THE
AMERICAN REPUBLIC: CHAPTER 9
ITS
CONSTITUTION TENDENCIES AND DESTINY
Orestes A. Brownson LL. D
TABLE OF CONTENTS
THE UNITED STATES
Sovereignty, under God, inheres in the organic people, or the people as
the republic; and every organic people fixed to the soil, and
politically independent of every other people, is a sovereign people,
and, in the modern sense, an independent sovereign nation.
Sovereign states may unite in an alliance, league, or confederation,
and mutually agree to exercise their sovereign powers or a portion of
them in common, through a common organ or agency; but in this agreement
they part with none of their sovereignty, and each remains a sovereign
state or nation as before. The common organ or agency created by the
convention is no state, is no nation, has no inherent sovereignty, and
derives all its vitality and force from the persisting sovereignty of
the states severally that have united in creating it. The agreement no
more affects the sovereignty of the several states entering into it,
than does the appointment of an agent affect the rights and powers of
the principal. The creature takes nothing from the Creator, exhausts
not, lessens not his creative energy, and it is only by his retaining
and continuously exerting his creative power that the creature
continues to exist.
An independent state or nation may, with or without its consent, lose
its sovereignty, but only by being merged in or subjected to another.
Independent sovereign states cannot by convention, or mutual agreement,
form themselves into a single sovereign state, or nation. The compact,
or agreement, is made by sovereign states, and binds by virtue of the
sovereign power of each of the contracting parties. To destroy that
sovereign power would be to annul the compact, and render void the
agreement. The agreement can be valid and binding only on condition
that each of the contracting parties retains the sovereignty that
rendered it competent to enter into the compact, and states that retain
severally their sovereignty do not form a single sovereign state or
nation. The states in convention cannot become a new and single
sovereign state, unless they lose their several sovereignty, and merge
it in the new sovereignty; but this they cannot do by agreement,
because the moment the parties to the agreement cease to be sovereign,
the agreement, on which alone depends the new sovereign state, is
vacated, in like manner as a contract is vacated by the death of the
contracting parties.
That a nation may voluntarily cede its sovereignty is frankly admitted,
but it can cede it only to something or somebody actually existing, for
to cede to nothing and not to cede is one and the same thing. They can
part with their own sovereignty by merging themselves in another
national existence, but not by merging themselves in nothing; and, till
they have parted with their own sovereignty, the new sovereign state
does not exist. A prince can abdicate his power, because by abdicating
he simply gives back to the people the trust he had received from them;
but a nation cannot, save by merging itself in another. An independent
state not merged in another, or that is not subject to another, cannot
cease to be a sovereign nation, even if it would.
That no sovereign state can be formed by a agreement or compact has
already been shown in the refutation of the theory of the origin of
government in convention, or the so-called social compact. Sovereign
states are as unable to form themselves into a single sovereign state
by mutual compact as are the sovereign individuals imagined by
Rousseau. The convention, either of sovereign states or of sovereign
individuals, with the best will in the world, can form only a compact
or agreement between sovereigns, and an agreement or compact, whatever
its terms or conditions, is only an alliance, a league, or a
confederation, which no one can pretend is a sovereign state, nation,
or republic.
The question, then, whether the United States are a single sovereign
state or nation, or a confederacy of independent sovereign states
depends on the question whether the American people originally existed
as one people or as several independent states. Mr. Jefferson
maintains that before the convention of 1787 they existed as several
independent sovereign states, but that since that convention, or the
ratification of the constitution it proposed, they exist as one
political people in regard to foreign nations, and several sovereign
states in regard to their internal and domestic relations. Mr. Webster
concedes that originally the States existed as severally sovereign
states, but contends that by ratifying the constitution they have been
made one sovereign political people, state, or nation, and that the
General government is a supreme national government, though with a
reservation in favor of State rights. But both are wrong. If the
several States of the Union were severally sovereign states when they
met in the convention, they are so now; and the constitution is only an
agreement or compact between sovereigns, and the United States are, as
Mr. Calhoun maintained, only a confederation of sovereign states, and
not a single state or one political community.
