Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol I).djvu/357

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CH. III.]

NATURE OF THE CONSTITUTION.

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vide for their own safety. Their reasoning was addressed, not to the constitution, but to the functionaries, who were called to administer it. They deemed, that the constitution was immortal, and could not be forfeited; for it was prescribed by and for the benefit of the people. But they deemed, and wisely deemed, that magistracy is a trust, a solemn public trust; and he, who violates his duties, forfeits his own right to office, but cannot forfeit the rights of the people.

§ 349. The subject has been, thus far, considered chiefly in reference to the point, how far government is to be considered as a compact, in the sense of a contract, as contradistinguished from an act of solemn acknowledgment or assent; and how far our state constitutions are to be deemed such contracts, rather than fundamental laws, prescribed by the sovereign power. The conclusion, to which we have arrived, is, that a state constitution is no farther to be deemed a compact, than that it is a matter of consent by the people, binding them to obedience to its requisitions; and that its proper character is that of a fundamental law, prescribed by the will of the majority of the people of the state, (who are entitled to prescribe it,) for the government and regulation of, the whole people.^[1] It binds them, as a supreme , ordained by the sovereign power,

↑ It is in this sense, that Mr. Chief Justice Jay is to be understood in his opinion in Chisholm v. Georgia, (2 Dall. R. 419; S.C. Peters's Cond. R. 635, 668,) when he says, "every state constitution is a compact, made by and between the citizens of the state to govern themselves in a certain manner; and the constitution of the United States is likewise a compact, made by the people of the United States to govern themselves, as to general objects, in a certain manner." The context abundantly shows, that he considered it a fundamental law of government; and that its powers did not rest on mere treaty; but were supreme, and were to be construed by the judicial department; and that the states were bound to obey.

[1] It is in this sense, that Mr. Chief Justice Jay is to be understood in his opinion in Chisholm v. Georgia, (2 Dall. R. 419; S.C. Peters's Cond. R. 635, 668,) when he says, "every state constitution is a compact, made by and between the citizens of the state to govern themselves in a certain manner; and the constitution of the United States is likewise a compact, made by the people of the United States to govern themselves, as to general objects, in a certain manner." The context abundantly shows, that he considered it a fundamental law of government; and that its powers did not rest on mere treaty; but were supreme, and were to be construed by the judicial department; and that the states were bound to obey.

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