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States’ Rights by L. H. Lancaster—1909.


States’ Rights. 
by 
L. H. Lancaster—1909.

In May, 1787, delegates from all the states except Rhode Island met in Philadelphia "for the sole and express purpose of revising the articles of confederation." It took, however, a very short time for the delegates to see that a mere revision of the old articles would not be sufficient for the needs of the people. So it was decided to make an entirely new constitution for a federal government.

In the drawing up of the new articles the convention was divided into two distinct parties—one in favor of giving the principal power to the central government; the other held that the states were supreme and should remain so. The convention finished its work and then submitted it to the approval of the various states. Delaware was the first to ratify the instrument. This she did on December 7, 1787. North Carolina and Rhode Island, the last states to act in the matter, ratified the constitution on November 21, 1789, and May 29, 1790.

As soon as the government was established under the constitution the statesmen and people were divided into two parties on the same principles that were debated in the Philadelphia convention. They were the "centripetal" and "centrifugal" forces in government, one favoring a strict, the other a loose, interpretation of the constitution in determining the relative positions of the Federal and the State authority. Jefferson and Hamilton were the champions of the opposing parties. But even Mr. Hamilton did not dispute that the states were sovereign. No serious questions arose, nor was any belief, that the Federal government and not the states had the paramount authority, advocated until 1830. During this year the momentous Hayne-Webster debate took place. These two men were extremists of the opposing schools. Mr. Hayne spoke for nullification and state-sovereignty, showing that the constitution was a compact and the Union a partnership voluntarily entered into. Mr. Webster with still greater enthusiasm and force advocated the view of the indissoluble character of the Union ; that the constitution was not a compact, and that the states were subordinate.

Probably the chief argument advanced by Mr. Webster in this and other speeches, and by other holders of those views, was that the words of the preamble, "We, the people of the United States, in order to form a more perfect union," could mean nothing else but that the constitution was a creation of the people as a whole, and for that reason the people as a whole or the central government was the power to which our allegiance was due. This interpretation was foreseen and feared by a few great leaders at the time of the adoption of the constitution. Samuel Adams, of Massachusetts, in a letter to Richard Henry Lee about the constitution, said, "I stumble at the threshold." Patrick Henry in the Virginia Convention strongly attacked this phraseology: "That this is a consolidated government is demonstrably clear; and the danger of such a government is, to my mind, very striking. I have the highest veneration for those gentlemen (its authors); but, sir, give me leave to demand, what right had they to say, 'We, the people'? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, who authorized them to speak the language of, 'We, the people,' instead of we, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great consolidated national government of the people of all the states."

Another point raised by the champions of the national government was, in the words of Webster "That the constitution of the United States is not a league, Confederacy or compact, between the people of the several states in their sovereign capacities; but a government proper, founded on the adoption of the people, and creating direct relations between itself and individuals.

"That no state authority has power to dissolve these relations; that nothing can dissolve them but revolution; and that, consequently, there can be no such thing as secession without revolution.

"But I do agree that it is founded on consent or agreement and means no more by it than voluntary consent or agreement. The constitution, sir, is not a contract, but the result of a contract. The people have agreed to make a constitution, but, when made, that constitution becomes what its name imports. It is no longer a mere agreement."

The definition given of the constitution is "the fundamental law" or "the supreme law of the state." It was argued that the word "compact" occurs but once in the constitution and that when the states are forbidden to make any compact. A government was established. What is a government? Is it a "league," a "compact"? Mr. Webster said that this government came into being and sovereignty when the constitution was ratified by the parties to the contract and that the result is entirely different from the cause.

All of the debaters on these questions clearly imply in their statements that, if the constitution were a compact, and if the states acceded to it, the sovereignty of the states and the right to secede would be unquestionable.

The opening the preample has been considered the stronghold of the centralizing party. The argument is fully answered by Madison's reply to Patrick Henry:

"Who are parties to it (the constitution)? The people, but not the people as composing one great body; but the people as composing thirteen sovereignties: were it, as the gentleman (Mr. Henry) asserts, a consolidated government, the assent of a majority of the people would be sufficient for its establishment, and as a majority have adopted it already, the remaining states would be bound by the act of the majority, even if they unanimously reprobated it: were it such a government as is suggested, it would be now binding on the people of this state, without having had the privilege of deliberating upon it ; but, sir, no state is bound by it, as it is, without its own consent. Should all the states adopt it, it will be then government established by thirteen states of America, not through the intervention of the legislatures, but by the people at large."

