§ 26. Supremacy of General Government as to objects within its domain. "The general government," said Chief Justice Marshall, "though limited as to its objects is supreme with respect to those objects, and this principle is a part of the Constitution." He also asserted that no rule of narrow

thirds of both Houses shall deem | invested with large portions of that it necessary, shall propose Amend- sovereignty which belongs to inments to this Constitution, or, on dependent States. Under the inthe Application of the Legislatures fluence of this opinion, and thus of two thirds of the several States, instructed by experience, the shall call a Convention for propos- American people, in the convening Amendments, which, in either tions of their respective States, Case, shall be valid to all Intents adopted the present constitution. and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal suffrage in the Senate."

Article V. Constitution of United States. (The first and fourth clauses of the Ninth Section of Article One, relating to the migration and importation of, and taxation on, slaves). § 26.

"If it could be doubted, whether from its nature, it were not supreme in all cases where it is empowered to act, that doubt would be removed by the declaration, that 'this constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby; anything in the constitution or laws of any State to the contrary notwithstanding.'

"This is the authoritative language of the American people; and, if gentlemen please, of the American States. It marks, with lines too strong to be mistaken, the characteristic distinction between the government of the Union, and those of the States. The general government, though limited as to its objects, is supreme with respect to those objects. This principle is a part of the constitution; and if there be any who deny its necessity, none can deny its authority.

1"The American States, as well as the American people, have believed a close and firm Union to be essential to their liberty and to their happiness. They have been taught by experience, that this Union cannot exist without a government for the whole; and they have been taught by the same experience that this government "To this supreme government would be a mere shadow, that must ample powers are confided; and if disappoint all their hopes, unless it were possible to doubt the great

or strict construction would be adopted as to the power of the Central Government; when once the nail was found on which to hang the authority to act, he declared, that the nail is strong enough to hold any weight that could be suspended therefrom.2

The rule of supreme power, as laid down by the eminent Chief Justice, has been expanded rather than contracted by subsequent decisions of the Supreme Court, which has always upheld the sovereignty and nationality of our government.

§ 27. Meaning of "The People of the United States.". These words, which occur in the preamble of the Constitution, have been held by Calhoun, Tucker and other upholders of States' rights and the theory of a collection of State units instead of a single national unit, as meaning the people of the different States, and not the people of the United States as an entirety.

On the other hand, those who believe in the nationality of our Government maintain that, although the Constitution was adopted in separate State conventions, the people necessarily adopted such method as the only possible one under which they could act at that time.

The theory of the nationalists is supported by the fact that the State legislatures had no power to accede to a confederation, or to a national government, except by the consent of the people themselves, and that in such respect the action of the people was superior to the State governments.

Chief Justice Marshall, Mr. Justice Story and others have discussed this question in their opinions, and commentaries upon the Constitution, and some of their views are collated in the footnote to this section. Chief Justice Marshall declared in the opinion quoted in the note that the people acted upon the Constitution in the only manner in which they could safely, effectively and wisely act upon such a subject, to wit: by assembling in convention. Continuing he declared that while no political dreamer was ever wild enough to think of breaking down the lines which separated the States, or of compounding the American people into one common mass, the measures which were adopted in the separate State conventions did not on that account cease to be the measures of the people themselves, or become the measures of the State governments. In fact, the Chief Justice said, that the Government of the United States proceeded directly from the people, was ordained and established in the name of the people for the purposes stated in the preamble, and that the assent of the States in their sovereign capacity was implied in calling the conventions and submitting the instrument to the people, but, he declared, "The people were at perfect liberty to accept or reject it; their act was final;" it did not require the affirmance and could not be negatived by the

States, and the Constitution as thus adopted, was a complete obligation and bound the State sovereignties.1

$ 27.

1 VIEWS OF MARSHALL AND STORY AS EXPRESSED BY GEORGE TICKNOR CURTIS.

"When we turn to the views of the nature of the Constitution that have always been held and acted upon by the Supreme Court of the United States, it becomes at once apparent that they have admitted of no place for the doctrine which is implied in the idea of state resistance, or organized resistance of any kind. Beginning with the earliest judicial interpretations of the Constitution, and coming down to the latest, we shall find that they have been uniform and consistent.

"When the Supreme Court was composed of Marshall as chief justice, Bushrod Washington, Story, and their associates, it became necessary for them to speak positively concerning the nature of the Constitution, because it was then claimed, in the particular controversy which they had to decide, that the Constitution was established by the states in their sovereign capacities. This doctrine was distinctly negatived by the court in the following terms: The Constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by the people of the United States. There can be no doubt that it was competent to the people to invest the government with all the powers which they might deem proper and necessary, to extend or restrain those powers according to their own good pleasure, and to give them permanent and supreme authority.' (Martin vs. Hunter, STORY, J., 1 Wheaton, 304.)

"A few years later, Chief Justice Marshall, speaking for the whole bench, said: 'The government of the Union is a government of the people; it emanates from them; its powers are granted by them, and are to be exercised on them and for their benefit. . . The government of the Union, though limited in its powers, is supreme within its sphere of action; and its laws, when made in pursuance of the Constitution, form the supreme law of the land.' (McCulloch vs. The State of Maryland, 4 Wheaton, 316.)

"Did Story, in referring to the preamble of the Constitution, or did Marshall, in speaking of the people, mean that the Constitution was ordained and established by the people of the United States regarded as a nation? It is quite apparent that the preamble, in using the words 'We, the people of the United States . . . do ordain and establish this Constitution for the United States of America,' meant that the people of the several states do this great political act. It is, too, made certain that the very eminent jurists and magistrates, whose language I am now considering, did not regard the Constitution as ordained and established by that mass of people of whom we commonly speak as the People of the United States when we refer to them as a nation. is apparent from what was said by Chief Justice Marshall."

This

Mr. Curtis then quotes a long extract from McCulloch vs. Maryland,

§ 28. Views of Chancellor Kent and Joseph Story.-These views were held by Mr. Justice Story, who expressed them in

in the course of which the following occurs which seems to indicate that Chief Justice Marshall considered that, while the people acted as people of the States, they did so in a manner that was superior to the governments of the States themselves.

"In discussing this question, the counsel for the state of Maryland have deemed it of some importance in the construction of the Constitution, to consider that instrument, not as emanating from the people, but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign, and must be exercised in subordination to the states, who alone possess supreme dominion. It would be difficult to sustain this proposition. The convention which framed the Constitution was, indeed, elected by the state legislatures. But the instrument when it came from their hands was a mere proposal, without obligation or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might be submitted to a convention of delegates, chosen in each state, by the people thereof, under the recommendation of its legislature for their assent and ratification.' This mode of proceeding was adopted; and by the Convention, by Congress, and by the state legislatures the instrument was submitted to the people.

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"They acted upon it, in the only manner in which they can safely, effectively, and wisely on such a subject, by assembling in convention. It is true, they assembled in their several states; and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is ordained and established' in the name of the people; and is declared to be ordained 'in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity.' The assent of the states, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final.

"It required not the affirmance, and could not be negatived, by the state governments. The Constitution, when thus adopted, was of complete obligation and bound the state sovereignties.

“It has been said that the people had already surrendered all their powers to the state sovereignties and had nothing more to give. But surely the question whether they may resume and modify the powers granted to government does not remain to be settled in this country.