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Page 46
It cannot be said, however, that the actors in the history always had
a clear perception of the facts as they took place. In the teeth of the
facts, our early history presents a great variety of assertions of State
independence by leading men, State Legislatures, or State constitutions,
which still form the basis of the argument for State sovereignty. The
State constitutions declared the State to be sovereign and independent,
even though the framers knew that the existence of the State depended
on the issue of the national struggle against the mother country. The
treaty of 1783 with Great Britain recognized the States separately and
by name as "free, sovereign, and independent," even while it established
national boundaries outside of the States, covering a vast western
territory in which no State would have ventured to forfeit its
interest by setting up a claim to practical freedom, sovereignty, or
independence. All our early history is full of such contradictions
between fact and theory. They are largely obscured by the
undiscriminating use of the word "people." As used now, it usually means
the national people; but many apparently national phrases as to the
"sovereignty of the people," as they were used in 1787-9, would seem
far less national if the phraseology could show the feeling of those
who then used them that the "people" referred to was the people of
the State. In that case the number of the contradictions would be
indefinitely increased; and the phraseology of the Constitution's
preamble, "We, the people of the United States," would not be offered
as a consciously nationalizing phrase of its framers. It is hardly to
be doubted, from the current debates, that the conventions of
Massachusetts, New Hampshire, Rhode Island, New York, Virginia, North
Carolina, and South Carolina, seven of the thirteen States, imagined and
assumed that each ratified the Constitution in 1788--90 by authority of
the State's people alone, by the State's sovereign will; while the facts
show that in each of these conventions a clear majority was coerced
into ratification by a strong minority in its own State, backed by
the unanimous ratifications of the other States. If ratification or
rejection had really been open to voluntary choice, to sovereign will,
the Constitution would never have had a moment's chance of life; so far
from being ratified by nine States as a condition precedent to going
into effect, it would have been summarily rejected by a majority of the
States. In the language of John Adams, the Constitution was "extorted
from the grinding necessities of a reluctant people." The theory of
State sovereignty was successfully contradicted by national necessities.
The change from the Articles of Confederation to the Constitution,
though it could not help antagonizing State sovereignty, was carefully
managed so as to do so as little as possible. As soon as the plans
by which the Federal party, under Hamilton's leadership, proposed to
develop the national features of the Constitution became evident, the
latent State feeling took fire. Its first symptom was the adoption
of the name Republican by the new opposition party which took form in
1792-3 under Jefferson's leadership. Up to this time the States had been
the only means through which Americans had known any thing of republican
government; they had had no share in the government of the mother
country in colonial times, and no efficient national government to take
part in under the Articles of Confederation. The claim of an exclusive
title to the name of Republican does not seem to have been fundamentally
an implication of monarchical tendencies against the Federalists so much
as an implication that they were hostile to the States, the familiar
exponents of republican government. When the Federalist majority in
Congress forced through, in the war excitement against France in 1798,
the Alien and Sedition laws, which practically empowered the President
to suppress all party criticism of and opposition to the dominant party,
the Legislatures of Kentucky and Virginia, in 1798-9, passed series of
resolutions, prepared by Jefferson and Madison respectively, which for
the first time asserted in plain terms the sovereignty of the
States. The two sets of resolutions agreed in the assertion that the
Constitution was a "compact," and that the States were the "parties"
which had formed it. In these two propositions lies the gist of State
sovereignty, of which all its remotest consequences are only natural
developments. If it were true that the States, of their sovereign will,
had formed such a compact; if it were not true that the adoption of
the Constitution was a mere alteration of the form of a political state
already in existence; it would follow, as the Kentucky resolutions
asserted, that each State had the exclusive right to decide for itself
when the compact had been broken, and the mode and measure of redress.
It followed, also, that, if the existence and force of the Constitution
in a State were due solely to the sovereign will of the State, the
sovereign will of the State was competent, on occasion, to oust the
Constitution from the jurisdiction covered by the State. In brief, the
Union was wholly voluntary in its formation and in its continuance; and
each State reserved the unquestionable right to secede, to abandon the
Union, and assume an independent existence whenever due reason, in
the exclusive judgment of the State, should arise. These latter
consequences, not stated in the Kentucky resolutions, and apparently not
contemplated by the Virginia resolutions, were put into complete form by
Professor Tucker, of the University of Virginia, in 1803, in the notes
to his edition of "Blackstone's Commentaries." Thereafter its statements
of American constitutional law controlled the political training of the
South.
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