from the violent, the tenants from the lords,
and all from their superiors." "These are the rights without which a people
cannot be free and happy, and under the protecting and encouraging influence of
which, these colonies have hitherto so amazingly flourished and increased. These
are the rights a profligate ministry are now striving by force of arms to ravish
from us, and which we are, with one mind, resolved never to resign but with our
lives." Ib. 56, 57. The very rights which placed the crown of Great Britain on
the heads of the three princes of the house of Hanover, 170. Such was "the
equitable system of English laws," ib. 30, 41, 50; "the inheritance left us by
our forefathers," 66; "the great bulwark of our constitution," 148; "the first
and best maxims of the constitution, venerable to Britons and to Americans,"
163; "whose forefathers participated in the rights and liberties they boasted
of, and conveyed the same fair inheritance to them. By that system the colonists
claimed all the benefits secured to English subjects, whether they lived "3000,
or 300 miles from the royal palace," 37; and the several colonies as
constituent members of the British empire, rested for "the perfect
security of their natural and civil rights, on the salutary and constitutional
principles" it contained, 61. It was "the covenant chain" between the mother
country and them; the charters of the king were their written civil
constitutions of government, and the colonies would not part with, or loose
their hold of this old covenant chain which united their fathers; 153,
4.
On this system, the congress, the
people, and the colonies relied. They claimed as their indubitable right, the
benefit of the common law of England, its constitution, and their several
charters; in their Declaration of Rights, in 1774; 1 Journ. 77, &c.; in
July, 1775; 1 Journ. 134, 176, 8; in December, 1775; ib. 263; and on the
4th July, 1776. Among the other grievances set forth in the
Declaration of Independence, are the following: "He," (the king,) "has combined
with others to subject us to a jurisdiction foreign to our constitution, and
unacknowledged by our laws, giving his assent to their acts of pretended
legislation," &c. &c.
"For abolishing the free system of
English laws in a neighbouring province." Vide 1 Journ. 30, 58, 9, 64, 61,
174.
"For taking away our charters,
abolishing our most valuable laws, and altering fundamentally the forms of our
government." 1 Laws, 8, 9; 1 Journ. 125, 178.
The common law was not merely the basis
of the revolution, in opposing the oppression of England, or deemed incompatible
with the genius of the people after the revolution was effected, as a burthen
imposed upon them; but the contrary. By the ordinance of 1787, it was declared
to be "the basis whereon these republics, their laws, and constitutions, are
erected; and which congress therein fixed and established, as the basis
of all laws, constitutions, and governments, which forever hereafter shall be
formed in the territory north-west of the Ohio. It was secured to them as a
blessing whereby "to extend the fundamental principles of civil and religious
liberty;" "that the inhabitants shall always be entitled to the benefits of,"
&c. and "of judicial proceedings according to the course of the common law."
1 Laws U.S. 479. That system, which had effected in England, what it was one of
the declared objects of the present constitution to effect-"to establish
justice," and "secure the blessings of liberty to ourselves and our
posterity, by the judicial power of the United States; which shall be vested in
one supreme court, and in such inferior courts as the congress shall from time
to time ordain and establish." To be administered in all cases in law or equity,
as it had been, and then was in England, in all the states and territories of
the United States: and the judges were directed, by the judiciary act to take an
oath "to do equal right to the poor and to the rich;" 1 Story, 56; as the judges
in England had been enjoined by an ancient statute; 1 Ruff, 246.
In thus recurring to the source of
those great principles, on which all our governments are founded, it is clear
that they must be traced beyond the instrument which created them, to that great
charter of English liberty, which embodied the common law; and from 1774, to
1787, was equally revered by the Britons of both continents. The great men of
the revolution, in their first meeting in congress, on the 5th of
September, 1774, and in their proceedings till the 26th October, when
"the congress then dissolved itself;" did not merely declare in their
resolutions and letters, on what ground they stood in asserting the rights of
the people and colonies, but pointed to it as their rallying point. To the
journal published by their order, and verified by the autograph of their
secretary, is prefixed, in the title page; a medallion, of which the following
is a facsimile.
The magna charta of England, was the
pedestal on which the column and cap of liberty was raised, supported by the
twelve colonies, assembled by their delegates; declaring that "on this we
rely," "this we will defend."
In looking too to the names of the
members of that congress,* six of whom, thirteen years afterwards, in a
convention of twelve of those colonies, then states, signed the proposed
constitution; I, find a weight of political authority, which my mind cannot
resist; and so feel bound to trace the great work of the fathers of the
revolution and the country, back to its source in the common law, the magna
charta, and constitution of England; the basis and pattern of our own. In so
doing, I feel well assured that in following their "via tuta," by which the
constitution was established, and has consummated all its beneficent purposes,
there will be found a "via tuta," to my judgment, on its true meaning in these
parts that bear on the cases which have been before us for adjudication. I shall
do it without the aid of any commentator, except this Court, as the sworn
interpreter, appointed by the constitution itself, not only to expound the
meaning of its provisions, but to pronounce final judgment on their results, on
"all cases in law and equity arising under" it. Nor shall I consult any other
commentaries upon it than those which are found in the opinions of the Court;
delivered, with few exceptions, by the late venerated Chief Justice.
In thus adhering to the old maxim,
"Sed melius et tutius est, petere fontes, quam sectare rivulos," I am
well aware of departing from the modern mode of construing our ancient charters,
and grants of governments; but if it should lead to their true interpretation, I
may be permitted to ask of those who may have the patience to read and consider
the general views of the constitution, herein presented to explain the grounds
of my concurring judgment in these cases, "Si quid novisti, rectius istis
candide imperti, si non hic utere mecum?" In the full conviction, that by
this mode of investigating constitutional questions, there will be found
standard rules by which to measure the different parts of the supreme law, and
extract its true intentions, and that any other mode will be an abortive
attempt, "ex humo dare lucem;" I proceed to give my general views. Taking
it as already apparent, that in 1774, and 1776, our constitution was the
English constitution, and the free system of English laws was the
common law then; and that system yet to be the law of the land, by the
authority of the states, the constitution, the acts of congress, and the
adjudications of this Court. It is in this law, that we find the rules of
interpretation of acts of assembly and of congress; of public and private
grants, charters, compacts, contracts; and to which we resort, as the standard
by which to make our decisions in all cases, where it has not been altered by
established usage, or legislative power. I know no other guide which is safer,
which better conducts the mind to certainty; nor do I feel at liberty to follow
any other than the principles of the common law, that are well established and
applicable to a case arising under the constitution, and which turns upon its
interpretation; their adoption has been, in my judgment, most clearly made by
every authority which can impose the obligation of obedience. My course then
will be, to first ascertain what are the settled rules and principles of the
common law, in the exposition of writings, public and private, in the
definitions of terms and language, used to denote the meaning and intention of
those who made the instrument, and of the instrument itself, as the deliberate,
written, agreed intention therein expressed. When thus ascertained, they will be
applied to those parts of the constitution, which bear on the subject matters of
these cases, as this Court has heretofore applied them; and believing that my
opinion in each of these cases, is in perfect consistency with the former
adjudications on kindred subjects, they will be referred to in their aid, with
no other qualification than that the authority of those adjudications shall be
deemed no farther binding than the Court itself has declared. "This opinion is
confined to the case actually under consideration." 4 Wh. 207. "It is a maxim
not to be disregarded, that general expressions in any opinion, are to be taken
in connection with the case in which those expressions are used. If they go
beyond the case, they may be respected, but ought not to control the judgment in
a subsequent suit, when the very point is presented. The reason of this maxim is
obvious. The question actually before the Court, is investigated with care and
considered in its full extent. Other principles which may serve to illustrate
it, are considered in their relation to the case decided; but their possible
bearing on all other cases, is seldom completely investigated" 6 Wh. 399, 400.
"Having such cases only in its view, the Court lays down a principle which is
generally correct in terms, much broader than the decision, and not only much
broader than the reasoning with which that decision is supported, but in some
instances contradictory to its principle." Ib. 40; S. P. 12, Wh. 273, 333. Thus
qualified, the judgments of this Court will be taken as the rule for mine, as to
the principles and reasoning on which they are founded: but as to terms or names
which are used for designation merely, I shall consider them as not affecting
the substance of the subject matter referred to by the Court in using them, in a
literal, or figurative sense.
The fundamental rule of construction,
is to ascertain the intention of a law, a grant, charter, or contract in
writing. "If the law expresses the sense of the legislature on the existing law,
as plainly as a declaratory act, and expresses it in terms capable of effecting
the object; the words ought to receive this construction. If this interpretation
of the words should be too free for a judicial tribunal; yet if the legislature
has made it, and explained its own meaning too unequivocally to be mistaken,
courts may be justified in adopting that meaning." 12 Wh. 148 to 150. Laws and
acts which tend to public utility, should receive the most liberal and benign
interpretation to effect the object intended or declared, est res majis
valeat quam pereat; 1 Bl. Com. 89; so as to make the private yield to
the public interest, and in favour of public institutions, and all
establishments of piety, charity, education, and public improvement; 11 Co. 70
to 78; Hob. 97, 122, 157; 1 Ser. 55; Dy. 255; 5 Co. 14, b.; 10 Co. 28 a; 9 Cr.
331; 3 Pet. 140, 481; 6 Pet. 436, 7; 10 Ch. 340. Courts will look to the
provisions of a law to discover its objects, to meet its intention at the time
it was made, which they will not suffer to be defeated; it will be sought in the
cause and necessity of making the law, the meaning thus extracted, will be taken
to be the law intended, as fully as if expressed in its letter; and a thing
which is within the letter, but not within the intention of the law maker, is
not within the statute. 1 Bl. Com 60; 15 Johnson's Reports, 380; 14 Mass. 92, 3;
5 Wh. 94; 12 Wh. 151, 2; 6 Pet. 644.
"When the whole context demonstrates a
particular intent in the legislature, to effect a certain object, some degree of
implication may be called in to effect it." 6 Cr. 314; 1 Bl. Com 92. The whole
statute, and those on similar subjects, as the context, will be taken in aid,
according to the apparent meaning of their provisions. 1 Bl. Com 60; 1 Pick.
154, 5. The history and situation of the country will be referred to, to
ascertain the reason and meaning of a provision, so as to enable the Court to
apply the rule of construction. 1Wh. 121; 4 Pet. 432. In doubtful cases, the
title and preamble will be resorted to, to explain the law. 3 Wh. 631; 4 S.
& R. 166. The old law, the mischief, and the remedy, will be examined, and
the new law be so far expounded as to suppress the mischief, and advance the
remedy. 11 Co. 72, &c.; 1 Bl. Com. 87; according to the subject matter. 1
Bl. Com. 229.
As the meaning and intention of the
legislature when thus ascertained, is the law itself, the rule of action
prescribed by legislative power, it follows necessarily, that such intention
must be referred to the time of its enactment; and the terms and language used
to express the intention, must be taken as then understood by those who so
employed them, and not according to any subsequent definition or acceptation,
varying from their then settled received meaning. 1 Bl. Com. 59, 60.
There is another source from which the
intention of a law can be truly extracted, the condition of the country. 6 Wh.
416. Its usages and customs. 6 Pet. 714; 12 Wh. 437. The settled course of
judicial or professional opinion. 5 Cr. 33; 2 Pet. 85; and legislative usage. 3
Dall. 398; 2 Pet. 656, 7; because these matters enter necessarily into the minds
of the law makers, in any new provisions which can affect them. It is also an
universal rule in this country, that, when an English statute, or any of its
provisions or terms, have been adopted here, that its settled construction at
the time of its adoption, is taken with it; but a contrary construction
afterwards made, is not regarded. 5 Pet. 280, 1.
