§ 23. Proposition supported by eminent jurists.-This broad proposition may sound paradoxical, especially when it is accompanied by the statement that we are a constitutionally governed country; it is founded, however, upon opinions and decisions expressed by the ablest jurists and authorities upon constitutional law and construction which this country has ever produced, and who have been able to extend their vision beyond the bounds of a mere league of confederated semi-sovereignties, or states banded together for the selfish protection of individual interests, to the more expansive view of a great nation, exercising through a Central Government national functions, not only for internal protection and development, but far beyond the original limits, for the benefit of mankind and civilization.

Those who have recently had the temerity to affirm, for example, as a legal proposition, that our government has in any way exceeded, or is exceeding, its powers either in acquiring or in governing, our new possessions, would do well to examine the opinions and decisions of the Supreme Court, as they have been declared by Chief Justice Marshall and Justices Story, Curtis, Field, Bradley, Harlan and Gray1 and other former and present members of that great tribunal, as well as the utterances of such statesmen as Caleb Cushing, Daniel Webster, Charles Sumner, William H. Seward and others noted no less for their prudence and conservatism than for their legal ability and political acumen; after weighing the expressed opinions of those eminent jurists and masters of political science, they may materially modify their own opinions; their doubts may be dispelled, and they may recognize that there has been no excess of power exerted in the recent actions, of the Government, so far as treaty-making is concerned ; in every instance of territorial acquisition and the subsequent government of the acquired territory, the National Government has exercised powers which are only compati

Opinions of Attorneys General, vol. VIII, 411, p. 415. § 23.

1 For references to utterances of these jurists consult index at end of volume.

2 For decisions of the court and the questions involved in the suits pending before the Supreme Court see §§ 61a-61h, post; see also § 101, chapter III, post.

ble with the inherent possession of complete sovereignty, and wholly incompatible with the delegated possession of incomplete sovereignty, and the Supreme Court has uniformly sustained the action of the Government whenever it has been based upon treaty stipulations, not only as to the treaty itself, but also as to the legislation subsequently enacted in pursuance thereof.

§ 24. National Unity expressed in preamble of Constitution. This idea of national unity is also expressed in the preamble of the Constitution, which enumerates amongst the actuating motives for its adoption, provision for the common defence, promotion of the general welfare and security of the blessings of liberty for the people of the United States, referring unquestionably to the people at large in their National capacity. It must also be remembered that one of the greatest discussions in the Federal Convention was on the question whether the Constitution should be submitted for ratification to the various State legislatures, or to the people themselves, and that the latter course was adopted after an able dissertation upon the subject by Mr. Madison, the details of which are referred to at greater length in the subsequent chapter of this volume which is devoted to the proceedings of the Constitutional Convention of 1787.1

25. Ratification of Amendments by States result of delegation by People.-The reason why amendments to the Constitution can now be ratified by the legislative bodies of the States, and not necessarily by the people either directly, or through conventions specially called for the purpose, is not because the States, as such, inherently possess any power or sovereignty to amend the Constitution of the Union, but because the people themselves, by a provision in the Constitution, clothed the state legislatures with the power of ratifying amendments whenever they were proposed by a two thirds vote of both houses of Congress, provided the legislatures of three fourths of the States accepted them; the people thus constitute the legislatures of the several States their agents, subject to the prescribed limitations for the purpose of ratifying such Amendments.1

$ 24.

1 See § 195 chapter VI post.

$ 25.

1"The Congress, whenever two

§ 26. Supremacy of General Government as to objects within its domain. "The general government," said Chief Justice Marshall, "though limited as to its objects is supreme with respect to those objects, and this principle is a part of the Constitution."1 He also asserted that no rule of narrow

thirds of both Houses shall deem | invested with large portions of that it necessary, shall propose Amend- sovereignty which belongs to inments to this Constitution, or, on dependent States. Under the inthe Application of the Legislatures fluence of this opinion, and thus of two thirds of the several States, instructed by experience, the shall call a Convention for propos- | American people, in the convening Amendments, which, in either tions of their respective States, Case, shall be valid to all Intents adopted the present constitution. and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal suffrage in the Senate."

Article V. Constitution of United States. (The first and fourth clauses of the Ninth Section of Article One, relating to the migration and importation of, and taxation on, slaves). $26.

"If it could be doubted, whether from its nature, it were not supreme in all cases where it is empowered to act, that doubt would be removed by the declaration, that this constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby; anything in the constitution or laws of any State to the contrary notwithstanding.'

