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he still remains, in all cases not expressly submitted to the new government." 1

§ 411. We here see that the whole reasoning is founded, not on the notion that the rights of the people are concerned, but the rights of the States. And by strict construction is obviously meant the most limited sense belonging to the words. And the learned author relies, for the support of his reasoning, upon some rules laid down by Vattel in relation to the interpretation of treaties in relation to odious things. It would seem, then, that the Constitution of the United States is to be deemed an odious instrument. And why, it may be asked? Was it not framed for the good of the people, and by the people? One of the sections of Vattel, which is relied on, states this proposition,2" That whatever tends to change the present state of things is also to be ranked in the class of odious things." Is it not most manifest that this proposition is, or at least may be, in many cases, fundamentally wrong? If a people free themselves from a despotism, is it to be said that the change of government is odious, and ought to be construed strictly? What, upon such a principle, is to become of the American Revolution, and of our State governments and State constitutions? Suppose a well-ordered government arises out of a state of disorder and anarchy, is such a government to be considered odious? Another section 3 adds: "Since odious things are those whose restriction tends more certainly to equity than their extension, and since we ought to pursue that line which is most conformable to equity, when the will of the legislature or of the contracting parties is not exactly known, we should, where there is a question of odious things, interpret the terms in the most limited sense. We may even, to a certain degree, adopt a figurative meaning in order to avert the oppressive consequences of the proper and literal sense, or anything of an odious nature which it would involve." Does not this section contain most lax and unsatisfactory ingredients for interpretation? Who is to decide whether it is most conformable to equity to extend or to restrict the sense? Who is to decide whether the provision is odious? According to this rule, the most opposite interpretations of the same words would be equally correct, according as the interpreter should deem it odious or salutary. Nay, the words are to be deserted and a figurative sense adopted, whenever he deems it ad1 1 Tucker's Black. Comm. App. 151. 2 B. 2, § 305.


§ 508.

visable, looking to the odious nature or consequence of the common sense. He who believes the general government founded in wisdom and sound policy and the public safety may extend the words. He who deems it odious, or the State governments the truest protection of all our rights, must limit the words to the narrowest meaning.


§ 412. The twelfth amendment to the Constitution is also relied on by the same author, which declares "that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." He evidently supposes that this means "in all cases not expressly submitted to the new government"; yet the word "expressly" is nowhere found in the amendment. But we are not considering whether any powers can be implied; the only point now before us is, how the express powers are to be construed. Are they to be construed strictly, that is, in their most limited sense? Or are they to receive a fair and reasonable construction, according to the plain meaning of the terms and the objects for which they are used?

§ 413. When it is said that the Constitution of the United States should be construed strictly, viewed as a social compact, whenever it touches the rights of property, or of personal security or liberty, the rule is equally applicable to the State constitutions in the like cases. The principle upon which this interpretation rests, if it has any foundation, must be that the people ought not to be presumed to yield up their rights of property or liberty beyond what is the clear sense of the language and the objects of the Constitution. All governments are founded on a surrender of some natural rights, and impose some restrictions. We may not be at liberty to extend the grants of power beyond the fair meaning of the words in any such case; but that is not the question here under discussion. It is, how we are to construe the words as used, whether in the most confined or in the more liberal sense properly belonging to them. Now, in construing a grant or surrender of powers by the people to a monarch, for his own benefit or use, it is not only natural but just to presume, as in all other cases of grants, that the parties had not in view any large sense of the terms, because the objects were a derogation permanently from their

1 [See Golden v. Prince, 3 Wash. C. C. 313; Calder v. Bull, 3 Dall. 386; Gilman v. Philadelphia, 3 Wall. 713.]

rights and interests. But in construing a constitution of government, framed by the people for their own benefit and protection, for the preservation of their rights and property and liberty, where the delegated powers are not and cannot be used for the benefit of their rulers, who are but their temporary servants and agents, but are intended solely for the benefit of the people, no such presumption of an intention to use the words in the most restricted sense necessarily arises. The strict, or the most extended sense, both being within the letter, may be fairly held to be within their intention, as either shall best promote the very objects of the people in the grant; as either shall best promote or secure their rights, property, or liberty. The words are not, indeed, to be stretched beyond their fair sense; but within that range the rule of interpretation must be taken which best follows out the apparent intention. This is the mode (it is believed) universally adopted in construing the State constitutions. It has its origin in common-sense. And it never can be a matter of just jealousy; because the rules can have no permanent interest in a free government, distinct from that of the people, of whom they are a part, and to whom they are responsible. Why the same reasoning should not apply to the government of the United States it is not very easy to conjecture.

