From Chapter IX of Abel Upshur’s “A brief enquiry into the true nature and character of our federal government: being a review of Judge Story’s commentaries on the Constitution of the United States

In the first place, the Constitution of the United States is not a frame of government to which there is but one party. The States are parties, each stipulating and agreeing with each and all the rest. Their agreement is, that a certain portion of that power which each is authorized to exercise within its own limits shall be exercised by their common agent, within the limits of all of them. This is not the separate power of each, but the joint power of all. In proportion, therefore, as you increase the powers of the Federal Government, you necessarily detract from the separate powers of the States. We are not to presume that a sovereign people mean to surrender any of their powers; still less should we presume that they mean to surrender them, to be exerted over themselves by a different sovereignty. In this respect, then, every reasonable implication is against the Federal Government.

In the second place, the Constitution of the United States is not the primary social relation of those who formed it. The State governments were already organized, and were adequate to all the purposes of their municipal concerns. The Federal Government was established only for such purposes as the State government could not answer, to wit: the common purposes of all the States. Whether, therefore, the powers of that government be greater or less, the whole power of the States, (or so much thereof as they design to exercise at all), is represented, either in the Federal Government or in their own. In this respect, therefore, there is no necessity to imply power in the Federal Government.

In the third place, whatever power the States have not delegated to the Federal Government, they have reserved to themselves. Every useful faculty of government is found either in the one or the other. Whatever the Federal Government cannot do for all the States, each State can do for itself, subject only to the restraints of its own constitution. No power, therefore, is dormant and useless, except so far only as the States voluntarily decline to exert it. In this respect, also, there is no necessity to imply power in the Federal Government.

In all these particulars, the Federal Constitution is clearly “distinguishable from the constitutions of the State governments.” The views just presented support this obvious distinction, that in the State constitutions every power is granted which is not denied; in the Federal Constitution, every power is denied which is not granted. There are yet other views of the subject, which lead us to the same conclusion.

The objects for which the Federal Government was, established, are by no means equal in importance to those of the State constitutions. It is difficult to imagine any necessity for a Federal Government at all, except what springs from the relation of the States to foreign nations. A union among them is undoubtedly valuable for many purposes. It renders them stronger and more able to resist their enemies; it attracts to them the respect of other countries, and gives them advantages in the formation of foreign connections; it facilitates all the operations of war, of commerce and of foreign diplomacy. But these objects, although highly important, are not so important as those great rights which are secured to us by the State constitutions. The States might singly protect themselves; singly form their foreign connections, and singly regulate their commerce, not so effectually, it is true, but effectually enough to afford reasonable security to their independence and general prosperity. In addition to all this, we rely exclusively on the State governments for the security of the great rights of life, liberty and property. All the valuable and interesting relations of the social state spring from them. They give validity to the marriage tie; they prescribe the limits of parental authority; they enforce filial duty and obedience; they limit the power of the master, and exact the proper duties of the servant. Their power pervades all ranks of society, restraining the strong, protecting the weak, succoring the poor, and lifting up the fallen and helpless. They secure to all persons an impartial administration of public justice. In all the daily business of life, we set under the protection and guidance of the State governments. They regulate and secure our rights of property; they enforce our contracts and preside over the peace and safety of our firesides. There is nothing dear to our feelings or valuable in our social condition, for which we are not indebted to their protecting and benignant action. Take away the Federal Government altogether, and still we are free, our rights are still protected, our business is still regulated, and we still enjoy all the other advantages and blessings of established and well-organized government. But if you take away the State governments, what have you left? A Federal Government, which can neither regulate your industry, secure your property, nor protect your person!

Bob Greenslade
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