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amendments may be adopted which oppose further and greater limitations upon the several states, than those under which they now hold certain restricted legislative functions. It may be remarked, in passing, that the first eleven articles of the amendments, which were adopted almost immediately after the establishment of the present government, are all restrictive of the powers of that government, while the last amendment abolishing slavery is restrictive of the powers of the states, and enlarges those of Congress.
Whatever was the political society that formed the Constitution and government for itself, may change that Constitution and government. This is a proposition self-evident. I need not repeat the reasons which have been already advanced to show that the one people of the United States, the nation, — is the sole author of this scheme of organization.
$111. The people, if they were the original authors, may decree a revision. If, on the contrary, the separate states were the original creators, they alone can remodel their work, and no one of them can bind the others : each has only authority within its own jurisdiction; the very idea of sov. ereignty excludes any power in another body-politic to limit the functions of a state against its consent. We find, therefore, that those who have opposed particular amendments as the one abolishing slavery — on the ground that they were beyond the authority of the people to make, have been compelled to place themselves on the dogma of state sovereignty, as the sole foundation and support of their position. But the Constitution in this very article recognizes the fact that states may be brought under the sanction and obligation of an amendment, without their assent, and even with their decided opposition ; and thus another is added to the many features of our organic law, which are utterly inconsistent with any assumed sovereignty in the separate commonwealths. For, granting the correctness of the theory that the several states were once political sovereignties, and that each surrendered a portion of its inherent powers to the general government, such surrender would go no further than the express
provisions of the Constitution; as to all other matters not reached by that instrument, their sovereignty would remain intact. By this theory, then, it is entirely impossible that three fourths of the states can compel the remaining one fourth to give up a further portion of their attributes, contrary to their will.
§ 112. But our nationality does not need to be supported by arguments so apparently technical. It rests secure broad ground that the one people made, and they alone can unmake; that they reared the original structure, and have full power to enlarge and extend it. The capacities residing in them are boundless; their will, under God, is supreme; Constitutions and governments are their instruments and servants, not their masters.
$113. Nor is the force of this general truth weakened in the case of our own nation, by the carefully arranged formulas according to which the people must proceed to ascertain and record their sovereign will in any attempt at amendment. As all power originally and now resides in the one body politic, that society had, among others, the attribute of determining the means and methods by which alone it could effect, in an organized and lawful manner, a revision of its organic law; of marking out the channel through which alone its reconstructive force could be directed. Among a thousand different schemes it had an unlimited choice; and having once chosen it could declare that this selection was irrevocable except by revolution.
For revolution is nothing but the people acting above and beyond the constituted order of things, in defiance of what has been considered law, but still in pursuance of inherent powers which they hold superior to law. I am, therefore, not speaking of the right of revolution, for that is not constitutional, but extra-constitutional.
$ 114. Our forefathers, when they adopted the present fundamental law, might have declared that amendments thereto should require only the assent of a majority of citizens entitled to suffrage; or should require absolute unanimity. They might, on the other hand, have committed the entire subject to Congress, and thus have made our government similar to
that of Great Britain in the omnipotence of its legislature, Of the motives which led them to the very choice they made, it is not necessary for us now to inquire. It is sufficient for our purpose that they chose a certain plan, while they might have adopted any other. The form, therefore, which must be pursued, has nothing in it essential ; it does not modify, limit, or abridge the powers which can be wielded by and through that form. All the separate votes of Congress and state legislatures or conventions are but the machinery that was thought serviceable for ascertaining and publishing the popular will. If the Constitution had required absolute unanimity among voters, then any amendment might have been passed by unanimous consent; if it had required only a majority of all voters, then any amendment might have been passed by such majority; if the reconstructive power had been committed to Congress, as representatives of the people, then any amendment might have been passed by Congress. The fact that the people are now to be consulted, not in the aggregate, but as they are collected into local cominunities or commonwealths, does not affect this unlimited power of revision ; for there was nothing which compelled the adoption of this particular method, it was only chosen from motives of expediency.
