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Construction construed, and constitutions vindicated online

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to state territory ; used politically, it refers to the inhabitants
of this territory, united by mutual consent into a civil society.
The sovereignly of this association, the all^;iance due to it,
and its right to internal government, are all positively asserted.
The tetius ** state and government" far from being synonimous,
are used to convey different ideas ; and the latter is never
recognised as possessing any species of sovereignty.

It next behooves us to consider whether tiie term *« states"
has changed its meaning, by bdng transplanted from its ori^-
nal nursery, into the constitution of the United States ; and is
there used to designate all the inhabitants of the United States,
as constituting one great state ; or whether it is recognised iii
the same sense in which it had been previously used by most or
all of the state constitutions.

The plural " states" rejects the idea, that the peqile of all
the states considered themselves as one state. The word *» uni-
ted" is an averment of pre-existing social compacts, called
states ; and these consisted of the people of each separate state.
It admits the existence of political societies able to contract
with each other, and v^o had previously c(mtracted. And the



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words " more perfect union" far from knpljing that the idd
parties to the old union were superseded by new parties, eTi*
dently mean, that these same old parties were about to amend
theinold union*

But the parties, though recognised ^ being the same, were
not strictly so. The authority of the people of each state is
resorted to in the last union, in preference to that of the go*
vernment of each state, by which the old confederation was
formed. This circumstance by no means wei^ens the force of
the last observation, because tiie recognition of existing politi*
cal parties able to contract, remains the same. The states, in .
^eferrii^g to the old union, only admit themselves to have been
bound by their governments, as they possessed the ri^t of
making treaties. But as the state governments were the par-
ties to the first confederation, and as such, had a mutual right
to destroy that treaty, this danger su^sts another reason for
tiie style and principles of the new union. Among its improve-
mei^ts, that by which it is chiefly made " more perfect," was
the substitution of the authority of ** the people of the United
States" for that of the governments of the United States ; not
with an intention of excluding from.the new union the idea of
a compact between the states, but of placing that compact
upon better ground, than that upon which it previously rested^

The term " union" has never been applied to describe a
government, established by the consent of individuals; nor do
any of our state constitutions use it in that sense. They
speak indeed of individuals '* uniting" to form a government*
not to form a union ; and I do not recollect that a single com-
pact between individuals for the. establishment of a govern*
ment, has ever been called a union ; though a multitude of
cases exist, in which that mme has been given to agreements
between independent states. If therefore this term comprised
the whole evidence, to prove that our union was the act of dis-
tinct bodies politick, composc^d of the people within different
geographical boundaries, and not of a number of people* en-
circled by one line, without any such discrimination, it would
be sufficient.

But the constitution itself furnishes the plainest correspond*
ent evidence, in its ori^, establishment and terms. The
members of the convention which formed it, were chosen by



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44

states^ and voted by states^ without anj regard to the BHmber
of people in each state. It was adopted bj thirteen vote^
without respecting the same principle. Now what was repre-
sented by these voters ; the territory of each state, or the
people of each state ? The terras " United States'' must refer
to one or the other. If to the former, then the territories of
each state entered into a compact " to form a more perfect
" union, establish justice, insure domestick tranquillity, provide
•* for the common defence, promote the general welfare, and
** secure the blessings of liberty t(^ ourselves and our posterity.^
The posterity of territories. If to the latter, it was ihe peo-
ple of each state, who by compact in their political capacity,
by giving one vote each, formed the union.

The concords with this opinion present tiiemselves at every
step, throughout the compact.

The house of representatives are to be chosen by the people
of the several states, not by the people comprised within the
^territories of all. The right of choice is confined to the
electors of the most numerous branch of the state legislatures.
Thus the right of sufl&*age is placed upon different grounds in
different states. Had the constitution of the United States
been the act of all the people inhabiting the territory of the
United States, this right would have been made uniform ; but
being the act of the people of each state, in their existing
political capacity, the right of suffrage of course remained as
it had been settled by each in forming its society.

