Whatever may have been the condition of the colonies prior to 1781,there is no room for doubt on the subject,after the final ratification of the Articles of Confederation in that year.Those articles declare that "each State retains its sovereignty,freedom and independence,and every power,jurisdiction and right,which is not by this confederation expressly delegated to the United States,in Congress assembled."The obvious construction of this clause requires that we should apply these latter words only to "powers,jurisdiction and rights";some of which,as enjoyed by the States under the previous government,were clearly surrendered by the Articles of Confederation.But their entire sovereignty,their entire freedom,and their entire independence,are reserved,for these are not partible.Indeed,this is clear enough,from the provisions of that instrument,which,throughout,contemplate the States as free,sovereign and independent.13It is singular,too,that it should escape the observation of any one,that the very fact of adopting those articles,and the course pursued in doing so,attest,with equal clearness and strength,the previous sovereignty and independence of the States.What had the States in their separate character to do with that act,if they formed altogether "one people?"And yet the States,and the States alone,performed it,each acting for itself,and binding itself.The articles were confirmed by ten States,as early as 1778,by another in 1779,and by another in 1780;and yet they were not obligatory until Maryland acceded to them,in 1781.Nothing less than the ratification of them by all the States,each acting separately for itself,was deemed sufficient to give them any binding force or authority.
There is much force and meaning in the word "retains,"as it occurs in the clause above quoted.Nothing can properly be said to be retained,which was not possessed before;and of course the States possessed before "sovereignty,freedom,and independence."These they retained without any qualification,or limitation,and they also retained every "power,jurisdiction,and right,"which they did not then,expressly surrender.
If these views on the subject be not wholly deceptive,Judge Story has hazarded,without due caution,the opinion that the colonies formed "one people,"either before or after the Declaration of Independence,and that they are not to be regarded as sovereign States after that event.For myself,I profess my utter inability to perceive,in their condition,any nearer approach to political personality or individuality,than may be found in a mere league or confederation between sovereign and independent States;and a very loose confederation theirs undoubtedly was.14
The third division of Judge Story's work commences with a history of the adoption of the Constitution.This also is given in an abridged form;but it omits nothing which can be considered material to the inquiry.Perhaps the author has fallen into one error,an important one,certainly,in stating that "at the time and place appointed,the representatives of twelve States assembled."When the deputies first met in Philadelphia,in May,1787,the representatives of only nine States appeared;they were,soon after,joined by those of three others.The author next proceeds to state the various objections which were urged against the Constitution,with the replies thereto;to examine the nature of that instrument to ascertain whether it be a compact or not;to inquire who is the final judge or interpreter in Constitutional controversies;to lay down rules of interpretation;and,finally,to examine the Constitution in its several departments and separate clauses.In the execution of this part of his task he has displayed great research,laborious industry,and extensive judicial learning.The brief summary which he has given of the arguments by which the Constitution was assailed on the one hand,and defended on the other,is not only interesting as matter of history,but affords great aid in understanding that instrument.
We should be careful,however,not to attach to these discussions an undue importance.All the members of the various conventions did not engage in the debates,and,of course,we have no means of determining by what process of reasoning they were led to their conclusions.And we cannot reasonably suppose that the debaters always expressed their deliberate and well weighed opinions in all the arguments,direct and collateral,by which they sought to achieve a single great purpose.We are not,therefore,to consider the Constitution as the one thing or the other,merely because some of the framers,or some of the adopters of it,chose to characterize it in their debates.Their arguments are valuable as guides to our judgments,but not as authority to bind them.
In the interpretation of the Constitution,the author founds himself,whenever he can,upon the authority of the Supreme Court.This was to be expected;for,in so doing,he has,in most cases,only reiterated his own judicial decisions.We could not suppose that one,whose opinions are not lightly adopted,would advance,as a commentator,a principle which he rejected as a judge.In most cases,too,no higher authority in the interpretation of the Constitution is known in our systems,and none better could be desired.It is only in questions of political power,involving the rights of the States in reference to the Federal Government;that any class of politicians are disposed to deny the authority of the judgments of the Supreme Court.15We shall have occasion to examine this subject more at large,in a subsequent part of this review.
