that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.’ An assemblage of citizens of Boston in Faneuil Hall, in 1809, state, in a celebrated memorial, that they looked only to the state legislatures, who were competent to devise relief against the unconstitutional acts of the general government. ‘That your power is adequate to that object is evident from the organization of the confederacy.’ How the States were to exercise this high power of interposition, which constitutes so essential a portion of their reserved rights that it cannot be delegated without an entire surrender of their sovereignty and converting our system from a federal into a consolidated government, is a question that the States only are competent to determine. The reservation of powers is to ‘the States respectively,’ that is, to each State separately and distinctly. The Constitution contains no provision whatsoever for the exercise of the rights reserved nor any stipulation respecting it. It does not seem reasonable to look to the government of the United States, in which the delegated powers are vested, for the means of resisting encroachments on the reserved powers. That would be to expect power to tie its own hands, to relinquish its own claims, or to look for protection against danger to the quarter from which only it could possibly come. (1 Calhoun, 237.) Every sovereignty is the judge alone of its own compacts and agreements. Each State must have the right to interpret the agreement for itself unless it has clearly waived that right in favor of another power. That it has not been waived has been placed beyond refutation, for otherwise the powers of the government at Washington are universal and the enumerations and reservation are idle mockeries. And so a written constitution, however carefully guarded the grant and limitations, is no barrier against the usurpations of governments and no security for the rights and liberties of the people. Restrictions are contemptuously disregarded, or undermined by the gradual process of usurpation, until the instrument is of no more force, nor any more respected than an act of Congress. Constitutional scruples are hooted at, and suggested barriers of want of authority are ridiculed as abstractions or the theories of political doctrinaires. The Federal judiciary, the Congress, the Executive, the Constitution, the Union, are but emanations of the sovereignty of the States, and the States are not bound by their wishes, necessities, action, except as they have agreed to be bound, and this agreement was made, not with the Union, the Federal government, their agent and creature, but with one another. ‘Vicious legislation must be remedied by the people who suffer from the effects of it and not by those who enjoy its benefits.’ （Bryan.) They made their compact as sovereign States, and as such they alone are to determine the nature and extent of that agreement and how far they were to be bound. Each State was grantor and grantee receiving precisely what it had granted. The Federal government was in no sense a party to the Constitution; it has no original powers and can exert only what the States surrendered to it, and these States, from the very nature and structure of the common government, are alone competent to decide, in the last resort, what powers they intended to confer upon their agent. The States were not so stupid as to confer upon their creature, the Union, the power to obliterate them, or reduce them to the relation of dependence which counties sustain to the State. This high, supreme, ultimate power of our whole system resides in its fullness in the people of the several States, the only people known to us as performing political functions. The general government is not superior to the States, and has no existence nor autonomy, outside, irrespective of, contrary to, the States. The Union could not exist a day if all of the States were to withdraw their cooperation. The President, the Senate and Representatives, with all their powers, are conditioned upon the action of the States. Hamilton, in Federalist, No. LIX, said: ‘It is certainly true that the State legislatures, by forbearing the appointment of senators, may destroy the national government.’ The Federal government, the Union, as a corporate body politic, does not claim its life, nor a single power, from the people apart from State organizations. In truth and in fact, there is not, nor ever has been, such a political entity as the people of the United States in the aggregate, separated from, independent of, the voluntary or covenanted action of the States. That anything is constitutional or admissible, simply because the judiciary or the Executive or the Congress, or the moral convictions of citizens approve, or the country will be benefited by it, is a modern invention and has no basis in our constitutional federal republic. To put it in the least objectionable form, the States, in their undelegated powers, are as important, as supreme, as the general government, and the theory of State subjugation, of provincial dependencies, is a pure afterthought to justify arbitrary and ungranted authority. It is indisputable that by far the greater part of the topics of legislation, the whole vast range of rights of person and property—where the administration of law and justice comes closest home to the daily life of the people—are exclusively or chiefly within the power of the States. The number of topics of legislation which lie outside the pale of national legislation greatly exceeds the number to which the power of State legislation does not extend. (Federalist, No. 14; Mich. Lect., 244; 1 Calhoun, 197, 204, 214-15.) If the Union be indissoluble, with equal or greater propriety we may affirm that the States are equal and indestructible.
When the adoption of the Constitution was under discussion before the State conventions, with an uncertain result, its enemies were alarmed on account of the magnitude of powers conferred on the general government and its friends were fearful because of alleged feebleness in comparison with extent of reserved powers; but neither party contended that an increase or diminution of power could constitutionally be made by implication and inference so as to equip the central government with all the means it derived in the warfare with antagonists. The authors of The Federalist—the essays written to secure the acceptance of the Constitution—insisted that the apprehended inequality did not exist, and that should it be developed, the States would be able to control. Hamilton wrote: ‘The general government can have no temptation to absorb the local authorities left with the States. * * * It is, therefore, improbable that there should exist a disposition in the Federal councils to usurp the powers with which commerce, finance, negotiation and war are connected. Should wantonness, lust of domination, beget such a disposition, the sense of the people of the several States would control the indulgence of so extravagant an appetite.’ This redundant exposition of the doctrine that there can be no tribunal above the authority of the States and that in them reside the ultimate decision, has been made because there is such a painful misunderstanding of the relation the Federal government sustains to the States, and of the comparative authority, power and value of the Union and of the States.
The forebodings of those who dreaded an undue enlargement of the powers of the central government—the increase of centripetal tendencies to the weakening of the centrifugal—have been more than realized. Instead of a rivalry between the general government and the States, between the delegated and the reserved powers, the antagonism has proved unreal and fallacious, and the strong trend has been and is to centralization, justifying the prediction of Jefferson that ‘when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venial and oppressive as the government from which we separated.’ By an irresistible tendency the stronger has absorbed the weaker and is concentrating in itself unlimited and uncontrollable power. This usurpation has been carried so far that nothing short of an absolute negative on the part of the States can protect against the encroachments of a growingly centralized government. For a few years and naturally, States were superior in dignity, and two citizens of South Carolina declined positions on the Supreme court, one the chief-justiceship. The enlargement of territory, the multiplication of States, the glory resulting from successful wars, the enormous prosperity caused by varied climate and products, free interstate commerce, religious liberty, the stimulus of free institutions, extensive landed proprietorship, the immense Federal and subsidizing expenditures, government partnership in business, the building up of favored classes and interests by protective tariffs and bounties and discriminating fiscal policy, the vast number of Federal offices constituting executive patronage and conferred not as a trust for the public good, but as spoils of office and rewards for partisans, a huge pension system, destroying local patriotism of recipients and corrupting states—have magnified the government at Washington and given from exuberance of strength a resistless impulse, adverse to its federal and favorable to a consolidated character. This revolutionary change has been attended by the grossest inequality, because a majority has centered
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