Each state may elect these representatives by a general
ticket, as some have done ; and however they may have dis-
bicted themselves by their own act for their own reasons, the
recognizance of state individuality by the constitution is as
strong, as if they had not done so. The modes of choosing
both the president and senate, cmncide also with the opinion,
that the constitution considered the union as the act of bodies
politick called states ; and not as the act of a consolidated
nature ; and it seems to have settled its own construction, by
providing in the case of no election of a president by electors,
that he shall be chosen by the house of representatives, •* the
votes to be taken by states, the representaticm from each state
having one vote.^^



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45

As the great politicsd departments of the federal govem-
ment, legislative and executive^ emanated from the societies
called states, so thej are made dependant upon them, in the
mode prescribed for amending the constitution of the union;
because the authors had the right of altering their own work.
Had this constitution originated from, or been made by the
people inhabiting the territories of the whole union, its amende
ment would hare remained to them, as the amendment of the
state constitutions belongs to the people t)f a state* But as
Such a body of associated people, did not exist, the amendment
of the union is left in the hands of the existing bodies politick,
to which, as its /authors, it obviously belonged. No majority
in congress can either calt a convention, or amend the consti-
tution ; but the legislatures of two-thirds of the states may
compel congress to call one, and those of three-fourths, may
amend it. Thus a supremacy of the states, not only over con-
gress, but over the whole constitution, is twice acknowledged ;
fo-st, by their power over the legislative and executive depart-
ments instituted for executing the union ; and seccmdly, by their
power over the onion itself. I cannot conceive that tlie con-
stitution could have contained any thing more hostile to the
doctrine " that the sovereignty or supremacy over the govem-
** ment of the union, rested in the people of the United States,
"not in their political, but natural capacity." It clearly dis-
closes an opinion, that ]diere were no such people, politically
speaking; nor can I discern a vestige of the people inhabiting
ike territories of the United States, having ever formed them-
selves, or attempted to form themselves, into any political so-
ciety or civil government. By this new doctrine, however, the
checks provided to controul the powers of the government of
tiie union are ingeniously evaded. It asserts, that the govern-
ment of the union is responsible to the sovereignty of the peo-
ple residing throughout the uni<m, and not to the sovereignty of
the people residing in each state. Now as an effective sovereign^
ty of the people can only result from their having constituted
themselves into a civil society, and the first people having never
done so, an acknowledgment of a sovereignty which does not
exist, only annuls tiiat which does ; and escapes altogether from
any species of loyalty to this superior authority. It brings us
back to the old ground of a tacit compact between governments



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46

and sidi^ects. The peo^^ of each state inyested fkeir gorern*
ments with limited powers, l^ey have also establkhed a
gOTerament of the union with powers infinitely more limited*
than those originally bestowed on the state governments* But
if a tacit social compact between this last government, and the
peq)le individually of all the states, should be admitted, all
these specifications would be abolished ; because^ as it is un-
written, the government of the union might construe it as was
most convenient to itself, as all governments haye done, whioh
have condescended to acknowledge implied obligations only*
The only diSerence between the Europeans and ourselves
would be, that though some of tiieir govei*nments hardly allow
of this silent social compact, none acknowledge the sovereign*
ij of the people; whereas here this sovereignty would be
denied, where it (^ratively exists, and acknowledged, where
it does not exist at all ; so that we should still possess over the
government of the union, all the advantages generally reaped
from '* we are,gentlemen4 your most obedient servants," whilst
the story of Saturn would be gradually reversed.

