the bargain has been pursued or violated." (Madison's Report, p. 20.) When it is insisted by the gentleman that one of the parties "has the power of deciding ultimately and conclusively upon the extent of its own authority," I ask for the grant of such a power. I call upon the gentleman to show it to me in the Constitution. It is not to be found there.
But if there be no common superior, it results, from the very nature of things, that the parties must be their own judges. This is admitted to be the case where treaties are formed between independent nations; and if the same rule does not apply to the federal compact, it must be because the federal is superior to the state government, or because the states have surrendered their sovereignty. Neither branch of this proposition can be maintained for a moment.
Here, however, we are met by the argument that the Constitution was not formed by the states in their sovereign capacity, but by the people; and it is therefore inferred that the federal government, being created by all the people, must be supreme; and though it is not contended that the Constitution may be rightfully violated, yet it is insisted that from the decision of the federal government there can be no appeal.
I deny that the Constitution was framed by the people in the sense in which that word is used on the other side, and insist that it was framed by the states, acting in their sovereign capacity. When, in the preamble of the Constitution, we find the words, "We, the people of the United States," it is clear they can only relate to the people as citizens of the several states, because the federal government was not then in existence.
We accordingly find, in every part of that instrument, that the people are always spoken of in that sense. Thus, in the 2d section of the 1st article, it is declared, "that the House of Representatives shall be composed of members chosen every second year by the people of the several states." To show that, in entering into this compact, the states acted in their sovereign capacity, and not merely as parts of one great community, what can be more conclusive than the historical fact, that when every state had consented to it except one, she was not held to be bound. A majority of the people in any state bound that state; but nine tenths of all the people of the United States could not bind the people of Rhode Island, until Rhode Island, as a state, had consented to the compact.
I am not disposed to dwell longer on this point, which does appear to my mind to be too clear to admit of controversy. But I will quote from Mr. Madison's Report, which goes the whole length in support of the doctrines for which I have contended.
Having now established the position that the Constitution was a compact between sovereign and independent states, having no common superior, "it follows of necessity" (to borrow the language of Mr. Madison) "that there can be no tribunal above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition."
But the gentleman insists that the tribunal provided by the Constitution, for the decisions of controversies between the states and the federal government, is the Supreme Court.
It is clear that questions of sovereignty are not the proper subjects of judicial investigation. They are much too large, and of too delicate a nature, to be brought within the jurisdiction of a court of justice. Courts,