"This is the authoritative language of the American people; and, if gentlemen please, of the American States. It marks, with lines too strong to be mistaken, the characteristic distinction between the government of the Union, and those of the States. The general government, though limited as to its objects, is supreme with respect to those objects. This principle is a part of the constitution; and if there be any who deny its necessity, none can deny its authority.

1 The American States, as well as the American people, have believed a close and firm Union to be essential to their liberty and to their happiness. They have been taught by experience, that this Union cannot exist without a government for the whole; and they have been taught by the same experience that this government "To this supreme government would be a mere shadow, that must ample powers are confided; and if disappoint all their hopes, unless it were possible to doubt the great

or strict construction would be adopted as to the power of the Central Government; when once the nail was found on which to hang the authority to act, he declared, that the nail is strong enough to hold any weight that could be suspended therefrom.2

The rule of supreme power, as laid down by the eminent Chief Justice, has been expanded rather than contracted by subsequent decisions of the Supreme Court, which has always upheld the sovereignty and nationality of our government.

the constitution or laws of the United States." Cohens vs. Virginia, U. S. Sup. Ct. 1821, 6 Wheaton, 264, p. 380, MARSHALL, Ch. J.

purposes for which they were so | It is authorized to decide all cases confided, the people of the United of every description, arising under States have declared, that they are given in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to themselves and their posterity.'

2 This instrument (the Constitution) contains an enumeration of powers expressly granted by the "With the ample powers con- people to their government. It has fided to this supreme government, been said, that these powers ought for these interesting purposes, are to be construed strictly. But why connected many express and im- ought they to be so construed? Is portant limitations on the sov- there one sentence in the constitu ereignty of the States, which are tion which gives countenance to made for the same purposes. The this rule? In the last of the enupowers of the Union, on the great merated powers, that which grants, subjects of war, peace, and com- expressly, the means for carrying merce, and on many others, are in all others into execution, Congress themselves limitations of the sov- is authorized to make all laws ereignty of the States; but in ad- which shall be necessary and dition to these, the sovereignty of proper' for the purpose. But this the States is surrendered in many limitation on the means which may instances where the surrender can be used, is not extended to the only operate to the benefit of the powers which are conferred, nor is people, and where, perhaps, no there one sentence in the constituother power is conferred on Con- tion, which has been pointed out gress than a conservative power by the gentlemen of the bar, or to maintain the principles estab-which we have been able to discern, lished in the constitution. The that prescribes this rule. We do maintenance of these principles in not, therefore, think ourselves justitheir purity, is certainly among fied in adopting it." Gibbons vs. the great duties of the government. Ogden, U. S. Sup. Court 1824, 9, One of the instruments by which | Wheaton, 1, p. 187, MARSHALL, this duty may be peaceably per- Ch. J.

formed, is the judicial department.

§ 27. Meaning of "The People of the United States.". These words, which occur in the preamble of the Constitution, have been held by Calhoun, Tucker and other upholders of States' rights and the theory of a collection of State units instead of a single national unit, as meaning the people of the different States, and not the people of the United States as an entirety.

On the other hand, those who believe in the nationality of our Government maintain that, although the Constitution was adopted in separate State conventions, the people necessarily adopted such method as the only possible one under which they could act at that time.

The theory of the nationalists is supported by the fact that the State legislatures had no power to accede to a confederation, or to a national government, except by the consent of the people themselves, and that in such respect the action of the people was superior to the State governments.

Chief Justice Marshall, Mr. Justice Story and others have discussed this question in their opinions, and commentaries upon the Constitution, and some of their views are collated in the footnote to this section. Chief Justice Marshall declared in the opinion quoted in the note that the people acted upon the Constitution in the only manner in which they could safely, effectively and wisely act upon such a subject, to wit: by assembling in convention. Continuing he declared that while no political dreamer was ever wild enough to think of breaking down the lines which separated the States, or of compounding the American people into one common mass, the measures which were adopted in the separate State conventions did not on that account cease to be the measures of the people themselves, or become the measures of the State governments. In fact, the Chief Justice said, that the Government of the United States proceeded directly from the people, was ordained and established in the name of the people for the purposes stated in the preamble, and that the assent of the States in their sovereign capacity was implied in calling the conventions and submitting the instrument to the people, but, he declared, “The people were at perfect liberty to accept or reject it; their act was final;" it did not require the affirmance and could not be negatived by the