The clause respecting fugitive slaves is affirmative and active in its effects. It is a direct sanction and positive protection of the right of the master to the services of his slave as derived under the local laws of the States. The phraseology in which it is wrapped up still leaves the intention clear, and the words, “persons held to service or labor in one State under the laws thereof,” have always been interpreted to extend to the case of slaves, in the various acts of Congress which have been passed to give efficacy to the provision, and in the judicial application of those laws. So also in the clause prescribing the ratio of representation—the phrase, “three-fifths of all other persons,” is equivalent to slaves, or it means nothing. And yet we are told that those who are acting under a Constitution which sanctions the existence of slavery in those States which choose to tolerate it, are at liberty to hold that no law can sanction its existence.
It is idle to make the rightfulness of an act the measure of sovereign power. The distinction between sovereign power and the moral right to exercise it has always been recognized. All political power may be abused, but is it to stop where abuse may begin? The power of declaring war is a power of vast capacity for mischief, and capable of inflicting the most wide-spread desolation. But it is given to Congress without stint and without measure. Is a citizen, or are the courts of justice to inquire whether that, or any other law, is just, before they obey or execute it? And are there any degrees of injustice which will withdraw from sovereign power the capacity of making a given law?
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The power is “to admit new States into this Union,” and it may be safely conceded that here is discretion to admit or refuse. The question is, what must we do if we do anything? What must we admit, and into what? The answer is a State—and into this Union.
The distinction between Federal rights and local rights, is an idle distinction. Because the new State acquires Federal rights, it is not, therefore, in this Union. The Union is a compact; and is it an equal party to that compact, because it has equal Federal rights?
How is the Union formed? By equal contributions of power. Make one member sacrifice more than another, and it becomes unequal. The compact is of two parts:
1. The thing obtained—Federal rights. 2. The price paid—local sovereignty.
You may disturb the balance of the Union, either by diminishing the thing acquired, or increasing the sacrifice paid.
What were the purposes of coming into the Union among the original States? The States were originally sovereign without limit, as to foreign and domestic concerns. But being incapable of protecting themselves singly, they entered into the Union to defend themselves against foreign violence. The domestic concerns of the people were not, in general, to be acted on by it. The security of the power, of managing them by domestic legislature, is one of the great objects of the Union. The Union is a means, not an end. By requiring greater sacrifices of domestic power, the end is sacrificed to the means. Suppose the surrender of all, or nearly all, the domestic powers of legislation were required; the means would there have swallowed up the end.