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But little importance, however, ought to be attached to reasoning of this kind. Those who contend that our Constitution is a compact, very properly place their principles upon much higher ground. They say that the Constitution is a compact,

because it was made by sovereign States, and because that is the

only mode in which sovereign States treat with one another. The conclusion follows irresistibly from the premises; and those who would deny the one, are bound to disprove the other. Our adversaries begin to reason at the very point at which reasoning becomes no longer necessary. Instead of disproving our premises, they assume that they are wrong, and then triumphantly deny our conclusion also. If we establish that the Constitution was made by the States, and that they were, at the time, distinct, independent and perfect sovereignties, it follows that they could not treat with one another, even with a view to the formation of a new common government, except in their several and sovereign characters. They must have maintained the same character when they entered upon that work, and throughout the whole progress of it. Whatever the government may be, therefore, in its essential character, whether a federative or a consolidative government, it is still a compact, or the result of a compact, because those who made it could not make it in any other way. In determining its essential character, therefore, we are bound to regard it as a compact, and to give it such a construction as is consistent with that idea. We are not to presume that the parties to it designed to change the character in which they negotiated with one another. Every fair and legitimate inference is otherwise. Its sovereignty is the very last thing which a nation is willing to surrender; and nothing short of the clearest proof can warrant us in concluding that it has surrendered it. In all cases, therefore, where the language and spirit of the Constitution are doubtful, and even where their most natural construction would be in favor of consolidation, (if there be any such case,) we should still incline against it, and in favor of the rights of the States, unless no other construction, can be admitted. *Having disposed of this preliminary question, we now r, approach the Constitution itself. I affirm that it is, in its [*72] structure, a federative and not a consolidated government; that

