On another occasion, Mr. Madison said,—
“I hold it for a fundamental point, that an individual independence of the States is utterly irreconcilable with the idea of an aggregate sovereignty.”[190]
Better words still fell from Mr. Wilson, of Pennsylvania, known afterwards as a learned judge of the Supreme Court, and also for his “Lectures on Law”:—
“Will a regard to State Rights justify the sacrifice of the rights of men? If we proceed on any other foundation than the last, our building will neither be solid nor lasting.”[191]
The argument was unanswerable then. It is unanswerable now. You cannot elevate the sovereignty of the States over the Constitution of the United States. It would be even more odious than the early pretension of sovereign power over Magna Charta, according to the memorable words of Lord Coke, as recorded by Rushworth:—
“Sovereign power is no Parliamentary word. In my opinion, it weakens Magna Charta and all our statutes; for they are absolute, without any saving of sovereign power; and shall we now add it, we shall weaken the foundation of law, and then the building must needs fall. Take we heed what we yield unto. Magna Charta is such a fellow that he will have no sovereign.”[192]
But the Constitution is our Magna Charta, which can bear no sovereign but itself, as you will see at once, if you consider its character. And this practical truth was recognized at its formation, as may be seen in the writings of our Rushworth: I refer to Nathan Dane, who was a member of Congress under the Confederation. He tells us plainly, that the terms “sovereign States,” “State sovereignty,” “State rights,” “rights of States,” are “not constitutional expressions.”[193]
In the exercise of its sovereignty, Congress is intrusted with large and peculiar powers. Take notice of them, and you will see how little of “sovereignty” is left to the States. Their simple enumeration is an argument against this pretension. Congress may “lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States”; it may “borrow money on the credit of the United States”; “regulate commerce with foreign nations, and among the several States, and with the Indian tribes”; “establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies, throughout the United States”; “coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures”; “provide for the punishment of counterfeiting the securities and current coin of the United States”; “establish post-offices and post-roads”; “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”; “constitute tribunals inferior to the Supreme Court”; “define and punish piracies and felonies committed on the high seas, and offences against the Law of Nations”; “declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water”; “raise and support armies”; “provide and maintain a navy”; “make rules for the government and regulation of the land and naval forces”; “provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions”; “provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress”; “exercise exclusive legislation, in all cases whatsoever, over the seat of the government of the United States, and like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings”; and “make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.”
Such are the ample and diversified powers of Congress, embracing all those agencies which enter into sovereignty. With this concession to the United States, there seems to be little for the several States. In the power to “declare war” and to “raise and support armies” Congress possesses an exclusive power, in itself immense and infinite, over persons and property in the several States, while, by the power to “regulate commerce,” it may put limits round about the business of the several States; and even in the case of the militia, which is the original military organization of the people, nothing is left to the States except “the appointment of the officers,” and the authority to train it “according to the discipline prescribed by Congress.” Thus these great functions are all intrusted to the United States, while the several States are subordinated to their exercise.