An adherence to these rules is called
for, by the highest consideration in the construction of the constitution; if
they are not followed, there are none others which a Court is a liberty to
adopt, as the indicić of the intention of the members of the general convention
which framed, and the state conventions who ratified it. Hence these rules have,
by universal consent, been applied to the laws of all the states and of the
Union, in their respective courts; and if not applied to that law, which is a
rule of supreme authority over the legislatures and courts of both; human
ingenuity, reasoning and learning, will only serve to make it the more
unintelligible, as the period of its adoption becomes more distant; and time
shall develop new theories or exigencies, which will make it still more obscure,
by new readings, commentaries, and expositions. That those which have been
hitherto applied to its construction, even those of this Court, have been
insufficient to settle its meaning; is but too apparent in those questions now
before us for adjudication, and those numerous ones which agitate and excite
other tribunals and the country. Discarding all rules of interpretation, which
are inconsistent with those which it has applied to the constitution, I shall
follow in the path defined by this Court, and take that instrument, as it has
declared it to have been intended by its framers, to endure for ages to
come; 1 Wh. 326; 4 Wh. 415; and designed to approach immortality, as
nearly as human institutions can approach it. 6 Wh. 387. A law of supreme
obligation, made for the purposes it declares, Ib. 381; by enlightened patriots;
men, whose intentions required no concealment, employing words which most
directly and aptly expressed the idea they intended to convey, as well as
the people who adopted it; must be understood to have employed words,
in their natural sense, and to have intended what they said. "If any
doubts exist, respecting the extent of any given power, it is a settled rule
that the objects for which it is given, especially those which are expressed,
should have great influence in the construction. The rule is given in the
language of the instrument which confers the powers, taken in connection with
its purposes." 9 Wh. 188, 9. "The words are to be taken in their natural and
obvious sense, not in a sense unreasonable restricted or enlarged." 1 Wh. 26;
"not that enlarged construction, which would extend words beyond their
natural and obvious import; nor that narrow construction, which, in
support of some theory, not to be found in the constitution, would cripple the
government, and render in incompetent to the objects of its institution." 9 Wh.
188. "Its spirit is to be respected not less than its letter, yet the spirit is
to be collected chiefly by the words." Where they conflict with each other,
where different clauses bear upon each other, and would be inconsistent, unless
the natural and common import of words be varied, construction becomes
necessary; and a departure from the obvious meaning of words is justifiable. But
if the plain meaning of a provision is to be disregarded, when not contradicted
by any other provision in the same instrument, because we believe the framers
could not have intended what they say; it must be one, in which the absurdity
and injustice of applying the provision to the case, would be so monstrous, that
all mankind would unite in rejecting the application. 4 Wh. 262, 3; 1 Bl. Com.
61 S. P.
It is proper to take a view of the
literal meaning of the words to be expounded, of their connection with other
words, and of the general objects to be accomplished by the prohibitory clause,
or by the grant of power. 12 Wh. 437. The intention must prevail: it must be
collected from the words of the instrument, which are to be understood in that
sense in which they are generally used by those for whom the instrument was
intended. Its provisions are not to be construed into insignificance, nor
extended to objects not contemplated by its framers, or comprehended in it. 12
Wh. 332. It was not intended to use language, which would convey to the eye one
idea, and, after deep reflection, impress on the mind another. 4 Wh. 420. Words
must be taken in connection with those with which they are associated. 4 Wh.
418. The whole clause or sentence is to be taken together, and the intention
collected from the whole. 12 Wh. 334. Every part of the article must be taken
into view; and that construction adopted, which will consist with its words, and
promote its general intention. The Court will not give affirmative words a
negative operation, where it will defeat the intention, but may imply it, where
the implication promotes the intention. 6 Wh. 398.
THE CONSTITUTION IS A
GRANT
The circumstances under which the
constitution was formed, the history of the times, the mischiefs of the
confederation, and the motives which operated on the statesmen of the day, are
also to be considered, in ascertaining the meaning of the constitution; which
was intended to change a system, the full pressure of which was known and felt,
by superseding the confederation, and substituting a new government, organized
with substantive powers, to act directly on the subjects of their delegated
powers, instead of through the instrumentality of state governments. 6 Wh. 308;
12 Wh. 438, 9; 1 Wh. 332.
This change was effected by the
constitution, which, in the language of this Court, is a grant. " The
grant does not convey power, which might be beneficial to the grantor, if
retained by himself, or which can move solely to the benefit of the grantee; but
is an investment of power for the general advantage, in the hands of
agents, selected for that purpose, which power can never be exercised by
the people themselves, but must be placed in the hands of agents or lie
dormant," 9. Wh. 189. The language of the constitution is the same. " All
legislative powers herein granted, shall be vested in a congress of
the United States," &c. " The executive power shall be vested
in a president of the United States of America." "The judicial power of
the United States shall be vested in one Supreme Court."
Here then, there is something visible
to the judicial eye, tangible by judicial minds, reasoning, illustration, and
analogy; intelligible by judicial rules and maxims, which, through all time,
have prescribed its nature, effect, and meaning. It is a grant, by a grantor,
to a grantee, of the things granted; which are, legislative,
executive, and judicial power, vested by a constituent, in
agents, for the enumerated purposes and objects of the grant. It declares
the grantor and constituent, to be "the people of the United States,"
who, for the purposes set forth, "ordained and established" it as a
"constitution for the United States of America;" "the supreme law of the land;"
creating what its framers unanimously named, "the federal government of these
states." Its frame was "done in convention, by the unanimous consent of the
states present." The 7th article whereof declared that, "the
ratification of the conventions of nine states, shall be sufficient for the
establishment of this constitution, between the states so ratifying the same."
