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New York James Fenimore Cooper

New York

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The authority which formed the Constitution admitted, we come next to the examination of its acts. It is apparent from the debates and proceedings of the Convention, that two opinions existed in that body; the one leaning strongly toward the concentration of power in the hands of the Federal Government, and the other desirous of leaving as much as possible with the respective States. The principle that the powers which are not directly conceded to the Union should remain in first hands, would seem never to have been denied; and some years after the organization of the Government, it was solemnly recognized in an amendment. We are not disposed, however, to look for arguments to the debates and discussions of the Convention, in our view often a deceptive and dangerous method of construing a law, since the vote is very frequently given on even conflicting reasons. Different minds arrive at the same results by different processes; and it is no unusual thing for men to deny each other's premises while they accept their conclusions. We shall look, therefore, solely to the compact itself, as the most certain mode of ascertaining what was done.

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No one will deny that all the great powers of sovereignty are directly conceded to the Union. The right to make war and peace, to coin money, maintain armies and navies, &c., &c., in themselves overshadow most of the sovereignty of the States. The amendatory clause would seem to annihilate it. By the provisions of that clause three fourths of the States can take away all the powers and rights now resting in the hands of the respective States, with a single exception. This exception gives breadth and emphasis to the efficiency of the clause. It will be remembered that all this can be done within the present Constitution. It is a part of the original bargain. Thus, New York can legally be deprived of the authority to punish for theft, to lay out highways, to incorporate banks, and all the ordinary interests over which she at present exercises control, every human being within her limits dissenting. Now as sovereignty means power in the last resort, this amendatory clause most clearly deprives the State of all sovereign power thus put at the disposition of Conventions of the several States; in fact, the votes of these Conventions, or that of the respective legislatures acting in the same capacity, is nothing but the highest species of legislation known to the country; and no other mode of altering the institutions would be legal. It follows unavoidably, we repeat, that the sovereignty which remains in the several States must be looked for solely in the exception. What then is this exception?

It is a provision which says, that no State may be deprived of its equal representation in the Senate, without its own consent. It might well be questioned whether this provision of the Constitution renders a Senate indispensable to the Government. But we are willing to concede this point and admit that it does. Can the vote of a single State, which is one of a body of thirty, and which is bound to submit to the decision of a legal majority, be deemed a sovereign vote? Assuming that the whole power of the Government of the United States were in the Senate, would any one State be sovereign in such a condition of things? We think not. But the Senate does not constitute by any means the whole or the half of the authority of this Government; its legislative power is divided with a popular body, without the concurrence of which it can do nothing; this dilutes the sovereignty to a degree that renders it very imperceptible, if not very absurd. Nor is this all. After a law is passed by the concurrence of the two houses of Congress it is sent to a perfectly independent tribunal to decide whether it is in conformity with the principles of the great national compact; thus demonstrating, as we assume, that the sovereignty of this whole country rests, not in its people, not in its States, but in the Government of the Union.

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New York
James Fenimore Cooper

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