Here,again,Judge Story displays a want of proper definiteness and precision,in the statement of his proposition.The people who make a law,can,upon the principles of all our institutions,either "repeal or abrogate,or suspend it";and if,as he supposes,our Constitution was made by "the people of the United States,"in the aggregate,then "the people of any State,"or of half a State,may repeal,or abrogate,or,suspend it,if they happen to be a majority of the whole.The argument,therefore,if we are to take it in the full latitude in which it is laid down,is not sound,upon the author's own principles;and it can avail nothing,except upon the very supposition which he disallows,to wit:that the Constitution was formed by the States,and not by the people of the United States.Even in this acceptation,however,I am at a loss to perceive how it establishes the proposition with which he set out,to wit:that the Constitution is not a compact.Certainly it is very possible so to frame a compact,that no party to it shall have a right either to "repeal or abrogate,or suspend it";and if it be possible to do so,then the mere absence of such right does not even tend to disprove the existence of compact.Our own Constitution,even in the opinion of those who are supposed by the author to be least friendly to it,is a compact of precisely this nature.The Nullifier contends only for the right of a State to prevent the Constitution from being violated by the general government,and not for the right either to repeal,abrogate or suspend it.The Seceder asserts only that a State is competent to withdraw from the Union whenever it pleases;but does not assert that in so doing it can repeal,or abrogate or suspend the Constitution,as to the other States.Secession would,indeed,utterly destroy the compact as to the seceding party;but would not necessarily affect its obligation as to the rest.If it would,then the rest would have no right to coerce the seceding State,nor to place her in the attitude of an enemy.It is certain,I think,they would not have such right;but those who assert that they would ?
and the author is among the number ?must either abandon that idea,or they must admit that the act of secession does not break up the Constitution,except as to the seceding State.For the moment the Constitution is destroyed,all the authorities which it has established cease to exist.There is no longer such a government as that of the United States,and,of course,they cannot,as such,either make any demand,or assert any right,or enforce any claim.
The conclusion,however,to which our author has arrived upon this point,is not that to which he originally designed that his premises should conduct him.The question of the right of a party to a compact to repeal or abrogate or suspend it,does not enter into his original proposition,nor result from the argument which he had immediately before used to sustain it.The proposition is,that our Constitution is not a compact,and the argument is,that it is not a compact,because it is a supreme law.The same idea is substantially reaffirmed,in the next argument by which he proposes to prove the main proposition."The design"(of the Constitution)"is to establish a government.This,of itself,imports legal obligation,permanence,and uncontrollability by any,but the authorities authorized to alter or abolish it."
Admitting,as I cheerfully do,that all this is strictly true,I am yet unable to perceive how it demonstrates that our Constitution is not a compact.May not a compact between sovereign States be a government?
Is there any such necessary restraint upon,or incident of,sovereign power,that it cannot,in any possible exercise of it,produce such a result?
If there is,then it was incumbent on the author to show it,because,if there is not,his argument is of no force;and he himself will admit that the proposition,to say the least of it,is not quite clear enough to be taken as a postulate.His own historical information,if he had drawn on its ample funds,must have furnished him with numerous instances of governments established by compact.He need not,however,have gone beyond our own Confederation,which,although a compact among sovereign States,in the strictest sense,was yet treated as a government by the people at home,and recognized as such by all foreign powers.It was also "supreme,"within its prescribed sphere of action;its rights and powers over the most important subjects of general concern were not only superior to those of the States,but were exclusive.The author's proposition and argument,reduced to their simple terms,may be thus stated:"Our Constitution is not a compact,because it is a government,and because that government is the supreme law."18There are few minds,I think,prepared to embrace this conclusion,or to discern the connection which it has with the promises.There are still fewer who will not feel surprise,that our author should have formed such a conclusion,since an instance to disprove it,furnished by the history of his own country,and existing in his own times,had but just passed under his critical examination and review.
