Part I

Equality and Sovereignty of the States

       In forming the Constitution of the United States, from whose ratification our "more perfect union" resulted, did the States surrender their equality and sovereignty and transfer to a central government the powers and rights which in all previous history had been so carefully maintained? This is the crucial question determining the right of the Southern States in 1860 and 1861 to secede from the Union and to establish for their own defense and welfare a new federal union. Obviously this question should be approached and considered and decided, not by prejudice, or passion or sectionalism, or interest, or expediency, or wishes of men; but by the Constitution, in its proper meaning as to rights and powers delegated and rights and powers reserved. Whether secession was wise or unwise, expedient or inexpedient, approved or disapproved by a majority of the States, or of the inhabitants, has no relevancy, nothing whatever to do with this discussion. The naked matter is one of right. Was there a supremacy in Congress, or in any other department of the government of the Union, or did the States assert and retain their sovereignty, as against the world?
       The States were not created by the government of the Union, but antedated and created that organism. Our systems of government are singularly complex and hence unintelligible to many foreigners. There are two divisions of power--that between the people and their governments, and that between the State governments and the government of the Union. The system is compounded of the separate governments of the several States and the one common government of all the members of the Union, called the government of the United States. Each was formed by written constitutions: those of the several States by the people of each acting separately and in their sovereign character, and that of the United States by the same, acting in the same character. but jointly and in concert instead of separately. Both governments derive their power from the same source and were ordained and established by the same authority. These governments are co-ordinate and there is a subordination of both to the people of the respective states. Limited rights are delegated by the people to their governments, or trustees, and all the residue of the attributes of sovereignty are retained. The division of the powers into such as are delegated specifically to the common and joint government of all the States, to be exercised for the benefit and safety of each and all; and the reservation of all to the States respectively, to be exercised through the separate governments, is what makes ours a system of governments. Taking all the parts together, the people of forty-four independent and sovereign States, confederated by a solemn constitutional compact into one great federal community, with a system of government, in all of which powers are separated into the great primary divisions of the constitution-making and the law-making powers; those of the latter class being divided between the common and joint government of all the States, and the separate and local governments of each State respectively; and finally the powers of both distributed among three separate and independent departments --legislative, executive and judicial--present, in the whole, a political system as remarkable for its grandeur as it is for its novelty and refinement of organization. (Calhoun's Works, 112, 113, 199.) Under the English form of government, this division with limitations is unknown and parliament is supreme. Madison, in the Federalist, says: "The Federal and State governments are, in fact, but different agents and trustees of the people, instituted with different powers and designed for different purposes." Hamilton says: "In the compound republics of America, the power surrendered by the people is first divided between two distinct governments, and the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other at the same time that each will be controlled by itself."
       The Union is not the primary social or political relation of those who formed it. The State governments were already organized and were adequate to all the purposes of their municipal concerns. The Federal government was established only for such purposes as the State governments and the confederation could not sufficiently answer, namely, the common purpose of all the States. The people of the States, not as a unit, not in the aggregate, but separately, hold in themselves all governmental power. One portion they granted to the State governments; another to the government of the Union, and the residue they retained undelegated in themselves. The grants were in trust for their benefit, and created the division of political power between the Federal and the State governments, which division constitutes the gist and sum total of the controversy between the government at Washington and the seceding States. During and soon after a war waged for eight years to resist a claim to legislate for them locally and internally, inferred from parliamentary supremacy, the colonies or states constructed two unions and established in both a division of power bearing a strong similitude to that upon which they were willing to have continued their union with England; namely: yielding to her the regulation of war, peace, and commerce, and retaining for themselves local and internal legislation. The first union "retains" to the States the sovereignty and rights not delegated to the United States: the second "reserves" to the States the powers not delegated to the United States. The first confers upon Congress almost all the powers of importance bestowed by the second, except that of regulating commerce, the second only extends the means for executing the same powers by be-stowing on Congress a limited power of taxation; but these means were by neither intended to supersede nor defeat those ends retained or reserved by both. By the first, unlimited requisitions to meet "the charges of war and all other expenses for the common defense and general welfare" were to be made by Congress upon the States. By the second, Congress is empowered to lay taxes, under certain restrictions, to "provide for the common defense and general welfare." A sovereign or absolute right to dispose of these requisitions or taxes without any restriction is not given to Congress by either. The general terms used in both are almost literally the same and. therefore, they must have been used in both under the same impression of their import and effect. (Taylor's Construction Construed, 55.)
       An obiter dictum of Justice Miller, of the Supreme court, gives point to the value of restrictions and of enforcing them. "To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes is none the less a robbery because it is done under the favor of the law."

This Page last updated 02/10/02