A Review of the Proclamation of President Jackson/IX
Norfolk, January 19, 1833.
If the author of this Proclamation had asserted, that the several States, by the Federal Constitution, had parted with much of their power, jurisdiction and authority, he would have asserted a fact, that no one ever has or probably ever will deny; because, it is a truth obvious to all who read that Instrument. The only question is, do the powers thereby transferred comprehend Sovereignty? If they do, then the government of the United States, the assignee of these powers, is a Sovereign. But if they do not that government is not a Sovereign: and as this Constitution does not profess to transfer any power, jurisdiction or authority, to any other, than to the government which it creates, the former possessors must still retain their Sovereignty, this Constitution, non obstante.
This results from the very nature of this Constitution, that all admit to be a grant of enumerated powers; and which, therefore, cannot convey what it does not enumerate. Even what lawyers would call implied powers, that is to say, such as are not granted in terms, but are necessary to give effect to others which are so granted, strictly speaking do not exist under this Constitution, because, all such powers are given expressly by the seventeenth paragraph of the eighth section of its first article; and of course are not implied powers. Nothing could better illustrate the excessive jealousy that dictated the instrument, than this simple fact: or prove more conclusively, that the sovereignty, which the Proclamation in this part of it, concedes, to have formerly abided in the States, could not pass to the government of the United States under this Constitution. Because, Sovereignty is novvheie therein granted in terms; and it cannot be believed, that when powers actually "necessary and proper for carrying into execution" other powers granted expressly, are not left to necessary implication, but are made the subjects of a positive grant, that sovereignty, the greatest of all human powers, would be left to mere inference, and to inference too from the grant of a few only of its many incidents, and these not necessary to its existence. The shadow may follow the substance by which it is caused, but that substance can never follow its own shadow, except when hurried on by the crazed brain of a madman.
But this is not all. Notwithstanding it was conceded on all hands, that the Federal Constitution was but a grant of enumerated powers, and of course would convey only what it enumerated, yet such was the jealousy felt by the States, that while adopting it, a number of the different conventions by whom it was ratified, to guard against the possible misconstruction and abuse of the powers therein granted, proposed various amendments to it. In consequence of this, the very first Congress which assembled under this Constitution, at its very first session, acting under the authority given to them by the fifth article, proposed these amendments to the Legislatures of the several States, by whom ten of them were ratified, in the mode pointed out in this article. These amendments thereupon became "valid to all intents and purposes, as parts of this Constitution." Two of them, the Ninth and the Tenth, are in the following words: Ninth—The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the People.
Tenth—The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.
Many reflections are suggested by these amendments, which have such direct bearing upon the matter I am now examining, that I will briefly state them. The first is, that although these amendments appear to be the joint work of Congress and of the State Legislatures only, yet in truth and in feet, they proceed from the People of the several States. They were suggested by many of the Conventions of the People who adopted the Constitution, and in consequence of these suggestions, were proposed by the first Congress, to the Legislatures of the several States, merely to satisfy the forms of the Constitution, and to give effect to the declared will of many of the States, in the most simple and expeditions mode possible.
Again, these amendments are not donations, but reservations; exceptions out of a grant already made, the power of which grant, if not accompanied by such exceptions, it was apprehended, might, by some possibility, influence the subjects reserved. The only effect, then, which such reservations can have, is to preserve to the former possessors, the things reserved, and in their former plight. Moreover, these reservations are exceptions out of a grant of political powers: for the object of this Constitution, is to transfer such powers only. But if so, the reservations must refer to political powers also: for it would be very absurd, to save and reserve any thing from the action of other powers, in a grant that regards political powers alone. The reservations thus made by the States, in a grant of political power only, are exceptions out of such a grant, made by them to a corporate body created by each State and its co-States, which body is styled in the grant itself "the United States."
