THE CONSTITUTION OF THE UNITED STATES ANALYSIS OF ITS PROVISIONS, MUTUAL COVENANTS, AND DELEGATIONS OF POWER, AS IN THE ARTICLES OF CONFEDERATION.
MR. STEPHENS. Let us now look into the Constitution itself,* and see the nature of the Government instituted by it, so far as appears from the words, and the terms used in it; keeping closely in mind all the antecedent facts these are mainly the separate Sovereignty of the States, by whose Delegates it was framed the old law the articles of Confederation the evils complained of under them, and the remedies proposed. Keep in mind the purpose for which the Convention was called, the instructions and powers, under which the Delegation from each State acted, as well as what the Convention said of their work, after it was done, in transmitting it to the States, then in Congress assembled. Recollect, also, what Ellsworth and Sherman said of it, and what Washington, in his own name, said of it. All these matters should be kept constantly in view in our examination of the terms of the Constitution. With these facts, then, thoroughly impressed upon the mind, let us enter upon an examination of the Instrument itself.
* See Appendix C.
Upon an analysis of the entire provisions of the Constitution, from the beginning to the end, similar to the analysis made of the Articles of Confederation, we see that the whole may be divided and arranged:
First, into mutual Covenants and Agreements between the States, and
Secondly, the delegation of specific powers, by the States severally, to the States jointly, to be exercised by them jointly, in the mode and manner specifically set forth in the mutual Covenants, as stated.
The mutual Covenants relate partly to the new organization, and the general division of the exercise of the powers granted or delegated to the different departments; and partly to restrictions upon the several States, and duties or obligations assumed by them, just as under the former, or old Constitution.
The Covenants of the First Class, for a clearer understanding, by proper analysis, may be further subdivided under appropriate heads, and in classification arranged accordingly. Those relating to the new organization and division of powers being placed by themselves, in order, and those relating to the restraints upon the several States and the duties and obligations assumed by them as States, being, also, arranged by themselves, in like order.
Now, then, upon opening the Constitution, at the head of it, we find the Preamble, of which we have spoken. That is in these words:
"CONSTITUTION OF THE UNITED STATES OF AMERICA.
"We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America."
From this, as has been shown, it clearly appears that it was the intention of those who framed what follows, that it was to be a Constitution for States, or, in other words, a Compact between States. No more on that point here.
First, then, in our examination into the body and substance of the Instrument, let us arrange all the mutual Covenants or Agreements in their order, according to the plan of analysis as stated.
Those relating to the new organization and the machinery of the Government, and the distribution of Powers, may be placed as follows:
FIRST. COVENANTS RELATING TO THE LEGISLATIVE DEPARTMENT.
1st. "All Legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
2d. "The House of Representatives shall be composed of Members chosen every second Year by the People of the several. States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."
3d. "No Person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."
4th. "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three."
5th. "When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies."
6th. "The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment."
7th. "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote."
8th. "Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies."
9th. "No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen."
10th. "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."
11th. "The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States."
12th. "The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present."
13th. "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and Disqualification to hold and enjoy any Office of honour, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."
14th. "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the place of chusing Senators."
15th. "The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day."
16th. "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the attendance of absent Members, in such Manner, and under such Penal. ties as each House may provide."
17th. "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member."
18th. "Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal."
19th. "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting."
20th. "The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases,, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."
21st. "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."
22d. "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills."
23d. "Every Bill which shall have passed the House of Representatives and the Senate; shall, before it become a law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after, such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law."
24th. "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill."
SECOND. COVENANTS RELATING TO THE EXECUTIVE DEPARTMENT.
1st. "The Executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice-President, chosen for the same Term, be elected, as follows:"
2d. "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."
[* The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for 6ach; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in. like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A Quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot th 3 Vice President.]
* This clause within brackets has been superseded and annulled by the 12th amendment.
3d. "The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States."
4th. "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States."
5th. "In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation, or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected."
6th. "The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased or diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them."
7th. "Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:
"'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'"
8th. "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."
9th. "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided. two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
10th. "The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
11th. "He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the officers of the United States."
12th. "The President, Vice President and all civil Officers of the United States, shall be removed from office on Impeachment for, and Conviction of, Treason, Bribery. or other high Crimes and Misdemeanors."
