This article was extracted from Bernard Janin Sage, The Republic of Republics: A Retrospect of Our Century of Federal Liberty (Philadelphia, Pennsylvania: William W. Harding, 1878). It is one of the most comprehensive treatises ever published on the doctrine of State sovereignty. Even though this was written shortly after the un-civil war between the American States, you will see that nearly 130 years since these words were first published they apply to what our nation is facing today.
Written by a New Orleans lawyer who was to have been one of Jefferson Davis’ counsel in the treason trial which never occurred, this book compiles extensive quotations from the earliest American statesmen, both before and after the ratification of the Constitution in 1789, which prove beyond all argument that the American people were never organized into a consolidated democracy, but had existed in their colonial condition as separate political bodies and continued to do so after their independence from Great Britain:
Each [of the American colonies of England] from the first was organized and governed by the sovereign power of England, separately from the rest. Such organized colony or province was a body, fit for the indwelling of a soul. To make a state, the peculiar and essential characteristic was required, which in political philosophy is recognized as distinguishing a state from a colony, province, county, or other subdivision of a state — the absolute right of self-command or self-government in all things; so that when independence was consummated, the aforesaid body became instinct with its own soul. In other words, it became a sovereign state.
We may compare these colonies to so many branches of a great and vigorous tree, each with the vital energy to live and thrive independently, if lopped off and planted in its own free soil. When severed by rebellious swords, each "became a living soul," and each necessarily possessed sovereign political will over its own territory and people. Sovereignty could not be out of it, for there was no political organism and no people, other than these thirteen commonwealths. Each was untrammeled and free, like an eagle that soars away from his broken bonds, and sees no shadow of power between him and the sun!
The colonies associated themselves to effect their independence, and made the celebrated declaration of July 4, 1776, as the thirteen United States of America; but, like thirteen persons united to effect some object, they retained their respective individualities; and George III, could but have acknowledged, as he did in 1783, at the instance of the American Commissioners, that each state was "free, sovereign, and independent." And it was quite natural, nay, unavoidable, that these states should all mutually declare, covenant, pledge, and guaranty, as they did do, by their federative or solemn league, subsisting at the moment each entered the present union, that "each state retains its sovereignty and independence." But it must be noted, that sovereignty was not caused by the declaration, the acknowledgment, or the compact, or all of them together, for these instruments merely declared — and bound the declarants to respect — such entity or fact. In truth, sovereignty only began to exist at the moment the power of the state predominated over all opposing forces, and became supreme power; and the precise time of its origin may be as difficult to determine, as is that of the soul's existence in the human child. Suffice it to say, it existed in the state, or not at all; for there was no other possible body for it to dwell in, than the organized body of people called the state.
Each one of these states, thus originating and thus characterized, was a republic, that is, a community of people, with the absolute right of self-government in all things. This sovereignty of the state is indivisible, and remains integral, even though all the powers of government be delegated. A person may give a thousand commands, or delegate a thousand powers, concerning what he owns, or of right governs, without diminishing his ownership or right of control. So with a state. For instance, the agents of the sovereignty of England exercise the powers of government throughout her world-wide dominions, while the sovereignty remains enthroned at home — the absolute will of the state.
"The Constitution of the United States of America" was made or constituted by the concurrent action of the thirteen pre-existent states referred to, each of which, during all the time of that action, "retained its sovereignty, freedom, and independence," as was declared by all of them in their solemn league and covenant — the Articles of Confederation. The instrument calls itself a "Constitution for" "United States," and characterizes the arrangement made therein as a "union of states." For instance, Article I, section 2, speaks of "the several states which may be included within this union;" Article IV, section 3, declares that "new states may be admitted to this union;" and Article IV, section 4, includes the phrase, "every state in this union." Moreover, the said Constitution declares that it was to be "established," and take effect, "between the states so ratifying the same." Nay, more; its powers were only delegated, and hence must be wielded by trustees and agents, chosen by, and subordinate to, the delegating states, while the "powers not delegated, are reserved to the states respectively, or to the people" of the same."
There is no evidence, or even hint, of any change of character of the states; but, on the contrary, they are named in the Constitution as absolute and complete political bodies, which are necessarily the parties to, and the actors under, the federal system. And, finally, all elective power and right was inherent and absolute in the people composing these states, as their constitutions show; and moreover, they declared in their federal Constitution that they were, as states, to keep and exercise the said elective power. It is provided in Article I, that "the people of the several states" are to choose the "representatives;" and that "each state," "by the legislature thereof," is to elect senators. Article II provides that "each state shall appoint" Presidential electors. These congressmen and presidential electors are citizens and subjects of their respective states, and in their vicarious and representative character, they appoint all other federal officers. So that here, in the Constitution itself, we have the most positive and absolute proofs that the states are sovereign over the federal government, this being their mere agency, or, in other words, a part of their machinery of self-government.
If the states are equal; if the Constitution and the resultant government are made by their will; and if they elect their own subjects or citizens as functionaries, there can be as little doubt of their sovereignty as there is that God reigns supreme over His creations. And not a word of American history, or a principle of governmental philosophy, is inconsistent with this view. So plain are these facts to thoughtful and conscientious men, that the government's claim of "absolute sovereignty" over allegiant states, voiced in the thunders of the recent war, sounds like the knell of that constitutional freedom of which the states were the very citadels.