But if the sovereignty persists in the States severally, any State,
saving its faith, may whenever it chooses to do so, withdraw from the
Union, absolve its subjects from all obligation to the Federal
authorities, and make it treason in them to adhere to the Federal
government. Secession is, then, an incontestable right; not a right
held under the constitution or derived from the convention but a right
held prior to it, independently of it, inherent in the State
sovereignty, and inseparable from it. The State is bound by the
constitution of the Union only while she is in it, and is one of the
States united. In ratifying the constitution she did not part with her
sovereignty, or with any portion of it, any more than France has parted
with her sovereignty, and ceased to be an independent sovereign nation,
by vesting the imperial power in Napoleon III. and his legitimate heirs
male. The principal parts not with his power to his agent, for the
agent is an agent only by virtue of the continued power of the
principal. Napoleon is emperor by the will of the French people, and
governs only by the authority of the French nation, which is as
competent to revoke the powers it has conferred on him, when it judges
proper, as it was to confer them. The Union exists and governs, if the
States are sovereign, only by the will of the State, and she is as
competent to revoke the powers she has delegated as she was to delegate
them. The Union, as far as she is concerned, is her creation, and what
she is competent to make she is competent to unmake.
In seceding or withdrawing from the Union a State may act very
unwisely, very much against her own interests and the interests of the
other members of the confederacy; but, if sovereign, she in doing so
only exercises her unquestionable right. The other members may regret
her action, both for her sake and their own, but they cannot accuse her
or her citizens of disloyalty in seceding, nor of rebellion, if in
obedience to her authority they defend their independence by force of
arms against the Union. Neither she nor they, on the supposition, ever
owed allegiance to the Union. Allegiance is due from the citizen to
the sovereign state, but never from a sovereign state or from its
citizens to any other sovereign state. While the State is in the Union
the citizen owes obedience to the United States, but only because his
State has, in ratifying the Federal constitution, enacted that it and
all laws and treaties made under it shall be law within her territory.
The repeal by the State of the act of ratification releases the citizen
from the obligation even of obedience, and renders it criminal for him
to yield it without her permission.
It avails nothing, on the hypothesis of the sovereignty of the States
as distinguished from that of the United States, to appeal to the
language or provisions of the Federal constitution. That constitutes
the government, not the state or the sovereign. It is ordained by the
sovereign, and if the States were severally independent and sovereign
states, that sovereign is the States severally, not the States united.
The constitution is law for the citizens of a State only so long as the
State remains one of the United States. No matter, then, how clear and
express the language, or stringent the provisions of the constitution,
they bind only the citizens of the States that enact the constitution.
The written constitution is simply a compact, and obliges only while
the compact is continued by the States, each for itself. The
sovereignty of the United States as a single or political people must
be established before any thing in the constitution can be adduced as
denying the right of secession.
That this doctrine would deprive the General government of all right to
enforce the laws of the Union on a State that secedes, or the citizens
thereof, is no doubt true; that it would weaken the central power and
make the Union a simple voluntary association of states, no better than
a rope of sand, is no less true; but what then? It is simply saying
that a confederation is inferior to a nation, and that a federal
government lacks many of the advantages of a national government.
Confederacies are always weak in the centre, always lack unity, and are
liable to be dissolved by the influence of local passions, prejudices,
and interests. But if the United States are a confederation of states
or nations, not a single nation or sovereign state, then there is no
remedy.
If the Anglo-American colonies, when their independence of Great
Britain was achieved and acknowledged, were severally sovereign states,
it has never since been in their power to unite and form a single
sovereign state, or to form themselves into one indivisible sovereign
nation. They could unite only by mutual agreement, which gives only a
confederation, in which each retains its own sovereignty, as two
individuals, however closely united, retain each his own individuality.
No sovereignty is of conventional origin, and none can emerge from the
convention that did not enter it. Either the states are one sovereign
people or they are not. If they are not, it is undoubtedly a great
disadvantage; but a disadvantage that must be accepted, and submitted
to without a murmur.
