§ 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 prison more appropriate) the creature of the compact. How, then, can it be a party to that compact, to which it owes its own existence?[2] 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 peoplePage:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol I).djvu/379
CH. III.]
NATURE OF THE CONSTITUTION.
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