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Sovereignty, 1835 (Federalism and the Revolution)

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 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
const charter, which expressly assigns certain powers of Govt which are the attributes of
sovereignty 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 Gov. is derived from compact, that when the parties to the compact are
competent to make it, and when the compact creates a Gov., 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 by it of that corporate existence and political
unity which wd. in the event of a dissolution, voluntary or violent, of the Const. replace them in
the condition of separate communities, that being the condition in which they entered into the
compact.
At the period of our Revolution. 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 f 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 parties, 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; the reserved rights
of individuals (of conscience for example) in becoming parties to the original compact being
beyond the legitimate reach of sovereignty, whenever 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, 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
chooses 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 and
Virginia and of Maine from Massachusetts; events which 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 each 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 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 unanimous act of the people composing the State in that capacity
It is so difficult 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 being
created 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.
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 Govt. 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.