HON. T. M. COOLEY, Ann Arbor, Mich. CHICAGO, June 27th, 1881. My Dear Sir: After a long absence from home, I found lately, on my return, your letter of 28th of last April awaiting an acknowledgment. Had I received it within the usual time after date, I would postpone a response longer than I now can with propriety, to that paragraph of your letter in which you say "you probably would not expect me to agree in all your propositions or deductions," in order that I might re-examine some of your works, with which I have long been familiar, and study with care your latest treatise on constitutional law (which I have but just now examined to a limited extent), with the view of discovering, if possible, myself, * * how many or how few, and how important or how unimportant, are those propositions and deductions contained in the pamphlet about which we disagree. For I candidly confess, had I been summoned before any high tribunal to prove by the latest standard authors on constitutional law the doctrine of "State Rights" maintained in the pamphlet to be true, or to establish the position it assumes, that the Republican party has been guilty of usurpation and treason to the constitution, I would have summoned you as my first witness, to appear with your work in your arms. On the subject of State Rights you believe and maintain in your published works on Constitutional Law, the following propositions: First. That State Rights consist of those rights which belonged to the States when the constitution was formed, and have not by that instrument been granted to the Federal Government or prohibited to the States. Second. That those rights are maintained by limiting the exercise of Federal power to the sphere which the constitution expressly or by fair implication assigns it. Third. That in order to ascertain whether a state rightfully exercises a power, we have only to see whether by the constitution of the United States it is conceded to the union, or by that constitution prohibited to be exercised. Fourth. That the presumption must be that the state rightfully does what it assumes to do, until it is made to appear how by constitutional concession it (that is, the state), has divested itself of the power; or which is the same thing, as I construe this proposition unmistakably to mean, that each individual state, acting as a unit of sovereignty, divested itself of, and invested the United States government with, all the power found in the federal constitution; thereby denying that the constitution was ordained and established by the people of the United States in the aggregate, or by any other than separate acts of state sovereignty, and maintaining that the "Federalist" was right in declaring (No. 39), that "each state, in ratifying the constitution, is considered as a sovereign body, independent of all others. The act, therefore, establishing the constitution, will not be a national but a federal act, the act of the people as forming so many independent states; not as forming one aggregate nation." Fifth. That the constitution is a compact. This, I take it, is necessarily conceded in the above proposition, and in the position hereafter assumed that "the proper boundary between national and state powers was agreed upon after long discussion, with much difficulty, as the result of a compromise.' A compromise agreed upon by states, in which each state "divested itself of some of its original powers," must necessarily be a compact. It is conceded in saying that it is not "a mere compact." Giving to the word “mere” its ordinary meaning, viz.: "unmixed," "only," "simple," and "nothing else," &c., the expression may justly be paraphased thus: The constitution is not a simple, unmixed compact, not only, or nothing else than a compact. For the only elements required to form such a compact are covenants agreed to between two or more parties, however unmixed, simple and unimportant in their character and results; whereas the constitution was not a mere compact, if characterized only by the simple elements needed to make it such, but a special kind of compact, mixed and complicated in its nature, and of the highest order, both in its character and results. It required “nine" parties to constitute it a compact. It created a grand confederacy of states, and divided their original sovereign powers into state and federal. It formed a great and powerful nation, so proclaimed by Jefferson and Madison, and by the national democracy from that day to this. Sixth. That in American Constitutional Law a peculiar system is established; the powers of sovereignty being classified, and some of them apportioned to the Government of the United States for its exercise, while others are left with the states. Under this apportionment the nation is possessed of supreme, absolute and uncontrolable power, in respect to certain subjects, throughout all the states; while the states have the like unqualified power within their respective limits in respect to other subjects. Seventh. That the Judiciary is the final authority in the construction of the constitution and the laws, and its construction should be received and followed by the departments. Their judg ments must become the law of the land on the points covered by them. |