And, to leave no doubt of their intention, as to what should be deemed a
convention of a state, the members thereof, by the unanimous order of the
convention, laid it before congress, with their opinions, that it should be
submitted to a convention of delegates chosen in each state, by
the people thereof, under the recommendation of its legislatures, for
their assent and ratification. 1 Vol. Laws U.S. 70, 71. No language can be more
plain and clear, than the words of the constitution; nor can the intention of
its framers more definitely appear, than by the unanimous order of the
convention, submitting it to the old congress, under whose resolution the
members had been appointed by the federal states. The intention of congress is
equally manifest, in their unanimous resolution, adopted after receiving "the
report of the convention, lately assembled in Philadelphia, in the words
following: (the constitution) "That the said report, with the resolutions and
letter accompanying the same, be transmitted to the several legislatures, in
order to be submitted to a convention of delegates, chosen in each state,
by the people thereof, in conformity to the resolves of the
convention, made and provided in that case. 1 Laws, 59, 60. But this coincidence
of the words of the constitution, with the expressed and unanimous declaration
of the members of the convention, and the congress, is neither the only nor most
satisfactory mode, by which to identify the grantor, who conveyed the
powers invested by the grant; and the constituent, who appointed the
appropriate agents for their execution by delegation.
There are other objects of the grant,
besides the delegated powers of agency; the grant imposes conditions,
limitations, prohibitions, and makes exceptions on the exercise of the powers of
the states, and the people thereof; which form an all important part of that
supreme law, which declares, that "the judges in every state shall be
bound thereby, any thing in the constitution or laws of any state,
to the contrary notwithstanding."
It is therefore, a law, paramount in
authority over the people of the several states, who adopted it in their
conventions; supreme, as well over their supreme law, ordained by their
sovereign power, as those laws enacted in the ordinary course of legislation, by
delegated power. The effect of which is, that the constitution, the creature,
prescribes rules to its creator, which expressly confine its action within
defined limits, and annuls all acts which are prohibited or excepted. Nay, it
goes further, it imposes as a condition, that states shall not act by their own
law, or compact, or agreement, with another state, without the consent of
congress; which is a creature created by the grant of the people of the states,
in their separate conventions: from which it necessarily results, that this
grant, this constitution, and appointment of agents, must
emanate from some power, paramount over, or from the people of the several
states themselves. We search the constitution in vain, to find the existence or
recognition of such power paramount; there is no function which it can perform;
it can control no action by the government, or any of its departments. The whole
frame of the constitution can be deranged; the structure of government, with all
its powers and prohibitions, may be prostrated by amendments, save that "no
state shall, without its consent, be deprived or its equal suffrage in the
senate," according to the provisions of the 5th article, which
require the invocation of no power, paramount to that which can operate with
such force.
The powers not delegated to the United
States, or prohibited to the states, are, by the tenth amendment, "reserved to
the states respectively, or to the people." These terms, "states,"
"states respectively," and "the people," to whom this reservation
is thus made, have been defined by this Court, too clearly, and too often to be
mistaken, or to remain open for discussion, while its authority is
respected.
THE TERM "STATE," AND "UNITED
STATES," AND "THE PEOPLE," DEFINED AND EXPLAINED.
In Fletcher v. Peck, this term is
applied to a state, as existing independently of any restraint; "a
single sovereign power;" and to a state as one of the United States,
under the federal connection between them, it is thus qualified.
"But Georgia cannot be viewed as a
single unconnected sovereign power, on whose legislature no other
restrictions are imposed than may be found in its own constitution. She is a
part of a large empire. She is a member of the American Union, and that Union
has a constitution, the supremacy of which all acknowledge, and which
imposes limits to the legislatures of the several states, which none claim a
right to pass." 6 Cr. 136.
The political situation of the United
States, anterior to the formation of the constitution, and the change effected
by its adoption, is better illustrated in the language of this Court than it can
be in mine.
"It has been said, that they were
sovereign, were completely independent, and were connected with each other only
by a league. This is true. But when these allied sovereigns converted their
league into a government, when they converted their congress of ambassadors,
deputed to deliberate on their common concerns, and to recommend measures of
general utility, into a legislature, empowered to enact laws on the most
interesting subjects; the whole character in which the states appear, underwent
a change, the extent of which must be determined by a fair consideration of the
instrument by which that change was effected." 9 Wh. 187. Here, then, we have a
power which was single, sovereign, and unconnected; with a legislature
unrestricted, converting a congress into a federal legislature,
which was fully competent to erect it. What were names and things, had been
before taught by the same instructor. "This term United States,
designates the whole American empire." It is the name given to our
great republic, composed of states and territories; 5 Wh. 514; "constituent
parts of one great empire;" 6 Wh. 414; who have formed a confederated
government;" 12 Wh. 334; 2 Pet. 590, 1; by the act of the people of the
"great empire," the "great republic," the "American empire," the United
States. "The people of America," the American people," "the
people of the United States," are but terms and names, to designate the
grantor of the thing, which was thus formed, by the people, of the
constituent parts; the thing, the power which formed it, by a thing,
this constitution, established by the ratifications of nine
things, conventions of nine states, by the people of each as a
state.
"These states are constituent parts of
the United States. They are members of one great empire," ("members of
the American confederacy;" 2 Pet. 312,) "for some purposes sovereign, for
some purposes subordinate." 6 Wh. 414. The political character of the several
states of this Union, in relation to each other, is this: "For all
national purposes, the states and the citizens thereof, are one; united
under the same sovereign authority, and governed by the same laws. In all
other respects the states are necessarily foreign to and independent
of each other. "They form a confederated government; yet the several
states retain their individual sovereign ties, and with respect to their
municipal regulations, are to each other sovereign." 2 Pet. 590, 1; 10 Pet. 579.
S. P.; 12 Wh. 334. "The national and state systems are to be regarded as one
whole." 6 Wh. 419. "In America, the powers of sovereignty are divided
between the government of the Union, and those of the states. They are each
sovereign with respect to the objects committed to it; and neither sovereign
with respect to the objects committed to the other." 4 Wh. 410.
"The powers of the states depend on
their own constitution; the people of every state had the right to modify and
restrain them according to their own views of policy or principle; and they
remain unaltered and unimpaired, except so far as they were granted to the
government of the United States. These deductions have been positively
recognised by the tenth amendment." 1 Wh. 325. "The powers retained by the
states, proceed not from the people of America, but from the people of the
several states, and remain after the adoption of the constitution what they were
before, except so far as they may be abridged by that instrument." 4 Wh. 193. S.
