National Power and State Interposition 1787-1861

Authors

Edwin S. Corwin, Princeton University

Abstract

Fifty years have elapsed since South Carolina pretended to leave the Union. Looking over recent writings of northern men on the constitutional phase of that momentous event, one will find among their authors a strong disposition to throw up the whole case on the question of the legal rightfulness of secession. For this phenomenon four reasons may be assigned : (1) sheer human indolence; (2) the fact that the apologetic zeal of the conquered is notoriously apt to overbear the conciliatory complacency of the conqueror; (3) the fact that by a species of intellectual inertia the mind of the student is apt to yield itself in the case of questions of this class to the stronger speculative current which, in l86o, was with the South; (4) finally, the fact that the historical investigator of today is prone to regard questions of this sort as academic, though in fact they may involve, as this one does, some extremely interesting considerations of institutional origins and differentiations. The basic foundation of all theories upon which secession proceeded, as well as of that doctrine which initially paralyzed the national government in dealing with it, was the doctrine that the "Constitution was a compact of sovereign States." In no sense, however. was this the doctrine of the framers of the constitution. To their way of thinking the constitution was indeed a compact, but a compact entered into by the people of America, acting in original and creative fashion, an act of revolution, in other words, which was designed to give legal form to the already existing American nation. Nor did the constitution, in the thinking of the framers, leave the States "sovereign" in any genuine sense of the term. True, that description was often applied to the State governments, both during and after the Convention, to designate their corporate dignity, their autonomy, and finally their equality of representation in the new system. The State governments, however, were no parties to the constitutional compact, which was referred to a higher authority within the States, namely the People. But the people of a State was to the Union of 1787 but part and parcel of the American people, and agent of the latter in adopting the constitution. Not till CALHOUN, who denied the existence in a political sense of the American people, and elevated the people of a State to the dignity of the highest political entity in the United States, was the term "sovereign" used in connection with that agency which had ratified the constitution.

Recommended Citation

Edwin S. Corwin, National Power and State Interposition 1787-1861, 10 Mich. L. Rev. 535 (1912).
Available at: https://repository.law.umich.edu/mlr/vol10/iss7/3