States Must Decide. Sectionalism Produced Disunion.
The Federal government, as the representative and embodiment of the delegated powers, has no disposition, and, within itself or in its organization, no provisions to prevent the delegated from encroaching on the powers reserved to the several States. This government, neither through the President, the Congress nor the courts, having the right to determine finally whether the compact has been dangerously violated, or has failed to subserve the purpose of its formation, it follows irresistibly that where the forms of the Constitution prove ineffectual against dangers to the equality and essential rights of the States, the parties to it, these States have the sole right to interfere for arresting the progress of the evil and for maintaining within their respective limits the rights and liberties appertaining to them. The interposition of a State in its sovereign character, as a party to the constitutional compact, was the only means furnished by the system to resist encroachments and prevent entire absorption of the powers which were purposely withheld from the general government. Madison said: "Where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. The States, then, being parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide, in the last resort, whether the compact made by them be violated, and consequently that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition." An assemblage of citizens of Boston in Faneuil Hall, in 1809, state, in a celebrated memorial, that they looked only to the state legislatures, who were competent to devise relief against the unconstitutional acts of the general government. "That your power is adequate to that object is evident from the organization of the confederacy." How the States were to exercise this high power of interposition, which constitutes so essential a portion of their reserved rights that it cannot be delegated without an entire surrender of their sovereignty and converting our system from a federal into a consolidated government, is a question that the States only are competent to determine. The reservation of powers is "the States respectively," that is, to each State separately and distinctly. The Constitution contains no provision whatsoever for the exercise of the rights reserved nor any stipulation respecting it. It does not seem reasonable to look to the government of the United States, in which the delegated powers are vested, for the means of resisting encroachments on the reserved powers. That would be to expect power to tie its own hands, to relinquish its own claims, or to look for protection against danger to the quarter from which only it could possibly come. (1 Calhoun, 237.) Every sovereignty is the judge alone of its own compacts and agreements. Each State must have the right to interpret the agreement for itself unless it has clearly waived that right in favor of another power. That it has not been waived has been placed beyond refutation, for otherwise the powers of the government at Washington are universal and the enumerations and reservation are idle mockeries. And so a written constitution, however carefully guarded the grant and limitations, is no barrier against the usurpations of governments and no security for the rights and liberties of the people. Restrictions are contemptuously disregarded, or undermined by the gradual process of usurpation, until the instrument is of no more force, nor any more respected than an act of Congress. Constitutional scruples are hooted at, and suggested bar-tiers of want of authority are ridiculed as abstractions or the theories of political doctrinaires. The Federal judiciary, the Congress, the Executive, the Constitution, the Union, are but emanations of the sovereignty of the States, and the States are not bound by their wishes, necessities, action, except as they have agreed to be bound, and this agreement was made, not with the Union, the Federal government, their agent and creature, but with one another. "Vicious legislation must be remedied by the people who suffer from the effects of it and not by those who enjoy its benefits." (Bryan.)
They made their compact as sovereign States, and as such they alone are to determine the nature and extent of that agreement and how far they were to be bound. Each State was grantor and grantee receiving precisely what it had granted. The Federal government was in no sense a party to the Constitution; it has no original powers and can exert only what the States surrendered to it, and these States, from the very nature and structure of the common government, are alone competent to decide, in the last resort, what powers they intended to confer upon their agent. The States were not so stupid as to confer upon their creature, the Union, the power to obliterate them, or reduce them to the relation of dependence which counties sustain to the State. This high, supreme, ultimate power of our whole system resides in its fullness in the people of the several States, the only people known to us as performing political functions. The general government is not superior to the States, and has no existence nor autonomy, outside, irrespective of, contrary to, the States. The Union could not exist a day if all of the States were to withdraw their cooperation. The President, the Senate and Representatives, with all their powers, are conditioned upon the action of the States. Hamilton, in Federalist, No. LIX. said: "It is certainly true that the State legislatures, by forbearing the appointment of senators, may destroy the national government." The Federal government, the Union, as a corporate body politic, does not claim its life, nor a single power, from the people apart from State organizations. In truth and in fact, there is not, nor ever has been, such a political entity as the people of the United States in the aggregate, separated from, independent of, the voluntary or covenanted action of the States. That anything is constitutional or admissible, simply because the judiciary or the Executive or the Congress, or the moral convictions of citizens approve, or the country will be benefited by it, is a modern invention and has no basis in our constitutional federal republic. To put it in the least objectionable form, the States, in their undelegated powers, are as important, as supreme, as the general government, and the theory of State subjugation, of provincial dependencies, is a pure afterthought to justify arbitrary and ungranted authority. It is indisputable that by far the greater part of the topics of legislation, the whole vast range of rights of person and property--where the administration of law and justice comes closest home to the daily life of the people--are exclusively or chiefly within the power of the States. The number of topics of legislation which lie outside the pale of national legislation greatly exceeds the number to which the power of State legislation does not extend. (Federalist, No. 14; Mich. Lect., 244; I Calhoun, 197, 204, 214-15.) If the Union be indissoluble, with equal or greater propriety we may affirm that the States are equal and indestructible.
