Professor Fallone identifies two competing theories of the Constitution—that it is a “charter of delegated power” and “a compact.” As he presents it, the charter (or delegation) view holds that “the Constitution grants no absolute sovereign powers to the federal government; those powers continue to be retained by ‘the people.’” Therefore, the only legitimate authority that the federal government possesses is the authority to exercise the powers expressly delegated to it in the Constitution’s text.” The compact view, as he describes it, is that “the Constitution is a concrete compact between the federal government and the state governments, with the people of the United States as beneficiaries.” Fallone’s distinction is apparently intended to correspond to the traditional distinction between the “nationalist” view of constitutional interpretation (historically, the Hamilton-Marshall-Story line), and the “states rights” view (historically, the Jefferson-Calhoun line). I shall argue that Professor Fallone misunderstands the traditional distinction and, in consequence, misapplies it in three contexts: executive power, constitutional protection for aliens and other outsiders, and the possibility of extraconstitutional changes to the Constitution.
Part I below deals with the historical distinction; Part II with Professor Fallone’s interpretation of it; and Part III with the application of the distinction to the three contexts mentioned above.
I. Charter vs. Compact: The Historical Traditions
Justice Story articulated the nationalist view of constitutional interpretation, saying:
The [C]onstitution of the United States was ordained and established not by the states in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by ‘the people of the United States.’ . . . The Constitution was for a new Government, organized with new substantive powers, and not a mere supplementary charter to a Government already existing. The Confederation was a compact between States, and its structure and powers were wholly unlike those of the National Government. The Constitution was an act of the people of the United States to supersede the Confederation, and not to be ingrafted on it, as a stock through which it was to receive life and nourishment.
The core of the states rights view of constitutional interpretation, as explained by the leading Virginian constitutional theorist, John Taylor of Caroline, is that the Constitution is “a compact by which each state delegated for itself only limited powers to the federal government; attended by a supremacy not of any political sphere, but of the constitution, limited and confined to the powers delegated, and not extending to the portion of primitive state supremacy, never delegated.” Judge Spencer Roane of the Virginia Court of Appeals, a fierce critic of Chief Justice John Marshall’s opinion in McCulloch v. Maryland, maintained that
[t]he Constitution of the United States was not adopted by the people of the United States, as one people. It was adopted by the several states, in their highest sovereign character, that is, by the people of the said states, respectively; such people being competent, and they only competent, to alter the pre-existing governments operating in the said states. . . . ‘We the people of the United States’ . . . does not necessarily import the people of America, in exclusion of those of the several states.
And in the first of his draft Kentucky Resolutions of 1798, Thomas Jefferson argued that the compact theory positioned the states to be judges of the constitutionality of the federal government’s actions:
Resolved that the several States composing, the US. of America are not united on the principle of unlimited submission to their general government; but that, by a compact under the style & title of a Constitution for the US. and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force. that to this compact each State acceded as a State, and is an integral part, its co-states forming, as to itself, the other party. that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, & not the constitution the measure of its powers: but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions, as of the mode & measure of redress.
For much of the nation’s history, constitutional debate was framed in terms of these two competing theories. Thus, in his Second Reply to South Carolina’s Robert Hayne in the famous Senate debate of 1830, Daniel Webster argued forcefully in defense of the charter view and against the compact-based doctrine of the states’ right of “nullification.” Speaking to the sources of the federal government’s power, Webster said:
Whose agent is it? Is it the creature of the State legislatures, or the creature of the people? If the government of the United States be the agent of the State governments, then they may control it, provided they can agree in the manner of controlling it; if it be the agent of the people, then the people alone can control it, restrain it, modify it, or reform it. . . . It is, Sir, the people’s Constitution, the people’s government, made for the people, made by the people, and answerable to the people. . . . The States are, unquestionably, sovereign, so far as their sovereignty is not affected by this supreme law. But the State legislatures, as political bodies, however sovereign, are yet not sovereign over the people. So far as the people have given power to the general government, so far the grant is unquestionably good, and the government holds of the people, not of the State governments.
Both the charter and compact theories remain vital, at least to some degree.
