John Taylor of Caroline
The word union is inexplicit. It may imply either a perfect consolidation; or an association for special purposes, reaching only stated objects, and limited by positive restrictions. Of civil unions, the matrimonial is the most intimate; and yet the parties to it are invested with separate and independent rights. The ancient union of the independent kingdoms of Spain, effected by marriage or conquest, left to each many local privileges. The union of England and Scotland, effected by compact, contains stipulations beyond the power of the united government to alter, especially that in relation to the religion of the latter kingdom. That between England and Ireland is a political consolidation. The latter kingdom did not obtain an establishment of the Roman Catholick religion. Had the majority of the people possessed free will, they would have reserved this local right; and the Roman Catholick religion, like the Presbyterian, would have been placed beyond the reach of the united representation in parliament; just as the reserved rights of the states are placed beyond the reach of our united representation in Congress; because political unions for special purposes, cannot be defeated by inferences from the form adopted for their execution. In order to determine whether the United States meant by the term union, to establish a supreme power or a limited association, we must commence our inquiry at their political birth, and accommodate our arguments with the principles they avowed in proclaiming their political existence. These are stated in the declaration of independence: “We the representatives of the United States of America, in general Congress assembled, appealing to the Supreme Judge of the world, for the rectitude of our intentions, do, in the name and by the authority of the good people of these colonies, solemnly publish and declare, that these United Colonies are, and of right ought to be, free and independent states; and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things, which independent states may of right do.” Such is the origin of our liberty, and the foundation of our form of government. The consolidating project ingeniously leaves unexamined the arguments suggested by this declaration, and commences its lectures at the end of the subject to be considered. If the declaration of independence is not obligatory, our intire political fabrick has lost its magna charta, and is without any solid foundation. But if it is the basis of our form of government, it is the true expositor of the principles and terms we have adopted.The word “united” is used in conjunction with the phrase “free and independent states,” and this association recognises a compatibility between the sovereignty and the union of the several states. The regulation of commerce is enumerated among the rights of sovereignty, and this right having been exercised by each state under their first confederation, because it was not surrendered, is an evidence of what was meant by the sovereignty of the states, and a proof that the separate sovereignty of each, and not a consolidated sovereignty of all, was established by the declaration of independence. The same observation applies to the sovereign rights of the states, not surrendered by the existing federal constitution.Take from the states the political character they assumed by the declaration of independence, and they could not have united. To contract, to stipulate, to unite, are among the “acts and things which independent states may of right do.” The first confederation or union recognises the compatibility between the union and the sovereignty of the states. The existing union adheres to the same idea, professes to establish a more perfect union of states created by the Declaration of Independence, and contains many provisions incapable of being executed except by state sovereignty. It uses the words “United States,” taken by the first confederation from the declaration of independence, and transplanted from both these instruments, in which they are associated with positive assertions of the independence and sovereignty of each state; and therefore the last instrument, like the others, recognises the compatibility between the union and the sovereignty of the several states.
The notion that the “freedom and independence of the states” refers to a consolidation of states, admits of a perfect refutation. It would render the language of the declaration of independence ungrammatical, because had this been intended, it ought to have recognised the rights of sovereignty as residing in one consolidated state, and not in several states. It would have rendered the confederation unnecessary; because, had the declaration of independence invested a consolidation of states with a power to do “all acts and things which a free and independent state may of right do,” there would not have existed the least reason for delegating powers to a federal Congress. It would have divested each province or state of the right to make and alter its own constitution and its own laws; and it would have converted the exercise of any sovereign power by a state, subsequently to the declaration of independence, into usurpation. The contemporary construction of the declaration of independence was completely adverse to the idea that it had conferred any sovereign power, whatever, upon a consolidation of states. Hence a confederation became necessary; and hence the several states exercised, among others, the sovereign powers of raising armies, imposing taxes, and regulating commerce. The language used in the declaration of independence was adopted and explained by the confederation framed in 1777. It is entitled a “perpetual union,” its style was “The United States of America,” and it declares that “each state retains its sovereignty.” So far state sovereignty is explicitly recognised, and no idea existed that it had been lost by a union of states. Upon trial, it being discovered that the powers bestowed upon Congress by the first confederation, were insufficient “for their common defence and general welfare,” the ends it expresses; another union was framed by the constitution of 1787, rendered more perfect by enlarging federal powers, and repeating the same words of “common defence and general welfare” as its chief ends. If this phrase was understood, as neither creating a supreme national government, nor extending the powers delegated by the confederation of 1777, it must have been also understood in the same sense when used in the constitution of 1787. Its meaning is ascertained by the tenth section of the latter instrument. The individual states are prohibited from exercising certain attributes of sovereignty, particularly those of making war, treaties, and regulating commerce, because, except for the prohibition, they would have retained them, as adjuncts of sovereignty. The prohibition is therefore a construction of this phrase, corresponding with the construction it received when used in the confederation of 1777, and uniting both instruments with the public opinion, that neither the word union, nor this specification of its objects, extended delegated powers, created a general government or supremacy, or deprived the states of any attributes of sovereignty except those prohibited.
