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The Nature of the Constitution as a Compact
by Jabez L.M. Curry


       In the convention originated the two great parties which, under different names, have represented and more or less embodied the two theories of the nature and policy of the government the centralizing party and the States Rights party, involving not merely expedients of party policy but the character of the government, the construction of the Constitution and the design and effect of legislative measures. This conflict was prefigured by the ante-natal struggle which occurred between Jacob and Esau in the womb of Rebekah. One party, said Marshall (his statement discolored by his party relations), contemplated America as a nation, and labored incessantly to invest the federal head with powers competent to the preservation of the Union, as in the supremacy of the General Government there was the only hope of escape from anarchy and civil war. The other attached itself to the State Governments, viewed all the powers of Congress with jealousy, held mistrust of the Government to be the corner stone of freedom, and assented reluctantly to measures which would enable the central head to act independently of the members.
       Hamilton and Jefferson represented the two parties and their antagonistic theories. The States, by their accepted Constitution, had created a government of limited powers. Are they to be held strictly to the limitations of that instrument, or are they to have a system of loose construction which will transcend those powers? Hamilton favored a centralized National Government, absorbing all power and granting to the people certain privileges. His plan was that Congress should have power to pass all laws they shall judge necessary to the common defense and general welfare of the Union. Jefferson believed in the capacity of man for self-government in his local affairs, and that only those powers should be conferred upon the Federal Government which were especially granted in a written constitution. His plan was the support of the State Governments in all their rights, and the most competent administrations for our domestic concerns and the surest bulwark against anti-republican tendencies, he pronounced the tenth of the amendments to the Constitution its corner stone.
       A dogmatic political philosophy has twisted and perverted the facts of American history to sustain its definition and doctrines. A body of traditions has gathered around the genesis of the Government, falsifying the veritable records, misconstruing documents, putting false glosses upon words, interpolating sinister motives and purposes, and giving strained and unnatural meanings to simple words. A theory of national development, wholly foreign to stubborn facts, has been advocated by statesmen and historians, and made the basis of judicial dicta and decisions, of executive proclamations and messages, of legislative enactments. This has been done so persistently and continuously, and with such an array of great names, and such a command of the agencies for making and controlling public opinion, that the task of rectifying seems Sisyphian. What, in so far as it exists, has been the process of slow evolution, or "the procession of gradual advance," is asserted to have had a Minerva birth, and to have been of instantaneous creation. The relation of the colonies to the Continental Congress has been misinterpreted or travestied, and false coloring has been given to individual utterances. Colonial action, induced by unselfish patriotism, or by a pressing exigency, has been strained to justify a theory antipodal to the plainest history. These assumptions and fallacies are gravely incorporated into history, and into public documents, to excite prejudice against men and parties and sections, and palliate or warrant what, in the better days of the Republic, would have been scouted even by the school of Alexander Hamilton.
       Where national sovereignty resided, if anywhere, was a vexata quaestio, until it was decided in 1865 by the arbitrament of arms. The Declaration of Independence declared the acting colonies to be, not a nation, or union, but free and independent States. As such they antedated the Constitution and the resulting Union. Each original State, politically organized as a unit, possessed in severalty all the powers of a political sovereignty. The treaty of alliance with France in 1778 was made "between the most Christian King and the United States of North America, to wit, New Hampshire, etc.," enumerating them all by name. Under the Articles of Confederation adopted at Philadelphia, July 9, 1778, the sovereignty and independence of the States was placed in the forefront of the Declaration of Confederacy. The form observed in the treaty with France was repeated in the treaties with the Netherlands in 1782, and with Sweden in 1783. Foreign nations, in treating with the revolutionary government, considered that they treated with distinct sovereignties, through their common agent, and not with a new nation composed of all those sovereign countries fused into one. The provisional articles with Great Britain in 1782 proceeded upon the same idea. She did not make a treaty of peace with the people of the United States, but, by name, Pennsylvania, Connecticut, New Jersey, Georgia, etc. are acknowledged as free, sovereign and independent States and treated with as such. Roger Sherman, of Connecticut in the Convention of 1787, said: "Foreign States have made treaties with us as confederate States, not as a national government." "Surely historical evidence could scarcely be clearer than that which points to the fact recognized, declared, undisputed of the sovereignty and independence of the individual States prior to the adoption of the Constitution." This doctrine of State sovereignty was the creed of a large majority of States and statesmen for more than three fourths of the years of our first century. The question in whom resided the right of ultimate decision on a disputed point of constitutional law, where reposed the primary and paramount allegiance of an American citizen, never had a satisfactory or an accepted solution, until the adoption of the amendments to the Constitution, subsequent to the war between the States. The opposing views, as to the extent of powers conferred upon the General Government and the party to determine in case of conflict, were as open, as public, as well known as the existence of the Government itself. The studied and somewhat successful attempt to represent the Confederate States as having improvised a novel and unheard-of view of the relations of the States to the Federal Government, as the justification of their alleged "rebellion" or "treason," proceeds from blind ignorance of our whole constitutional and political history, or from a bad purpose to get honor and credit by maligning and falsifying the opinions and actions of the subjugated.
       Writers on the Constitution have asserted that "one people," or a nation de facto, formed the Constitution. That ought to be easily determinable from surviving contemporaneous records. On the 6th of August, 1787, the Committee reported the first draft of a Constitution. The preamble recited: "We the people of the States of New Hampshire, Massachusetts, etc., do ordain, declare, and establish the following Constitution." On the succeeding day, this preamble, utterly negativing all idea of consolidation, and preserving carefully the entity and distinct sovereignty of the States, was unanimously adopted. No change was made in this preamble until the 8th of September, when a committee was appointed "to revise the style of," not to change the meaning of, the articles. On the 12th they made their report, using the language now found in the Constitution, "We, the people of the United States." This change in the phraseology seems to have been accepted without comment, and the presumption is irresistible that the Convention regarded the two forms as substantially the same. The omission of the names had a conclusive reason for it, for, unlike the Articles of Confederation, unanimity was not required for the adoption or validity of the Constitution. It was to become obligatory on the States adopting, when nine had ratified; and no human prescience could forecast the action of the States in their free and separate deliberations. As has been stated, Rhode Island was not even represented, and neither she nor North Carolina ratified until after Washington had been inaugurated as President. A form of expression was necessarily devised so as to apply to and cover the States which should become members of the Government. "The people of His Majesty's Colonies," "the people of the united Colonies," "the people of the United States," are modes of expression which frequently occurred, without intending in any wise to deny or surrender the separateness of the several Colonies or States.
       The people of the several Colonies were never a unit in a political sense, neither before nor after the Declaration of Independence. They were never a nation, nor an entire community, contradistinguished from the people of the several States, having, as such, community rights and powers of a political character. The Revolutionary Government, as has been amply shown, was emphatically a Government of the States, through Congress, as their agent, with very limited powers. The phrase of the preamble is the most common reliance of those who claim the nationality and sovereignty of the General Government, and it is confidently quoted as tantamount to the lodging in the hands of the Government all the powers that belong to any other Government qua Government. If the Constitution had been made by "the people" of the United States, "in their collective capacity," a certain portion, prima facie the majority, would have had that right. Did such majority ever act? Can the time or the occasion be specified when power was visibly exercised by others than those personally delegated by the organized political peoples of the several States? Was there any mode prescribed by which the majority might act; or, if acting, by which their will could be, or was, ascertained? It is possible that the Constitution became the fundamental law by the suffrages of a minority, for we know that it was laid before the conventions of several States and by them ratified and adopted, each State acting for itself, without reference to any other State, and that the Government was put into operation, when the necessary number was obtained, without counting the aggregate vote, or waiting to inquire whether a majority of the people had assented. The "people of the United States," in the sense held by the Nationalists, were not the authors of the Constitution, and could not have formed it, since they did not appoint the Convention, nor ratify their act, nor in any way adopt it as obligatory upon them. It was voted for by States in the Convention, submitted to the people of each State separately, and became the Constitution only of the States adopting it. "The people of the United States," as a political organism, never had an existence; in the aggregate, never performed a single political act, never was entrusted with any civil function, never was appealed to for sanction to any proceeding, and never can do what a National Government might do, without an entire radical revolution of our system of constitutional, representative, confederated republics.