Whether the United States are one sovereign people or only a
confederation is a question of very grave importance. If they are only
a confederation of states—and if they ever were severally sovereign
states, only a confederation they certainly are—state secession is an
inalienable right, and the government has had no right to make war on
the secessionists as rebels, or to treat them, when their military
power is broken, as traitors, or disloyal persons. The honor of the
government, and of the people who have sustained it, is then deeply
compromised.
What then is the fact? Are the United States politically one people,
nation, state, or republic, or are they simply independent sovereign
states united in close and intimate alliance, league, or federation, by
a mutual pact or agreement? Were the people of the United States who
ordained and established the written constitution one people, or were
they not? If they were not before ordaining and establishing the
government, they are not now; for the adoption of the constitution did
not and could not make them one. Whether they are one or many is then
simply a question of fact, to be decided by the facts in the case, not
by the theories of American statesmen, the opinion of jurists, or even
by constitutional law itself. The old Articles of Confederation and
the later Constitution can serve here only as historical documents.
Constitutions and laws presuppose the existence of a national sovereign
from which they emanate, and that ordains them, for they are the formal
expression of a sovereign will. The nation must exist as an historical
fact, prior to the possession or exercise of sovereign power, prior to
the existence of written Constitutions and laws of any kind, and its
existence must be established before they can be recognized as having
any legal force or vitality.
The existence of any nation, as an independent sovereign nation, is a
purely historical fact, for its right to exist as such is in the simple
fact that it does so exist. A nation de facto is a nation de jure, and
when we have ascertained the fact, we have ascertained the right.
There is no right in the case separate from the fact—only the fact
must be really a fact. A people hitherto a part of another people, or
subject to another sovereign, is not in fact a nation, because they
have declared themselves independent, and have organized a government,
and are engaged in what promises to be a successful struggle for
independence. The struggle must be practically over; the former
sovereign must have practically abandoned the effort to reduce them to
submission, or to bring them back under his authority, and if he
continues it, does it as a matter of mere form; the postulant must have
proved his ability to maintain civil government, and to fulfil within
and without the obligations which attach to every civilized nation,
before it can be recognized as an independent sovereign nation; because
before it is not a fact that it is a sovereign nation. The prior
sovereign, when no longer willing or able to vindicate his right, has
lost it, and no one is any longer bound to respect it, for humanity
demands not martyrs to lost causes.
This doctrine may seem harsh, and untenable even, to those sickly
philanthropists who are always weeping over extinct or oppressed
nationalities; but nationality in modern civilization is a fact, not a
right antecedent to the fact. The repugnance felt to this assertion
arises chiefly from using the word nation sometimes in a strictly
political sense, and sometimes in its original sense of tribe, and
understanding by it not simply the body politic, but a certain relation
of origin, family, kindred, blood, or race. But God has made of one
blood, or race, all the nations of men; and, besides, no political
rights are founded by the law of nature on relations of blood, kindred,
or family. Under the patriarchal or tribal system, and, to some
extent, under feudalism, these relations form the basis of government,
but they are economical relations rather than civil or political, and,
under Christian and modern civilization, are restricted to the
household, are domestic relations, and enter not the state or body
politic, except by way of reminiscence or abuse. They are protected by
the state, but do not found or constitute it. The vicissitudes of
time, the revolutions of states and empires, migration, conquest, and
intermixture of families and races, have rendered it impracticable,
even if it were desirable, to distribute people into nations according
to their relations of blood or descent.
There is no civilized nation now existing that has been, developed from
a common ancestor this side of Adam, and the most mixed are the most
civilized. The nearer a nation approaches to a primitive people of
pure unmixed blood, the farther removed it is from civilization. All
civilized nations are political nations, and are founded in the fact,
not on rights antecedent to the fact. A hundred or more lost
nationalities went to form the Roman empire, and who can tell us how
many layers of crushed nationalities, superposed one upon another,
serve for the foundation of the present French, English, Russian,
Austrian, or Spanish nationalities? What other title to independence
and sovereignty, than the fact, can you plead in behalf of any European
nation? Every one has absorbed and extinguished—no one can say how
many—nationalities, that once had as good a right to be as it has, or
can have. Whether those nationalities have been justly extinguished or
not, is no question for the statesman; it is the secret of Providence.
