Article 4, Section 3, Clause 1
Robert W. Reid, Admission of Missouri, House of Representatives1 Feb. 1820Annals 35:1027--30
I find nothing more to afford even a colorable pretext for the proposed restriction, until we come to these words: "New States may be admitted into the Union." The single word "may" is supposed to be the depository of the power so anxiously sought; and, it is said, if Congress can admit a new State, the Constitution being silent as to the condition to be imposed, the State about to be admitted may be fastened with any condition not specially interdicted by the Constitution itself. This is a non sequitur. It is a conclusion most lame and impotent; in direct hostility with the letter as well as the spirit of the Constitution! It is not enough that the Constitution is silent, to authorize the Congress to speak or to act; for Congress is the creature of the Constitution, and must look to it for open, declared, and positive direction. What the Constitution dictates is to be done; what it prohibits is to be avoided; but when it is silent, Congress possesses not authority to direct citizens or States. These must, then, be controlled by their own independent governments. Let it be remembered that the Constitution, being in derogation of State rights, must be construed strictly. This clause of the 3d section of the article, then, only allows to us the power to receive or to reject, without qualification or condition, a State making application to be admitted into the Union.
But there is a condition, without which a State cannot be admitted into the Union; and it is to be found in the 4th section of the 3d article: "The United States shall guaranty to every State in the Union a republican form of government." Now, "guaranty" means, if I at all understand the signification of words, "to undertake that certain stipulations shall be performed." These stipulations can only be found in the constitutions of the States, where they must constitute "a republican form of government." If this be so, then, at the moment a new State is admitted, the same guaranty which applies to the original States extends to her also. She must, consequently, have been in the possession of "a republican form of government" at the time of entering the Union, because it would be preposterous to imagine that to be guarantied of which she was not possessed--that to be secured to her, which, in fact, had no existence. It results, then, that without "a republican form of government" a State cannot come into the Confederacy; and is not the necessity to possess it a sine qua non, or condition, without which the new State cannot be admitted? Sir, this condition, being expressed, operates to the exclusion of every other. "Expressio unius est exclusio alterius," is a sound maxim both of common law and common sense.
But, it is objected, slavery is incompatible with that "republican form of government" which the State admitted must possess. We must receive words according to the intention of those who utter them. And we must give construction to the Constitution, by considering all the parts of that instrument together. South Carolina and Georgia were slaveholding States at the time the Constitution was framed and adopted, and yet, in its eye, these were considered to possess republican forms of government. Besides, the right of the citizen to possess slaves is expressly recognised by the instrument of which we speak. I need scarcely advert to the 2d section of the 1st article, wherein the representation is determined; to the permission to import, until a given period, in the 9th section of the 1st article; and to the 2d section of the 2d article, where the relations of master and servant are distinctly asserted. It is evident, then, that a state of domestic slavery was entirely out of view, when the founders of the Confederation determined to "guaranty to the several States a republican form of government."
The Constitution of the United States is plain and simple; it requires no superiority of intellect to comprehend its dictates; it is addressed to every understanding; "he who runs may read." It is, then, a proof of the absence of all authority for the proposed measure, when its advocates, and some, too, of great names, fly from clause to section and from section to article, without fixing "rest for the sole of the foot;" without finding or agreeing upon any one line, phrase, or section, whence this power for which all contend may be brought into existence. And it is perfectly natural that this effect should be produced. A search for the philosopher's stone might as soon be expected to end in certainty.
But it is argued that Congress has ever imposed restrictions upon new States, and no objection has been urged until this moment. If it be true, that only one condition can constitutionally be imposed, it would seem that any other is null and void, and may be thrown off by the State at pleasure. And then this argument, the strength of which is in precedent, cannot avail. Uniformity of decision for hundreds of years cannot make that right which at first was wrong. If it were otherwise, in vain would science and the arts pursue their march towards perfection; in vain the constant progress of truth; in vain the new and bright lights which are daily finding their way to the human mind, like the rays of the distant stars, which, passing onward from the creation of time, are said to be continually reaching our sphere. Malus usus abolendus est. When error appears, let her be detected and exposed, and let evil precedents be abolished.
It is true that the old Confederation, by the 6th section of the ordinance of 1787, inhibited slavery in the territory northwest of the Ohio, and that the States of Illinois, Ohio, and Indiana, have been introduced into the Union under this restriction.
Sir, the ordinance of 1787 had an origin perfectly worthy of the end it seems destined to accomplish. It had no authority in the Articles of Confederation, which did not contemplate, with the exception of Canada, the acquisition of territory. It was in contradiction of the resolution of 1780, by which the States were allured to cede their unlocated lands to the General Government, upon the condition that these should constitute several States, to be admitted into the Union upon an equal footing with the original States. It is in fraud of the acts of cession by which the States conveyed territory in faith of the resolution of 1780. And, when recognised by acts of Congress, and applied to the States formed from the territory beyond the Ohio, it is in violation of the Constitution of the United States. So much for the efficacy of the precedent which, although binding here, is not, it would seem, of obligation upon Ohio, Indiana, or Illinois, or, if you impose it, upon Missouri. It is not the force of your legal provisions which attaches the restrictive 6th article of the ordinance to the States I have mentioned. It is the moral sentiment of the inhabitants. Impose it upon Missouri, and she will indignantly throw off the yoke and laugh you to scorn! You will then discover that you have assumed a weapon that you cannot wield--the bow of Ulysses, which all your efforts cannot bend. The open and voluntary exposure of your weakness will make you not only the object of derision at home, but a byword among nations. Can there be a power in Congress to do that which the object of the power may rightfully destroy? Are the rights of Missouri and of the Union in opposition to each other? Can it be possible that Congress has authority to impose a restriction which Missouri, by an alteration of her constitution, may abolish? Sir, the course we are pursuing reminds me of the urchin who, with great care and anxiety, constructs his card edifice, which the slightest touch may demolish, the gentlest breath dissolve.
But let us stand together upon the basis of precedent, and upon that ground you cannot extend this restriction to Missouri. You have imposed it upon the territory beyond the Ohio, but you have never applied it elsewhere. Tennessee, Vermont, Kentucky, Louisiana, Mississippi, and Alabama, have come into the Union without being required to submit to the condition inhibiting slavery; nay, whenever the ordinance of 1787 has been applied to any of these States, the operation of the 6th article has been suspended or destroyed. According, then, to the uniform tenor of the precedent, let the States to be formed of the territory without the boundaries of the territory northwest of Ohio remain unrestricted, and in the enjoyment of the fulness of their rights.
Thus, it appears to me, the power you seek to assume is not to be found in the Constitution, or to be derived from precedents. Shall it, then, without any known process of generation, spring spontaneously from your councils, like the armed Minerva from the brain of Jupiter? The Goddess, sir, although of wisdom, was also the inventress of war--and the power of your creation, although extensive in its dimensions, and ingenious in its organization, may produce the most terrible and deplorable effects. Assure yourselves you have not authority to bind a State coming into the Union with a single hair! If you have, you may rivet a chain upon every limb, a fetter upon every joint. Where, then, I ask, is the independence of your State governments? Do they not fall prostrate, debased, covered with sackcloth and crowned with ashes, before the gigantic power of the Union? They will no longer, sir, resemble planets, moving in order around a solar centre, receiving and imparting lustre. They will dwindle to mere satellites, or, thrown from their orbits, they will wander "like stars condemned, the wrecks of worlds demolished!"
The Founders' Constitution
Volume 4, Article 4, Section 3, Clause 1, Document 15
The University of Chicago Press
Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.
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