II. Fallone’s Applications of the Two Theories
Fallone argues that the two theories yield strikingly different entailments with respect to the federal government’s relations with, respectively, the states, the members of the American political community, and “outsiders” to that community, as well as between one branch of the federal government and another. Fallone focuses primarily on the different entailments that, in his view, follow from these competing theories with respect to the constitutional position of “outsiders,” particularly noncitizens. He writes:
The fundamental characteristic of the compact view is that it limits the possession of [constitutional] rights to those persons who are members of the social contract. Only members of the community who are parties to the contract are allowed to claim the individual rights that the Constitution guarantees. As a result, the legitimacy of government action under the Constitution depends entirely on whether a member of the political community is aggrieved. Contracts do not create any rights for nonparties, and under a compact view of the Constitution the guarantee of individual rights contained in the text do not apply to “outsiders” to the community. . . . This . . . view . . . relies on membership models that incorporate certain assumptions. All such models reveal a hesitancy to define membership in ways that allow aliens to impose their membership status on the United States without the consent of our government. . . . [T]he compact view assumes that the consent of the government is necessary before membership can be asserted, and that there are no gradations of rights among the members of the social contract.
By contrast, the delegation view is, according to Fallone, far more hospitable to the rights of “outsiders.” The delegation approach:
posits that the United States government simply does not possess the power to act in certain situations. . . . As an artificially created entity, the federal government is incapable of possessing any power or authority that is not granted to it. . . . Neither a citizen nor a noncitizen can be subjected to any exercise of government power that is an ultra vires act. “Outsiders” therefore possess the same ability as citizens to claim constitutional protections “defensively by asserting the existence of structural boundaries that circumscribe governmental power. . . . [T]he power of the federal government must be subject to the check of judicial review without regard either to where that power is exercised or to the identity of the target of the power. Membership status is rendered irrelevant under the delegation view.”
Fallone seeks to draw further entailments from the two theories. In particular, he argues that the compact theory implies, or at least invites, the conclusion that the federal government, and in particular the executive branch, possesses extraconstitutional, nontextual, unenumerated powers. Thus, he argues that the compact theory leads to the doctrine of the unitary executive, and specifically to claims that the executive may make war unilaterally and has “almost unbridled power when it act[s] in the realm of national security.” By contrast, he suggests, the delegation doctrine bars such conclusions.
III. Criticisms of Fallone’s Account
A. Executive Power
Fallone’s account is clearly wrong. Certainly, the delegation theory rules out the view, notoriously advanced by Justice Sutherland in United States v. Curtiss-Wright Export Corp., that the federal government possesses inherent, extraconstitutional powers, commensurate with those of other national sovereigns, to act in foreign affairs. But so too does the compact theory. Fallone takes the doctrine of inherent but extraconstitutional federal powers (especially in foreign affairs) to be a corollary of the compact theory. This is unhistorical and mistaken. The inherent powers doctrine is essentially an untraditional, late-nineteenth century anomaly that “sharply . . . diverged from accepted American political doctrines,” including compact theory. Although one can glimpse anticipations of the “inherent power” theory throughout our constitutional history, it is best seen as a product of the Gilded Age, rather than of the early Republic, and as antagonistic to both the delegation and compact views of constitutional interpretation.
Further, one can consistently hold the delegation theory and yet affirm a robust view of executive authority as to war-making, foreign affairs, and national security. If any figure after the Founding belongs in the “delegation” tradition of constitutional interpretation, Abraham Lincoln surely does; by contrast, Lincoln’s great adversary, Roger B. Taney, is usually viewed as a “compact” theorist. Yet at the outbreak of the Civil War Lincoln affirmed that he had the unilateral power to suspend the writ of habeas corpus with respect to a class of “outsiders” (the rebels), whereas Taney, in Ex parte Merryman, emphatically rejected that claim. Lincoln asserted that he had the constitutional authority, as President, to adopt measures such as the blockade of the Confederacy under the law of war, even without a declaration of war by Congress; Taney joined the dissenters in The Prize Cases in denying this authority.
The truth is that the delegation tradition, in itself, is consistent with both a broad and a narrow view of executive authority. Delegation theorists can reasonably take the view that the powers of the President are modeled on those of the English King, subject to the Constitution’s express reassignment of such authorities from the “executive power” to Congress. On this version of the delegation theory, the original, public meaning of the term “executive power,” as used in Article II, is defined chiefly by reference to the English legal tradition described in Sir William Blackstone’s Commentaries. Conversely, a delegation theorist can ascribe a broad original meaning to the “Declare War” Clause, thus severely limiting the President’s authority to wage war without Congress’ prior, specific authorization.
