for the most numerous branch of the State
Legislature In what sense, then, is the
Government of the United States based upon
the theory that there is a "people of the
United States?" Not in regard to the ex-
ecutive, for the reason I have shown. The
legislative department does not show it.
Take the Senate of the United States; the
people are there represented by States, Delaware
having as much weight, there as New
York. The Senate of the United States is
strictly confederate in its structure; there
can he no mistake about that. So with the
House of Representatives: the people are
there represented by States, each State, by an
arbitrary system, having so many representa-
tives, all elected by the State. There is no
power in this country, no agency, no au-
thority which can tell the people of Maryland
whom they shall elect to the Congress of the
United States; or that can say to this imagi-
nary "people of the United States" whom
they shall elect President of the United States.
There is no such political organism, there is
no such political aggregation of persons, as
"the people of the United States." There is
no function performed by " the people of the
United States;" there is no power granted to
them; there is no duty which they can fulfil
known either to fact or to law; there is no
such people. It is simply the people of the
several States.
No such thing is apparent in your judiciary.
"Who makes the judges? The President, who
is elected by direct State action, nominates
them to the Senate, which is the most re-
markably confederate body on earth, and the
Senate confirms them. The judiciary, there-
fore, is a notable instance of the federative
character of our Government. Also in refer-
ence to the mode in which the Constitution
is to be amended. Do the "people of the
United States" amend the Constitution?
We know the forms in which amendments
are to be proposed; either by the States
themselves, or by the votes of so many States
in Congress. So that looking at the Consti-
tution, as it stands adopted, independently
of that logic which would put the States'
rights construction upon it—as, in my judg-
ment, can be properly done, from the fact of
the existence of the colonies as independent
States even before as well as after the adop-
tion of the articles of confederation—apart
from that, taken upon its own merits, taken
upon what it says, I hold that in no portion
of the Constitution, in reference to any de-
partment of the Government, is there a single
grant or a single retention of power, or any
circumstance, or any word, that can properly
be construed as supporting the theory that
our system of government was intended to be
a consolidated, and not a federative system
Now, in reference to another point which
is cognate with this particular point: that
there is a common court. Now, I need not |
detain the Convention to state, what must be
very obvious from the tone of my remarks,
that I hold that when we come to the ques-
tion of last resort, these States are, in refer-
ence lo the mere reserved question of political
power between them and the Federal Government,
the same as between them and
Great Britain, and are necessarily the sole
judges. The common argument is that the
Supreme Court of the United States is the
common arbiter—arbiter for what? For all
questions which, under the Constitution, that
Court is authorized to decide. Gentlemen
argue that the Constitution itself does not
restrict the Supreme Court. Now, there are
certain cases stated to be within the purview
of that court, and capable of decision by its
authority. Now, what shall be said of cases
which arise outside of that grant of power;
for it has no power but that which is granted?
Now) the great argument which the States'
rights men have stood upon in reward to the
Supreme Court of the United States, and
where, in my judgement, they are impregnable,
ie this; that it cannot be said, these
States being sovegeign before the formation
of the Constituiton, when they met together
for the purpose of forming that Constitution,
they ever intended to leave to the Federal
Government the decision of the extent of the
federal powers. That is, the Federal Gov-
ernment, or the Supreme Court of the United
States, is not the last resort as to the question
of political power between the confederation
and the States. That is impossible. The
Supreme Court is what? a common arbiter?
It is a department of the National Government;
it is one of the branches of the
federal power, just as much as the execu-
tive, just as much as the Congress of the
United States; just as the Court of Appeals
in Maryland is a part of the system of gov-
ernment in Maryland. These States met
together and said: "Here, we delegate the
exercise of certain of our sovereign powers,
for the time being, to a common agent; and
we will establish this high court of judicature
for the adjustment of certain questions be-
tween citizens residing in different States,
questions over which no State court would
properly have control, and in reference to
which we would have to be thrown upon the
common but inconvenient law of nations—
in reference to these things we will establish
a Supreme Court." But did any statesman
of that day ever think that this Supreme
Court so established was to have the power
of defining the powers of the confederation
as against the powers of the States that
created that confederation? If so, then it
was a total surrender of all the principles
upon which the war of the Revolution was
fought, upon which our liberties were won,
upon which the States stood at the time they
formed the confederation. Now, if the Fed-
eral Government, through any of its depart- |