The eleventh amendment prohibits a constrTietion by which
the rights retained by the people shall be denied or diaparaged^
and the twelfth " reserves to the states respectively or to the
peopk the powers not delegated to the United States, nor pro-
hibited to the states.^^ The precision of these expressions is
haj^ily contrived to defeat a construction, by which the origin
of the union, or the sovereignty of the states, could be rendered
at all doubtful. " Powers are reserved to the peopleJ^, « The
people," says Johnson, ar& ** those who compose a comnm«
nity." In, a political instrument, the term eo^dusively possess-
es a collective, inclusive, and social sense, and is never used
to describe a number of men in a state of nature. A people
is a collective being. No people or community has ever been
composed in the United States, except by the inhabitants of
each state, associating distinctly from every other state, by their
own separate consent Thus a people in each state was con*
stituted, and these separate communities confederated, first by
the instrumentality of their separate governments, and se-
condly by the separate authority of the people composing each
state. Common consent is necessary to constitute a people, and
no such consent, expressly or impliedly, can be shevm, by which



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47

all the inhabitaotft of the United States Imitb ever constitated
themselves into one pe<^le* This could not have been eflfected
without destroying every people constituted within each state,
as one priitical bdng called a peo^e cannot exist within anp*
then

The rights of a people are indivisible ; and if a great people
be compounded of several smaller nations, as it inherently
possesses the right of self-government, it must absorb the
same right of self-government in its component parts ; just as
the rights of individuals are absorbed by the communities inta
which they constitute themselves. Therefore had a pe<^le been
Constituted, by melting down the little nations into one great
nation, those littie nations must have lost the right of self-
government, because they would no longer have been a people.
As it was never imagined, that the individuals inhabiting all
the stetes had constituted themselves into one people, so there
has never appeared from this imaginary body politick, the least
attempt towards claiming or exercising the r^t of self-go*
vemment; nor is the government of the union subjected to its
controul or modification. Not a single one of the United States
would have consented to have dissolved its people, to have re-
united them into <me great people, and to have received state
governments or unrestricted legislation from this great people*
so ignorant of local circumstances, and so different in local
habits. This reasoning would I think have been suflScient to
ascertain the people by whom the constitution was made, had
it' contained no internal evidence of the sense in which it
uses that term. But if tiie phrase " we the people of tiie-
United Btates'' refers to the people of each state,' the argument
is superfluous, and the decision of the constitution itself, deci-
sive.

The powers reserve<l are those "not delegated by the consti-
tution." They could only be reserved by those who possessed
them. They were not powers possessed by a consolidated
people of all the states, but by a distinct people of each state ;
and as those who reserved were those who deleted, it follows,
either tiiat the reservation was to a consolidated people of all the
States, or tiiat the delegation of powers flowed from the people
of the separate states. Perhaps the interpolation of -a grantor
and reserver of powers into the constitution, who had nothing



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48

either to grant or to reserve, may have arisen from an erroneous
construction of the word " or." If the remark just made is cor«
rect, consistency decides its true meaning. "Are Reserved to
the states respectively or to the people." This word is use4
either to <?ouple synonymes, or to denote opposition. The words
*< stateib and people" had the same, and also a different mean^
ing: The same, as an associated people constituted a stated
and a different meaning, from the right of self-^vernment at-
tached to mankind. But another construction seems to me to
be the true one. " Or" is used merely to conjoin two wwds
considered as completely synonymous ; and the latter is intr^
duced as an expletive of the former, lest it should be interpreted
to mean " governments." The word " states" had been so
often used in the constitution, that it was necessary to fix its
meaning; and this amendment was intended to remove the sus-
picion of a tendency in the constitution towards consolidation,
with which it had been charged previously to its adoption; by
defining " states and people" as words synonymously used,
effectually to defeat the pretence, that the term " people" meant
the people of all the states, instead of the people, "respectively^^
of each state. A construction which supposes that all the
inhabitants of all the states, and not the people of each state*
were meant, would produce consequences which never could
have been contemplated. The reservation would have been in
favour of two incongruous objects, and therefore both could not
reap its benefits. Being in the disjunctive, it might have been
fulfilled by acknowledging the right of either, although the odier
should get nothing. By selecting the inhaUtants of all the states
in one mass, as the assignee of the reserved powers, the govern-
ment of the union might extend their own powers; since there
could be no loss, in conceding powers to those who could nei-
ther receive, exercise, nor preserve them.