B. Aliens and Other “Outsiders”
Further, just as the delegation tradition does not necessitate either a broad or a narrow view of executive authority, so the compact tradition does not necessarily lead to the conclusion that “outsiders” to the political community possess no constitutional protections. Contrary to his theory, Fallone’s own account of the debate over the Alien Act of 1798 shows as much. As Fallone acknowledges, the Jeffersonian opponents of that Act made compact-based, states-rights arguments against its constitutionality. Thus, he quotes James Madison’s view that the power to decide whether an alien might remain in the country was “a right originally, possessed, and never surrendered, by the respective States.” No less emphatic is the fourth of Jefferson’s draft Kentucky Resolutions, which argues directly from the compact theory that the Alien Act is unconstitutional (or, equivalently, that friendly aliens have what Fallone calls “defensive” constitutional protections against such federal action):
Resolved That ALIEN-friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the US. nor prohibited to the individual States, distinct from their power over citizens: and it being true as a general principle, and one of the amendments to the constitution having also declared, that “the powers not delegated to the US. by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” the act of the Congress of the United States, passed on the—day of July, 1798. intituled ‘An Act concerning aliens’ which assumes powers over Alien-friends, not delegated by the constitution is not law, but is altogether void & of no force.
Further, Jefferson argued in the sixth of the Kentucky Resolutions that friendly aliens (despite being “outsiders” to the national community) enjoy constitutional protections under both the Bill of Rights and separation of powers principles:
Resolved that the imprisonment of a person under the protection of the laws of this commonwealth, on his failure to obey the simple order of the President to depart out of the US. as is undertaken by said act intituled ‘an Act concerning aliens’ is contrary to the Constitution, one amendment to which has provided that ‘no person shall be deprived of liberty without due progress of law.’ and that another having provided that ‘in all criminal prosecutions the accused shall enjoy the right to public trial by an impartial jury, to be informed of the nature & cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, & to have the assistance of counsel for his defence’ the same act, undertaking to authorize the President to remove a person out of the US. who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without heating witnesses in his favor, without defence, without counsel, is contrary to the provision also of the Constitution, is therefore not law, but utterly void, & of no force. that transferring the power of judging any person, who is under the protection of the law, from the courts to the President of the US. as is undertaken by the same act concerning aliens, is against the article of the constitution which provides that ‘the judicial power of the US. shall be vested in courts, the judges of which shall hold their offices during good behavior;’ & that the sd act is void for that reason also. and it is further to be noted, that this transfer of judiciary power is to that magistrate of the general government who already possesses all the Executive, and a negative on all Legislative powers.
Later compact theorists also found “defensive” constitutional protections for “outsider” aliens against the States, as well as against the federal government. Thus, in his plurality opinion in Holmes v. Jennison, Chief Justice Taney concluded that a State had no power to extradite an alien fugitive at the request of his country of nationality, since extradition could only be a federal function. There is simply no basis to believe, therefore, that a compact theorist must deny that “outsiders” enjoy constitutional rights.
In sum, if Fallone intends his contrast between delegation and compact conceptions to mirror the two traditions as they have actually developed through our constitutional history, he is badly wide of the mark. It is wrong to say, either historically or logically, that the compact theory leads to a sweeping view of executive (or other federal) power, while the delegation theory leads to a narrow one. And both compact and delegation theories have found constitutional reasons to protect “outsiders.”
C. Extraconstitutional Changes
Fallone appears to contend that the delegation theory embeds the view that “later generations of Americans might approve of a stronger national government than was originally envisioned if they were persuaded that the extra authority was merited, without the need to resort to a constitutional amendment.” And elsewhere he affirms that delegation theory holds that the sovereign people retain the power “to choose a new structure for the federal government that differs significantly from the original structure embodied in the text.” By contrast, he maintains that the compact theory “does not preserve any meaningful residual power in the hands of the people.” I see no reason to believe that the two theories are supposed to carry these different entailments.
