by James Madison, Dec. 1835

It has hitherto been understood, that the supreme power, that is, the sovereignty of the people of the States, was in its nature divisible, and was in fact divided, according to the [569] Constitution of the U. States, between the States in their united and the States in their individual capacities that as the States, in their highest sov. char., were competent to surrender the whole sovereignty and form themselves into a consolidated State, so they might surrender a part & retain, as they have done, the other part, forming a mixed Govt with a division of its attributes as marked out in the Constitution.

Of late, another doctrine has occurred, which supposes that sovereignty is in its nature indivisible; that the societies denominated States, in forming the constitutional compact of the U. States, acted as indivisible sovereignties, and consequently, that the sovereignty of each remains as absolute and entire as it was then, or could be at any time.

This discord of opinions arises from a propensity in many to prefer the use of theoretical guides and technical language to the division and depositories of pol. power, as laid down in the constl charter, which expressly assigns certain powers of Govt which are the attributes of sovereigty. of the U. S., and even declares a practical supremacy of them over the powers reserved to the States; a supremacy essentially involving that of exposition as well as of execution; for a law could not be supreme in one depository of power if the final exposition of it belonged to another.

In settling the question between these rival claims of power, it is proper to keep in mind that all power in just & free Govts is derived from compact, that when the parties to the compact are competent to make it, and when the compact creates a Govt, and arms it not only with a moral power, but the physical means of executing it, it is immaterial by what name it is called. Its real character is to be decided by the compact itself; by the nature and extent of the powers it specifies, and the obligations imposed on the parties to it.

As a ground of compromise let then, the advocates of State rights acknowledge this rule of measuring the Federal share of sovereign power under the const. compact; and let it be conceded, on the other hand, that the States are not deprived [570] by it of that corporate existence and political unity which wd. in the event of a dissolution, voluntary or violent, of the Constn. replace them in the condition of separate communities, that being the condition in which they entered into the compact.

At the period of our Revoln it was supposed by some that it dissolved the social compact within the Colonies, and produced a state of nature which required a naturalization of those who had not participated in the revoln. The question was brought before Cong. at its first session by Dr Ramsay, who contested the election of Wm Smith; who, though born in S. C., had been absent at the date of Independence. The decision was, that his birth in the Colony made him a member of the society in its new as well as its original state.

To go to the bottom of the subject, let us consult the Theory which contemplates a certain number of individuals as meeting and agreeing to form one political society, in order that the rights the safety & the interest of each may be under the safeguard of the whole.

The first supposition is, that each individual being previously independent of the others, the compact which is to make them one society must result from the free consent of every individual.

But as the objects in view could not be attained, if every measure conducive to them required the consent of every member of the society, the theory further supposes, either that it was a part of the original compact, that the will of the majority was to be deemed the will of the whole, or that this was a law of nature, resulting from the nature of political society itself, the offspring of the natural wants of man.

Whatever be the hypothesis of the origin of the lex majoris partis, it is evident that it operates as a plenary substitute of the will of the majority of the society for the will of the whole society; and that the sovereignty of the society as vested in & exercisable by the majority, may do anything that could be rightfully done by the unanimous concurrence of the members; [571] the reserved rights of individuals (of conscience for example) in becoming parties to the original compact being beyond the legitimate reach of sovereignty, wherever vested or however viewed.

The question then presents itself, how far the will of a majority of the society, by virtue of its identity with the will of the society, can divide, modify, or dispose of the sovereignty of the society; and quitting the theoretic guide, a more satisfactory one will perhaps be found—1, In what a majority of a society has done, and been universally regarded as having had a right to do; 2, What it is universally admitted that a majority by virtue of its sovereignty might do, if it chose to do.

1. The majority has not only naturalized, admitted into social compact again, but has divided the sovereignty of the society by actually dividing the society itself into distinct societies equally sovereign. Of this operation we have before us examples in the separation of Kentucky from Virginia and of Maine from Massachusetts; events wch. were never supposed to require a unanimous consent of the individuals concerned.

In the case of naturalization a new member is added to the social compact, not only without a unanimous consent of the members, but by a majority of the governing body, deriving its powers from a majority of the individual parties to the social compact.

2. As, in those cases just mentioned, one sovereignty was divided into two by dividing one State into two States; so it will not be denied that two States equally sovereign might be incorporated into one by the voluntary & joint act of majorities only in each. The Constitution of the U. S. has itself provided for such a contingency. And if two States, could thus incorporate themselves into one by a mutual surrender of the entire sovereignty of each; why might not a partial incorporation, by a partial surrender of sovereignty, be equally practicable if equally eligible. And if this could be done by two States, why not by twenty or more.

A division of sovereignty is in fact illustrated by the [572] exchange of sovereign rights often involved in Treaties between Independent Nations, and still more in the several confederacies which have existed, and particularly in that which preceded the present Constitution of the United States.

Certain it is that the constitutional compact of the U. S. has allotted the supreme power of Govt partly to the United States by special grants, partly to the individual States by general reservations; and if sovereignty be in its nature divisible, the true question to be decided is, whether the allotment has been made by the competent authority, and this question is answered by the fact that it was an act of the majority of the people in each State in their highest sovereign capacity, equipollent to a unanimousact of the people composing the State in that capacity.

It is so difficult to argue intelligibly concerning the compound system of Govt in the U. S. without admitting the divisibility of sovereignty, that the idea of sovereignty, as divided between the Union and the members composing the Union, forces itself into the view, and even into the language of those most strenuously contending for the unity & indivisibility of the moral beingcreated by the social compact. “For security agst oppression from abroad we look to the sovereign power of the U. S. to be exerted according to the compact of union; for security agst oppression from within, or domestic oppression, we look to the sovereign power of the State. Now all sovereigns are equal; the sovereignty of the State is equal to that of the Union, for the sovereignty of each is but a moral person. That of the State and that of the Union are each a moral person, and in that respect precisely equal.” These are the words in a speech which, more than any other, has analyzed & elaborated this particular subject, and they express the view of it finally taken by the speaker, notwithstanding the previous one in which he says, “the States, whilst the Constitution of the U. S. was forming, were not even shorn of any of their sovereign power by that process.”

[573]

That a sovereignty would be lost & converted into a vassalage, if subjected to a foreign sovereignty over which it had no controul, and in which it had no participation, is clear & certain, but far otherwise is a surrender of portions of sovereignty by compacts among sovereign communities making the surrenders equal & reciprocal & of course giving to each as much as is taken from it.

Of all free Govts compact is the basis & the essence, and it is fortunate that the powers of Govt supreme as well as subordinate can be so moulded & distributed, so compounded and divided by those on whom they are to operate as will be most suitable to their conditions, will best guard their freedom, and best provide for their safety.


Concordia res parvae crescunt


Small things grow great by concord...

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