This holding of the federal Supreme Court squarely declared the doctrine that the individual States and the United States were not to be regarded as upon a plane of constitutional equality, for, as has been said, it was held that when the powers of the Union came into conflict with those of the States, the exercise of the latter would have to be foregone.

In 1816, in Martin v. Hunter's Lessee 25, and again, in 1921, in Cohens v. Virginia 26 the federal Supreme court upheld the constitutionality of that provision of the Judiciary Act of 1789, which has been earlier referred to, according to which the Supreme Court was given the right to decide, upon writ of error, whether state Courts have denied to litigants federal rights, privileges or immunities which they had rightfully claimed. This assertion that, as to such claims, the States were not to have the final decision, even in cases arising in their own courts, was a crucial matter. Calhoun saw clearly the decisive character of this assertion of federal right. "The effect of this is," he wrote, "to make the Government of the United States the sole judge, in the last resort, as to the extent of its powers, and to place the States and their separate Governments and institutions at its mercy." "It would be a waste of time," he continued, "to undertake to show that an assumption that would destroy the relation of coordinates between the Government of the United States and those of the several States-which would enable the former, at pleasure, to absorb the reserved powers and to destroy the institutions, social and political, which the Constitution was ordained to establish and protect-is wholly inconsistent with the federal theory of government, though in perfect accordance with the national theory. Indeed, I might

go further and assert that it is, of itself, all sufficient to convert it into a national, consolidated government."27

In the years next following the federal Supreme Court repeatedly exercised the right to hold invalid laws of the States which it deemed not warranted by the federal Constitution.28

In 1832 the question as to where rested the real sovereignty in the American Union was put to a still more decisive test. In 1828 Congress had enacted a tariff law which was very objectionable to the State of South Carolina, and which contained features which that State declared were not warranted by the federal Constitution. Its legislature thereupon adopted an "exposition," drawn up by Calhoun, which explicitly asserted the legal right of a State of the Union to refuse obedience, and to direct its citizens to refuse obedience, to national acts which the States should deem unconstitutional. This assertion of the right of "Nullification" led, in 1830, to the famous debate in the United States between Webster and Hayne. In 1832 the people of South Carolina assembled in convention and issued "an ordinance to nullify certain acts of the Congress of the United States purporting to be laws." This ordinance went on to declare that "it shall not be lawful for any of the constituted authorities, whether of this State or of the United States, to enforce the payment of duties imposed by the said acts within the limits of this State"; and concluded with the statement that any attempt upon the part of the National Government to enforce the law within the limits of South Carolina will be "inconsistent with the longer continuance of South Carolina in the Union; and that the peo

"Discourse on the Constitution and Government of the United States. Works of Calhoun, vol. I, p. 338.

See for example Osborn v. Bank of the United States (9 Wh. 738), Weston v. Charleston (2 Pet. 449), Gibbons v. Ogden (9 Wh. 1); Green v. Biddle (8 Wh. 1); and Craig v. Missouri (4 Pet. 410).

ple of South Carolina will henceforth hold themselves absolved from all further obligation to maintain or preserve their political connection with the peoples of the other States, and will forthwith proceed to organize a separate government, and do all other acts and things which sovereign and independent States may of right do."

In pursuance of this ordinance the legislature of the State enacted laws which, as was said at the time, legislated the Federal Government out of the State.

South Carolina sent the proclamation of her ordinance to the other States. Without exception those which answered it condemned the doctrines it enunciated. This was true no less of the Southern than of the Northern States. Furthermore, Andrew Jackson, then President of the United States, in unmistakable terms declared his intention to enforce the federal law, whatever might be the attempted resistance of South Carolina. In result, that State was obliged to abandon any attempt to make good the threats it had made.

Reviewing the events that have been summarized, it would seem that proof had been piled upon proof that the claim that the States of the Union had a legal status coordinate in authority with that of the United States was not consistent with the actual facts of the case. History brought it about, however, that those who were still unwilling to admit the juristic conclusion that logically followed from these successive events, should subject the controversy to the final physical test of war. Claiming that, whatever constitutional concessions the States might have made in the past, they still had reserved to themselves a legal right of secession from the Union, eleven of the States, constituting a compact body in the South, and exercising what they claimed to be a right belonging to them as severally sovereign bodies-politic,

seceded from the Union in 1861, and for four years by force of arms resisted the efforts of the National Government to enforce its law and authority within their limits.

The result of this Civil War is well known. Federal authority was finally re-established, and, since that time, there has been no serious claim from any quarter that the United States is not a sovereign State and that the individual States of the Union have any other political status than that of non-sovereign bodies-politic within the Union and subject to its superior authority.

Tests of Sovereignty. If it be asked by what tests at the present time it can be determined that sovereignty inheres in the United States as a single national State, and not in the individual States of the Union, the following facts of juristic significance may be pointed to.

Under the amending power, by a vote of three-fourths of the States acting through their legislatures or specially convened conventions, according as the one or the other method is proposed by Congress, it is possible to take away from any given State, against its will, and by a perfectly legal process, any or all of the powers which it now possesses, and from this result the objecting State has no legal means of escape by secession from the Union or otherwise. Also, there is no legal process by means of which a State, solely through its own legal will and legal competence, can draw to itself any of the powers not now constitutionally possessed by it. Furthermore, no State can in any way, or upon any pretext, offer legal resistance to the operation within its limits of a national law.

As regards the rights of a federal government, such as the United States is now conceded to be, to enforce its laws within the States and against any opposition

that may be raised against them, we may quote the following striking language of the federal Supreme Court, in the so-called Debs Case: 29 "The entire strength of the Nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights intrusted by the Constitution to its If the emergency arises, the army of the Nation and all its militia are at the service of the Nation to compel obedience to its laws."

care.

It is therefore plain that the constituent States have no sovereignty of their own, and that such autonomous powers as they now possess are had and exercised by the express will or by the constitutional forbearance of the national sovereignty. The Supreme Court of the United States has held that, even when selecting members for the national legislature, or electing the President, or ratifying proposed amendments to the federal Constitution, the States act, ad hoc, as agents of the National Government.

Putting the matter in affirmative terms, the sovereignty of the United States is fixed by the fact that it determines, through its own tribunals, the extent of its constitutional powers, and has the legal power to enforce its will without regard to the will or judgment of the States as to the constitutionality or wisdom of its acts. And, through the process provided for amending the federal Constitution, it has the legal right to vest in its own Government any power now entrusted for exercise to the State governments, or reserved to the people. In connection with the Nineteenth Amendment to the federal Constitution, ratified in 1920, the argument was put forward that there are inherent limitations upon the amending power-that there are some matters which can not be legally justified even by a constitutional amend"In re Debs, 158 U. S. Reports, 564.