it is so, in all its departments, and in all its leading and distinguishing provisions; and, of course, that it is to be so interpreted, by the force of its own terms, apart from any influence to be derived from that rule of construction which has just been laid down. We will first examine it in the structure of its several departments. The Legislature.—This consists of two houses. The senate is composed of two members from each State, chosen by its own legislature, whatever be its size or population, and is universally admitted to be strictly federative in its structure. The house of representatives consists of members chosen in each State, and is regulated in its numbers, according to a prescribed ratio of representation. The number to which each State is entitled is proportioned to its own population, and not to the population of the United States; and if there happen to be a surplus in any State less than the established ratio, that surplus is not added to the surplus or population of any other State, in order to make up the requisite number for a representative, but is wholly unrepresented. In the choice of representatives, each State votes by itself, and for its own representatives, and not in connection with any other State, nor for the representatives of any other State. Each State prescribes the qualifications of its own voters, the Constitution only providing that they shall have the qualifications which such State may have prescribed for the voters for the most numerous branch of its own legislature. And, as the right to vote is prescribed by the State, the duty of doing so cannot beenforced, except by the authority of the State. No one can be elected to represent any State, except a citizen thereof. Vacancies in the representation of any State, are to be supplied under writs of election, issued by the executive of such State. In all this, there is not one feature of nationality. The whole arrangement has reference to the States as such, and is carried into effect solely by their authority. The federal government has no agency in the choice of representatives, except only that it may prescribe the “times, places and manner, of holding elections.” It can neither prescribe the qualifications of the electors, nor impose any penalty upon them, for refusing to elect. The States alone can do these things; and, of course, the very existence of the house of representatives depends, as much as does that of the Senate, upon the action of the States. A State may withdraw its representation altogether, and congress has no power to prevent it, nor to supply the vacancy thus created. If the house of representatives were national, in any practical sense of the *term, the “nation” would have r. authority to provide for the appointment of its members, [*73] to prescribe the qualifications of voters, and to enforce the performance of that duty. All these things the State legislatures can do, within their respective States, and it is obvious that they are strictly national. In order to make the house of representatives equally so, the people of the United States must be so consolidated that the federal government may distribute them, without regard to State boundaries, into numbers according to the prescribed ratio; so that all the people may be represented, and no unrepresented surplus be left in any State. If these things could be done under the Federal Constitution, there would then be a strict analogy between the popular branches of the federal and State legislatures, and the former might, with propriety, be considered “national.” But it is difficult to imagine a national legislature which does not exist under the authority of the nation, and over the very appointment of which the nation, as such, can exert no effective control. There are only two reasons which I have ever heard assigned for the opinion that the house of representatives is national, and not federative. The first is, that its measures are carried by the votes of a majority of the whole number, and not by those of a majority of the States. It would be easy to demonstrate that this fact does not warrant such a conclusion; but all reasoning is unnecessary, since the conclusion is disproved by the example of the other branch of the federal legislature. The senate, which is strictly federative, votes in the same way. The argument, therefore, proves nothing, because it proves too much. The second argument is, that the States are not equally represented, but each one has a representation proportioned to its population. There is no reason, apparent to me, why a league may not be formed among independent sovereignties, giving to each an influence in the management of their common concerns, proportioned to its strength, its wealth, or the interest which it has at stake. This is but simple justice, and the rule ought to prevail in all cases, except where higher considerations disallow it. History abounds with examples of such confederations, one of which I will cite. The States General of the United Provinces were strictly a federal body. The council of state had almost exclusively the management and control of all their military and financial concerns; and in that body, Holland and some other provinces had three votes each, whilst some had two, and others only one vote each. Yet it never was supposed that for this reason the United Provinces [*74] were a consolidated nation. A single example *of this sort affords a full illustration of the subject, and renders all farther argument superfluous. It is not, however, from the apportionment of its powers, nor from the modes in which those powers are exercised, that we can determine the true character of a legislative body, in the particular now under consideration. The true rule of decision is found in the manner in which the body is constituted, and that, we have already seen, is, in the case before us, federative, and not national. We may safely admit, however, that the house of representatives is not federative, and yet contend, with perfect security, that the legislative department is so. Congress consists of the house of representatives and senate. Neither is a complete legislature, in itself, and neither can pass any law without the concurrence of the other. And, as the senate is the peculiar representative of the States, no act of legislation whatever can be performed, without the consent of the States. They hold, therefore, a complete check and control over the powers of the people in this respect, even admitting that those powers are truly and strictly represented in the other branch. It is true that the check is mutual; but if the legislative department were national, there would be no federative feature in it. It cannnot be replied, with equal propriety, that, if it were federative, there would be no national feature in it. The question is, whether or not the States have preserved their distinct sovereign characters, in this feature of the Constitution. If they have done so, in any part of it, the whole must be considered federative; because national legislation implies a unity, which is absolutely inconsistent with all idea of a confederation; whereas, there is nothing to prevent the members of a confederation from exerting their several powers, in any form of joint action which may seem to them proper. But there is one other provision of the Constitution which appears to me to be altogether decisive upon this point. Each State, whatever be its population, is entitled to at least one representative. It may so happen that the unrepresented surplus, in some one State, may be greater than the whole population of some other State; and yet such latter State would be entitled to a representative. Upon what principle is this? Surely, if the house of representatives were national, something like equality would be found in the constitution of it. Large surpluses would not be arbitrarily rejected in some places, and smaller numbers, not equal to the general ratio, be represented in others. There can be but one reason for this: As the Constitution was made by the States, the true principles of the confederation could “not be preserved, without *75 giving to each party to the compact a place and influ- [*75] ence in each branch of the common legislature. This was due to their perfect equality as sovereign States. The Executive.—In the election of the president and vice president, the exclusive agency of the States, as such, is preserved with equal distinctness. These officers are chosen by electors, who are themselves chosen by the people of each State, acting by and for itself, and in such mode as itself may prescribe. The number of electors to which each State is entitled is equal to the whole number of its representatives and senators. “This provision is even more federative than that which apportions representation in the house of representatives; because it adds two to the electors of each State, and, so far, places them upon an equality, whatever be their comparative population. The people of each State vote within the State, and not elsewhere; and for their own electors, and for no others. Each State prescribes the qualifications of its own electors, and can alone compel them to vote. The electors, when chosen, give their votes within their respective States,

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