P.; 5 Wh. 17, 54; 9 Wh. 203, 9. "In our system, the legislature of a state is
the supreme power; in all cases where its action is not restrained by the
constitution of the United States." 12 Wh. 347. "Its jurisdiction is coextensive
with its territory, coextensive with its legislative power," 3. Wh. 387;" and
"subject to this grant of power, adheres to the territory as a portion of
sovereignty not yet given away." The residuary powers of legislation are still
in the state. "The sovereignty of a state extends to every thing which exists by
its own authority, or is introduced by its permission." 6 Wh. 429; 4 Pet. 564.
"The jurisdiction of the nation within its own territory, is necessarily
conclusive and absolute; it is susceptible of no limitation not imposed by
itself. Any restriction upon it derived from an external source, would imply a
diminution of its sovereignty, to the extent of the restriction, and an
investment of that sovereignty to the same extent, in that power which could
impose such restriction. All exceptions, therefore, to the full and complete
power of a nation within its own territories, must be traced up to the consent
of the nation itself. They can flow from no other legitimate source." 7 Cr.
136.
In comparing these expressions of the
Court with those of the old congress, it will be seen how perfectly they accord
with each other in the use of terms. "The constituent members," 1 Journ 61; the
"state," from which we derive our origin, 66; "our fellow subjects in any part
of the empire," 138. "Societies or governments, vested with perfect
legislatures, were formed under charters from the crown, and an harmonious
intercourse was established between the colonies, and the kingdom from
which they derived their origin," 134, 141: "We mean not to dissolve that union,
which has so long and so happily subsisted between us," and have no design "of
separating from Great Britain, and establishing independent states," 138.
"The union between our mother country and these colonies, &c.; "your
loyal colonists," doubted not but that they should be admitted with the rest of
the empire," &c., 140; "the British empire," 141; "the
whole empire," 147, 8; "the state of Great Britain;" "North
America," "wishes most ardently for a lasting connection with Great Britain,"
149. "America is amazed," &c., 171; "The several colonies of it,"
&c., 27; "these colonies;" "the English colonies in North America;"
"the respective colonies," 159, 60; "these his majesty's colonies," 289.
"The United Colonies of North America," 134. The colonies of North
America, 139. The twelve United Colonies, 142, 156, 7. Twelve
ancient colonies 149. Twelve united provinces, viz: &c., 152. The
inhabitants and colonies of America, 153. The united colonies of North
America, &c. 168. A congress, consisting of twelve United Colonies,
assembled, 169. The thirteen United Colonies in North America, 263. All
these are mere names, and the different terms of designation, which mean the
same thing; so as to the name and term applied to the people of a state,
kingdom, empire, or colony.
"The people of America," "the good
people of the several colonies of North America," &c., 27; "the inhabitants
of," &c., 29; "the people;" "English colonists;" Ib. "Americans," "the
people of Great Britain," "the inhabitants of British America," 30, 36, 145.
Proprietors of the soil of America," 37; "faithful subjects of the
colonies of North America," 63; "your faithful people in America;"
"your whole people," 67; "the good people of these colonies, 137, 139;
"your loyal colonists," 141, 147; "the people of twelve ancient
colonies," 149; "the people throughout all these provinces and colonies,"
170, 168, 264; "the people of these united colonies," 265.
These references suffice to show how
names and terms are used by statesmen and judges, by congress, and this Court.
It needs no reasoning to show, that the varied phraseology in the same political
act, or judicial opinion, or in different ones, at different times, cannot
change the thing referred to.
There is no difficulty in defining a
state or nation. It is a body politic, a political community, formed by the
people within certain boundaries; who, being separated from all others, adopt
certain rules for their own government, with which no people without their
limits can interfere. The power of each terminates at the line of separation;
each is necessarily supreme within its own limits: of consequence, neither can
have any jurisdiction within the limits of another without its consent. The name
given to such community, whether state, nation, power, people, or commonwealth,
is only to denote its locality, as a self-governing body of men united for their
own internal purposes, if two or more think proper to unite for common purposes,
and to authorize the exertion of any power over themselves, by a body composed
of delegates or ambassadors of each, they confederate. Each has the undoubted
right of deciding, what portion of, its own power, it will authorize to be
exerted in a meeting, assembly, or congress, of all; what it will restrain,
prohibit, or qualify. If this can be done by common consent, the terms of their
union are defined, and according to their nature, they form a mere confederacy
of states, or a federal government; the purposes and powers of which depend upon
the instrument agreed upon. If they cannot agree, then each state instructs its
delegates according to its own will, and sends them to the body in which all the
states are assembled by their deputies: each state is considered as present, and
its will expressed by the vote of its delegates. The congress of states are
left, in such case, to perform such duties as are enjoined, and execute such
powers as are given to them, by their respective and varying instructions; the
extent of which is testified in the credentials of the separate delegations, as
before the confederation of 1781.
It is not necessary to give efficiency
to the acts of the congress, that their power be derived from one state, nation,
or people; if they are authorized by each to act within their boundaries, they
can act within and on the whole; this action of congress does not make the
states, or the people thereof one; they remain as distinct as before any
confederacy; but congress, acting as the common legislature of each, for
specified purposes, its laws operate in and over each state, as state laws do
for state purposes. The power exercised is derived from the same people, who
distribute it between the two governments, as they may think most conductive to
the welfare of each and all; the machinery is simple, one moving perpetual power
directs two machines, which will operate in harmony by the lines of separation,
drawn by the same hand. But if the line and rule are placed in one hand, guided
by a master spirit, with controlling power over thirteen subordinate ones; the
one declares what are federal purposes, delegates federal powers, restricts
states, and prohibits state laws, by its single sovereign power; and as to its
own will and pleasure shall seem fit. The lines of separation between the states
are effaced; the people of all are "compounded into one mass," having such
supreme power as they may choose to assume; leaving the states and people in
their distinct capacities, only that portion of sovereignty which remained in
them, after the paramount power had taken to itself all it wanted; and had
denied to the governments of the state the exercise of such powers, as the
government of the Union could not use; annulling or restraining them, according
to the supreme law, which was competent to effect whatever it
ordained.