When the adoption of the Constitution was under discussion before the State conventions, with an uncertain result, its enemies were alarmed en account of the magnitude of powers conferred on the general government and its friends were fearful because of alleged feebleness in comparison with extent of reserved powers; but neither party contended that an' increase or diminution of power could constitutionally be made by implication and inference so as to equip the central government with all the means it derived in the warfare with antagonists. The authors of The Federalist--the essays written to secure the acceptance of the Constitution--insisted that the apprehended inequality did not exist, and that should it be developed, the States would be able to control. Hamilton wrote: "The general government can have no temptation to absorb the local authorities left with the States. * * * It is, therefore, improbable that there should exist a disposition in the Federal councils to usurp the powers with which commerce, finance, negotiation and war are connected. Should wantonness, lust of domination, beget such a disposition, the sense of the people of the several States would control the indulgence of so extravagant an appetite." This redundant exposition of the doctrine that there can be no tribunal above the authority of the States and that in them reside the ultimate decision, has been made because there is such a painful misunderstanding of the relation the Federal government sustains to the States, and of the comparative authority, power and value of the Union and of the States.
The forebodings of those who dreaded an undue enlargement of the powers of the central government--the increase of centripetal tendencies to the weakening of the centrifugal---have been more than realized. Instead of a rivalry between the general government and the States, between the delegated and the reserved powers, the antagonism has proved unreal and fallacious, and the strong trend has been and is to centralization, justifying the prediction of Jefferson that "when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venial and oppressive as the government from which we separated." By an irresistible tendency the stronger has absorbed the weaker and is concentrating in itself unlimited and uncontrollable power. This usurpation has been carried so far that nothing short of an absolute negative on the part of the States can protect against the encroachments of a growingly centralized government. For a few years and naturally, States were superior in dignity, and two citizens of South Carolina declined positions on the Supreme court, one the chief-justiceship. The enlargement of territory, the multiplication of States, the glory resulting from successful wars, the enormous prosperity caused by vaned climate and products, free interstate commerce, religious liberty, the stimulus of free institutions, extensive landed proprietorship, the immense Federal and subsidizing expenditures, government partnership in business, the building up of favored classes and interests by protective tariffs and bounties and discriminating fiscal policy, the vast number of Federal offices constituting executive patronage and conferred not as a trust for the public good, but as spoils of office and rewards for partisans, a huge pension system, destroying local patriotism of recipients and corrupting states--have magnified the government at Washington and given from exuberance of strength a resistless impulse, adverse to its federal and favorable to a consolidated character. This revolutionary change has been attended by the grossest inequality, because a majority has centered in one section, giving it absolute control on all questions which coincide with its views and interests. As the government has been centralized, nationalized, lost its original character as a constitutional federal republic, its power has grown by what it has fed upon and its patronage has become more tempting and wide spread. Proportionate with power and patronage, and increasing with their increase, will be the desire to possess the control over them, for the purpose of individual or sectional aggrandizement; and the stronger this desire, the less will be the regard for principles and the Constitution, and the greater the tendency, accompanied by increase of ability, to unite for sectional domination. (I Calhoun, 241, 371.) The tariff system, framed in the interests and at the dictation of classes and persons that contribute liberally in elections; the taxation practically of agricultural exports, grown preponderantly in one section; the partial, inequitable appropriations for rivers, harbors, public buildings, the concentration of the financial operations of the government in one quarter of the Union; the theories of the latitudinous interpretation of the Constitution which dominated parties and dictated political and legislative action at the North, investing Congress with the right to determine what objects belong to the general welfare; have been most potential in enriching one section to the prejudice of the other and in enlarging the power, prestige and influence of the Union. The power of Congress to levy duties on imports for specific purposes has been enlarged into an unlimited authority to protect domestic manufactures against foreign competition. The effect of this has been "to impose the main burden of taxation upon the Southern people, who were consumers and not manufacturers, not only by the enhanced price of imports, but indirectly by the consequent depreciation of the value of exports, which were chiefly the products of the Southern States." The increase of price was not always paid into the public treasury, but accrued somewhat to the benefit of the manufacturer. What revenues went into the treasury were disbursed most unequally, and the sectional discrimination, enriching one portion to the injury and inequality of the other, tended to direct immigration to the North and to increase the