Mr. Everett, following, whether consciously or not, in the line of Mr. Webster's ill-considered objection to the term "compact," takes exception to the sovereignty of the States on the ground that "the word 'sovereignty' does not occur" in the Constitution. He admits that the States were sovereign under the Articles of Confederation. How could they relinquish or be deprived of their sovereignty without even a mention of it—when the tenth amendment confronts us with the declaration that nothing was surrendered by implication—that everything was reserved unless expressly delegated to the United States or prohibited to the States? Here is an attribute which they certainly possessed—which nobody denies, or can deny, that they did possess—and of which Mr. Everett says no mention is made in the Constitution. In what conceivable way, then, was it lost or alienated?
Much has been said of the "prohibition" of the exercise by the States of certain functions of sovereignty; such as, making treaties, declaring war, coining money, etc. This is only a part of the general compact, by which the contracting parties covenant, one with another, to abstain from the separate exercise of certain powers, which they agree to intrust to the management and control of the union or general agency of the parties associated. It is not a prohibition imposed upon them from without, or from above, by any external or superior power, but is self-imposed by their free consent. The case is strictly analogous to that of individuals forming a mercantile or manufacturing copartnership, who voluntarily agree to refrain, as individuals, from engaging in other pursuits or speculations, from lending their individual credit, or from the exercise of any other right of a citizen, which they may think proper to subject to the consent, or intrust to the management of the firm.
The prohibitory clauses of the Constitution referred to are not at all a denial of the full sovereignty of the States, but are merely an agreement among them to exercise certain powers of sovereignty in concert, and not separately and apart.
There is one other provision of the Constitution, which is generally adduced by the friends of centralism as antagonistic to State sovereignty. This is found in the second clause of the sixth article, as follows:
"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 enunciation of a principle, which, even if it had not been expressly declared, would have been a necessary deduction from the acceptance of the Constitution itself, has been magnified and perverted into a meaning and purpose entirely foreign to that which plain interpretation is sufficient to discern. Mr. Motley thus dilates on the subject:
"Could language be more imperial? Could the claim to State 'sovereignty' be more completely disposed of at a word? How can that be sovereign, acknowledging no superior, supreme, which has voluntarily accepted a supreme law from something which it acknowledges as superior?"[74]
The mistake which Mr. Motley—like other writers of the same school—makes is one which is disposed of by a very simple correction. The States, which ordained and established the Constitution, accepted nothing besides what they themselves prescribed. They acknowledged no superior. The supremacy was both in degree and extent only that which was delegated by the States to their common agent.
There are some other considerations which may conduce to a clearer understanding of this supremacy of the Constitution and the laws made in pursuance thereof: