The broad foundation upon which our Constitution rests being the
people--a breath of theirs having made, as a breath can unmake, change,
or modify it--it can be assigned to none of the great divisions of
government but to that of democracy. If such is its theory, those who
are called upon to administer it must recognize as its leading principle
the duty of shaping their measures so as to produce the greatest good to
the greatest number. But with these broad admissions, if we would
compare the sovereignty acknowledged to exist in the mass of our people
with the power claimed by other sovereignties, even by those which have
been considered most purely democratic, we shall find a most essential
difference. All others lay claim to power limited only by their own
will. The majority of our citizens, on the contrary, possess a
sovereignty with an amount of power precisely equal to that which has
been granted to them by the parties to the national compact, and nothing
beyond. We admit of no government by divine right, believing that so far
as power is concerned the Beneficent Creator has made no distinction
amongst men; that all are upon an equality, and that the only legitimate
right to govern is an express grant of power from the governed. The
Constitution of the United States is the instrument containing this
grant of power to the several departments composing the Government. On
an examination of that instrument it will be found to contain
declarations of power granted and of power withheld. The latter is also
susceptible of division into power which the majority had the right to
grant, but which they did not think proper to intrust to their agents,
and that which they could not have granted, not being possessed by
themselves. In other words, there are certain rights possessed by each
individual American citizen which in his compact with the others he has
never surrendered. Some of them, indeed, he is unable to surrender,
being, in the language of our system, unalienable. The boasted privilege
of a Roman citizen was to him a shield only against a petty provincial
ruler, whilst the proud democrat of Athens would console himself under a
sentence of death for a supposed violation of the national faith--which
no one understood and which at times was the subject of the mockery of
all--or the banishment from his home, his family, and his country with
or without an alleged cause, that it was the act not of a single tyrant
or hated ar