functions and influence of the Federal government. The majority, doing the injustice, claim to be the sole judges of the rightness of their action and whether or not the power is lodged in their hands. The minority have no rights which the majority are bound to respect, or if they have, there are no means of asserting and vindicating them. The majority, which are sectional, possess the government, measure its powers and wield them without responsibility. Enriched by their own acts, becoming proud, insolent, greedy of power and gain, inflamed by cupidity, avarice, monopoly, they arrogate and usurp; and, with each succeeding day, what was very questionable becomes by force of unresisted precedent a principle, and self-conceit transmutes exercise of power into piety, and the judgment of parties and the interest of classes into a higher law, into the will of God. We find in England and other countries an aristocracy, the classes in the enjoyment of pensions, tithes, monopolies, vested rights, exclusive privileges until, with blunted sensibilities and beclouded intellects, they delude themselves into acquiescence in, and support of, such inequalities and wrongs. So in the United States, under powers granted in the Constitution, such as levying duties and taxes, regulating commerce, war, appropriating money, disposing of territory and other property, admitting new States, the government during the Confederate war in. corporated banks, made fiat money or promises to pay a legal tender, constructed roads, granted bounties and monopolies, gave away the property of the people, prescribed State constitutions, emancipated slaves, fixed terms and conditions of suffrage, dictated manner of appointing and electing senators, assumed control over railways and industries and absorbed and exercised a sovereign power over interstate commerce, capital, labor, currency and property. We have seen an alliance between Congress and eleemosynarians, senators taking care of their private affairs in revenue bills, and manufacturers before sub-committees of ways and means and of finance dictating the subjects to be taxed and the amount of duties to be levied.
One wonders how these revolutions and iniquities have been accomplished. Governor Morris wrote to Timothy Pickering that "the legislative lion will not be entangled in the meshes of a logical net. The legislature will always make the power which it wishes to exercise." One of the ablest expounders of the Constitution deplores "the science of verbality," the artifice of so verbalizing as to assail and destroy the plainest provisions. The instrumentality of inference has sapped and mined our political system. Acuteness of misinterpretation and construction has accomplished what the framers of the Constitution exerted all their faculties, by specifications and restrictions, to prevent, so that constructive powers have been as seed-bearing of mischief and usurpation as the doctrine of constructive treason. Alexander Hamilton believed honestly that nothing short of monarchical institutions would prove adequate to the wants of the country, and in the convention of 1787 he sought to conform the new government, while in process of construction, to the model of the British, which he regarded as the best ever devised by the wit of man. He had not a single supporter, and afterward, ably and effectively, with marked patriotism, he threw his pen and voice in favor of ratification. But this he did avowedly as a temporary bond of union and as the only avenue of escape from anarchy. Appointed to assist in carrying the government into effect and sincerely believing that with no other powers than those he so well knew it was intended to authorize, it must prove a failure, and the government must go to pieces, he decided unhesitatingly to do under it whatever he, in good faith, might think would promote the general welfare, without reference to the intention of the authors of the Constitution. The discussions to show that his principal measures were authorized by the instrument, were in deference to the prejudices and ideas of the people--nothing more. The principle of construction he espoused was to make good all laws which Congress might deem conducive to the general welfare, and which were not expressly prohibited, a power similar to that contained in the plan he proposed in the convention. He desired, in short, to make the Constitution a tablet of wax upon which each successive administration would be at liberty to impress its rescripts to be promulgated as constitutional edicts. (Van Buren's Pol. Parties in U.S., 211, 213.) Hamilton laid the foundation of his policy so deep and with so much skill that it has been impossible to reverse especially under conditions so favorable to centralization. He invoked in support of his measures the selfishness, the cupidity, the ambition of classes, and sought to make the strength of the government depend, as in England, on the interested support of an intelligent and combined few. An impulse in accordance with his theory was impressed, and has since been constantly strengthened. It is not uncommon to hear the Constitution ridiculed as an abstraction, or an effete formula. The government has grievously departed from its federal character, and reserved powers are so far removed from possible application in case of controversy, that State rights, when seriously mentioned, provoke contempt or ridicule. In 1824 Jefferson wrote to Van Buren: "General Washington was himself sincerely a friend to the republican principles of our Constitution. His faith might not, perhaps, have been as confident as mine, but he repeatedly declared to me that he was determined' it should have a fair chance of success, and that he would lose the last drop of his blood in its support against any attempt which might be made to change it from its republican form."
This Page last updated 02/10/02
RETURN TO LEGAL JUSTIFICATION OF THE SOUTH IN SECESSION PAGE
GO TO PART V, WHY THE SOUTH RESISTED FEDERAL ENCROACHMENTS.