       It seems conclusive of controversy to say that the Government of the United States has no inherent powers whatever, none by virtue of the fact that it is a Government. Its powers are all derivative, nominated in the bond, specifically granted, and what is not granted was reserved to the States respectively, or to the people thereof. The General Assembly of Virginia of 1798 says forcibly of another portion of the preamble: "Had the States been despoiled of their sovereignty by the generality of the preamble, had the Federal Government been endowed with whatever they should judge to be instrumental towards justice, tranquillity, common defence, general welfare, and the preservation of liberty, nothing could have been more frivolous than an enumeration of powers." The Constitution is federative in the power which framed it, in the power which adopted and ratified it, in the power which sustains and keeps it alive, in the power by which alone it can be altered or amended, and is federative in the structure of all its departments. In no sense is our Federal Government a democracy, or do the people rule en masse. The doctrine of State co-operation, of concurrent majorities, of restraints upon mere popular will, of checks and balances, runs through and dominates the whole system. The Government of the Union is the creature of the States. It is not a party to the Constitution, but the result of it, as made by the constituent States, and cannot, as originally formed and designed, exist independently of it, or of the States, its creators. The Union, so much lauded and so beneficial and necessary, is not a self-existing thing. It is a consequence, a creation, and whatever authority it can use, whatever allegiance it can claim, grow out of the voluntary and separate acts of the several States. The States are united to the extent of the delegated powers; beyond those the States are not in a union. As forcibly stated by Mr. Justice Nelson, "the General Government, and the States, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. The former in its appropriate sphere is supreme; but the States within the limits of their powers not granted, or, in the language of the Tenth Amendment, 'reserved,' are as independent of the General Government as that Government is within its sphere is independent of the States."
       Outside the granted powers, or what is necessarily implied from the granted, the General Government, the Union, has no more right, power, authority, control, dominion, over Massachusetts or Montana than it has over Austria or Chile. Within the powers reserved, and not prohibited to the States and not delegated to the General Government, Colorado or Connecticut is as free from interference or control by the Government at Washington, or should be under the Constitution, as Turkey or Japan or Brazil. The Federal theory of our Government made the party which has sedulously guarded the States against encroachment or usurpation, and has constructed the Constitution strictly in its grants and limitations. Standing over in antagonism to this is the opposing view as to the extent of the powers conferred upon the Government, a view which makes the Government a creature of national sovereignty, and in its machinery of administration independent of, and superior to, the weal of State governments. This theory makes the National Government the ultimate and sole interpreter of its own powers, with no remedy except revolution against usurpation; for there can be no difference between a government having originally all powers, and one having the right to take what powers it pleases. At one time, in the progress of framing the Constitution, the words, "National Government" were inserted, but after debate, on motion of Mr. Ellsworth of Connecticut, were stricken out unanimously, thus showing that the convention intended the Government to be Federal, not National. Mr. Calhoun, in 1811, used this clear and terse language: "The chief object for which the Constitution was formed was to give the General Government power, security, and respectability abroad. In our relations with foreign countries, where strength of Government and national security were most required, the powers of our Government are undivided. In those exterior relations abroad, this Government is the sole and exclusive representative of the united majority, sovereignty, and power of the States constituting this great and glorious Union. To the rest of the world, we are one. Neither State nor State Government is known beyond our borders.... It is only at home, in their internal relations that they are many." There is no necessary antagonism between the State and Federal systems of Government. Each in its orbit is sovereign. In the exercise of delegated functions, the Federal Government is supreme, and in all else the State is sovereign.
       The Constitution was a compromise between sharply conflicting views. "The compact by which the several States were fused into one united body would never have taken place without the concession which is found enacted into words in the instrument of the Union." Some of the ablest men of the time had ideas very remote from the plan adopted, and looked with distrust and apprehensions of evil upon the Republican idea. Alexander Hamilton, the founder of the consolidation school of politics, although he powerfully contributed, by his essays in the Federalist, to the ratification of the Constitution, expressed frankly his doubts as the success of "the experiment." General Washington, after the war, before the Constitution was framed, confessed that he was puzzled to account for the "monarchical ideas" in New England, when it would have been more natural to expect such ideas at the South. Afterwards, in the early administrations, federalism had almost its entire strength at the North, while republicanism was largely preponderant at the South. Very naturally a party, headed by one who had avowed his opinion that the monarchy of England was the best Government in the world, "the happiest devise of human ingenuity," inclined to a liberal construction of national powers and sought by ingenious and latitudinous interpretation to enlarge the sphere and functions of the Government, to centralize authority and to reduce the States to provincial dependencies. Not being in sympathy with the paper originally, he determined to make it by expansive construction what he had failed to make it in the convention. In an address to the people in 1798, the Virginia House of Delegates complained of the effort of the Federalists in "establishing by successive precedents such a mode of construing the Constitution as will rapidly remove every restraint upon Federal power." The compact and powerful organization of men, known as Federalists, hostile to popular rights and honestly inclined to a strong government, resisted those who held that no power should be conceded to exist unless conveyed in unmistakable terms.