THIRD. COVENANTS RELATING TO THE JUDICIAL DEPARTMENT.
1st. "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation? which shall not be diminished during their Continuance in Office."
2d. "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers, and Consuls;to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States, between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States,, Citizens or subjects."
3d. "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
4th. "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."
NOW THE COVENANTS OF THE SECOND CLASS IN ORDER.
1st. "No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility."
2d. "No State shall, without the consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress."
3d. "No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of Delay."
4th. "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
5th. "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
6th. "A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime."
7th. "No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due."
8th. "All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation."
9th. "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
10th. "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
11th. "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion, and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."
These are all the Covenants between the States, arranged in order by analysis, as stated, except two, which may more properly be set forth, after we examine the enumeration of the Powers delegated and the terms used in their delegation.
These are as follows: First, specific grants of power; and secondly, certain limitations upon the Powers so granted or delegated.
FIRST. THE SPECIFIC POWERS DELEGATED.
"The Congress shall have power"
1st. "To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"
2d. "To borrow Money on the credit of the United States;"
3d. "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"
4th. "To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;"
5th. "To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;"
6th. "To provide for the Punishment of counterfeiting the Securities and current Coin of the United States,"
7th. "To establish Post Offices and post Roads;"
8th. "To promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
9th. "To constitute Tribunals inferior to the supreme Court;"
10th. "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."
11th. "The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted."
12th. "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;"
13th. "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;"
14th. "To provide and maintain a Navy;"
15th. "To make Rules for the Government and Regulation of the land and naval Forces;"
16th. "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;"
17th. "To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the Discipline prescribed by Congress;"
18th. "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be for the Erection of Forts, Magazines, Arsenals, Dock Yards, and other needful buildings; And"
19th. "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
20th. "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 Legislatures of the States concerned as well as of the Congress."
21st. "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."
SECONDLY. LIMITATIONS ON THE POWERS DELEGATED.
1st. "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or Duty may be imposed on such Importation, not exceeding ten dollars for each Person."
2d. "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
3d. "No Bill of Attainder or ex post facto Law shall be passed."
4th. "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."
5th. "No Tax or Duty shall be laid on Articles exported from any State."
6th. "No preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another."
7th. "No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and, Expenditures of all public Money shall be published from time to time."
8th. "No title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."
These are all the powers delegated, with their limitations. We come, now, in our classification and arrangement of the entire Constitution, to the two remaining stipulations. which belong properly to the Covenants between the States, but which, in any general classification, may more properly be put at the conclusion of the whole.
1st. "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment, which may be made prior to the Year one thousand eight hundred and eight, shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
2d. "The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
"DONE in Convention by the Unanimous Consent of the States present the Seventeenth day of September, in the Year of our Lord one thousand seven hundred and Eighty-seven, and of the Independence of the United States of America the Twelfth.
"IN WITNESS whereof We have hereunto subscribed our Names.
"Presidt and Deputy from Virginia.
John Langdon, Nicholas Gilman.
Nathaniel Gorham, Rufus King,
Winm. Saml. Johnson, Roger Sherman.
Will: Livingston, David Brearley,
Wm. Paterson, Jona. Dayton.
B. Franklin, Thomas Mifflin,
Robt. Morris, Geo: Clymer,
Thos: Fitzsimons, Jared Ingersoll,
James Wilson, Gouv: Morris.
Geo: Read, Gunning Bedford, Jun'r,
John Dickinson, Richard Bassett.
James M'Henry, Dan: of St. Thos. Jenifer.
John Blair, James Madison, Jr.,
Wm. Blount, Rich'd Dobbs Spaight.
J. Rutledge, Charles Cotesworth Pinckney,
Charles Pinckney, Pierce Butler.
William Few, Abr. Baldwin.
Attest: WILLIAM JACKSON, Secretary"
We have thus gone through with the whole of the original Constitution, as it, at first, came from the hands of the Convention; we have examined it from the beginning to the end from the Preamble to the signatures of the Delegates. We see that the members of each Delegation signed it in behalf of the State represented by them. The subsequent amendments, we may, hereafter, examine.