Failure in this world is not always a proof of wrong; nor success, of
right. The good is sometimes overborne, and the bad sometimes
triumphs; but it is consoling, and even just, to believe that the good
oftener triumphs than the bad.
In the political order, the fact, under God, precedes the law. The
nation holds not from the law, but the law holds from the nation.
Doubtless the courts of every civilized nation recognize and apply both
the law of nature and the law of nations, but only on the ground that
they are included, or are presumed to be included, in the national law,
or jurisprudence. Doubtless, too, the nation holds from God, under the
law of nature, but only by virtue of the fact that it is a nation; and
when it is a nation dependent on no other, it holds from God all the
rights and powers of any independent sovereign nation. There is no
right behind the fact needed to legalize the fact, or to put the nation
that is in fact a nation in possession of full national rights. In the
case of a new nation, or people, lately an integral part of another
people, or subject to another people@ the right of the prior sovereign
must be extinguished indeed, but the extinction of that right is
necessary to complete the fact, which otherwise would be only an
initial, inchoate fact, not a fait accompli. But that right ceases when
its claimant, willingly or unwillingly, formally or virtually, abandons
it; and he does so when he practically abandons the struggle, and shows
no ability or intention of soon renewing it with any reasonable
prospect of success.
The notion of right, independent of the fact as applied to sovereignty,
is founded in error. Empty titles to states and kingdoms are of no
validity. The sovereignty is, under God, in the nation and the title
and the possession are inseparable. The title of the Palaeologi to the
Roman Empire of the East, of the king of Sicily, the king of Sardinia,
or the king of Spain—for they are all claimants—to the kingdom of
Jerusalem founded by Godfrey and his crusaders, of the Stuarts to the
thrones of England, Ireland, and Scotland, or of the Bourbons to the
throne of France, are vacated and not worth the parchment on which they
are engrossed. The contrary opinion, so generally entertained, belongs
to barbarism, not to civilization. It is in modern society a relic of
feudalism, which places the state in the government, and makes the
government a private estate—a private, and not a public right—a right
to govern the public, not a right to govern held from or by the public.
The proprietor may be dispossessed in fact of his estate by violence,
by illegal or unjust means, without losing his right, and another may
usurp it, occupy it, and possess it in fact without acquiring any right
or legal title to it. The man who holds the legal title has the right
to oust him and re-enter upon his estate whenever able to do so. Here,
in the economical order, the fact and the right are distinguishable,
and the actual occupant may be required to show his title-deeds.
Holding sovereignty to be a private estate, the feudal lawyers very
properly distinguish between governments de facto and governments de
jure, and argue very logically that violent dispossession of a prince
does not invalidate his title. But sovereignty, it has been shown, is
not in the government, but in the state, and the state is inseparable
from the public domain. The people organized and held by the domain or
national territory, are under God the sovereign nation, and remain so
as long as the nation subsists without subjection to another. The
government, as distinguished from the state or nation, has only a
delegated authority, governs only by a commission from the nation. The
revocation of the commission vacates, its title and extinguishes its
rights. The nation is always sovereign, and every organic people fixed
to the soil, and actually independent of every other, is a nation.
There can then be no independent nation de facto that is not an
independent nation de jure, nor de jure that is not de facto. The
moment a people cease to be an independent nation in fact, they cease
to be sovereign, and the moment they become in fact an independent
nation, they are so of right. Hence in the political order the fact and
the right are born and expire together; and when it is proved that a
people, are in fact an independent nation, there is no question to be
asked as to their right to be such nation.
In the case of the United States there is only the question of fact.