First, a delegation theorist would doubtless allow that revolutionary events can fundamentally upset the existing constitutional order and install a new one. But a compact theorist would surely allow that as well. Indeed, some compact theorists believed that such revolutionary, extraconstitutional changes are desirable. In a well-known passage, Thomas Jefferson wrote to James Madison:
[N]o society can make a perpetual constitution, or even a perpetual law. The earth belongs to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished them, in their natural course, with those whose will gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution, then, and every law, naturally expires at the end of 19. years. If it be enforced longer, it is an act of force and not of right.
Further, compact theory unquestionably holds that the sovereign people may amend the Constitution through the Article V process. Consider Thomas Jefferson’s letter of June 12, 1823, to Judge William Johnson, in which Jefferson—the compact theorist par excellence—criticizes the opinion of his great adversary, Chief Justice John Marshall, in Cohens v. Virginia. The basic question at issue is: Who is to draw the constitutional line between state and federal authority? Jefferson writes:
But the Chief Justice says, “there must be an ultimate arbiter somewhere.” True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our constitution, to have provided this peaceable appeal, where that of other nations is at once to force.
Here Jefferson plainly considers “the people” to be sovereign over the Constitution, in contrast to what he takes to be Marshall’s view, which makes the federal government the final judge of its own powers.
Finally, Fallone might be saying that a delegation theorist is committed to holding that the powers of the federal government can be lawfully enlarged (or contracted) outside of the Article V process. Thus, Fallone might mean that it is consistent with, or even a corollary of, the delegation theory that the Constitution itself provides that “the People” may amend it validly but without reference to Article V. That may (or may not) be a facet of delegation theory. But why is compact theory unable to accept the possibility that the Constitution might be amended lawfully, but through processes other than Article V? Suppose one interprets the Ninth Amendment to reserve to “the people” collectively the right to change their constitutional order lawfully, but by procedures other than those laid out in Article V. A delegation theorist could take that position, arguing that the Ninth Amendment refers to the rights of the undifferentiated American people, taken as a whole. A compact theorist would construe the Ninth Amendment’s reference to “the people” differently, understanding it to mean “the people of the several states, organized into different political communities.” This difference over the meaning of the Ninth Amendment’s reference to “the people” would replicate the traditional divergence between delegation and compact theory over the meaning of “We the People” in the Constitution’s preamble. But both kinds of theory could accommodate the possibility of a Ninth Amendment-based right, lodged in “the people” collectively, to reorder the constitutional system in fundamental ways, even through non-Article V procedures.
* Associate Professor of Law, University of St. Thomas School of Law, Minneapolis, Minnesota. I would like to thank my friend and colleague Michael Paulsen for his helpful comments on a draft of this paper.
. Edward A. Fallone, Charters, Compacts, and Tea Parties: The Decline and Resurrection of a Delegation View of the Constitution, 45 Wake Forest L. Rev. 1967, 1068 (2010).
. Id. at 1069–70.
. Id. at 1069.
. For a discussion on the origins of the compact theory—which was articulated and defended as early as the Virginia Ratifying Convention—see K.R. Constantine Gutzman, The Virginia and Kentucky Resolutions Reconsidered: “An Appeal to the Real Laws of Our Country,” 66 J.S. Hist. 473, 475–76 (2000). The opinions expressed at the Virginia Ratifying Convention by James Madison, Edmund Randolph, George Nicholas, Harry Lee and even John Marshall became the basis for later defenses of the compact theory. See Spencer Roane, Letters to the Editor from Hampden, Enquirer (Richmond), June 11–22, 1819, reprinted in John Marshall’s Defense of McCulloch v. Maryland 115–16, 141 (Gerald Gunther, ed. 1969).
. Martin v. Hunter’s Lessee, 14 U.S. 304, 324-25 (1816).
. John Taylor, Construction Construed and Constitutions Vindicated § 9 (1820) (emphasis added), available at http://oll.libertyfund.org
. 17 U.S. 316 (1819).
. Roane, supra note 4, at 140, 142.
. Thomas Jefferson, Draft of Kentucky Resolution of 1798 and 1799, reprinted in 30 The Papers Of Thomas Jefferson 536–43 (Barbara B. Oberg, et al. eds., 2003), available at http://www.princeton.edu/~tjpapers/kyres/kydraft
.html. The final Resolutions, as adopted by the Kentucky General Assembly, are available at http://www.princeton.edu/~tjpapers/kyres/kyadopted.html.