The articles, sections, and clauses, as arranged by the Committee on Style, have not been followed in this analysis. But every section, clause and word, are set forth in it, as the original stands engrossed in the Archives of State, at Washington.* The order of their arrangement only is changed. This does not mar the sense, in the slightest particular, in a single instance, but gives a clearer conception, it appears to me, of the whole instrument, taken together; as all instruments, in writing, should be, to be thoroughly and correctly understood. Now, after scanning the whole, taken together, what section, clause, phrase or word, on the face of the Constitution itself, shows any intention, on the part of the framers, to merge the separate Sovereignty of all the States into one, under it; and, by its adoption, to establish a National Government, instead of perfecting and continuing, under a new organization, with enlarged powers, the Federal Union, then existing between the States, and for the remedying of which, the Convention was called? It was made, we see, by States. It was to be established, we see, not over, but between, the States ratifying it.
* Edition of the Constitution by Hickey, p. 31.
Is not the leading idea, throughout the whole instrument, that the new Government was to be a Compact between States, as the old one was? States pervade the whole instrument. The Senators are to be elected by the Legislatures of the several States. The House of Representatives is to be composed of members, chosen by the people of the several States; and to be chosen by electors, possessing such qualifications as each State, for itself, may prescribe for the electors of the most numerous branch of its own State Legislature. Thus providing that every member of the Legislative body should be chosen, in the one branch, directly by the States, as such, and in the other branch, by constituencies, to be formed and controlled absolutely by the States, severally.
"Representatives and taxation shall be apportioned among the several States."
"Each State shall have, at least, one Representative." When vacancies happen "in any State," etc.
The Congress shall have power to regulate commerce with foreign nations, "and among the several States." "The migration and importation of such persons as any of the States," etc.
No preference shall be given," etc., "to the ports of one State over those of another," etc. "Nor shall vessels, bound to or from one State, be obliged to enter, clear, or pay duties in another."
"No State shall enter into any treaty," etc.
"No State shall, without the consent of the Congress, lay any imposts," etc.
"No State shall," without the like consent of the Congress, "lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign Power, or engage in war, unless actually invaded," etc.
Nothing appears more prominent in the whole instrument than States. The very first Article in the Constitution declares that all Legislative powers under it shall be vested in "a Congress of the United States." The term "Congress of the United States" was familiar to all at that day. It was well known to mean "The United States in Congress assembled." Congress means a meeting or an assemblage. A Congress of States means a Meeting or Assemblage of States. The title of Congress, under the Confederation, had been "The United States of America in Congress assembled." The same title is still retained. To this very day, the enacting clause of every law, passed by "the Congress," under the Constitution, is in these words:
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled."
Every law that has been passed, from the beginning, under this Constitution, as under the Articles of Confederation, derives its sole authority, as its face shows, from States in Congress assembled!
The whole operation of the Government, from its first starting, depended upon the action of the States. The election of President and Vice President, from the first to the last, depended entirely upon the States, as States, and, also, the election of Senators. Nor can there be a House of Representatives in the Congress without the co-operation of the States! The General Government, created by the instrument, has no authority, as appears from its face, to enter any State, or take jurisdiction over a foot of her soil, even for the erection of forts and arsenals, etc., except by her consent, first had and obtained by contract or purchase. This shows that the Right of Eminent Domain, the indisputable attribute and accompaniment of Sovereignty, remained with the States, severally, even over such places as might thus pass, in fee, from them, or their citizens, to the United States, as in like purchases, in all cases whatsoever.
What is there, then, in this whole instrument, that looks towards such a consolidation of the whole people of this country into one community or Nation, as Mr. Motley contends, and as you maintain?
JUDGE BYNUM. Does not what is said about Treason look that way?
MR. STEPHENS. Not at all; if it be true that the Constitution was a Compact between Sovereign States. That is the point in issue. All such inferences, as you refer to, depend upon this primary and essential fact, touching the nature and character of the Government. Nothing is clearer than that Sovereign States may agree, by Compact, between themselves, that certain acts of the citizens of each, against all jointly, shall be deemed and held to be criminal against them jointly, and punished by their joint authority. Such is the case, in this Constitution, as to counterfeiting the current coin and securities of the United States, and divers other offences. The granting of power to punish such offences against the joint authority of all, while the Compact lasts, does not, in the least, in itself, compromise the Sovereignty of each, or change the allegiance of her citizens; which, independently of the Compact, must, by acknowledgment, be admitted to be due to her Paramount authority. The Articles of Confederation delegated the power to punish piracy.
