§ 367. The other branch of the proposition, we have been considering, is, that it is not only a compact between the several states, and the people thereof, but also a compact between the states and the federal government; and e converso between the federal government, and the several states, and every citizen of the United States. This seems to be a doctrine far more involved, and extraordinary, and incomprehensible, than any part of the preceding. The difficulties have not escaped the observation of those, by whom it has been advanced. "Although (says the learned commentator) the federal government can, in no possible view, be considered as a party to a compact made anterior to its existence; yet, as the creature of that compact, it must be bound by it to its creators, the several states in the Union, and the citizens thereof."2 If by this, no more were meant than to state, that the federal government cannot lawfully exercise any powers, except those conferred on it by the constitution, its truth could not admit of dispute. But it is plain, that something more was in the author's mind. At the same time, that he admits, that the federal government could not be a party to the compact of the constitution "in any possible view," he still seems to insist upon it, as a compact, by which the federal government is bound to the several states, and to every citizen; that is, that it has entered into a contract with them for the due execution of its duties. The ordinance of 1787, for the government of the Western territory, contains (as we have seen) certain articles declared to be "articles of compact;" but they are also declared to "remain for ever unalterable, except by common consent." So, that there may be a compact, and yet by the stipulations neither party may be at liberty to withdraw from it, or absolve itself from its obligations. Ante, p. 269. 1 1 Tucker's Black. Comm. 109, 170. 21 Tucker's Black. Comm. 170. § 368. And a doctrine of a like nature, viz. that the federal government is a party to the compact, seems to have been gravely entertained on other solemn occasions.1 The difficulty of maintaining it, however, seems absolutely insuperable. The federal government is the result of the constitution, or (if the phrase is deemed by any person more appropriate) the creature of the compact. How, then, can it be a party to that compact, to which it owes its own existence? How can it be said, that it has entered into a contract, when at the time it had no capacity to contract; and was not even in esse? If any provision was made for the general government's becoming a party, and entering into a compact, after it was brought into existence, where is that provision to be found? It is not to be found in the constitution itself. Are we at liberty to imply such a provision, attaching to no power given in the constitution? This would be to push the doctrine of implication to an extent truly alarming; to draw inferences, not from what is, but from what is not, stated in the instrument. But, if any such implication could exist, when did the general government signify its assent to become such a party? When did the people authorize it to do so? 3 Could the government do so, without the express authority of the people? These are questions, which are more easily asked, than answered. §369. In short, the difficulties attendant upon all the various theories under consideration, which treat the constitution of the United States, as a compact, either between the several states, or between the people 1 Debate in the Senate, in 1830, on Mr. Foot's Resolution, 4 Elliot's Debates, 315 to 331. 2 Webster's Speeches, 429; 4 Elliot's Debates, 324. 3 Dane's App. § 32, p. 41; Id. § 38, p. 46. of the several states, or between the whole people of the United States, and the people of the several states, or between each citizen of all the states, and all other citizens, are, if not absolutely insuperable, so serious, and so wholly founded upon mere implication, that it is matter of surprise, that they should have been so extensively adopted, and so zealously propagated. These theories, too, seem mainly urged with a view to draw conclusions, which are at war with the known powers, and reasonable objects of the constitution; and which, if successful, would reduce the government to a mere confederation. They are objectionable, then, in every way; first, because they are not justified by the language of the constitution; secondly, because they have a tendency to impair, and indeed to destroy, its express powers and objects; and thirdly, because they involve consequences, which, at the will of a single state, may overthrow the constitution itself. One of the fundamental rules in the exposition of every instrument is, so to construe its terms, if possible, as not to make them the source of their own destruction, or to make them utterly void, and nugatory. And if this be generally true, with how much more force does the rule apply to a constitution of government, framed for the general good, and designed for perpetuity? Surely, if any implications are to be made beyond its terms, they are implications to preserve, and not to destroy it.1 1 The following strong language is extracted from Instructions given to some Representatives of the state of Virginia by their constituents in 1787, with reference to the confederation: "Government without coercion is a proposition at once so absurd and self contradictory, that the idea creates a confusion of the understanding. It is form without substance; at best a body without a soul. If men would act right, governments of all kinds would be useless. If states or nations, who are but assemblages of men, would do right, there would be no wars or disorders in the universe. § 370. The cardinal conclusion, for which this doctrine of a compact has been, with so much ingenuity and ability, forced into the language of the constitution, (for the language no where alludes to it,) is avowedly to establish, that in construing the constitution, there is no common umpire; but that each state, nay each department of the government of each state, is the supreme judge for itself, of the powers, and rights, and duties, arising under that instrument.1 Thus, it has been solemnly asserted on more than one occasion, by some of the state legislatures, that there is no common arbiter, or tribunal, authorized to decide in the last resort, upon the powers and the interpretation of the constitution. And the doctrine has been recently revived with extraordinary zeal, and vindicated with uncommon vigour. A majority of the states, however, have never as Bad as individuals are, states are worse. Clothe men with public authority, and almost universally they consider themselves, as liberated from the obligations of moral rectitude, because they are no longer amenable to justice." 1 Amer. Mus. 290. 1 Madison's Virginia Report, January, 1800, p. 6, 7, 8, 9; Webster's Speeches, 407 to 409, 410, 411, 419 to 421. 2 The legislature of Virginia, in 1829, resolved, that there is no common arbiter to construe the constitution of the United States; the constitution being a federative compact between sovereign states, each state has a right to construe the compact for itself." Georgia and South-Carolina have recently maintained the same doctrine; and it has been asserted in the senate of the United States, with an uncommon display of eloquence and pertinacity.* It is not a little remarkable, that in 1810, the legislature of Virginia thought very differently, and then deemed the supreme court a fit and impartial tribunal. Pennsylvania at the same time, though she did not deny the court to be, under the constitution, the appropriate tribunal, was desirous of substituting some other arbiter.‡ The recent resolutions of her own legislature (in March, 1831) show, that she now approves of the supreme court, as the true and common ar * 9 Dane'a Abridg. ch. 187, art. 20, $ 13, p. 589, 4x. 591; Dane's App. 52 to 59, 67 to 72; 3 American Annual Register, Local Hist. 131. † North American Review, October, 1830, p. 509, 512; 6 Wheat. R. 358. North American Review, id, 507, 508. sented to this doctrine; and it has been, at different times, resisted by the legislatures of several of the states, in the most formal declarations.1 § 371. But if it were admitted, that the constitution is a compact, the conclusion, that there is no common arbiter, would neither be a necessary, nor natural conclusion from that fact standing alone. To decide upon the point, it would still behove us to examine the very terms of the constitution, and the delegation of powers under it. It would be perfectly competent even for confederated states to agree upon, and delegate authority to construe the compact to a common arbiter. people of the United States had an unquestionable right to confide this power to the government of the United States, or to any department thereof, if they chose so The biter. One of the expositions of the doctrine is, that if a single state denies a power to exist under the constitution, that power is to be deemed defunct, unless three-fourths of the states shall afterwards reinstate that power by an amendment to the constitution.* What, then, is to be done, where ten states resolve, that a power exists, and one, that it does not exist? See Mr. Vice-President Calhoun's Letter of 28th August, 1832, to Gov. Hamilton. 1 Massachusetts openly opposed it in the resolutions of her legislature of the 12th of February, 1799, and declared, "that the decision of all cases in law and equity arising under the constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people, in the judicial courts of the United States." Six other states, at that time, seem to have come to the same result. And on other occasions, a larger number have concurred on the same point.§ Similar resolutions have been passed by the legislatures of Delaware and Connecticut in 1831, and by some other states. How is it possible, for a moment, to reconcile the notion, that each state is the supreme judge for itself of the construction of the constitution, with the very first resolution of the convention, which formed the constitution: "Resolved, &c. that a national government ought to be established, consisting of a supreme, legislative, judiciary, and executive?" || * 4 Elliot's Debates, 320, 321 † Dane's App. 58. North American Review, October, 1830, p. 500. Journal. of Convention, ^3; 4 Elliot's Deb. 49. |