Other amendments were, that no law should be passed abridging the freedom of speech or of the press, or of trial by jury in suits at common law where the amount involved exceeds twenty dollars; that there should be no established religion, and matters of that kind. None of these ten amendments give any powers to State governments. The final clause reserves all the powers not granted, “to the States respectively, or to the people,” not to the States and their people, or the people of the respective States; but to the people, putting the people as a whole.
Great stress has been laid by Calhoun and his followers on this clause, as giving power to the States. As the United States Government’s sovereignty is undoubtedly limited to the express grants of the Constitution, the powers not granted are in the States or people. There was no need of any reservation, except to allay the fears of those who erroneously believed that the Constitution gave unlimited power to the Union.
We have seen that in the discussions in the constitutional conventions it was denied that any separate State ever had or exercised sovereign powers. Judge Story, whose authority is as great as that of any legal writer, in his commentaries on the Constitution maintains this doctrine. Many of our earlier historians concur in this.
It is urged that originally we were one people of different colonies, subjects of the British Kingdom; our independence of that kingdom and existence as a power came from the declaration of the Congress of our combined government, in which we are called one people. No State ever acted separately in any sovereign capacity; we carried on the war, made peace, and treated with foreign countries as one nation. Even territory had been ceded to the Confederacy by the several States; and it was the Confederacy that passed the ordinance of 1787 abolishing slavery in the Northwest. The States had declared this Confederacy indissoluble. Webster, as we have seen, did not found his argument on the ground that the States never had sovereignty; he impliedly admitted the claimed independence, or sovereignty of the States, before the forming of the Union; it is safer to make this concession as Webster did. Each State had its choice to join the Union or to remain apart and become an independent sovereign power.
Our first chief-justice, John Jay, a most eminent jurist, a member of the New York convention, and one of the writers of the Federalist, in his decision in the case of Chisholm against the State of Georgia, where Georgia denied that a State could be sued, very clearly states how our government was formed and where the sovereignty is. He said: All the people of our country were subjects, every acre of land was held by grants from the Crown of Great Britain; the sovereignty passed from the Crown to the people, and a confederation of States was established as the basis of a general government. Then the people of the country made a new government saying, “We, the people of the United States, do ordain and establish this Constitution.” Every State constitution is a compact between the citizens 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.[57]
It has often been asserted and apparently is generally believed, that in the lapse of time the limited authority of the United States has been gradually extended, national powers assumed, and the whole fabric of government changed. An examination, however, of the laws passed by the earliest Legislatures shows a very liberal construction of the granted powers. Madison was a leader in the first Congress, he was through life a strict constructionist of the extent of the powers given by the Constitution. He informs us that no one doubted in that Congress that the United States had the power of levying duties for protection.[58] The want of such power was the very ground on which South Carolina passed the nullification acts of 1832. The preamble of the law of the first Congress, stating that the duties laid were for the encouragement and protection of manufactures, we have already cited. The same act made a discrimination in favor of imports of teas from China and India direct in ships belonging to citizens of the United States, allowed a drawback on dried and pickled fish and salted provisions in lieu of a drawback on the salt used in them. In the third session of that first Congress, an excise tax was laid on distilled spirits, and the Bank of the United States was incorporated—because of its utility to the government in the collection and transmitting of its revenue. Carriages were taxed in 1794. To the charter of the bank and the carriage-tax Madison and others objected as not within the granted powers. Also in 1794 sales of wines and liquors by retail and sales by auction were taxed. And Madison himself introduced a bill to make a post-road through the whole length of the States from Maine to Georgia.
The suit before referred to against the State of Georgia,[59] under the clause giving the United States Courts jurisdiction between a State and citizens of another State, is another piece of contemporary history and the strongest possible proof what was the understanding of that day. Georgia was sued by a citizen of South Carolina in a simple action of assumpsit, the legal term for a suit in which one would recover for the cost of a pair of shoes or a day’s wages. Georgia refused to defend the claim on the ground that she was a sovereign State.
The case came before the full bench of the Supreme Court, and was argued for the plaintiff by Edmund Randolph, then Attorney-General, the prominent member of the general convention and that of Virginia, who stated his opinion strongly against this claim of Georgia. The decision was against Georgia; Blair and Wilson, who were members of the convention that made the Constitution, the Chief-Justice Jay, and Cushing giving fully reasoned opinions. Iredell, a member of the North Carolina Convention, gave a dissenting opinion; it was not because he held that Georgia was a sovereign State as generally stated. He said as to sovereignty: “The United States are sovereign as to all the powers of government actually surrendered; each State in the Union is sovereign as to all the powers reserved.” This same doctrine, as to the sovereignty of a State in unsurrendered powers, was held by Marshall.[60]
The reason of Iredell’s dissent was that before the adoption of the Constitution a State could not be sued; that no suit now could be brought against a State, because Congress had not made a law providing for it. Further, he intimated it was not intended by the Constitution to give the right of a compulsory suit against a State. As to the sovereignty of the United States in the powers conferred to it, the court was unanimous.