So, it is perfectly consistent with the reserved Sovereignty of each party to such a Compact, to agree among themselves that levying war upon all of them, or adhering to their enemies, giving them aid and comfort, by the citizens of any one of them, shall be considered Treason against all; inasmuch as such an act would, unquestionably, be Treason against the State, of which such persons are citizens, in the breach, which it would necessarily involve, of their allegiance, due to the Paramount authority of the State, in entering into such a Compact, which, by its very nature, is to be binding upon each State, and all her citizens, as the Supreme law, so long as it may last.
It is perfectly competent for Sovereign States to make such an agreement, or compact, as this, without compromising their Sovereignty, or changing, in the least degree, the ultimate, absolute allegiance of all their citizens, which, by the laws of Nations, is due to their Paramount authority. This is just what the Constitution did on that subject, if it be a Compact between Sovereign States, and that is the point of our inquiry.
In further illustration of the view I was presenting, to show that it is such a Compact, and that no such inference, as you would draw from the words about treason, is at all maintainable, I call your special attention to the fact that there is, in the Constitution, no Covenant, or Delegation of power to the Congress, to define, or punish treason, generally, as all Sovereigns, without doubt, have power to do. That is left with the States, severally, and a solemn Compact entered into, that all persons, charged with treason against any one of the States, fleeing into another State, shall, upon demand, etc., be given up, etc. This shows, clearly, that the general allegiance of the citizens of the several States was not intended to be transferred, by this clause of the Constitution, to the United States. Indeed, there is not a word about allegiance in the whole of it.
Moreover, all that is said upon the subject, in this clause, is only an enlargement in one sense, and a restriction in another, of powers under the Articles of Confederation. There is no change of principle in the nature of the Government, in this particular, in the new Constitution, from the old.
Under the Articles of Confederation, the States, in Congress assembled, had power, as we have seen, to make "Rules for the Government of the land and naval forces," etc. By virtue of this clause they had power not only to punish, but to define what acts should constitute treason against the joint authority of all the States, when committed by any one in the land or naval forces. It was under this clause, doubtless, or under the Rules and Articles of War, established by virtue of it, that Arnold would have been executed, if he had not made his escape. But no one thought that, because Arnold, a citizen of the State of Connecticut, was held and deemed to be guilty of treason against the United States, that, therefore, his allegiance, and the allegiance of all the people of Connecticut, and the allegiance of all the people of all the States, was necessarily, thereby, under the Confederation, transferred from the States, severally, to the United States. We have seen that the Supreme Court of the United States has decided the very reverse, or, that the allegiance of the citizens of the States, severally, during the Confederation, was due to their States respectively.* Hence it follows that it was perfectly consistent, with a full reservation of power to the States, severally, over the allegiance of their citizens, to enter into just such a Compact, as I maintain this to be. This part of the Constitution, as I have said, is but an enlargement. in one sense, and a restriction, in another, of powers delegated under the Articles of Confederation. It is enlarged, so as to embrace all citizens of the States, respectively, whether in the land or naval forces or not; and restricted in this, that the offence, defined in the Constitution to be Treason against the United States, shall consist, only, in levying war against them, or in adhering to their enemies, giving them aid and comfort, with a limitation as to the extent of the punishment. A farther restriction is that a person charged with treason, now, cannot be tried by Military Courts. The trial, in all cases, must be by the Civil Courts. The crime can only exist, when the act is committed by the citizens of any State, not only against her, but against all the other States with which she stands united by a solemn Compact.
* Ante, p. 76.
The Paramount Sovereignty of each State to command the allegiance of her citizens, in case she should exercise it in severing, as in making, the Compact cannot be transferred by inference or implication. This, an we have seen, can pass, only, by express terms of surrender.* There is no such express surrender in the Constitution, nor can any intention to make such be inferred, even upon taking the whole Constitution together. None. at least, from this clause of the Constitution. Is there any other that even looks that way?
* Ante, p. 83.
PROFESSOR NORTON. If it were not for what you said, in the beginning, about the clause which declares that this Constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, etc., I should certainly say that that does look that way. But, from what you have said, I suppose you hold that it does not.
MR STEPHENS. Most assuredly I do; and for the reasons before given. This clause contains no delegation of power, makes no acknowledgment of a surrender of any. It simply declares a fact, or truth, which results from the nature of the Compact. The same fact, here declared, was admitted to exist under the Articles of the Confederation. They were equally the supreme law of the land, while they lasted, as the Constitution now is.* They were just as obligatory, upon the States, as the Constitution is. So said Mr. Hamilton and Mr. Madison, and so held Mr. Justice Chase, on the Supreme Court Bench, as we have seen. This clause, as Mr. Hamilton said, is only a limitation inserted out of abundant caution. That limitation was to rebut the very inference that you would draw. It was inserted to make it clear that not only was the allegiance of the citizens of the several States not transferred, by virtue of any thing in the Constitution, to the United States, but that even obedience to their laws, etc., could be enjoined, only so far as these laws were made in pursuance of the Constitution!
* Ante, pp. 45-48
The great difference between this clause, offered in substance by Luther Martin, and the one offered by the Nationals, and for which Martin's was substituted, was, that theirs gave to the United States the power or right to judge as between them and the States severally upon Constitutional infractions, while his refused to delegate this power, leaving it, therefore, with the States, where it was before.
PROF. NORTON. If this be so, please, then, explain, if you can, why the next clause was added, which requires the members of the several State Legislatures, and all Executive and Judicial officers of the States, to take an oath to support the Constitution?
MR. STEPHENS. This can be easily done, and in no more pertinent language, perhaps, than Mr. Madison used in answering the same question, when asked, while the Constitution was before the people for their consideration. In the forty-third number of the Federalist, he says:
Dawson's Edition, p. 317.
"It has been asked why it was thought necessary that the State magistracy should be bound to support the Federal Constitution, and unnecessary that a like oath should be imposed on the officers of the United States in favor of the State Constitutions. Several reasons might be assigned for the distinction. I content myself with one which is obvious and conclusive. The members of the Federal Government will have no agency in carrying the State Constitutions into effect. The members of the State Governments, on the contrary, will have an essential agency in giving effect to the Federal Constitution. The election of the President and Senate will depend, in all cases, on the Legislatures of the several States." etc.
This is the reason Mr. Madison assigned for it. Whether it was a conclusive reason for the propriety of putting this clause in or not, yet his giving it, when he did, and as he did, is conclusive proof that no inference can be drawn from the clause, as it stands in the Constitution, that it was intended, by virtue of it, any more than by virtue of the other clause just before it, to transfer the allegiance of the citizens of the several States to the United States; and, thereby, form a National Government instead of a Federal one. Mr. Madison, recollect, was one of the extremest in the Convention for a National Government, and not a Federal one; but here, in speaking of the nature of the Government which was finally agreed upon, he calls it "the Federal Government," and the Constitution he styles "the Federal Constitution."
This oath was opposed by Mr. Wilson, one of the leading, Nationals in the Convention. "He said he was not fond of oaths. He considered them a left-handed security. A good Government did not need them, and a bad one could not or ought not to be supported."* He, certainly, did not regard it as you do.
* Madison Papers, Elliot's Debates, vol. v, p. 352.
But, as also quite pertinent in further answer to your question, I refer to what Mr. Madison said, in the next number of the Federalist, upon the general nature of the powers delegated under the Constitution, from which it clearly appears that he did not consider the nature of the new Government essentially changed, in any particular, from what it was under the Confederation.
"If the new Constitution," says he, "be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finances, with the other more considerable powers, are all vested in the existing Congress by the Articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them. The change relating to taxation may be regarded as the most important; and yet the present Congress have as complete authority to REQUIRE of the States indefinite supplies of money for the common defence and general welfare, as the future Congress will have to require them of individual citizens; and the latter will be no more bound than the States themselves have been, to pay the quotas respectively taxed on them."*
From both these extracts from the Federalist, it clearly appears that Mr. Madison, who is styled the father of the Constitution, did not consider that the Federative nature and character of the previously existing Union between the States was essentially changed in any particular by the new Constitution, framed with the view of perfecting that Union.
