CHAPTER XLV.

THEORIES OF THE UNION: THE CIVIL WAR.

Mention has been made more than once in these pages of conflicting theories of the Union and the Constitution. The Strict-construction and Loose-construction schools have their favorite theories and phrases. To some extent, these controversies relate to names and words rather than to facts and ideas, but by no means wholly so. Two main lines of divergent thought can be followed from the very beginning of our present government.

615. State Sovereignty.-The theory of State sovereignty assigns to the State a paramount authority. It may be thus summed up: The Declaration of Independence was the work of thirteen peoples, and not of one people. It made the States as independent of one another as of England. The Confederation was the work of States as States, and so was the Constitution. It was framed by State delegates, ratified by State conventions, and created a government of expressly delegated powers. The States are therefore sovereigns; the citizen owes allegiance first to his State, and to the Union only so long as the State remains in the Union. The United States are not a nation in the sense that England or France is a nation, but a confederation or league. A State has the same right to recall the powers that it has delegated to the United States that it had to delegate them originally. It is as free to secede from the Union as it was to accede to it in the first place. Of the time and reason for such secession, the State is the absolute judge. Furthermore, if a State sees fit to exercise the right of secession, the Union has no legal or constitutional power of coercion. Such is the full-blown theory of State sovereignty; there is a milder one that we are not called upon

to state.

616. Secession of the Eleven States.-State sovereignty obtained general currency in the Southern States before the Civil War. Accordingly, when the election of President Lincoln, as they thought, endangered their rights in the Union, eleven States seceded from the

Union. Such opposition as these acts of secession encountered within the States, was made mainly on the ground of expediency; few men ventured to deny the doctrine of State sovereignty. The ordinances of secession were enacted in most cases by State conventions, and but few of them were submitted to the people for their ratification. The South Carolina ordinance may be taken as an example. It simply professed to undo what had been done seventytwo years before.

"We, the people of the State of South Carolina, in convention assembled, do declare and ordain, and it is hereby declared and ordained, that the ordinance adopted by us in convention, on the 23d of May, in the year of our Lord 1788, whereby the Constitution of the United States was ratified, and all other acts and parts of acts of the General Assembly of this State ratifying amendments of the said Constitution, are hereby repealed; and that the Union now subsisting between South Carolina and other States, under the name of the United States of America, is hereby dissolved."

The seceding States did not admit secession to be an act of revolution, like the Declaration of Independence, but asserted it to be a constitutional act. How naturally it sprang from the doctrine of State sovereignty, is apparent at a glance.

617. The National Theory.—This has been stated in forms somewhat different. The following is a summary of the statement made by Chief Justice Chase in delivering the judgment of the Supreme Court in the celebrated case of Texas v. White, decided in 1869.2

The Union of the States is not, and never was, a purely arbitrary and artificial relation. It grew out of the common origin, sympathies, principles, interests, and geographical relations of the Colonies. It was strengthened by the necessities of the Revolutionary War, and the Articles of Confederation solemnly declared it to be perpetual. Moreover, the Constitution was expressly ordained to form a more perfect union. But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual State existence, or of the right of self-government by the States. On the contrary, the preservation of the States and the maintenance of their governments are as much within the design and care of the Constitu

1 The following are the States that seceded, with the dates of the ordinances of secession:

tion as the preservation of the Union and the maintenance of the National Government. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States. On becoming a member of the Union, any new State enters into an indissoluble relation. The union between such State and the other States is as complete, as perpetual, and as indissoluble as the union between the original States. There is no place for reconsideration or revocation, except through revolution or the consent of the States.

618. Status of Seceding States During the Rebellion.—While the National Government was engaged in prosecuting the Civil War, and still more when the time came to reconstruct the Southern States, there arose wide differences of opinion as to the relations of these States to the Union. Congress never gave its sanction to any particular theory, but in the Reconstruction Acts, enacted over the President's vetoes in March, 1867, it laid down the conditions upon which the seceding States could be restored to their normal relations, and be admitted to representation in the two Houses of Congress. In accordance with these acts, and subsequent supplementary ones, reconstruction was effected.