In one other view, highly gratifying, these two amendments
correspond with the construction I contend for. Several pre-
vious amendments had stipulated for personal or individual
rights, as the government of the union was invested with a li-
mited power of acting upon persons; these stipulate for political
conventional rights. But different modes are pursued. By
the first, certain specified aggressions are forbidden; by the se-
cond, all the rights and power^not delegated are reserved* The



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49

fliiM: mode is imperfect, as the specific iigg^moBS may be
avoided, and yet oppresi»on might be practised in other forma.
By ihe seecmd, specification is transferred to the government
of the union; and the states, instead of being the grantees ci
limited rights, whibh might have been an acknowledgment of
subordination, are the grantors of limited powers ; and retain
a sufu'emacy which might otherwise have been tacitly conceded^
as ha3 been often done by the acceptance of franchises from
monarchs or other sovereigns. Thu^ the powers reserved am
imly exposed to specified deductions, whilst those delegated
are liouted, with an injunction that the enumeraticm of certiuii
ri^ts shidl not be construed to dispan^e those retained though
not specified, by not having been parted with* . The states, iur
stead of rec^ving, bestowed powers $ and in confirmation of
their authority, reserved every right they had not conceded,
whether it is particularly enumerated, or tacitly retained*
Among the former, are certain modes by which they can amend
the constitution ; among the latter, is the original right by which
they created it.

When we have discovered who made a treaty, we have also
discovered where the right of construction resides. Mr. Jef-
ierson, Mr. Pinkney, Mr. Marshall, aa^d Mr. Gerry, in their ne-
gotiations with revolutionary France, have furnished us with an
ndmirable treatise, both to fix the residence of the right, and to
display the wantonness of construction, assumed without right
Presidents Washington and Adams, all the successive members
of the cabinet and congress itself, concurred in the principles
^advance^ by these gentlemen. They prove, that an exclusive
right of construction in one party, is a degradation of the other
to a «tate of infmority and dependance* Their arguments
might be applied with great force in many views to our subject
If the states made the union, they demonstrate, that the same
consent, necessary to create, is necessary to construe. Where-
ever the creating consent resided, there we are directed to look
for the construing consent. It would be a much grosser violati(m
of their principles, for no party to a treaty to usurp an exclusive
right of construii^ it, than for one party to do so. As neither
the executive, legislative nor judicial departments of the state or
federal governments have ever consented to the union, no one
of these dcf artmei^tscan h^ve an exclusive right of construing



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OerigbtkflMtuL And if tkcy are aO to be <
fte c<»-onl]Bate dqnrtmeBts or cresteret ef 'Uttpcaple ef 1
United States,'^ tbej derive a ■mtaai rigM ^ laaiUattiu^
IfOB Oe BntBal rig|it potaewed bj the states wludi tbej repre-
mat Sappase ear legblative and jadidal dcfsitinti had fix-
ed tbnrowa r^ts bjr a treatj between theaiselTes. iatiie wvrda
af the general or state coostitBtkms; woald not eack have paa-
aesaed an aosabsenrient rigbt of constivctioa ? If this right
woald be aiataal in the case sapposed, what hinders it inm be-
ing also nuitoal, if these d^iartments are created bjr an anth»*
ntj saperior to both, and invested with distinct and linuted
agencies. Bach tnistea is snbf ect to the soperriaian of hia em*
^ojer, and neither liaUe to a asarpatiaa af anotiier, an j mare
than sereral co-ordinate ambassadors, woald be to a claim of
one to prescribe the duties of the rest, and regalate their con*
sciences. It is easiest for an exdosiTe power of constractioi^
where the Unuts of respectire territories are hardest to ddue^
to make conquests which will destroy balances, and break
down restrictions; and therefore its interdictioa in such ca s e s
is more necessary, than in others.