* Mr. Madison, Federalist, No. 44, p. 324, Dawson's Edition.
"The change," says he, "consists much less in the addition of new powers to the Union than in the invigoration of its original powers!" Words of what import are these, coming from the source they did? And how true we shall find them to be upon examining closely the analysis of the various provisions of the two instruments, the Articles of Confederation and the Constitution which we have made? What are the new powers delegated in the Constitution?
These, upon examining the analysis in each case and comparing them, will be found to be
1st. The power to raise revenue by duties upon imposts and taxes directly upon the people without resort to requisitions upon the States.
2d. The power to make the rules for aliens to be admitted to citizenship in the several States, uniform in all the States, and like uniform rules regulating bankruptcy
3d. The power to promote the progress of science and useful arts by securing, for limited times, to authors and inventors, the exclusive right to their writings and discoveries.
4th. The power to regulate commerce with Foreign Nations, among the several States, and with the Indian Tribes.
This, Mr. Madison puts amongst the new powers. Though, in fact, it was but an enlargement of a previously existing power in the Congress. By the Articles of the Confederation, the Congress had power to regulate trade with the Indian Tribes. This power in the Constitution was only enlarged by extending it to Foreign Nations and among the several States as well as the Indian Tribes. It is in principle not a new power, but an old one, extended and enlarged.
Besides these four there is hardly a new power delegated in the new Constitution of sufficient importance to need special notice.
The Covenants between the States, imposing restraints and assuming obligations, run almost in the same language throughout both instruments.
Amongst the new restraints the most important are
1st. That no State shall emit bills of credit or make any thing but gold and silver a legal tender in the payment of debts; pass any bill of attainder; or ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.
2d. No State shall, without the consent of Congress, lay any imposts or duty upon imports, exports, etc. The prohibitions against any of the States forming alliances, etc., making war, etc., are nearly the same in both.
One striking feature in the new Constitution is that the States under it have entire control over their militia.
The Congress, under the Constitution, has no power over them, except to provide by law for organizing, arming, disciplining them; and for calling them out for specific purposes and governing them when in the service of the United States. But the States have retained to themselves severally the power of training and officering and sending them forth upon any call made for them.
By the Articles of Confederation the Congress had the appointment of all the officers of the militia when in service, from the regimental officers up. By the Constitution the power is reserved to the States to appoint all the officers of the militia, whether in service or not, from the lowest to the highest.
Great stress, by many, has been put upon the Judicial Department in the new system. This, however, is no new feature. Under the Articles of Confederation there was a Judiciary provided. It is enlarged in the new Constitution, that is all. There is no change in principle in this particular.
Of all the new obligations assumed by the States, the most important, and one without which, it was universally admitted, the Constitution could not be formed, is that which provides for the rendition of fugitives from service from one State to another. We shall have much to say of this hereafter. It was, however, only an enlargement of the principle in the Articles of Confederation on which fugitives from justice were to be delivered up. And Mr. Madison truly said, after his enumeration, that all the other more considerable powers under the Constitution were vested in the Congress under the Articles of Confederation. If the States then, under the Confederation, retained their Sovereignty severally, why do they not under this Constitution?
Did their people, by adopting this Constitution, understand that, thereby, they were surrendering the separate Sovereignty of the States? That, for which the war of the Revolution had been fought, and for the maintenance of which the Confederation had been formed? Did they understand that, thereafter, there were to be no more States United by a Compact of Union between them, but that all the people of the whole land, by the ratification of this Constitution, were to be merged into one body politic, into one Community, one Nation under a social Compact? Does the Constitution, on its face, taken altogether or in any part, admit any such construction? Does not the clause next to the last, which provides for future changes or amendments in it, utterly refute and negative forever every such idea or supposition; or rather every such gross heresy?
In this it is expressly stipulated, that upon A11 future changes, or amendments, the States, as States, shall act, and that it shall require the concurrence of three fourths of all the States, in their State organization, and by their State Governments, to make any alteration or amendment. It is especially stipulated, that no amendment shall ever be made, which shall deprive the States of their equal suffrage in the Senate! Does not this clearly show where ultimate Sovereign power rests under this system? That is, that it remains with the States severally, now, just as it did under the Confederation.
