The argument was unanswerable then. It is unanswerable now. Do not elevate the sovereignty of the States against the Constitution of the United States. It is hardly less odious than the early pretension of sovereign power against 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."[17]
But the Constitution is our Magna Charta, which can bear no sovereign but itself, as you will see at once, if you will 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."
POWERS OF CONGRESS.
In the exercise of its sovereignty Congress in 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 the pretension of State Rights. 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 a uniform rule of naturalization, and uniform laws on the subject of bankruptcy, throughout the United States; coin money, regulate the value thereof, and fix the standard of weights and measures; establish post-offices and post-roads; promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; 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; 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 officers and the authority of training the militia according to the discipline prescribed by Congress; and make all laws necessary and proper for carrying into execution the foregoing powers and all other powers vested in the Government of the United States.
Such are the ample and diversified powers of Congress, embracing all those powers which enter into sovereignty. With the concession of these to the United States there seems to be little left 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." It is thus that these great agencies are all intrusted to the United States, while the several States are subordinated to their exercise.
Constantly, and in everything, we behold the constitutional subordination of the States. But there are other provisions by which the States are expressly deprived of important powers. For instance: "No State shall enter into any treaty, alliance, or confederation; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts." Or, if the States may exercise certain powers, it is only with the consent of Congress. For instance: "No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State or with a foreign power." Here is a magistral power accorded to Congress, utterly inconsistent with the pretensions of State Rights. Then, again: "No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports or exports shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress." Here, again, is a similar magistral power accorded to Congress, and, as if still further to deprive the States of their much vaunted sovereignty, the laws which they make with the consent of Congress are expressly declared to be subject "to the revision and control of the Congress." But there is another instance still. According to the Constitution, "Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State": but here mark the controlling power of Congress, which is authorized to "prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."
SUPREMACY OF THE NATIONAL GOVERNMENT.
But there are five other provisions of the Constitution by which its supremacy is positively established. 1. "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." As Congress has the exclusive power to establish "an uniform rule of naturalization," it may, under these words of the Constitution, secure for its newly entitled citizens "all privileges and immunities of citizens in the several States," in defiance of State Rights. 2. "New States may be admitted by the Congress into this Union." According to these words, the States cannot even determine their associates, but are dependent in this respect upon the will of Congress. 3. But not content with taking from the States these important powers of sovereignty, it is solemnly declared that the Constitution, and the laws of the United States made in pursuance thereof, and all treaties under the authority of the United States, "SHALL BE THE SUPREME LAW OF THE LAND, anything in the Constitution or laws of any State to the contrary notwithstanding." Thus are State Rights again subordinated to the National Constitution, which is erected into the paramount authority. 4. But this is done again by another provision, which declares that "the members of the several State legislatures, and all executive and judicial officers of the several States, shall be bound by oath or affirmation to support this Constitution"; so that not only State laws are subordinated to the National Constitution, but the makers of State laws, and all other State officers, are constrained to declare their allegiance to this Constitution, thus placing the State, alike through its acts and its agents, in complete subordination to the sovereignty of the United States. 5. But this sovereignty is further proclaimed in the solemn injunction, that "the United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion." Here are duties of guaranty and protection imposed upon the United States, by which their position is fixed as the supreme power. There can be no such guaranty without the implied right to examine and consider the governments of the several States; and there can be no such protection without a similar right to examine and consider the condition of the several States: thus subjecting them to the rightful supervision and superintendence of the National Government.
Thus, whether we regard the large powers vested in Congress, the powers denied to the States absolutely, the powers denied to the States without the consent of Congress, or those other provisions which accord supremacy to the United States, we shall find the pretension of State sovereignty without foundation, except in the imagination of its partisans. Before the Constitution such sovereignty may have existed; it was declared in the Articles of Confederation; but since then it has ceased to exist. It has disappeared and been lost in the supremacy of the National Government, so that it can no longer be recognized. Perverse men, insisting that it still existed, and weak men, mistaking the shadow of former power for the reality, have made arrogant claims in its behalf. When the Constitution was proclaimed, and George Washington took his oath to support it as President, our career as a Nation began, with all the unity of a nation. The States remained as living parts of the body, important to the national strength, and essential to those currents which maintain national life, but plainly subordinate to the United States, which then and there stood forth a Nation, one and indivisible.