All this makes a strange, eventful passage of history. The enlightened civilization of the age was beginning to be felt against Slavery, when its representatives turned madly round to confront the angel of light. The madness showed itself by degrees. Point by point it made itself manifest in Congress. The Slave-Masters forgot morals, history, and the Constitution. Their manifold pretensions resolved themselves into three, in which the others were absorbed: first, that Slavery, instead of an evil to be removed, was a blessing to be preserved; secondly, that the right of petition could not be exercised against Slavery; thirdly, that, in all that concerns Slavery, State Rights were everything, while National Rights were nothing. These three pretensions entered into Congress, like so many devils, and possessed it. The first broke forth in eulogies of Slavery, and even in blandishments for the Slave-Trade. The second broke forth in the “Atherton Gag,” under which the honest, earnest petitions from the national heart against Slavery, even in the District of Columbia, were tabled without reference, and the great Right of Petition, promised by the Constitution, became a dead letter. The third, beginning with the denial of the power of the Nation to affix upon new States the perpetual condition of Human Rights, broke forth in the denial of the power of the Nation over Slavery in the Territories or anywhere else, even within the national jurisdiction. These three pretensions all had a common origin, and one was as offensive and unreasonable as another. The praise of Slavery and the repudiation of the Right of Petition by the enraged Slave-Masters were not worse than the pretension of State Rights against the power of the Nation to prohibit Slavery in the national jurisdiction, or to affix righteous conditions upon new States.
The first two pretensions have disappeared. These two devils have been cast out. Nobody dares to praise Slavery; nobody dares to deny the Right of Petition. The third pretension has disappeared only so far as it denied the power of the Nation over Slavery in the Territories; and we are still doomed to hear, in the name of State Rights, the old cry against conditions upon new States. This devil is not yet entirely cast out. Pardon me, if I insist upon putting the national rights over the Territories and the national rights over new States before their admission in the same category. These rights not only go together, but they are one and the same. They are not merely companion and cognate, but they are identical. The one is necessarily involved in the other. Prohibition in the Territories is prolonged in conditions upon new States. The Ordinance of 1787, which is the great example, asserts the perpetuity of all its prohibitions; and this is the rule alike of law and statesmanship. Vain were its prohibitions, if they fell dead in presence of State Rights. The pretension is too irrational. The Missouri Act takes up the rule asserted in the Ordinance, and declares that in certain Territories Slavery shall be prohibited forever. A territorial existence terminating in State Rights is a short-lived forever. Only by recognizing the power of the Nation over the States formed out of the Territory can this forever have a meaning above the prattle of childhood or the vaunt of Bombastes.
The whole pretension against the proposed condition is in the name of State Rights; but it cannot be doubted that it may be traced directly to Slavery. Shall the pretension be allowed to prevail, now that Slavery has disappeared? The principal has fallen; why preserve the incident? The wrong guarded by this pretension has yielded; why should not the pretension yield also? Asserting, as I now do, the validity and necessity of the proposed condition, I would not seem indifferent to the rights of the States in those proper spheres appointed for them. Unquestionably States have rights under the Constitution, which we are bound to respect,—nay, more, which are a source of strength and advantage. It is through the States that the people everywhere govern themselves, and our Nation is saved from a central domination. Here is the appointed function of the States. They supply the machinery of local self-government for the convenience of life, while they ward off the attempts of an absorbing imperialism. But there can be no State Rights against Human Rights. Because a State, constituting part of a Nation dedicated to Human Rights, may govern itself and supply the machinery of local self-government, it does not follow that such a State may deny Human Rights within its borders. State Rights, when properly understood, are entirely consistent with the maintenance of Human Rights by the Nation. The State is not humbled, when it receives the mandate of the Nation to do no wrong; nor can the Nation err, when it asserts everywhere within its borders the imperialism of Human Rights. Against this righteous supremacy all pretensions of States must disappear, as darkness before the King of Day.
The song of State Rights has for its constant refrain the asserted Equality of the States. Is it not strange that words so constantly employed as a cover for pretensions against Human Rights cannot be found in the Constitution? It is true, that, by the Laws of Nations, all sovereign States, great or small, are equal; but this principle has been extended without authority to States created by the Nation and made a part of itself. There is but one active provision in the Constitution which treats the States as equal, and this provision shows how this very Equality may be waived. Every State, large or small, has two Senators, and the Constitution places this Equality of States under its safeguard by providing that “no State, without its consent, shall be deprived of its equal suffrage in the Senate.” But this very text contains what lawyers might call a “negative pregnant,” being a negation of the right to change this rule, with an affirmation that it may be changed. The State, with its consent, may be deprived of its equal suffrage in the Senate. And this is the whole testimony of the Constitution to that Equality of States which is now asserted in derogation of all compacts or conditions. It is startling to find how constantly the obvious conclusions from the text of the Constitution have been overlooked. Even in the contemplation of the Constitution itself, a State may waive its equal suffrage in the Senate, so as to be represented by a single Senator only. Of course, all this must depend on its own consent, in concurrence with the Nation. Nothing is said of the manner in which this consent may be given by the State or accepted by the Nation. But if this important limitation can in any way be made the subject of agreement or compact, pray, Sir, where will you stop? What other power or prerogative of the State may not be limited also, especially where there is nothing in the Constitution against any such limitation? All this I adduce simply by way of illustration. There is no question now of any limitation, in the just sense of this term. A condition in favor of Human Rights cannot be a limitation on a State or on a citizen.
