[weishaupt1776]

The particulars in which the 'Federalist' claims the government to be partly national and partly federal , are the following: First, in regard to the house of representatives in Congress; Second, in regard to the executive department; and lastly, in regard to the power of amendment. As to the first, it is said, in No. 39 of the work, that 'the house of representatives will derive its powers from the people of America, and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular state;' and that so far the government is national , and not federal , etc. The fallacy of this doctrine is most glaring. All the powers of the government, including those of the house of representatives, are derived from the constitution; and the powers of the constitution are delegated not by the American people in the aggregate, as a distinct community or nation, but by the people of the several states, as separate, independent, and sovereign states. And consistently with the constitution, it is not competent to elect the members of the house of representatives by the American people collectively, as a distinct community. On the contrary, by the express provisions of the constitution, they are required to be elected by the people of the several states, not as composing mere districts of one great community, but as distinct and *402 independent states. The first bill which passed Congress apportioning the members of the house of representative among the several states, was vetoed by President Washington, expressly on the ground that it assumed as its basis that the people of the several states composed mere election districts of one great community, instead of being, as in truth they are under the constitution, distinct and independent parties to the compact upon which the government is founded. By the terms of the constitution, the representatives are apportioned among the several states in a mode expressly prescribed, and they are required to be elected by the people of the several states as independent communities. They may be elected by the people of any state, either by general ticket or by districts; so that the members of the house of representatives, be the mode of election what it may, are elected as the delegates of the several states, in their distinct, independent, and sovereign character as members of the Union. Neither is it true that the people of each state are represented in the house of representatives on the same principle, and in the same proportion, as they are in the legislature of each state. On the contrary, it is an incontestable fact that they are represented in their respective state legislatures as mere individuals, and by election districts entirely under the control of each state, and by a ratio or proportion fixed by each state for itself, and different in different states.

**32 As to the executive department, the argument is equally groundless. The president of the United States is elected not by the whole people of the United States in the aggregate, as a distinct community or people, but by electors appointed by each state separately and for itself, ' in such manner as the legislature thereof may direct; ' and the electors are expressly required to meet and vote in their respective *403 states. And in case of a failure of an election by the electoral college, when the election devolves on the house of representatives, the votes are required to be taken by states, the representation from each state having one vote, etc.

And as to the mode prescribed for the exercise of the amending power, it is plainly and expressly derived from, and exercised under, the authority of the people of the several states, acting in their original, distinct, and sovereign character, and not under the authority of the whole people of the states regarded in the aggregate, as a distinct nation. And the modification of the original creating power requiring the consent of each state to make it a party to the constitution, which provides for the amendment of the constitution by three-fourths of the states, voting as states, without regard to population, certainly gives no national character to the government, neither is it inconsistent with the federal character of the Union, inasmuch as it is provided for by express agreement in the compact.

On the whole, it may be said, without the slightest ground for contradiction, that in the formation of the government of the United States, the whole people of the states collectively as a distinct community or nation, were wholly unknown, and in no respect whatever the source of power; and also, that in no operation whatever of the general government, is the action of the people of the states in the aggregate as anation , known or recognized in any manner or form whatever. Indeed, the people of the several states of the American Union never have, at any stage of their existence, been consolidated into a single community, so as to constitute one distinct people or nation; and as such , of course, never could have exercised any agency or participation, *404 either in the formation, or in the administration of this system of government.

From what has been said, it must be apparent, that the government of the United States was ordained and established by the people of the several states as distinct, independent, and sovereign communities; and that while the governments of the several states derive their respective powers from the people as individuals united under the social compact in their respective states, the government of the United States derives its powers from the states as organized communities, united by federal compact. Each state government is a government of a community of people, while that of the United States is a government of a community of states. A state government and the United States government are operative in each state; and each has its distinct, independent sphere of action. The main objects of the authority of the general government, are the relations of the states with each other, and with foreign nations, and the common defense and welfare of the federal Union; leaving the internal affairs and domestic interests of the people of each state to the authority of the state government. The delegated powers appertaining to government are divided between these two governments, and each is divested of what the other possesses; each acting for itself, and by its own separate authority, the powers of each being entirely distinct and independent of the other, it follows of necessity, that the two governments are equal and co-ordinate governments in each state of the Union; each paramount and supreme within the sphere of its powers. The confederation which preceded the constitution of the United States, was subordinate to the state governments, upon which, to a great extent, it was dependent. To remedy the deficiencies of the confederation, *405 the powers delegated by the constitution were made independent of the states. So that the government of the Union and that of the several states, having each distinct and independent powers, and each distinct and independent spheres of action, became equal and co-ordinate governments . It follows, as a necessary consequence, that each of the two governments being independent of the other, each must be supreme within the sphere of its operations, and neither can be subordinate to the other. So that the judicial, as well as the legislative and executive powers of each, must of necessity be not only entirely distinct and separate , but also independent of each other.

This view of the subject, so far as the separate, independent, and co-ordinate judicial power of the two governments is involved, is fully sustained by judicial decisions in both the state and in the federal courts. In the case of Martin v. Hunter, 1 Wheat. 304, the Supreme Court of the United States declare the doctrine, that Congress can not vest any portion of the judicial power of the United States in any courts, except those which are ordained and established under the Constitution of the United States.