Mr.Madison's authority on this point is conclusive.They unquestionably regarded the States, prior to the ratification of the constitution they proposed, as severally sovereign, as they were declared to be by the old Articles of Confederation, but they also believed that all individuals are sovereign prior to the formation of civil society.Yet very few, if any, of them believed that they remained sovereign after the adoption of the constitution; and we may attribute to their belief in the conventional origin of all government,--the almost universal belief of the time among political philosophers,--the little account which they made of the historical facts that prove that the people of the United States were always one people, and that the States never existed as severally sovereign states.
The political philosophers of the present day do not generally accept the theory held by our fathers, and it has been shown in these pages to be unsound and incompatible with the essential nature of government.The statesmen of the eighteenth century believed that the state is derived from the people individually, and held that sovereignty is created by the people in convention.
The rights and powers of the state, they held, were made up of the rights held by individuals under the law of nature, and which the individuals surrendered to civil society on its formation.
So they supposed that independent sovereign states might meet in convention, mutually agree to surrender a portion of their rights, organize their surrendered rights into a real government, and leave the convention shorn, at least, of a portion of their sovereignty.This doctrine crops out everywhere in the writings of the elder Adams, and is set forth with rare ability by Mr.Webster, in his great speech in the Senate against the State sovereignty doctrine of General Hayne and Mr.Calhoun, which won for him the honorable title of Expounder of the Constitution--and expound it he, no doubt, did in the sense of its framers.He boldly concedes that prior to the adoption of the constitution, the people of the United States were severally sovereign states, but by the constitution they were made one sovereign political community or people, and that the States, though retaining certain rights, have merged their several sovereignty in the Union.
The subtle mind of Mr.Calhoun, who did not hold that a state can originate in compact, proved to Mr.Webster that his theory could not stand; that, if the States went into the convention sovereign States, they came out of it sovereign States; and that the constitution they formed could from the nature of the case be only a treaty, compact, or agreement between sovereigns.It could create an agency, but not a government.The sovereign States could only delegate the exercise of their sovereign powers, not the sovereign powers themselves.The States could agree to exercise certain specific powers of sovereignty only in common, but the force and vitality of the agreement depended on the States, parties to the agreement retaining respectively their sovereignty.Hence, he maintained that sovereignty, after as before the convention, vested in the States severally.Hence State sovereignty, and hence his doctrine that in all cases that cannot come properly before the Supreme Court of the United States for decision, each State is free to decide for itself, on which he based the right of nullification, or the State veto of acts of Congress whose constitutionality the State denies.
Mr.Calhoun was himself no secessionist, but he laid down the premises from which secession is the logical deduction; and large numbers of young men, among the most open, the most generous, and the most patriotic in the country, adopted his premises, without being aware of this fact any more than he himself was, and who have been behind none in their loyalty to the Union, and in their sacrifices to sustain it, in the late rebellion.
The formidable rebellion which is now happily suppressed, and which attempted to justify itself by the doctrine of State sovereignty, has thrown, in many minds, new light on the subject, and led them to re-examine the historical facts in the case from a different point of view, to see if Mr.Calhoun's theory is not as unfounded as be had proved Mr.Webster's theory to be.The facts in the case really sustain neither, and both failed to see it: Mr.Calhoun because be had purposes to accomplish which demanded State sovereignty, and Mr.Webster because he examined them in the distorting medium of the theory or understanding of the statesmen of the eighteenth century.The civil war has vindicated the Union, and defeated the armed forces of the State sovereignty men; but it has not refuted their doctrine, and as far as it has had any effect, it has strengthened the tendency to consolidation or centralism.
But the philosophy, the theory of government, the understanding of the framers of the constitution, must be considered, if the expression will be allowed, as obiter dicta, and be judged on their merits.What binds is the thing done, not the theory on which it was done, or on which the actors explained their work either to themselves or to others.Their political philosophy, or their political theory, may sometimes affect the phraseology they adopt, but forms no rule for interpreting their work.Their work was inspired by and accords with the historical facts in the case, and is authorized and explained by them.The American people were not made one people by the written constitution, as Mr.Jefferson, Mr.Madison, Mr.Webster, and so many others supposed, but were made so by the unwritten constitution, born with and inherent in them.