It might also be interesting to note how that part of the preamble was written and the views held by the framers of the constitution about it:

The preamble of the original draught of the constitution started, "We, the people of the states of New Hampshire, Massachusetts," etc., naming each of the thirteen colonies. After waiting for more than a year, when it seemed very doubtful whether all the colonies would join the compact, a change was made. It was decided to establish the government under the constitution when nine colonies had ratified it. But there was no power which could possibly tell how many or which states would accede to it. So the "committee on style" had to omit the list of states and put in its place the indefinite "people of the United States." And, of course, they meant by that the people, of the individual states which should ratify the constitution.

Jefferson Davis in his "Rise and Fall of the Confederate Government" says: "If, then, we can conceive, and admit for a moment, the possibility that, when the constitution was under consideration, the people of the United States were politically 'one people'—a collective unit—two deductions are clearly inevitable: In the first place, each geographical division of this great community would have been entitled to vote according to its relative population; and, in the second, the expressed will of the legal majority would have been binding upon the whole. A denial of the first proposition would be a denial of common justice and equal rights; a denial of the second would be to destroy all government and establish mere anarchy.

"Now, neither of these principles was practiced or proposed or even imagined in the case of the action of the people of the United States (if they were one political community) upon the proposed constitution. On the contrary, seventy thousand people in the State of Delaware had precisely the same weight—one vote—in its ratification, as seven hundred thousand (and more) in Virginia, or four hundred thousand in Pennsylvania. Would not this have been an intolerable grievance and wrong—would no protest have been uttered against it—if these had been fractional parts of one community of people?"

The Senate stands as the lasting monument to the sovereignty and individuality of the states. No legislation is enacted, nor is a President elected, but that we are reminded of this truth. There have been three men who had either a majority or plurality of the votes of the people for President, but their opponents were elected to that office. It would have been entirely possible for the constitution to have been rejected by the majority of votes cast, and still to have been adopted by the states. Can we, then, say that the constitution was adopted by the people "in the aggregate"?

In answer to the argument that the constitution is not a compact, and to show that the states retained their sovereignty, we can bring forward the following truths:

The constitution was ratified by each state separately and of its own accord. We have seen that two states did not enter the compact until more than a year after the inauguration of Washington. And it was called a compact by its framers, and the statesmen of the time. Jefferson in the "Kentucky Resolutions" speaks in these clear and strong terms: "Resolved, that the several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that by compact under the style and title of a constitution for the United States and of amendments thereto, they constitute a general government for special purposes, delegating to that government certain definite powers, reserving each state to itself the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts were unauthoritative, void and of no force; that to this compact each state acceded as a state; that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, not the constitution, the measure of its powers; but that, as in all cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."

Madison, one of the greatest thinkers of his day, calls the constitution "a compact between the states in their highest sovereign capacity." The Supreme Court, which was established to be the final judge of all cases arising under the constitution, gave this opinion through its Chief Justice, John Jay: "The constitution of the United States is a compact."

It is a surprising thing to see that Webster, the champion of the national idea and one of the most vehement opponents of the Southern policy, changed his opinion and publicly declared the constitution a compact and admitted the right to secede. He says in a speech made in 1839, "How absurd it is to suppose that when different parties enter into a compact for certain purposes, either can disregard any provision and expect, nevertheless, the other to observe the rest!" And, "I have hesitated to say, and I repeat, that if the Northern states refuse, wilfully and deliberately, to carry into effect that part of the constitution which respects the restoration of fugitive slaves, and Congress provide no remedy, the South would no longer be bound to observe the compact. A bargain cannot be broken on one side and still bind the other side."