If they are in fact one people they are so in right, whatever the
opinions and theories of statesmen, or even the decisions of courts;
for the courts hold from the national authority, and the theories and
opinions of statesmen may be erroneous. Certain it is that the States
in the American Union have never existed and acted as severally
sovereign states. Prior to independence, they were colonies under the
sovereignty of Great Britain, and since independence they have existed
and acted only as states united. The colonists, before separation and
independence, were British subjects, and whatever rights the colonies
had they held by charter or concession from the British crown. The
colonists never pretended to be other than British subjects, and the
alleged ground of their complaint against the mother country was not
that she had violated their natural rights as men, but their rights as
British subjects—rights, as contended by the colonists, secured by the
English constitution to all Englishmen or British subjects. The denial
to them of these common rights of Englishmen they called tyranny, and
they defended themselves in throwing off their allegiance to George
III., on the ground that he had, in their regard, become a tyrant, and
the tyranny of the prince absolves the subject from his allegiance.
In the Declaration of Independence they declared themselves independent
states indeed, but not severally independent. The declaration was not
made by the states severally, but by the states jointly, as the United
States. They unitedly declared their independence; they carried on the
war for independence, won it, and were acknowledged by foreign powers
and by the mother country as the United States, not as severally
independent sovereign states. Severally they have never exercised the
full powers of sovereign states; they have had no flag—symbol of
sovereignty—recognized by foreign powers, have made no foreign
treaties, held no foreign relations, had no commerce foreign or
interstate, coined no money, entered into no alliances or confederacies
with foreign states or with one another, and in several respects have
been more restricted in their powers in the Union than they were as
British colonies.
Colonies are initial or inchoate states, and become complete states by
declaring and winning their independence; and if the English colonies,
now the United States, had separately declared and won their
independence, they would unquestionably have become separately
independent states, each invested by the law of nature with all the
rights and powers of a sovereign nation. But they did not do this.
They declared and won their independence jointly, and have since
existed and exercised sovereignty only as states united, or the United
States, that is, states sovereign in their union, but not in their
separation. This is of itself decisive of the whole question.
But the colonists have not only never exercised the full powers of
sovereignty save as citizens of states united, therefore as one people,
but they were, so far as a people at all, one people even before
independence. The colonies were all erected and endowed with their
rights and powers by one and the same national authority, and the
colonists were subjects of one and the same national sovereign. Mr.
Quincy Adams, who almost alone among our prominent statesmen maintains
the unity of the colonial people, adds indeed to their subjection to
the same sovereign authority, community of origin, of language,
manners, customs, and law. All these, except the last, or common law,
may exist without national unity in the modern political sense of the
term nation. The English common law was recognized by the colonial
courts, and in force in all the colonies, not by virtue of colonial
legislation, but by virtue of English authority, as expressed in
English jurisprudence. The colonists were under the Common Law,
because they were Englishmen, and subjects of the English sovereign.
This proves that they were really one people with the English people,
though existing in a state of colonial dependence, and not a separate
people having nothing politically in common with them but in the
accident of having the same royal person for their king. The union
with the mother country was national, not personal, as was the union
existing between England and Hanover, or that still existing between
the empire of Austria, formerly Germany, and the kingdom of Hungary;
and hence the British parliament claimed, and not illegally, the right
to tax the colonies for the support of the empire, and to bind them in
all cases whatsoever—a claim the colonies themselves admitted in
principle by recognizing and observing the British navigation laws.
The people of the several colonies being really one people before
independence, in the sovereignty of the mother country, must be so
still, unless they have since, by some valid act, divided themselves or
been divided into separate and independent states.
The king, say the jurists, never dies, and the heralds cry, "The king
is dead! Live the king!" Sovereignty never lapses, is never in
abeyance, and the moment it ceases in one people it is renewed in
another. The British sovereignty ceased in the colonies with
independence, and the American took its place. Did the sovereignty,
which before independence was in Great Britain, pass from Great Britain
to the States severally, or to the States united? It might have passed
to them severally, but did it? There is no question of law or
antecedent right in the case, but a simple question of fact, and the
fact is determined by determining who it was that assumed it, exercised
it, and has continued to exercise it. As to this there is no doubt.
The sovereignty as a fact has been assumed and exercised by the United
States, the States united, and never by the States separately or
severally. Then as a fact the sovereignty that before independence was
in Great Britain, passed, on independence to the States united, and
reappears in all its vigor in the United States, the only successor to
Great Britain known to or recognized by the civilized world.