Even this is not all. In these two amendments, a marked distinction is drawn between Rights and Powers. The former are reserved to "the People" only; the latter "to the States respectively, or to the People." The reason of this is plain; in this country the People have two characters. In the first, they are regarded as mere individuals and subjects enjoying very many private rights: some of which, as men, they derive from their Creator, and as citizens they derive others from the very nature of the society of which they claim to be members. In the second character, they are regarded as the sovereigns of these subjects. In this character they constitute a body corporate and politic, all those rights (if they may be called such) are corporate rights: and therefore, are nothing else than corporate powers, which, when appertaining to any body, that is not only a body corporate, but a body politic too, at once become political powers. The People as individuals, have no political power, although they have many sacred natural and civil rights. The people as a body politic, or commonwealth, have no natural rights, although they have vast political power which they acquire either by their own force, or by their own consent. Right is eternal; it is an emanation of Him whose Will is Right. Political power is of human creation; it may be right or not, according to the source from and the means by which it is acquired. If such power is seized by the strong hand of brute force, it is confessedly, power merely. IF it is acquired by consent, although it is acquired of right, it is not right itself; because, the withdrawal of that consent, would make even such power cease to be right; and right being eternal, can no more cease to be, than He whose will it is. I speak not now of faith and truth, or of the obligations which they impose. I will refer to these hereafter. My present purpose is, merely, to shew the distinction between rights and political powers, which, although like sovereignty and governments, sometimes co-existing, and frequently confounded, are nevertheless separable and distinct; and in these very amendments are plainly set in contra-distinction of each other. Applying these several remarks to these amendments any one may see at once, the object and supposed necessity of the first.
The People of the several States, as mere individuals, enjoyed many rights, none of which had the States, who adopted this Constitution, any thoughts of subjecting, to the control of the political powers granted to the government they had thereby created. But as some of these rights had been specially enumerated in various parts of this instrument, and then saved expressly from the action of the powers thereby granted; and as the expression of one thing, is often regarded as the exclusion of all others not expressed, therefore, to guard against such effects to the People, in this case, the ninth amendment provides, that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the People." Among the rights retained by the People, are the right to bear arms; the right peaceably to assemble and consult together; the right to petition for a redress of their grievances, whether real or imaginary only; and though last, not least, the right to instruct their own Representatives, whose duty it is to observe such instructions, notwithstanding the author of this Proclamation says, that they are not accountable to their particular constituents, for any act done by them, although done in their mere Representative character.
Nor is the object, and supposed necessity of the second amendment, less apparent, than of the first. Besides the right which the People enjoyed as individuals, the same people associated and bound together as members of different great bodies corporate and politic, enjoyed in that character, many political powers, of which they had as little thought of depriving themselves respectively, by their several ratifications of this Constitution, in this their corporate character, as they had of surrendering all their private rights, to the unbridled action of the other political powers thereby created and assigned to the new government.
But as the enumeration of some private rights, might possibly be considered as disparaging others not enumerated, so the enumeration of some political powers, might possibly be considered as disparaging others not enumerated, especially as some of the enumerated Political powers were of vast extent, such as the power of declaring war, of making Treaties, and over all, the necessary and proper means for carrying into execution these granted powers. Hence the Tenth Amendment provides, that "The Powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People."
Here let me remark, that the idea of this Amendment is obviously borrowed from the second of the old Articles of Confederation, (to which I have formerly referred) the form of the expression being somewhat varied, in order to make it more appropriate to the new government of the United States. The Articles of Confederation were adopted by the different Legislatures of the several States, who by this league parted with none of the political powers, which they had previously possessed ; therefore, their reservation was made to enure to their authors only, the States. The new Constitution however, was ratified by the People themselves acting by their delegates assembled in Conventions called for that special purpose ; and by its provisions, it transferred many of the powers that the State government had formerly enjoyed exclusively.—Hence a different form of expression was necessary; and in that which I have quoted, words of such broad signification are employed as are sufficient to cover all political power, then existing ungranted to the United States, whether abiding with the State governments, or with the People of the several States in their high corporate character.
There existed strong necessity, too, for the employment of the very words used in this reservation, supposing its object to have been like that of the second article of the old Confederation, to except out of the grant all powers not conveyed by it, and this in favor of the respective possessors of such powers. Whoever will take the trouble to read the Constitution of the United States with attention, will find that it uses the term state in many different senses. Sometimes it is used to signify the territory, as when the Constitution says, "The citizens of each State, shall be entitled to all privileges and immunities of citizens in the several States." Sometimes it is used to denote the governments existing in such territory, as when it says, "No State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts." Sometimes it means, the People of the Territory assembled by their representatives, not for the general purposes of government, but for some different, and special purpose only; as when it declares, that "The ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same." And lastly, it is used to denote the unassembled People of any territory called a State, in their high corporate sovereign character, which they choose to assume when they agree to form,—conventions, to make or to alter government, or to do any other act, surpassing the legitimate powers of ordinary human institutions. In this last sense it is used in the Constitution, whenever that Instrument speaks of "The United States," meaning thereby the confederation of these distinct masses, who have mutually pledged their faith to each other, that they will severally uphold and support this Constitution, by all their means, moral and physical.