I conclnde ^is section with a quotation from the Federalist
^ The assent and ratification of the pe<^le, not as indiriduab
** composing one entire nation, but as composing the distinct
^ and independent states io which the j belongs are the sources
** of the c^postitution. It is therefore not a national, but a fede-
** ral compact.''(a)

{a) Fed. 906. M. The qaotalions frooT the Fedenlirt are takee from tke
edilioo of 1817, whidi detignates the writer of eaeh emy ; and I liaTe added
Oie leoert M. or U. to inform tlie reader irhidi are eited from Mr. Madison,
and whieh from Mr. Uamfltoo.



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SECTION B.

DIVISION AND LIMITATION OF POWER-



In this and the following seetion, I shall endearour^to esta*
bEsh principles vitallj isiportant to our system of gorernn^erit,
and however the mibject maj be handled, particularly worthy
of the publick consideration.

Human societies were originally constituted with a view to
the interest of one or a few, and governments were consequent*
ly founded in the simple principle of subord ination* They were
splendid statues, the people were pedest^s, and a succession of
convulsions, occasioned by a gas too sublimated or too heavy,
instantly overturned, only to set them up again. Monarchy,
aristocracy, and democracy succeeded each other ; but all being
founded in the principle of subordination to unlimited power, it
ran like the blood of the Stuarts throu^ tlie whde family, and
made each individual a scourge to mankind. As knowledge
advanced, philosophers sought for alleviations of a condition so
unhappy ; and having only seen those three forms of govern-
ment, called them natural principles, and expected a remedy
lor the defects of each, from a mixture of all. It was seen and
admitted, that the formation of a government, after the model
of an army, by a series of suborduiation from a king to a con-
stable, from a general to a corporal, made tyrants and slaves;
and checks and balances were contrived to prevent both conse-
quences, by poizing the three supposed natural principles against
each other, fraught with co-ordinate, distinct ^nd independent
powers. Thus the principle of a necessary series of subordina-
tion was exploded ; but as the discovery was new, and as the
dogma "that monarchy, aristocracy, and democracy comprise4
all the ingredients of government" was still believed ; it was
imperfectly cultivated. Hence absolute sovereignty continued
to be assigned to mixed governments, and absolute subordina-
tion to the people. This first effort of political improvement



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was however recommended bj a considerable portion of prac-
tical success. The checks, collisions and balances* though im-^
perfectly contrived, produced effects, which exalted and invi-
gorated several nations, above those which had neglected similar
political modifications* But still the error of retaining absolute
power in the government, and inflicting absolute subnussion on
the people, caused no small degree of oppression, which excited
mankind to search for a better remedy. Locke and others at
length discovered, that sovereignty in governments and passive
obedience in nations, far from being natural or neeessM*y prin-^
ciples for civil societies, were arbitrary and pernicious notioiiOy
capable of being supplanted by opinions more natural ; and Aat
civil government, constructed upon different principles, tmA
subjected to responsibility and control, might be made more
productive of national happiness. But the natural right of
self-government, and the consequent rights at dividing and
limiting power, might have dept forever in theory, except for
the American revolution ; which seems to have been des^ned
bj Providence for the great purpose of demonstrating its prac«>
tlcabifity and effects. We seem to have been propelled by ne^
cessity and commanded by fate, to stride beyond the princij^et
of absolute sovereignty in a government, and absolute subordi-
nation in the people ; and beyond'the ineffectual project of mix-^
ing monarchy, aristocracy, and democracy together ; quite up to
the sound political doctrines of limitation, restriction, and divi-
sion of power. Far from allowing sovereignty to governments.
Or confiding our rights to a balance between arbitrary and arti-
ficial political principles, we were obliged to feel and to act
upon the genuine and natural principle of self-government; to
extract from it the obvious truths " that sovereignty resided in
the people, and that magistrates were consequently their trus-
tees," and to vindicate these rights by creating co-ordinate and
collateral political departments invested with limited powers ;
instead of that absolute power, so highly pernicious in the hands
of any one of the three ancient principles, and so far from being
made harmless by their mixture. Thus we constituted a vride



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 5 of 34)