As the colonial people were, though distributed in distinct colonies,
still one people, the people of the United States, though distributed
into distinct and mutually independent States, are yet one sovereign
people, therefore a sovereign state or nation, and not a simple league
or confederacy of nations.
There is no doubt that all the powers exercised by the General
Government, though embracing all foreign relations and all general
interests and relations of all the States, might have been exercised by
it under the authority of a mutual compact of the several States, and
practically the difference between the compact theory and the national
view would be very little, unless in cases like that of secession. On
the supposition that the American people are one political people, the
government would have the right to treat secession, in the sense in
which the seceders understand it, as rebellion, and to suppress it by
employing all the physical force at its command; but on the compact
theory it would have no such right. But the question now under
discussion turns simply on what has been and is the historical fact.
Before the States could enter into the compact and delegate sovereign
powers to the Union, they must have severally possessed them. It is
historically certain that they did not possess them before
independence; they did not obtain them by independence, for they did
not severally succeed to the British sovereignty, to which they
succeeded only as States united. When, then, and by what means did
they or could they become severally sovereign States? The United
States having succeeded to the British sovereignty in the
Anglo-American colonies, they came into possession of full national
sovereignty, and have alone held and exercised it ever since
independence became a fact. The States severally succeeding only to
the colonies, never held, and have never been competent to delegate
sovereign powers.
The old Articles of Confederation, it is conceded, were framed on the
assumption that the States are severally sovereign; but the several
States, at the same time, were regarded as forming one nation, and,
though divided into separate States, the people were regarded as one
people. The Legislature of New York, as early as 1782, calls for an
essential change In the Articles of Confederation, as proved to be
inadequate to secure the peace, security, and prosperity of "the
nation." All the proceedings that preceded and led to the call of the
convention of 1781 were based on the assumption that the people of the
United States were one people. The States were called united, not
confederated States, even in the very Articles of Confederation
themselves, and officially the United States were called "the Union."
That the united colonies by independence became united States, and
formed really one and only one people, was in the thought, the belief,
the instinct of the great mass of the people. They acted as they
existed through State as they had previously acted through colonial
organization, for in throwing off the British authority there was no
other organization through which they could act. The States, or people
of the States, severally sent their delegates to the Congress of the
United States, and these delegates adopted the rule of voting in
Congress by States, a rule that might be revived without detriment to
national unity. Nothing was more natural, then, than that Congress,
composed of delegates elected or appointed by States, should draw up
articles of confederation rather than articles of union, in order, if
for no other reason, to conciliate the smaller States, and to prevent
their jealousy of the larger States such as Virginia, Massachusetts,
and Pennsylvania.
Moreover, the Articles of Confederation were drawn up and adopted
during the transition from colonial dependence to national
independence. Independence was declared in 1776, but it was not a fact
till 1782, when the preliminary treaty acknowledging it was signed at
Paris. Till then the United States were not an independent nation;
they were only a people struggling to become an independent nation.
Prior to that preliminary treaty, neither the Union nor the States
severally were sovereign. The articles were agreed on in Congress in
1777, but they were not ratified by all the States till May, 1781, and
in 1782 the movement was commenced in the Legislature of New York for
their amendment. Till the organization under the constitution ordained
by the people of the United States in 1787, and which went into
operation in 1789, the United States had in reality only a provisional
government, and it was not till then that the national government was
definitively organized, and the line of demarcation between the General
Government and the particular State governments was fixed.
The Confederation was an acknowledged failure, and was rejected by the
American people, precisely because it was not in harmony with the
unwritten or Providential constitution of the nation; and it was not in
harmony with that constitution precisely because it recognized the
States as severally sovereign, and substituted confederation for union.
The failure of confederation and the success of union are ample proofs
of the unity of the American nation. The instinct of unity rejected
State sovereignty in 1787 as it did in 1861. The first and the last
attempt to establish State sovereignty have failed, and the failure
vindicates the fact that the sovereignty is in the States united, not
in the States severally.
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