The term States being used in the Constitution itself in these various senses, it was not only proper, but necessary also, that the reservation should be co-extensive with the grant, and should employ its own words. But lest some doubts might arise as to the precise meaning of these, the amendment adds others still more comprehensive in signification, and of more general use.
In this respect at least the amendments differ from the Proclamation. They deal in no ambiguities or double entendres. They exhaust enumeration, and when they have done so, they comprehend any and every possible residuum, by general words. All the powers not delegated to the United States, by the Constitution, or prohibited by it to the States, are reserved to the States respectively or to the People. They could not define sovereignty, for none can do so. It comprehends not only all political power, that ever has been granted, but all that ever can be granted. I certainly mean no irreverence, when speaking of human sovereignty I say it is the one " I am," which in this sublime annunciation of its own existence, assumes to itself every possible political power, and every possible political attribute, which belongs to human omnipotence, whether the same has been called into action or not. Vain would be all reservations, if the grant conveyed any power like this, since it would authorize the grantee, to annul the reservation, the moment it was adopted. No man, it is believed, can suppose that the Constitution ever designed to transfer any such authority as this, to the government it creates, which therefore, cannot be a sovereign. Nor can the "Nation" whose existence is imagined in the Proclamation, claim any thing under this grant: for it is neither made to, or by this Nation; and if it had been, provided the name of this Nation is the "United States," it is from their grasp, the last Amendment expressly declares the ungranted powers to be reserved.
Then tell me ye casuists of any school, if you can, what is there to which this reservation of political power can apply, but sovereignty, including as that necessarily does, freedom and independence? Tell me, likewise, if you can, in whose favor this reservation exists, if not in favor of the People of the several States in their high character of a body corporate and politic, who possessed this sovereignty, when this Constitution was adopted by them in that character? You cannot say, that it applies to any enumerated right; for all these are reserved by the preceding Amendment.—You cannot say, that it applies to any other political power ungranted by this Constitution, and which had been previously granted to the State governments: for all such, if not prohibited to these governments by this Constitution, and so cancelled and annulled, are the subjects of the former part of this reservation itself. And if you say, that it applies to the political powers neither granted to the Federal or State governments, you describe sovereignty itself, the living source of all political power, from whence it all emanates, and with which, when ungranted, it always abides.—Then, if sovereignty and sovereignty only, is the subject of this reservation, in whose favor does the reservation act? It cannot act in favor of the Federal government: for it is reserved out of the very grant of powers made to it. It cannot act in favor of the United States as a supposed nation or body politic; for its very words declare it to be made as an exception out of any powers delegated "to the United States." The State governments never had it, and therefore it could not be reserved to them. It must then abide with its former possessors the States or Commonwealths themselves, unless it is in nubibus; and once put their Sovereignty in abeyance, and States are no more.
I have now, I trust, defended successfully the Sovereignty of the States, against all the attacks made upon it by the author of this Proclamation, whether his approaches were made in secret mines or in open trenches.
I have proved, at least I think I have, that the States were independent in tact, before they declared themselves so in their declaration of Independence, which instrument was intended for others, and not for themselves.
That the necessities of the country after their Independence was declared, which had induced their previous association and union, invited, nay compelled the adoption of a general government of very limited powers, which was established by the Articles of Confederation, by which Articles the States expressly retained their Sovereignty.
That the defects of this Government, (which were probably ascribable to other causes than its own inherent vice,) afterwards induced the adoption of the present Constitution of the United States, which so far from creating a government with the powers of Sovereignty, recognized in various ways, the pre-existing and continuing sovereignty of the several States, its sole creators and sole preservers.—I have repelled with honest, though perhaps indiscreet indignation, the attempt made to tamper with the faith and truth of the State and its citizens, in the rash assertion that their allegiance was transferred to another. I have denied the doctrine that Representatives were not bound by the instructions of their constituents, and that every government must be Sovereign, which possesses the power to punish Treason. By all these means, and by others, I have sought to establish the continuous freedom and independence of these States, who therefore, although bound by a holy bond of Union, which none ought to violate, are nevertheless Sovereigns.
What may be the effects of this Sovereignty, in regard to the Constitution of the United States, I will next examine. But here let me warn my readers, that if any still believe, that they owe no allegiance to their State, that their Representatives are not accountable to them, that every government which possesses the power to punish Treason is a Sovereign, or that by these or any other means the several sovereign States have become "a single Nation," they will but waste time in perusing what I may hereafter write, since it will all proceed upon the assumption of the negative of all these propositions.