. Francis P. Whipple, The Great Speeches and Orations of Daniel Webster 257 (Boston, Little, Brown, & Co. 1886).
. Compare U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 783 (1995) (using a charter theory to hold states cannot impose their own criteria for congressional service), with id. at 845 (Thomas, J., dissenting) (using a compact theory to argue that states can impose their own criteria for congressional service).
. Interestingly, John Taylor denied that the theories carried different interpretative consequences:
It has been imagined, that by considering the union as the act of the people, in their natural, and not in their political associated capacity, some aspect of consolidation might be shed over the country, and that the federal government might thereby acquire more power. But I cannot discern that the construction of the constitution will be affected in the smallest degree, by deducing it from either source, provided a sound authority is allowed to the source selected. Every stipulation, sentence, word and letter; and every donation, reservation, division and restriction, will be exactly the same, whichever is preferred. A man, having two titles, may distinguish himself by which he pleases, in making a contract; and whichever he uses, he remains himself. So the people having two titles or capacities, one arising from an existing association, the other from the natural right of self-government, may enter into a compact under either, but are themselves still; and their acts are equally obligatory, whichever they may select. Politicians may therefore indulge their taste in deducing the constitution of the union from either, but whichever they may fancy, no sound ground will thence result for their differing in the construction of it.
John Taylor, Construction Construed and Constitutions Vindicated § 4 (Richmond, Sheppard & Pollard 1820) (emphasis added), available at http://oll.libertyfund.org/title/899/43610/1317022. Taylor’s claim is surely mistaken if compact theory is thought to include State rights to nullify federal law or to secede from the Union. But if the theory is shorn of those doctrines, the interpretative differences between compact and charter approaches are appreciably narrowed.
. Fallone, supra note 1, at 1075.
. Id. at 1073.
. Id. at 1077.
. Id. at 1070.
. Id. at 1083.
. Id. at 1082.
. 299 U.S. 304 (1936).
. If anything, the compact theory, with its historical emphasis on the limited powers of the federal government, is even more likely to reject the doctrine that that government possesses “inherent,” unenumerated powers. How else can Thomas Jefferson’s serious doubts about the constitutionality of the Louisiana Purchase be explained? See Letter from Thomas Jefferson to Wilson Nicholas (Sept. 7, 1803), available at http://teachingamericanhistory.org
/library/index.asp?document=2193. For discussions of the constitutional questions raised at the time by the Purchase, see David Hendrickson, Union, Nation or Empire: The American Debate Over International Relations, 1789–1941, 47–50 (2009); Sarah Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1, 167–81 (2002).
. Fallone, supra note 1, at 1085 (“To speak of the ‘inherent’ powers of the executive in the realm of foreign affairs is to deny the ultimate sovereignty of the people over the exercise of foreign affairs. Only by reading the Constitution as a compact can we conclude that the people have severed all ties to their sovereignty and surrendered it to the federal government.”).
. Cleveland, supra note 20, at 7. Professor Cleveland’s impressive analysis argues that, in Curtiss-Wright, Justice Sutherland “abandoned the traditional concept of a limited national government derived from enumerated and reserved powers and replaced it with a bifurcated vision of internal and external powers, in which traditional enumerated-powers analysis applied only to U.S. domestic relations.” Id. at 5.
. Thus, Professor Cleveland argues that the “inherent power” theory was driven by “the nativist, authoritarian, and imperialist aspirations and federalism concerns that uniquely characterized the Gilded Age.” Id. at 256; see also id. at 273–77 (analyzing Curtiss-Wright in this light).
. Fallone rightly places Lincoln in the Marshall-Story-Webster tradition. See Fallone, supra note 1, at 1088–89.
. See, e.g., Ohio Life Ins. & Trust Co. v. Debolt, 57 U.S. 416, 428 (1854) (Taney, C.J.) (“[W]ith the exception of the powers surrendered by the Constitution . . . the people of the several States are absolutely and unconditionally sovereign within their respective territories.”). See generally Alfred L. Brophy, Note, Let Us Go Back and Stand Upon the Constitution: Federal-State Relations in Scott v. Sandford, 90 Colum. L. Rev. 192, 197–203 (1990) (explaining the Taney Court shifted to a compact theory of the Constitution). Fallone also considers Taney a compact theorist. See Fallone, supra note 1, at 1096–97.