If such was the power which created the
constitution, then our federal system is like the solar; one sun, with as many
planets as there are "the several states, which may be included within this
Union:" with both systems alike created and put in motion, by an invisible,
incomprehensible, but almighty power, behind and beyond them both, which can
regulate and control the movements of all, at its sovereign will.
Such a political creation may be a
sublime conception; present "the august spectacle of an assemblage of a whole
people, by their representatives in convention;" "conscious of the plenitude of
their own proper sovereignty, declaring with becoming dignity, We, the people of
the United States, do ordain and establish this constitution for the United
States of America." Vide 12 Wh. 354; 2 Dall. 471.
There is no American, who, in looking
to the blessings which the establishment of the constitution has diffused over
the whole Union, can repress those feelings, which, like an inspiration, carry
the mind beyond the regions of fact, to those of fancy and imagination; and no
man more than the first, and the late Chief Justice of this Court, would give
way to the effusions of their patriotism, when contemplating the glorious
results of the happy consummation of a revolution, in which one had devoted his
time and labours to his country, and the other pledged his life for her defence.
Yet, when we descend from fancy to fact, look to the convention, in which the
people did assemble, bow they acted, what they did, the work which came finished
and perfect from their hands, and the scenes of action; there is indeed a moral
grandeur and sublimity in the whole, which impresses itself on the mind with
irresistible force.
Cool reflection, however, corrects the
impressions of enthusiasm, reason and judgment concurring with more exciting
impulses, convinces us; that though the occasion and the act were of imposing
grandeur and dignity, august in contemplation, and sublime in its beneficent
results; yet, like the constitution, and its best expositor, that these
impressions are stamped on the mind, by the simplicity, rather than the
splendour of exhibition.
THE ADOPTION OF THE CONSTITUTION. VII.
Here is simplicity of movement,
and plainness in delineating, by whom, for whom the act was done,
and what the act was when ordained. All history proves, and all
opinions agree that it was in this way that the great work was
accomplished in fact, and if so, there was no other way in which it could have
been done; no reasoning can reverse the fact, or ingenuity make the act of nine
distinct bodies of people the act of one, in whom all the power exerted, was
previously vested.
How it may be in theory, is not
material; but taking the constitution as the creation of a competent power,
existing and acting practically, and not one ideal and imaginary, operating only
by theory; I find in the fifth article, and the tenth and eleventh amendments,
express provisions, which point to the true source of power from which it
emanated.
Every part of the constitution may be
amended save one, without invoking the power of the whole people, or all the
states; the amending power is in "the legislatures of three-fourths of the
states," or by conventions of three-fourths thereof, "as the one or other mode
may be proposed by congress." It depends on the number of the states, when each
acts by its legislative power; and the majority of the delegates of the people
in convention of each state, when it acts by its people, not a majority of the
people of all.
The tenth amendment excepts from the
constitution, and reserves "to the states respectively, or the people," all
powers not delegated or prohibited. The eleventh amendment annuls a jurisdiction
expressly granted to the judicial power, by the third article of the
constitution; by prohibiting its exercise, in suits against a state, by
individuals, it operates on suits pending, and makes void the exercise of any
judicial power in such cases, either past, present, or future. 3 Dallas, 382, 3;
6 Wh. 405 to 409, S. P.; 9 Wh. 206, 16, 858; 12 Wh. 438; 6 Pet. 310,
741.
When, then, it is undeniable that there
is behind the constitution a power which can, by amendments, erect a new
structure of government; revoke the grant of any of the powers of congress;
remove the restrictions on the states; make exceptions to the grant, and
reservations out of it, of what would be otherwise included in it; and annul the
judicial power, in cases on which they were actually exercising an undoubted
constitutional jurisdiction; it has seemed to me, that the judicial eye could
easily see, and the judicial mind fully understand, what, and where was that
power, which forbade this Court to move; and which it felt bound to obey, when
the constitution authorized them to proceed to judgment, as the right and law of
the case should appear.
It is no imaginary power that can
arrest the judicial arm, or a subordinate power that can, by its own authority,
avoid the exercise of that judicial power over itself, which has been granted by
a paramount power. Nor can "the absolute sovereignty of the nation, which
when the constitution was adopted," was "in the people of the nation;" be
controlled by the "residuary sovereignty" of three-fourths of the
states, in the people thereof, when the amendments were made. That sovereignty
which can control all others, must be absolute: that which is controlled must be
subordinate. If it is said that the constitution authorized this amendment, we
should impute little of wisdom, foresight, or common prudence, to those who
framed or adopted it, by ascribing its creation to a power so indifferent to its
preservation; or to make three-fourths of the states competent to throw off the
shackles on their laws, which all the states, and the whole people thereof, had
imposed. There cannot, therefore, be, in my opinion, a proposition more hostile
to the provisions of the fifth article, and these amendments as understood by
this Court, than that the constitution was a creation of the whole people of the
United States, in their aggregate collective capacity; as the one people, of one
nation or state, acting by the plenary sovereignty, and in the unity of absolute
political power. In thus viewing this amendment, as to "the feature" which it
thus expunged, I use it as this Court does. "This feature is no longer found in
the constitution; but it aids in the construction of those clauses with which it
was originally connected." 6 Cr. 139. Independently of these considerations,
there is another which arises from the relative condition of the states as to
extent and population; to which we must refer for the discovery of the intention
of those who have left us a work "designed for immortality." 6 Wh. 387. "We
cannot look back to the history of the times, when, (12 Wh. 354,) the general
convention assembled, without the conviction that the framers of the
constitution would naturally examine the state of things existing at the time;
and their work sufficiently attests that they did so." 6 Wh. 416. By a reference
to this work, and the practical effects of its operation to the present time, we
can, I think, ascertain from whose hands it has come to us to be expounded, by
its objects and intentions.
