and,therefore,they have not "forced this principle into the language of that instrument."The right in question is supposed to belong to the States,only because it is an incident of their sovereignty,which the Constitution has not taken away.The author,it is presumed,could scarcely have failed to perceive the difference of the two propositions,nor could he have been unconscious that they did not depend upon the same course of investigation or reasoning.And it is not true,so far as my information extends,that any political party has ever asserted,as a general proposition,that in construing the Constitution,there is no common umpire.Cases have already been stated,in which the Supreme Court is universally admitted to be the common umpire,and others will be stated when we come more directly to that part of our subject.In the broad sense,then,in which the author lays down the proposition,it has never been contended for by any political party whatever.Neither is it true,as he is pleased to assert,that any political party has ever supposed that each department of the government of each State had a right to "judge for itself,of the powers,rights and duties,arising under"the Constitution.By the word "judge,"he must be understood to mean decide finally;and,in this sense,I venture to affirm,that no political party,nor political partizan,even in the wildest dream of political phrensy,has ever entertained the absurd notion here attributed to them.It is difficult to suppose that the author could have been uninformed of the fact,that nothing short of the power of all the State,acting through its own constituted authorities,has ever been deemed of the least force in this matter.The better and more prevalent opinion is,that a State cannot properly so act,except by a convention called for that express purpose.This was the course pursued by South Carolina;but in the case of the Alien and Sedition Laws,Virginia acted through her ordinary legislature.
As to this matter,however,the legislature was very properly considered as representing the power of the whole State.
Thus,in the short paragraph above quoted,Judge Story has fallen into three most remarkable errors,proving that he has,in the strangest way imaginable,misunderstood the principles which he attempted to explain.
The young and plastic minds to which he addressed himself,with the professed object of instructing them in the truths of constitutional interpretation,will look in vain for the publication or other authority which sustains him.And the political party whose principles he has endeavored to hold up to reproach,has a right to demand of him why he has chosen to attribute to them absurd and revolutionary notions,unworthy alike of their patriotism and their reason.
It is submitted to the reader's judgment to determine how far the reasoning of the author,which we have just examined,supports his position that our Constitution is not a compact.The opinion of that Congress which recommended the call of the Convention seems to have been very different;they,at least,did not suppose that a compact could not be a government.Their resolution recommends the call of a convention,for the purpose of revising the Articles of Confederation,and reporting such alterations and provisions therein,as would render the Federal Constitution adequate to the exigencies of government,and the preservation of the Union."In.the opinion of Congress,the Articles of Confederation,which were clearly a compact,were an inadequate Constitution,and,therefore,they recommended such alterations and provisions therein,as would make the same compact an adequate Constitution.Nothing is said about forming a new government,or changing the essential character of the existing one;and,in fact,no such thing was contemplated at the time.19"The sole and exclusive purpose"
of the convention was so to amend,or add to,the provisions of the Articles of Confederation,as would form "a more perfect union,"&c.,upon the principles of the Union.already existing.It is clear,therefore,that in the opinion of Congress,and of all the States that adopted their recommendation,that union or compact was a constitution of government.
It is worthy of remark,that of the States,New Hampshire,and the author's own State of Massachusetts,expressly call the Constitution a compact,in their acts of ratification;and no other State indicates a different view of it.This tends to prove that public opinion at the time had not drawn the nice distinction which is now insisted on,between a government and a compact;and that those who had for eight years been living under a compact,and forming treaties with foreign powers by virtue of its provisions,had never for a moment imagined that it was not a government.
But little importance,however,ought to be attached to reasoning of this kind.Those who contend that our Constitution is a compact,very properly place their principles upon much higher ground.They say that the Constitution is a compact,because it was made by sovereign States,and because that is the only mode in which sovereign States treat with one another.The conclusion follows irresistibly from the premises;and those who deny the one,are bound to disprove the other.Our adversaries begin to reason at the very point at which reasoning becomes no longer necessary.Instead of disproving our promises,they assume that they are wrong,and then,triumphantly deny our conclusion also.If we establish that the Constitution was made by the States,and that they were,at the time,distinct,independent and perfect sovereignties,it follows that they could not treat with one another,even with a view to the formation of a new common government,except in their several and sovereign characters.They must have maintained the same character when they entered upon that work,and throughout the whole progress of it.Whatever the government may be,therefore,in its essential character,whether a federative or a consolidated government,it is still a compact,or the result of a compact,because those who made it could not make it in any other way.In determining its essential character,therefore,we are bound to regard it as a compact,and to give it such a construction as is consistent with that idea.We are not to presume that the parties to it designed to change the character in which they negotiated with one another.Every fair and legitimate inference is otherwise.Its sovereignty is the very last thing which a nation is willing to surrender;
And nothing short of the clearest proof can warrant us in concluding that it has surrendered it.In all cases,therefore,where the language and spirit of the Constitution are doubtful,and even where their most natural construction would be in favor of consolidation,(if there be any such case),we should still incline against it,and in favor of the rights of the States,unless no other construction can be admitted.
