[Volume 1, Page 238]
CHAPTER 7|Document 26
William Pinkney, Argument in McCulloch v. Maryland1819Pinkney 550--51 1826
. . . the change intended to be produced by the new constitution consisted much less in the addition of new powers to the Union, than in the invigoration of the original powers. The power of regulating commerce was, indeed, a new power. But the powers relating to war and peace, fleets and armies, treaties and finance, with the other more considerable powers, were all vested in Congress by the articles of confederation. The proposed change only substituted a more effectual mode of administering them.
Under the constitution, the powers belonging to the federal government, whatever may be their extent, are just as sovereign as those of the States. The State governments are not the authors and creators of the national constitution. It does not derive its powers from them. They are preceding in point of time to the national sovereignty, but are postponed to it in point of supremacy by the will of the people. The powers of the national government are the great imperial powers by which nations are known to one another. It acts upon the people as the State governments act upon them. Its powers are given by the people, as those of the State governments are given. The national constitution was framed in the name of the people, and was ratified by the people as the State constitutions were. If the respective powers of these two governments interfere, those of the States must yield.
But it is said that the powers of the national government are limited in number and extent, and that this want of universality shows that they are not sovereign powers. But the State governments are not unlimited in the number, or unrestrained in the exercise of their powers. They are limited by the declarations of rights contained in the State constitutions; by the nature and ends of all government; and by the restraints upon state legislation contained in the constitution of the United States.
It is said, too, that the powers of the State governments are original, and therefore more emphatically sovereign than those of the national government. But the State powers are no more original than those belonging to the Union. There is no original power but in the people, who are the fountain and source of all political power.
Wheaton, Henry. Some Account of the Life, Writings, and Speeches of William Pinkney. Baltimore: E. J. Coale, 1826.
© 1987 by The University of Chicago