If we look further, and see how the Senatorial equality of States obtained recognition in the Constitution, we shall find new occasion to admire that facility which has accorded to this concession so powerful an influence; and here the record is explicit. The National Convention had hardly assembled, when the small States came forward with their pretensions. Not content with suffrage in the Senate, they insisted upon equal suffrage in the House of Representatives. They had in their favor the rule of the Continental Congress, and also of the Confederation, under which each State enjoyed one vote. Assuming to be independent sovereignties, they had likewise in their favor the rule of International Law. Against these pretensions the large States pleaded the simple rule of justice; and here the best minds concurred. On this head the debates of the Convention are interesting. At an early day we find Mr. Madison moving “that the equality of suffrage established by the Articles of Confederation ought not to prevail in the National Legislature.”[222] This proposition, so consistent with reason, was seconded by Gouverneur Morris, and, according to the report, “being generally relished,” was about being adopted, when Delaware, by one of her voices on the floor, protested, saying, that, in case it were adopted, “it might become the duty of her deputies to retire from the Convention.”[223] Such was the earliest cry of Secession. Gouverneur Morris, while observing that the valuable assistance of those members could not be lost without real concern, gave his testimony, that “the change proposed was so fundamental an article in a National Government that it could not be dispensed with.”[224] Mr. Madison followed, saying, very justly, that, “whatever reason might have existed for the equality of suffrage when the Union was a Federal one among sovereign States, it must cease when a National government should be put into the place.”[225] Franklin, in similar spirit, reminded the Convention that the equal suffrage of the States “was submitted to originally by Congress under a conviction of its impropriety, inequality, and injustice.”[226] This is strong language from the wise old man, but very true. Elbridge Gerry, after depicting the States as “intoxicated with the idea of their sovereignty,” said that “the injustice of allowing each State an equal vote was long insisted on. He voted for it; but it was against his judgment, and under the pressure of public danger and the obstinacy of the lesser States.”[227] Against these overwhelming words of Madison, Morris, Franklin, and Gerry, the delegates from Delaware pleaded nothing more than that, without an equal suffrage, “Delaware would have about one ninetieth for its share in the general councils, whilst Pennsylvania and Virginia would possess one third of the whole”;[228] and New Jersey, by her delegates, pleaded also “that it would not be safe for Delaware to allow Virginia sixteen times as many votes” as herself.[229] On the part of the small States, the effort was for power disproportioned to size. On the part of the large States there was a protest against the injustice and inequality of these pretensions, especially in a government national in its character. The question was settled by the great compromise of the Constitution, according to which representation in the House of Representatives was proportioned to population, while each State was entitled to an equal suffrage in the Senate. To this extent the small States prevailed, and the Senate ever since has testified to the equality of States; or rather, according to the language of the “Federalist” on this very point, it has been “a palladium to the residuary sovereignty of the States.”[230] Thus, by the pertinacity of the small States, was this concession extorted from the Convention, in defiance of every argument of justice and equity, and contrary to the judgment of the best minds; and now it is exalted into a universal rule of Constitutional Law, before which justice and equity must hide their faces.
This protracted and recurring conflict in the Convention is compendiously set forth by our great authority, Judge Story, when he says:—
“It constituted one of the great struggles between the large and the small States, which was constantly renewed in the Convention, and impeded it in every step of its progress in the formation of the Constitution. The struggle applied to the organization of each branch of the Legislature. The small States insisted upon an equality of vote and representation in each branch, and the large States upon a vote in proportion to their relative importance and population.… The small States at length yielded the point as to an equality of representation in the House, and acceded to a representation proportionate to the Federal numbers. But they insisted upon an equality in the Senate. To this the large States were unwilling to assent, and for a time the States were on this point equally divided.”[231]
This summary is in substantial harmony with my own abstract of the debates. I present it because I would not seem in any way to overstate the case. And here let me add most explicitly, that I lend no voice to any complaint against the small States; nor do I suggest any change in the original balances of our system. I insist only that the victory achieved in the Constitution by the small States shall not be made the apology for a pretension inconsistent with Human Rights. And now, for the sake of a great cause, the truth must be told.
It must not be disguised that this pretension has another origin, outside the Constitution. This is in the Ordinance of 1787, where it is positively provided that any State formed out of the Northwest Territory “shall be admitted, by its delegates, into the Congress of the United States on an equal footing with the original States in all respects whatever.” Next after the equal suffrage in the Senate stands this provision with its talismanic phrase, equal footing. New States are to be admitted on an equal footing with the original States in all respects whatever. This language is strong; but nobody can doubt that it must be read in the light of the Ordinance where it appears. Read in this light, its meaning cannot be questioned. By the Ordinance there are no less than six different articles of compact, “forever unalterable, unless by common consent,” constituting so many perpetual safeguards: the first perpetuating religious liberty; the second perpetuating Habeas Corpus, trial by jury, and judicial proceedings according to the course of the Common Law; the third perpetuating schools and the means of education; the fourth perpetuating the title of the United States in the soil without taxation, the freedom of the rivers as highways, and the liability of the people for a just proportion of the national debt; the fifth perpetuating the right of the States to be admitted into the Union on an equal footing with the original States; and then, next in order, the sixth perpetuating freedom,—being that immortal condition which is the golden bough of this mighty oak,—that “there shall be neither slavery nor involuntary servitude in the said Territory.” Now it is clear that subjection to these perpetual conditions was not considered in any respect inconsistent with that “equal footing” which was stipulated. Therefore, even assuming that States, when admitted, shall be on an “equal footing” with others, there can be no hindrance to any conditions by Congress kindred to those which were the glory of the Ordinance.