We must also remember that the authors of the constitution were mere delegates, voting by states, and whose action had no binding force. The last article of the constitution is this: "The ratification of the conventions of nine states shall be sufficient for the establishment of this constitution between the states so ratifying same." It would seem that the language of this single article ought to be enough to convince one that the constitution is simply a compact. Notice the word "between!" What else can it mean but an agreement made by independent parties, not "over" them? No "superior people" would have thus spoken.

If the government under the constitution is not a compact, what is it? Every one of the states so understood it and two, Massachusetts and New Hampshire, one represented by Mr. Webster, the other his native state, expressly called it so in their ratification of the constitution.

Then we find that some of the states in their articles of the ratification even laid down conditions under which they would join the Union. South Carolina accompanied her ordinance of ratification with these words: "This convention doth also declare that no section or paragraph of the said constitution warrants a construction that the states do not retain every power not expressly relinquished by them and vested in the general government of the Union." New Hampshire expressed herself in almost the same terms. Virginia came out still stronger in her statement, "That the powers granted under the constitution, being derived from the people of the United States, may be resumed by them, whenever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will," etc. New York's declaration contained the same opinions and conditions as that of Virginia. It is hard to see how a man could possibly ignore or twist these statements that are so explicitly made in the terms of ratification by these states.

Part of these declarations—that part which says that the states retained the powers not delegated and the only part over which it was thought a question could ever be raised—was soon added as a tenth amendment. It seemed superfluous to place the other part of those declarations!—the portion which speaks of reasoning their old positions if they thought best—in the constitution.

For the constitution was universally considered a compact and the conditions of ratification were so clear. Hear Rhode Island express herself:

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

When a group of states, on equal footing, voluntarily, and laying down conditions under which they join the Union, unite in order to protect themselves and to promote the general welfare of the whole, the Union thus formed is nothing else but a compact.

After we see that the constitution is simply a compact there are certain rights and privileges that come from the very nature of it as a compact, and they are unquestioned. The chief one of these rights is that by which a compact ceases to be binding on any party to it, if another party has broken it. Then, unless a compact contain a provision that it shall last for a certain length of time, it may be dissolved at will by any member of it. Of course, the reasons for so doing should be seriously considered and the party that withdraws may be held responsible for the damage caused by a wanton exercise of this power.

Now, if sovereign states accede to a compact or unite themselves in a league for common benefits, it is true that, unless they expressly delegate that sovereignty to the creature they have made, each one retains that sovereignty and in no way can they be deprived of it. The tenth amendment declares that "The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." So, to say that the general government is sovereign, because there is nowhere stated in the constitution that the states retain their sovereignty, is directly opposed to the plain statement and sentiment of that constitution.

It would have been considered treason during the early days of the Union to say that the states were not sovereign. And all public utterances on that subject distinctly affirm the sovereignty and independence of the states. Vattel writes in his chapter "Of Nations of Sovereign States": "Several sovereign and independent states may unite themselves together by a perpetual confederacy, without each in particular ceasing to be a perfect state. They will form together a federal republic: the deliberations in common will offer no violence to the sovereignty of each member, though they may, in certain respects, put some restraints on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent when he is obliged to fulfill the engagements into which he has very willingly entered."

Alexander Hamilton says in the "Federalist": "Do they (the fundamental principles of the confederation) require that, in the establishment of the constitution, the states should be regarded as distinct and independent sovereigns? They are so regarded by the constitution proposed."

De Tocqueville, one of the most learned of the foreign writers on our government and an unprejudiced observer, makes this simple statement: "However strong a government may be, it cannot easily escape from the consequences of a principle which it has once admitted as the foundation of its constitution. The Union was formed by the voluntary agreement of the states; and these, in uniting together, have not forfeited their nationality, nor have they been reduced to the condition of one and the same people. If one of the states chose to withdraw its name from the contract, it would be difficult to disprove its right of doing so, and the Federal government would have no means of maintaining its claims directly either by force or by right."

Therefore, with the constitution itself, with the statements and writings of its framers, its ratifiers, and its interpreters before us, we must accord with the view that our loved Southland was constitutionally free to do as she thought best to protect herself and to maintain the principles for which both sections poured out their blood in the War of Independence.

George Gordon Battle, Studies of the Old South: By the Present Day Students of a Virginia College (Hampden-Sydney College) (1916), 17-26.

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