§ 414. But it is said that the State governments being already in existence and the people subjected to them, their obedience to the new government may endanger their obedience to the States, or involve them in a conflict of authority, and thus produce inconvenience. In the first place, it is not true, in a just sense, (if we are right in our view of the Constitution of the United States,) that such a conflict can ultimately exist. For if the powers of the general government are of paramount and supreme obligation, if they constitute the supreme law of the land, no conflict as to obedience can be found. Whenever the question arises as to whom obedience is due, it is to be judicially settled; and being settled, it regulates at once the rights and duties of all the citi


§ 415. In the next place, the powers given by the people to the general government are not necessarily carved out of the powers already confided by them to the State governments. They may be such as they originally reserved to themselves. And, if they are not, 1 Rawle on the Constitution, ch. 1, p. 31.

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the authority of the people in their sovereign capacity to withdraw power from their State functionaries, and to confide it to the functionaries of the general government, cannot be doubted or denied.1 If they withdraw the power from the State functionaries, it must be presumed to be because they deem it more useful for themselves, more for the common benefit and common protection, than to leave it where it has been hitherto deposited. Why should a power in the hands of one functionary be differently construed in the hands of another functionary, if in each case the same object is in view, the safety of the people? The State governments have no right to assume that the power is more safe or more useful with them than with the general government; that they have a higher capacity and a more honest desire to preserve the rights and liberties of the people than the general government; that there is no danger in trusting them, but that all the peril and all the oppression impend on the other side. The people have not so said or thought; and they have the exclusive right to judge for themselves on the subject. They avow that the Constitution of the United States was adopted by them "in order to form a more perfect Union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity." It would be a mockery to ask if these are odious objects. If these require every grant of power withdrawn from the State governments to be deemed strictissimi juris, and construed in the most limited sense, even if it should defeat these objects, what peculiar sanctity have the State governments in the eyes of the people beyond these objects? Are they not framed for the same general ends? Was not the very inability of the State governments suitably to provide for our. national wants and national independence and national protection the very groundwork of the whole system?

§ 416. If this be the true view of the subject, the Constitution of the United States is to receive as favorable a construction as those of the States. Neither is to be construed alone, but each with a reference to the other. Each belongs to the same system of government, each is limited in its powers, and within the scope of its powers each is supreme. Each, by the theory of our government, is essential to the existence and due preservation of the

1 Martin v. Hunter, 1 Wheat. R. 304, 325.

power and obligations of the other. The destruction of either would be equally calamitous, since it would involve the ruin of that beautiful fabric of balanced government which has been reared with so much care and wisdom, and in which the people have reposed their confidence as the truest safeguard of their civil, religious, and political liberties. The exact limits of the powers confided by the people to each may not always be capable, from the inherent difficulty of the subject, of being defined or ascertained in all cases with perfect certainty. But the lines are generally marked out with sufficient broadness and clearness; and in the progress of the development of the peculiar functions of each, the part of true wisdom would seem to be, to leave in every practicable direction a wide, if not an unmeasured, distance between the actual exercise of the sovereignty of each. In every complicated machine slight causes may disturb the operations ; and it is often more easy to detect the defects than to apply a safe and adequate remedy.

§ 417. The language of the Supreme Court in the case of Martin v. Hunter 2 seems peculiarly appropriate to this part of our subject. "The Constitution of the United States," say the court, 66 was ordained and established, not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by the people of the United States. There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary, to extend or restrain those powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be that the people had a right to prohibit to the States the exercise of any powers which were in their judgment incompatible with the objects of the general compact, to make the powers of the State governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. The Constitution was not, therefore, necessarily carved out of existing State sovereignties, nor a surrender of powers already existing in State institutions. For the powers of the State governments depend upon their own constitutions; 1 The Federalist, No. 37.

21 Wheat. R. 304.

8 This is still more forcibly stated by Mr. Chief Justice Marshall in delivering the opinion of the court in McCulloch v. Maryland, in a passage already cited, 4 Wheat. R. 316, 402 to 405.

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