THE PRACTICAL EFFECT AND
OPERATION OF THE CONSTITUTION
The apportionment of representation
among the states, which was made by the constitution, was with a reference to
the congress of the revolution, 1 Journ. 153, of the whole number 65; the six
largest states had 43; the remaining 7, only 22; and the constitution could be
adopted by nine states, having thirty-three representatives. When in 1789, the
government was organized, there were only 11 states with 59 representatives: of
which, 4 states had 32, and the other 7, only 27; yet they could elect a
President, and had a majority of votes in the Senate: so that a minority
of the people of the United States, had the operative power of two branches of
the government; and could make the third, in which the majority was represented,
either subservient to their will, or incapable of acting in opposition to
it.
The president and sixteen senators,
representing eight states, and a population entitled only to twenty-five
representatives, could exercise the treaty-making power; and the President and
twelve Senators, from states entitled only to nineteen representatives, could
appoint all the executive, military, and judicial officers of the government;
overruling five states entitled to thirty-nine representatives: whereby all
offices could be filled, and treaties made the supreme law of the land, in
defiance of the will of a majority of the people, and their representatives,
estimating the population of 1789 by that of 1790.
Under the first census of 1790, the
free white population of the thirteen states, was 3,100,000: of which,
Massachusetts had 469,000; New York 314,000; Pennsylvania 424,000; and Virginia
(and Kentucky) 503,000; making 1,710,000; leaving 1,390,000 to the other nine
states. These four states had 56 members in the House of Representatives, the
other states 47; they had 8 votes in the Senate, the other states 18; they had
64 votes for President, the other states 65. Nine states, with a white
population of 1,390,000, could dissolve the old confederation, establish the new
constitution, and throw out of the union, four states, containing 1,700,000, or
could control them if they became parties to it.
Was this a government of a
majority of the people of the United States, as one people? Did
the one people "ordain and establish" this "Constitution for the United
States of America?"
At the census of 1800, there were 16
states: the whole white population of which was 4,247,000; these 4 states,
exclusive of Kentucky, (taken from Virginia) contained 2,226,000, the other 12
contained 2,021,000; these 4 states had 74 votes in the House, 8 in the Senate,
and 82 for President; the other 12 states had 67 votes in the House, 24 in the
Senate, and 91 for President; the minority, in effect, controlling every branch
of the government, and competent to amend the constitution. What became then of
the government of the majority of the free white population, composing
the people of the United States?
At the census of 1810, there were 17
states, with a white population of 5,765,000: of which, these states contained
2,948,000, the other 13 contained 2,717,000; these 4 states had 93 votes in the
House, 8 in the Senate, and 101 for President; the other 13 states had 88 votes
in the House, 26 in the Senate, and 114 for President, the minority of the
people still controlling.
At the census of 1820, there were 24
states, the white population 7,856,000; the 4 states, with Maine (taken from
Massachusetts) and Kentucky, contained 4,199,000; the other 18 contained
3,657,000; the 6 states having 114 votes in the House, 12 in the Senate, and 126
for President; the other 18 states had 99 votes in the House, 36 in the Senate,
and 135 for President-the minority still ascendant.
In 1830, the entire white population
was 10,846,000, of which, these 6 states contained 5,535,000; the other 18
states, including the territories, 5,311,000; the 6 states have 124 votes in the
House, 12 in the Senate, and 136 for President; the other 18 states, have 117
votes in the House, 36 in the Senate, and 153 for President.
It thus appears, that from the year
1790, till this time, the four states of Massachusetts, New York, Pennsylvania
and Virginia, have contained within their original boundaries, a majority of the
whole people of the United States: yet such is the structure of the government,
that there is no one act which could be effected by such majority.
Adding to the free white population of
these states, according to the last census, and their present boundaries, that
of Ohio and Tennessee, the 6 states contain 6,090,000; the other 18 states
4,646,000, leaving a majority in the 6 states of 1,444,000; which may be found
to be perfectly passive for all purposes, except representation, in the House of
Representatives. There are 9 states, which contain in all, only 1,345,000 free
inhabitants, which can defeat a treaty, impeachment, proposition to amend the
constitution, or the passage of a law, without the approbation of the President,
against the will of fifteen states, containing a majority of 8,146,000 of the
people of the United States, in the aggregate. Thirteen states, with a
population of 2,504,300, can elect a President in the last resort, in opposition
to eleven states, with 8,232,000. Congress is bound to call a convention to
amend the constitution, on the application of the legislatures of two-thirds of
states, whose population is only 3,546,000, less than one-third of the aggregate
of all the states: and amendments may be adopted by eighteen states, in
opposition to an aggregate majority of 1,444,000; one of which amendments might
give the smallest state, an equality of suffrage in the House of
Representatives, and in voting for a President by electors. Seven states, with a
white population of only 812,000, may defeat any constitutional amendment;
though it might be called for by the residue of the people of the Union,
amounting to 9,924,000: so that a minority may force on a majority
a new government; and less than one-thirteenth of the people of the
United States in the aggregate, may continue the present without any change
whatever, though the reasons which call for an alteration, may be most
imperative for the good of the whole.
There are but two means of changing
these results from the present organization of the government,--one is the
division of the large, or the junction of small states into new ones; and the
other, by giving them a representation in the senate, in proportion to their
numbers. But the constitution has placed both beyond the power of any majority
of the people, however preponderating; unless by a majority of the states in the
one, and by all in the second case.
"New states may be admitted by the
congress into this Union; but no new state shall be formed or erected, within
the jurisdiction of any other state, nor any state be formed by the junction of
two or more states or parts of states, without the consent of the legislature of
the states concerned, as well as of the congress." 4 art. sec. 3, clause
1.
The senators of any thirteen states can
prevent the admission of any new states, or the junction of old ones; this can
be remedied only by an amendment, which seven states can prevent.
The fifth article, providing for
amending the constitution, contains this proviso: "and that no state without
its consent shall be deprived of its equal suffrage in the senate." Thus the
irrevocable, irrepealable supreme law of the land, has made Delaware, with an
aggregate population of 77,000, the peer of New York in the senate, with her
2,000,000: and she may hold her rights in defiance of the constitutional power
of twenty-three states, with an aggregate population of 12,789,000; equal to 166
to 1; in federal numbers, 165 to 1; and in free population, 147 to 1.
