Constitutional history -- United States -- Sources; Constitutional law -- United States
No stress, it is presumed, will, in this case, be laid on the TITLE;
a change of that could never be deemed an exercise of ungranted power.
ALTERATIONS in the body of the instrument are expressly authorized. NEW
PROVISIONS therein are also expressly authorized. Here then is a power
to change the title; to insert new articles; to alter old ones. Must it
of necessity be admitted that this power is infringed, so long as a part
of the old articles remain? Those who maintain the affirmative ought at
least to mark the boundary between authorized and usurped innovations;
between that degree of change which lies within the compass of
ALTERATIONS AND FURTHER PROVISIONS, and that which amounts to a
TRANSMUTATION of the government. Will it be said that the alterations
ought not to have touched the substance of the Confederation? The States
would never have appointed a convention with so much solemnity, nor
described its objects with so much latitude, if some SUBSTANTIAL reform
had not been in contemplation. Will it be said that the FUNDAMENTAL
PRINCIPLES of the Confederation were not within the purview of the
convention, and ought not to have been varied? I ask, What are
these principles? Do they require that, in the establishment of the
Constitution, the States should be regarded as distinct and independent
sovereigns? They are so regarded by the Constitution proposed. Do
they require that the members of the government should derive their
appointment from the legislatures, not from the people of the
States? One branch of the new government is to be appointed by these
legislatures; and under the Confederation, the delegates to Congress
MAY ALL be appointed immediately by the people, and in two States(1) are
actually so appointed. Do they require that the powers of the government
should act on the States, and not immediately on individuals? In some
instances, as has been shown, the powers of the new government will act
on the States in their collective characters. In some instances, also,
those of the existing government act immediately on individuals. In
cases of capture; of piracy; of the post office; of coins, weights, and
measures; of trade with the Indians; of claims under grants of land
by different States; and, above all, in the case of trials by
courts-marshal in the army and navy, by which death may be inflicted
without the intervention of a jury, or even of a civil magistrate; in
all these cases the powers of the Confederation operate immediately on
the persons and interests of individual citizens. Do these fundamental
principles require, particularly, that no tax should be levied without
the intermediate agency of the States? The Confederation itself
authorizes a direct tax, to a certain extent, on the post office. The
power of coinage has been so construed by Congress as to levy a tribute
immediately from that source also. But pretermitting these instances,
was it not an acknowledged object of the convention and the universal
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