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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, coutributed 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.



The ratification of the conventions of nine States shall be suffi. cient 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. The policy was, by argument and persuasion, to secure a unanimous ratification, if possible, and this policy fortunately proved successful.

It has been held that if Rhode Island and North Carolina had persisted in their first refusal to ratify, they would have become foreign nations. Practically this is an impossible view. Those States belonged to the Union that was formed in 1775; they had participated in the war of independence; the public debt was in part their burden; they beld important territorial positions in the dominion surrendered by Great Britain in 1783. These facts precluded their being permitted to set up for themselves as independent nations. The logic of events compelled them to share the fortunes of their sister States. Congress began to give attention to these States soon after the Houses were organized in 1789. Ships belonging to their citizens were exempted from paying the duties levied on foreign ships, and Rhode Island asked for such an exemption. This was an implied acknowledgment on her part, as well as an assertion on the part of Congress, that Rhode Island was still one of the United States. In May, 1790, the Senate passed a bill forbidding commercial intercourse between that State and other States, and calling upon her for her share of the expenses of the war; the House delayed action, to see what the State convention that had been called would do. Had it been necessary, compulsion would no doubt have been ultimately employed against Rhode Island and North Carolina. Happily, their ratifications made this unnecessary.




The several propositions relating to amending the Constitution before it should go into operation, have been stated in Chapter X. Also the plan adopted by its friends in Massachusetts, and in some other States, for effecting its ratification, which pledged them to favor amendments deemed necessary when the time came.

623. Ten Amendments Made.-When Congress, at its first session, took up the subject, it was found that Massachusetts had proposed 9 amendments, South Carolina 4, North Carolina 26, Virginia 20, New York 32, and New Hampshire 12; that minorities of the Pennsylvania and Maryland conventions had proposed 14 and 28 respectively; that Virginia had proposed a bill of rights containing 20 articles, and New York one of 24,—the whole making a total of 189 items. Many of them were repetitions, but there was still a large number of independent propositions. Twelve amendments, most of them selected from this mass, received a two-thirds vote of each House, and were sent to the State Legislatures for their action. Ten of the twelve received the required number of ratifications, and were declared to be in force, December 15, 1791.

Article I.-Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

624. No State Church, Etc.-Congress has nothing whatever to do with churches or with religion as such. An absolute separation of Church and State is one of the char

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