. See President Abraham Lincoln, Message to Congress (July 4, 1861), available at http://teachingamericanhistory.org/library/index.asp?document
=1063; see also Suspension of the Privilege of the Writ of Habeas Corpus, 10 Op. Att’y Gen. 74 (1861) (Bates, A.G.). For probing analyses of Merryman as Taney’s attempt to assert judicial supremacy in questions of constitutional interpretation, see John C. Yoo, Lincoln and Habeas: Of Merryman, Milligan, and McCardle, 12 Chapman L. Rev. 1, 6–15 (2009). See also Michael S. Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81, 92–97 (1993) (analyzing whether, in light of Lincoln’s and Bates’s responses to Merryman, the President is bound to enforce a judicial decree he believes to be an incorrect reading of the Constitution).
. Ex parte Merryman, 17 F. Cas. 144, 148 (C.C.D. Md. 1861).
. 67 U.S. (2 Black) 635 (1863). For a recent analysis of this decision, see Andrew Kent, The Constitution and the Laws of War During the Civil War, 85 Notre Dame L. Rev. 1839 (2010).
29. Of course, the reassignment of executive authority was substantial, leaving the President far less powerful than the English King. See, e.g., Saikrishna B. Prakash, Fragmented Features of the Constitution’s Unitary Executive, 45 Willamette L. Rev. 701, 702–14 (2009). Note also that the Constitution simply extinguished some royal powers, such as, the King’s headship of the Established Church.
30. See 1 Sir William Blackstone, Commentaries *237–81, available at http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2140&chapter=198665&layout=html&Itemid=27.
31. See, e.g., Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by “Declare War,” 93 Cornell L. Rev. 45 (2007).
32. Of course, a compact theorist may require “membership” in the national political community as a condition of constitutional protection—Taney’s Dred Scott decision is the most obvious case in point. Scott v. Sandford, 60 U.S. 393 (1856).
33. See Fallone, supra note 1, at 1095–96 & nn.145, 149. Contrast Fallone’s analysis of the controversy over the Alien Act with that of Gutzman, supra note 4, at 489–92, which includes a full discussion of the arguments made by leading compact theorists in the Virginia Legislature’s debate on the 1798 Virginia Resolutions against the constitutionality of the Alien Act.
34. Fallone, supra note 1, at 1095 n.145.
35. Jefferson, supra note 9.
37. 39 U.S. 540 (1840).
38. Taney also echoed Madison’s and Jefferson’s compact-based view of aliens in other opinions. See The Passenger Cases, 48 U.S. 283, 466 (1849) (Taney, C.J., dissenting) (“[I]f the people of the several states of this Union reserved to themselves the power of expelling from their borders any person or class of persons whom it might deem dangerous to its peace or likely to produce a physical or moral evil among its citizens, then any treaty or law of Congress invading this right . . . would be an usurpation of power . . . .”); id. at 467 (“[T]he power of determining who is or is not dangerous to the interests and wellbeing of the people of the state has been uniformly admitted to reside in the State.”).
. Fallone, supra note 1, at 1084 (emphasis added). This statement appears in the context of a discussion of Alexander Hamilton.
. Id. at 1087; see also id. at 1077 (discussing that delegation theory posits that “the sovereignty of the people is active, ongoing, and cannot be severed”).
. Id. at 1093.
. Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), available at http://teachingamericanhistory.org/library/index.asp?document
=2220. In less memorable language, John Taylor of Caroline wrote: “The formation of society, and the alteration of its constituent rules, are admitted by our policy to be rights exclusively lodged in the people, in which rights the government they establish have no share.” John Taylor, An Inquiry into the Principles and Policy of the Government of the United States § 5 (1814), available at http://oll.libertyfund.org/title/1308/42374/1328597.
. 19 U.S. 264 (1821).
. Letter from Thomas Jefferson to Justice William Johnson Monticello (June 12, 1823), available at http://www.let.rug.nl/usa/P/tj3/writings/brf/jefl272
. See generally Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. 1043 (1988), which puts forward a fascinating defense of this view.
. U.S. Const. amend. IX (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”).
. See Amar, supra note 45, at 1057–58. Ordinarily, of course, the Ninth Amendment, if taken to have any substantive content at all, is thought to refer to individual rather than collective rights. See id. at 1046–47 n.5.