619. Supreme Court View.-In the case of Texas v. White the Court defines its view of secession substantially as follows:

Constitutionally considered, the ordinances of secession, and all the acts of the Legislatures intended to give these effect, were absolutely null and void. But these States did not cease to be States, nor their citizens to be citizens of the Union. During the Rebellion, they had no governments in the sense of the Constitution. The so called governments were usurping governments, organized to carry on war against the United States. It was necessary that the governments and the people of these States should be restored to peaceful relations to the United States, under the Constitution, before they could claim the rights of States. The power to suppress insurrection and to carry on war, conferred by the Constitution, gave the Nation authority to suppress the Rebellion; and the power to guarantee to every State a republican form of government, also conferred, gave it authority to provide for the reestablishment of legal State governments in the room of those that had been subverted and overthrown. This guarantee it was the duty and right of Congress to carry out. The power conferred by the guarantee clause, like other powers, carries with it a discretion as to the manner of its exercise. The governments organized in these States under the Reconstruction Acts are the constitutional governments of the seceding States. They are restored State governments, organized in allegiance to the Union for the benefit of the States.

620. The Antagonistic Theories.-The theories of the Union described above were many years in course of formation. The early Strict-construction statesmen, who held the milder form of State sovereignty, contributed important ideas to the formation of the stronger form; but it was John C. Calhoun, more than any other man, who completed that theory and gave it currency. The National theory was mainly the work of Hamilton, Marshall, Story, and Webster. The Civil War was but the clash of these opposing theories; and the Supreme Court, in Texas v. White, merely summed up the results of the appeal to the Court of War. The adjustment of the particular and general elements in our system is still the subject of discussion, and it will remain such as long as the Federal system stands; but it is not easy tɔ imagine a state of affairs as actually existing that could revive the old theory of State sovereignty. For example, the State of Mississippi has inserted this article in her bill of rights, adopted in 1890: "The right to withdraw from the Federal Union on account of any real or supposed grievance, shall never be assumed by this State, nor shall any law be passed in derogation of the permanent allegiance of the citizens of this State to the Government of the United States."

NOTE.-President Lincoln, in his first message to Congress, referring to the 'sophism that there is some omnipotent and sacred supremacy pertaining to a State," observed: "Our States have neither more nor less power than that reserved to them in the Union by the Constitution, no one of them ever having been a State out of the Union. The original ones passed into the Union even before they cast off their British colonial dependence; and the new ones came into the Union directly from the condition of dependence, excepting Texas. And even Texas in its temporary independence was never designated a State. The new ones only took the designation of States on coming into the Union, while that name was first adopted by the old ones in and by the Declaration of Independence. Therein the United Colonies were declared to be free and independent States; but even then the object plainly was not to declare their independence of one another, or of the Union, but directly the contrary, as their mutual pledge, and their mutual action before, at the time, and afterwards abundantly show. The Union is older than any of the States, and in fact it created them as States. Originally some dependent colonies made the Union; and, in turn, the Union threw off their old dependence for them and made them States such as they are. Not one of them ever had a State constitution independent of the

Union."

1 A good statement of constitutional theories is given by Johnston. See Lalor's Cyclopedia, "Declaration of Independence," and other articles therein referred to.

CHAPTER XLVI.

RATIFICATION OF THE CONSTITUTION.

ARTICLE VII.

The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.

621. Reasons for this Article.-No amendment could be made to the Articles of Confederation, unless proposed by Congress and ratified by the Legislatures of all the States. But the Convention that Congress called to its assistance in 1787, solely and expressly to revise the Articles of Confederation, and report such alterations and provisions therein as should, when approved by Congress and ratified by the States, render them adequate to the exigencies of government and the preservation of the Union, at once abandoned this plan, and took up the task of framing a new constitution. In this way the rules requiring the agreement of Congress to the Constitution, and a unanimous ratification, were avoided. A new constitution could prescribe its own rule of ratification. The Convention fixed upon nine States, the number required by the Articles for transacting business of first-class importance. Had the agreement of Congress and a unanimous vote of the States been necessary, the Constitution would never have been adopted. Still, the course taken in 1787 was in effect revolutionary, since it disregarded the provisions of the constitution already in force.

622. Status of States not Ratifying.- What would have been the status of States permanently refusing to ratify the Constitution? While the Constitution was under consideration, little was said about this delicate question.