The ratification of New Hampshire is expressed in precisely the same words, save only the difference of date of the resolution of the Legislature (or "General Court") referred to, and also the use of the word "State" instead of "Commonwealth." Both distinctly accept it as a compact of the States "with each other"—which Mr. Webster, a son of New Hampshire and a Senator from Massachusetts, declared it was not; and not only so, but he repudiated the very "vocabulary" from which the words expressing the doctrine were taken.
It would not need, however, this abounding wealth of contemporaneous exposition—it does not require the employment of any particular words in the Constitution—to prove that it was drawn up as a compact between sovereign States entering into a confederacy with each other, and that they ratified and acceded to it separately, severally, and independently. The very structure of the whole instrument and the facts attending its preparation and ratification would suffice. The language of the final article would have been quite enough: "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same." This is not the "language" of a superior imposing a mandate upon subordinates. The consent of the contracting parties is necessary to its validity, and then it becomes not the acceptance and recognition of an authority "over" them—as Mr. Motley represents—but of a compact between them. The simple word "between" is incompatible with any other idea than that of a compact by independent parties.
If it were possible that any doubt could still exist, there is one provision in the Constitution which stamps its character as a compact too plainly for cavil or question. The Constitution, which had already provided for the representation of the States in both Houses of Congress, thereby bringing the matter of representation within the power of amendment, in its fifth article contains a stipulation that "no State, without its [own] consent, shall be deprived of its equal suffrage in the Senate." If this is not a compact between the States, the smaller States have no guarantee for the preservation of their equality of representation in the United States Senate. If the obligation of a contract does not secure it, the guarantee itself is liable to amendment, and may be swept away at the will of three fourths of the States, without wrong to any party—for, according to this theory, there is no party of the second part.
Footnote 52:[ (return) ]
Gales and Seaton's "Register of Congressional Debates," vol. vi, Part I, p. 93.
Footnote 53:[ (return) ]
The words "with another State or with a foreign power" should have been added to make this statement accurate.
Footnote 54:[ (return) ]
"Congressional Debates," vol. ix, Part I, p. 563.
Footnote 55:[ (return) ]
"Congressional Debates," vol. ix, Part I, p. 566.
Footnote 56:[ (return) ]
Ibid., pp. 557, 558.
Footnote 57:[ (return) ]
"Madison Papers," pp. 1081, 1082.
Footnote 58:[ (return) ]
Ibid., p. 1184.