How contemptible are mere numbers, or
majorities of the people, in comparison with the rights of states, by the
standard of the constitution!!
The basis of representation, composed
of people and property, mixed into the constituent body of federal members,
leads irresistibly to the character of the government. The inevitable effect of
making five slaves equal to three freemen, is, to take power from a majority of
the people: so long as this apportionment of representation among the states
continues; a minority of the people of the United States in the
aggregate, may elect a majority of the members of the House of
Representatives; and the conventions or legislatures of seven of the
slave-holding states, can perpetuate this state of things.
The general result of the last census,
including the District of Columbia and the territories, is:aggregate population,
12,856,000; slaves, 2,010,000; federal numbers, 12,052,000; free people,
10,846,000; slaves represented, 1,206,000: thus, the representation of the
states in which they are owned, is increased by the addition of twenty-seven
members; is a representation of an actual minority of the free people; and
though the minority, they may control even this branch of the government, by a
majority equal to the slave representation.
These results are not the effect of
accident; they must have been foreseen at the adoption of the constitution:
unless it was anticipated that the population of the states would be in an
inverse ratio to their territory.
In 1788, the whole territory of the
thirteen states contained about 500,000 square miles; of which there was
comprehended in the boundaries of Virginia and Kentucky, then one state,
103,000; in North Carolina, including Tennessee, 84,000; and in Georgia,
including Mississippi and Alabama, 153,000: in the aggregate, 340,000. The other
ten states, included only 167,000, adding the territory ceded by Virginia and
New York, now composing the states of Ohio, Indiana, and Illinois, containing
134,000; all that was in possession of the confederacy or the states, was
640,000 square miles; of which, three states had more than one-half, while three
others had no more than one-eighth part; two of which had only the one hundred
and ninety-third, and one only the four hundreth part.
Yet this enormous disparity of
territory has no more effect on the equality of a state with any other now, nor
hereafter can have without its consent, than the disparity of population. Rhode
Island, with 1,360 square miles of territory, is the peer of Virginia, with
64,000. Delaware is the equal of New York, though their population is most
enormously disproportionate. The rights of these states are emphatically the
rights of a minority of the people; and a government which can be
organized, administered, and reorganized, by a minority, whose power is
expressly guaranteed against any majority of states or people,
cannot be any other than a "federal government of these
states."
There can be no political absurdity
more palpable, than that which results from the theory that the people of the
United States, as one people, have instituted a government of the people; a
majority (of the people) government; or one which can be altered by the
majority: for that majority has no one right, can do no one act under the
constitution, or prevent such amendments as would expunge every semblance of a
popular feature from it, by reducing New York to an equality with
Delaware, in the House of Representatives, and in voting for President;
these being the only particulars in which the people of the largest have any
more right than those of the smallest states. Nor is there a political truth
more apparent from the bills of rights in the constitutions of the several
states; their unanimous declaration in congress, in October 1774, and July 1776;
their alliance with France in 1778; with each other in 1781; and the supreme law
of 1788, established by the people of each, between themselves, as each
sovereign; than that the government which they have brought into existence, is a
creature of the people of the several states, a government of a majority of the
states; which may be in all its departments, and whole action, administered by
the representatives of the minority of the people of the United States; and
changed in its whole organization and distribution of powers, by such minority,
in all respects save one; and that one is the provision which makes the right
and power of the minority irresistible, by the equal suffrage in the Senate,
forever secured to each state.
The thirteenth article of the
confederacy contained a similar provision: the assent of each state was
necessary to any alteration.
The principle, that a majority of
states, of the people of the United States, or of either, in any unity of
political character, could, in any stage of our history, alter,
abolish the old, or institute a new government, is utterly without
any sanction in the acts of the states or congress. States were units,
who could impart or withdraw power at their pleasure, until they made an express
delegation to congress by the league of 1781; each state had its option to
become a party to the compact, constitution or grant, made in 1788, by nine
states, or to remain a free, sovereign, independent state, nation or power,
foreign to the new Union, after the old was dissolved.
By becoming separate parties, they did
not divest themselves of their individual unity of character; they remain units
as to representation, and as units, reserve all powers not delegated or
prohibited: and the ultimate power of revoking all parts but one of the grant,
with the concurrence of three-fourths of their associates, and modifying it at
their pleasure.
This is the essence of supreme and
sovereign power, which testifies that the ultimate absolute sovereignty, is in
"the several states," and the people thereof; who can do by inherent right and
power, any thing in relation to the constitution, or change of government,
except depriving the smallest state of its equal suffrage in the senate:
not in the United States, or the people thereof, as one nation, or one people,
who in their unity of character or power, can do nothing either by inherent
right, or by representation, as a majority.
The power which can rightfully exercise
acts of supreme absolute sovereignty, is the sovereign power of a state; no body
or power, which can neither move or act, can be sovereign: it exists
constitutionally, but as matter incapable of either. The soil of the United
States, is as much the source of political power, as its aggregate population.
Until the power which can establish government is brought into action, and
designates the one or the other as the basis of representation or taxation, each
is a perfect dead body; and both are perfectly so by the constitution, in
reference to the United States in the aggregate, or as one nation. But in
reference to the states, both the land and the population, within their separate
boundaries, are brought into operation; its federal numbers are made the
stock from which representation arises, and become represented by the action of
the qualified electors of the state; and the land in the state is assessed with
taxation, by the same rates as its representation is
apportioned;
________________
Henry Baldwin, Associate Justice of the Supreme Court
of the United States
January 18
, 1830
– April 21
, 1844
Balance of book is not currently
available!
NOTE: In accordance with
Title 17 U.S.C. section 107, any copyrighted material herein is distributed
without profit or payment to those who have expressed prior interest in
receiving this information for non-profit research and educational purposes
only. For further information please refer to: http://www.law.cornell.edu/uscode/17/107.shtml
E-MAIL THIS
PAGE TO A FRIEND