The founders of American liberty taught the capacity of our people for self-government, or, in other words, that all questions could be settled as they arose, by reason, with justice, and without force. They said the system they founded was fraught with the blessing of peace; but while their footsteps are yet echoing in "the corridors of Time," and while we are extolling their patriotic wisdom, boasting of the precious inheritance they have left us, and singing paeans to Freedom, the very Constitution they founded on these principles is perverted from its purpose, and employed as the means of destroying a million of our brethren, filling the land with mourning, annihilating at least one-half of the property of the country, creating an inextinguishable and crushing debt, depriving one-third of our free and equal states of the last vestige of their equality and freedom, and establishing a precedent which, if placed upon the generally assumed basis and followed, subjugates all the states to the "absolute supremacy" of a central and irresponsible power, and destroys constitutional liberty. For if "the government" has "absolute supremacy" over the states that made it, as the Philadelphia Convention of 1866 declared, its unlimited right of taxation, and of raising armaments, enable it to control all states and sections of states at will, and, finally, to establish an empire. In truth, this has already been done. Whenever there is "absolute supremacy" in "the government," there is no limit to its will or discretion.
Unlimited power in human hands may become as gross a tyranny as could be exercised by a monster with the soul of Mephistopheles in the body of a tiger; for man has the capacity, and only requires the downward training, practices, and incentives, to become a devil. Satan was once an angel of light. Nero, and other tyrants, and associations of tyrants, possessing absolute supremacy, rivaled him as nearly as human infirmities and trammels would permit. It is vain to talk of civilization and Christianity as restraints. Bad men use these as the most potent means to their ends. It is vainer to talk of constitutional restrictions when rulers by perjured usurpation act — and glory in acting — in the infinite field of discretion "outside of the Constitution." And it is vainest to suppose that the phrase "according to the Constitution" is other than a meaningless one, as long as the phrases "absolute supremacy in the government" and "state sovereignty is effectually controlled," are recognized as constitutional ones; for "state sovereignty" is precisely "the sovereignty of the people," the said people having never been organized for government and having never exercised political authority except as states; so that if "state sovereignty is effectually controlled," the sovereignty of the people is effectually controlled, and republican government is at an end! It is simple mockery to reply that the "absolute supremacy" is, by the nation, limited to the grants of the Constitution, or, in other words, that the states are sovereign, except as to the powers surrendered, when the twin dogma is, that the federal government is the final judge of the extent of its powers. Our worst men often get the highest places and exercise this final judgment; their consciences are equal to any occasion; and they gain what they wish by ignoring, or rather violating, their oaths and justifying themselves by the tyrant's pleas — necessity.
Indeed, we see at this moment that the people's "trustees and agents" call themselves "the Government;" claim absolute supremacy and regal prerogatives; dissolve states and make new ones; change the state governments; remove the highest officers thereof; give, and take away, voting power; and, in short, do many revolutionary enormities "outside of the Constitution." These things, which every officer of the government is sworn not to do, are really treasonable to the last degree, for they destroy the existence of the states, and dethrone the sovereignty of the people who are the states, and who politically exist, and politically act, only as states. Suffrage is — humanly speaking — "the pearl of great price" in republican freedom. It is vital to liberty, and must be absolutely controlled by the people who own it, and not by any government. The voting power belongs, of original and absolute right, to the community called the state, who are the real government — what we call "government" being the agency thereof; and a republic being a government of the people by the people. Says Montesquieu:
The original voting power is the people composing the society or state, in whom, as every state constitution declares or implies, "all political power is inherent." The derivative or delegative voting power is an endowment, by society or the state, of individual members designated and described as voters, in the constitution of the state. As Montesquieu says, "the laws which establish the right of suffrage, are fundamental to the government," and hence they are found only in the fundamental laws of the states, established, of original right, by sovereign power. It is plain, then, that if the government (whether state or federal) controls or disposes of suffrage, without warrant in the Constitution, it strikes at the very vitals of the republic, from which it derives its entire existence and power, and commits perjured usurpation, as well as flagrant treason. It is equally plain that an insidious and fraudulent revolution is now going on, tending to subjugate the people of this country — just as all other free people have been — to the "absolute supremacy of the government!"In a democracy, there can be no exercise of sovereignty but by the suffrages of the people, which are their will. Now, the sovereign's will is the sovereign himself; the laws, therefore, which establish the right of suffrage, are fundamental to this government. In fact, it is as important to regulate, in a republic, in what manner, by whom, and concerning what, suffrages are to be given, as it is in a monarchy to know who is the prince, and after what manner he is to govern (I. Esprit des Lois, page 12).
This article was extracted from Bernard Janin Sage, The Republic of Republics: A Retrospect of Our Century of Federal Liberty (Philadelphia, Pennsylvania: William W. Harding, 1878). It has been re-printed and can be purchased at http://confederatereprint.com/product_i ... ucts_id=93