The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
Hamilton, commenting on the Constitution, declares that “the national
and State systems are to be regarded as one whole.”[24] And finally,
although our supreme law does not contain the word “sovereign,” or
“sovereignty,” it implies sovereignty. The crowning illustration of
this principle of implied sovereignty grew out of the acquisition of
Louisiana in 1803. President Jefferson could find no provision of the
Constitution specifically empowering the United States to make the
acquisition, or to incorporate the region into the United States. He
therefore proposed amending the Constitution so as to authorize the
purchase. The President’s doubts of the power of the United States to
acquire Louisiana were weaker than his doubt of power to incorporate
the province into the United States,—that is, to make a foreign
province or provinces inhabited, by an alien people, partakers in
an American Commonwealth. He consulted his Cabinet. Levi Lincoln,
the Attorney-General, was of opinion that to share the privileges
and immunities of the people of the United States with a foreign
population required the consent of the people of the United States, and
he suggested that if a treaty of cession were made, containing such
agreements, it should be put in the form of a change of boundaries
instead of a cession, so as to bring the territory within the United
States. Albert Gallatin, Secretary of Treasury, replied that to him it
appeared: (1) That the United States as a nation have an inherent right
to acquire territory; (2) That whenever that acquisition is by treaty,
the same constituted authorities in which the treaty-making power
is vested have a constitutional right to sanction the acquisition;
and (3) That whenever the territory has become acquired, Congress
have the power either of admitting it into the Union as a new State,
or of annexing it to a State, with the consent of that State, or of
making regulations for the government of such territory.[25] Thus,
according to Gallatin, the United States, by its very nature, has the
undoubted right to acquire, to hold, and to govern territory as a
possession.[26] Twenty-five years after the purchase of Louisiana,
Chief Justice Marshall handed down the decision of the Supreme Court,
that “the Constitution confers absolutely on the government of the
Union the powers of making war and of making treaties; consequently
that government possesses the power of acquiring territory, either
by conquest or treaty.”[27] In this decision, Marshall reasons as
did Gallatin that a nation is by its very nature, sovereign, and
possesses the powers and functions of sovereignty. When the American
nation, a sovereign, created a government of delegated powers, under
the Constitution, it delegated to that government powers adequate to
its purposes as a nation.[28] The essential purpose of sovereignty
is to continue sovereign. The word “sovereign” though not occurring
in the Constitution is necessarily implied as a permanent quality or
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