$ 115. The result of this discussion is, that the People of the United States, by virtue of their inherent, absolute attributes as a nation, may, by following the order prescribed in the Constitution, adopt any amendments thereto, whether such changes would enlarge or diminish the functions of the general government, whether they would widen or contract the scope of state legislation. Nay, it is possible that the idea of local self-government, which underlies our present civil polity, might be entirely abandoned, and the plan of complete consolidation substituted in its stead; even a monarchy might be reared in the place of the present republic. It is true that the people have placed an almost insurmountable obstacle to such action on their part, for they have required a species of unanimity as a prerequisite to a reconstruction which should destroy the states as distinctive elements in our political organ
ization. “ No state, without its consent, shall be deprived of its equal suffrage in the Senate.” God forbid that the people should ever be led to give up the safeguard of the local commonwealths, the idea of local self-government which has been to England and to us the life of liberty. God forbid that the people should ever import the imperial policy of consolidation, which has made France the sport, now of a despot, now of a mob, at Paris. I have spoken, not of what is probable, but of what is possible.
$ 116. Legality of the amendment abolishing slavery. - In the present connection it is proper to examine briefly the legality of the late amendment abolishing the status of slavery. While the measure was in the form of a proposal before Congress and the people, it was opposed on the ground that it was unconstitutional; that three fourths of the states could not make it binding upon the dissenting one fourth. Since its adoption, there has still remained a feeling in some portions of the country, there has still been expressed an opinion by certain public men and jurists, that it is a mere nullity. These facts furnish an ample reason for dwelling a moment upon the subject.
The amendment is as follows: “ Article XIII. of the Amendments : Section I. Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or in any place subject to their jurisdiction. Section II. Congress shall have power to enforce this article by appropriate legislation."
§ 117. The most important objection to the legality of this additional article of the Constitution which has been urged by its opponents, will be found, when examined, to rest upon a denial of the national supremacy, and an assertion of state sovereignty. It is urged, with most logical accuracy of deduction from the assumed premises, that as each state is orig. inally sovereign, its inherent attributes and capacity cannot be any
further limited or restrained without its consent; and that as the Constitution is the work of the independent supreme states, the provision as to amendments must be confined to
changes in the detail of the organization, or at all events to such changes as do not interfere with the rights and powers of the local commonwealths.
I need not repeat the argument which has already been advanced against this entire theory. If the national theory be the correct one, this amendment is plainly within the power and capacity of Congress to propose and people to adopt.
$118. But certain opponents of the measure seem to have joined to their general denial of authority in the people, a special denial in this case, grounded upon the assumed peculiar character of the institution of slavery. They have urged that it is a domestic institution of the states, and is therefore beyond the reach of the nation even in the exercise of its reconstructive functions. Now it is true that all rights which flow directly from state legislation are in exactly the same sense domestic; and unless all such are absolutely secure from limitation and restraint by a constitutional amendment, there is no special element of domesticity in slavery which can protect it. Slavery derives its existence solely from state laws; 80 also do the rules which regulate the status of marriage, the ownership and descent of lands, the execution of wills, the administration of the estates of deceased persons, the jurisdiction of local tribunals, the creation of local corporations, the determination of what persons may vote for members of the lower House of Congress, and a thousand other rights, duties, and capacities. Do not all of these subjects rest upon the same foundation, and are they not all finally subordinate to the higher power of the one body politic? The lawfulness of an amendment cannot be doubted which would take away the present right of the states to prescribe the qualifications of congressional electors, and transfer the control over that matter to Congress. No one except a partisan of state sovereignty will deny that the people may withdraw from the separate commonwealths all power to create banks, and may commit the currency entirely to the care of the general government. If it were thought expedient, an amendment might plainly be adopted giving Congress the power to establish throughout the country uniform rules respecting marriage, the ownership and