Can this clause of the Constitution admit of any other version or reading without the grossest violation of the plainest import of language? Was not that the understanding of it by its authors and framers? If not, what mockery is there in the last of the mutual Covenants in our classification? That is in these words:
"The United States shall guarantee to every State in this Union a Republican form of Government, and shall protect each of them against invasion, and on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence."
Is not this the language of Confederation? The language of Compact? The language of Alliance between Sovereign States? Alliance for mutual safety and protection against foes without, as well as foes within? Do not all the States United, under this Compact, by this clause, guarantee its own Institutions to each State in the Alliance thus formed? Not that the clause confers any power on the States jointly to interfere in any manner or form, or in any contingency, in changing, modelling, moulding, or shaping the Institutions of any State according to their joint will or pleasure! No more palpable, or gross a perversion of the meaning of words could be made, than such a construction as that. But does it not clearly set forth a solemn obligation on the part of her Confederates to maintain, sustain and secure, by their joint authority and means, to each State, such Republican Institutions as each State, for itself, in its own Sovereign will, may adopt?
My dear Sirs, what is a State? Did not the framers of this instrument understand the meaning of the words they used? Is it not a body-politic a Community organized with all the functions and powers of Government within itself?
Vattel says: "Nations, or States, are bodies-politic. Societies of men, united together for the purpose of their mutual safety and advantage by the efforts of their combined strength. Such society has her affairs and her interests; she deliberates and takes resolutions in common, thus becoming a moral person, who possesses an understanding and a will peculiar to herself and is susceptible of obligations and rights."*
* Preliminaries to Treatise on the Laws of Nations, p. 49.
Were not the States for which this Constitution was framed, and by which it was adopted as a bond of Union, such bodies politic? Such "several Sovereign and independent States," as, according to the same author previously quoted, "may unite themselves together by a perpetual Confederacy, without ceasing to be, each, a perfect State," and without any impairment, as he says, of "the Sovereignty of each?"
Ante, p. 169.
Were they not just such States as, Montesquieu says, may form "a Confederate Republic," in which cast "the Confederacy may be dissolved, and the Confederates preserve their Sovereignty?" Were they not such States as, Cicero says, ought to possess within themselves principles of indestructibility? "A State," says he,* "should "be so constituted as to live forever! For a Commonwealth there is no natural dissolution, as there is for a man to whom death not only becomes necessary, but often desirable." When "a State," however, "is put an end to, it is destroyed, extinguished," annihilated!
* Cicero on the Commonwealth.
There is nothing, says this profound philosopher, in another place, "in which human virtue can more closely resemble the Divine Powers, than in establishing new States, or in preserving those already established!"
Were States ever more Providentially, yea, Divinely, established, than these had been? Under their whole superstructure, in their Declaration of Independence, lie the great truths, announced by political bodies for the first time in the history of the world, of the capacity and right of man to self-government. That all Governments "derive their just powers from the consent of the governed," and that, "whenever any Government be. comes destructive of the ends" for which it is established, "it is the right of the people to alter or abolish it, and to institute a new Government, laying its foundation on such principles, and organizing its powers in such forms, as to them may seem most likely to effect their safety and happiness." This is asserted to be the inalienable right of all Peoples and all States! On these immutable principles, the Governments of these States had been established, separately, and severally. Were States ever established that so well deserved to live forever?
Was there ever a grander exhibition of this highest of all bare human virtues, according to Cicero, than was presented by the Patriot Fathers of 1787, in forming this Constitution? Was not their main, chief, and leading object throughout, and the object of the Union under it, to preserve, and to perpetuate, as far as possible by human agency, these separate and several States so established? Is not this apparent from the whole work? Is it not apparent from the face of the instrument, from its Alpha to its Omega? In other words, is not the Constitution, upon its face, as made, without looking into the subsequent amendments, Federal in its every feature, from beginning to end?
What say you?
PROF. NORTON. I will postpone what I have to say until you get through.
MR. STEPHENS. Well, then, the next step with me, after this examination of the Constitution itself, will be to look into the action of the several States upon it, and see whether they considered it as uniting and consolidating the whole people of the country, over which it was to extend, into one Nation, or whether they considered it, as Washington did, a consolidation of the Union of States, joined together by it, into one Great Confederated Republic.
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