       The sectional feeling, which was such a disturbing or hindering cause in the effort to agree upon a common Government, became mischievous during Washington's administration. This jealousy manifested itself painfully in resisting and defeating the admission of Kentucky into the Union, until Vermont was ready to come in as a counterpoise and balance. The alien and sedition laws, passed by Congress during John Adams's presidency, filled the country with alarm and drew forth expositions of the Constitution which became the text-book of political faith, and were recognized by a great party as late as 1856, as the true interpretation of the character of our Government. The Virginia and Kentucky Resolutions of 1798 and 1799, and Madison's Report thereon, first put into clear and logical form of statement the States-Rights theory of our Federal compact. The action of Kentucky and Virginia illustrates how the people of those States, under the leadership of Jefferson and Madison, rallied to the defence of the Constitution and interposed to prevent legislative and executive usurpations. Virginia explicitly declared "that it views the powers of the Federal Government as resulting from the compact to which the States are parties as limited by that compact, as no farther valid than as they are authorized by the grants enumerated in that compact; and that in a case of deliberate, palpable, and dangerous exercise of other powers not granted by said compact, the States, who are parties thereto, have the right and are in duty bound to interpose for arresting the progress of the evil and for maintaining, within their respective limits, the authority, rights, and liberties appertaining thereto." The address speaks of those "entrusted with the guardianship of the State sovereignty," and says that it was admitted by the early friends of the Constitution, "that the State sovereignties were only diminished by powers specifically enumerated, or necessary to carry the specified powers into effect." The Kentucky Resolutions, drawn by Mr. Jefferson, declare the Constitution to be a compact, and that "if those who administer the General Government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, an annihilation of the State Governments and the creation upon their ruins of a general consolidated Government will be the inevitable consequence"; that the principle and construction contended for by sundry of the State Legislatures that the General Government is the exclusive judge of the extent of the powers delegated to it, "stop nothing short of despotism since the discretion of those who administer the Government and not the Constitution would be the measure of their power; that the several States who formed the instrument, being sovereign and independent, have the unquestionable right to judge of the infraction; and that a nullification by those sovereignties of all unauthorized acts done under color of that instrument is the rightful remedy."
       These utterances by the purest patriots, familiar with the organic law in its origin and intent, prove, if no more, that what has been ascribed, in its origin and proclamation, to the impetuous and rebellious spirit of the South in modern times, was a clearly stated and unanswerably reasoned theory of the greatest statesmen of the better days of the Republic. Henry Cabot Lodge says: "It was probably necessary, at all events Mr. Webster felt it to be so, to argue that the Constitution at the outset was not a compact between the States, but a national instrument, and to distinguish the cases of Virginia and Kentucky in 1799, and of New England in 1814, from that of South Carolina in 1830. . . . . Unfortunately the facts were against him in both instances. When the Constitution was adopted by the votes of States at Philadelphia, and accepted by the votes of States in popular conventions, it is safe to say that there was not a man in the country, from Washington and Hamilton on the one side to George Clinton and George Mason on the other, who regarded the new system as anything but an experiment entered upon by the States, and from which each and every State had the right peaceably to withdraw, a right which was very likely to be exercised."
       Wendell Phillips, in New Bedford, Mass., in 1861, said that the States who think their peculiar institutions require a separate Government, "have the right to decide that question without appealing to you or me." A convention in Ohio in 1859, declared the Constitution a compact to which each State acceded as a State, and is an integral party, and that each State had the right to judge for itself of infractions, and of the mode and measures of redress, and to this declaration Giddings, Wade, Chase, and Denison assented.



This article was extracted from Jabez L.M. Curry, The Southern States of the American Union (Richmond, Virginia: B.F. Johnson Publishing Company, 1895). Click HERE to purchase this title.

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