CONSTITUTION OF THE UNITED STATES
The constitution of the United States is twofold, written and
unwritten, the constitution of the people and the constitution of the
government.
The written constitution is simply a law ordained by the nation or
people instituting and organizing the government; the unwritten
constitution is the real or actual constitution of the people as a
state or sovereign community, and constituting them such or such a
state. It is Providential, not made by the nation, but born with it.
The written constitution is made and ordained by the sovereign power,
and presupposes that power as already existing and constituted.
The unwritten or Providential constitution of the United States is
peculiar, and difficult to understand, because incapable of being fully
explained by analogies borrowed from any other state historically
known, or described by political philosophers. It belongs to the
Graeco-Roman family, and is republican as distinguished from despotic
constitutions, but it comes under the head of neither monarchical nor
aristocratic, neither democratic nor mixed constitutions, and creates a
state which is neither a centralized state nor a confederacy. The
difficulty of understanding it is augmented by the peculiar use under
it of the word state, which does not in the American system mean a
sovereign community or political society complete in itself, like
France, Spain, or Prussia, nor yet a political society subordinate to
another political society and dependent on it. The American States are
all sovereign States united, but, disunited, are no States at all. The
rights and powers of the States are not derived from the United States,
nor the rights and powers of the United States derived from the States.
The simple fact is, that the political or sovereign people of the
United States exists as united States, and only as united States. The
Union and the States are coeval, born together, and can exist only
together. Separation is dissolution--the death of both. The United
States are a state, a single sovereign state; but this single sovereign
state consists in the union and solidarity of States instead of
individuals. The Union is in each of the States, and each of the
States is in the Union.
It is necessary to distinguish in the outset between the United States
and the government of the United States, or the so-called Federal
government, which the convention refused, contrary to its first
intention to call the national government. That government is not a
supreme national government, representing all the powers of the United
States, but a limited government, restricted by its constitution to
certain specific relations and interests. The United States are
anterior to that government, and the first question to be settled
relates to their internal and inherent Providential constitution as one
political people or sovereign state. The written constitution, in its
preamble, professes to be ordained by "We, the people of the United
States." Who are this people? How are they constituted, or what the
mode and conditions of their political existence? Are they the people
of the States severally? No; for they call themselves the people of
the United States. Are they a national people, really existing outside
and independently of their organization into distinct and mutually
independent States? No; for they define themselves to be the people of
the United States. If they had considered themselves existing as
States only, they would have said "We, the States," and if
independently of State organization, they would have said "We, the
people," do ordain, &c.
The key to the mystery is precisely in this appellation United States,
which is not the name of the country, for its distinctive name is
America, but a name expressive of its political organization. In it
there are no sovereign people without States, and no States without
union, or that are not united States. The term united is not part of a
proper name, but is simply an adjective qualifying States, and has its
full and proper sense. Hence while the sovereignty is and must be in
the States, it is in the States united, not in the States severally,
precisely as we have found the sovereignty of the people is in the
people collectively or as society, not in the people individually. The
life is in the body, not in the members, though the body could not
exist if it had no members; so the sovereignty is in the Union, not in
the States severally; but there could be no sovereign union without the
States, for there is no union where there is nothing united.
This is not a theory of the constitution, but the constitutional fact
itself. It is the simple historical fact that precedes the law and
constitutes the law-making power. The people of the United States are
one people, as has already been proved: they were one people, as far as
a people at all, prior to independence, because under the same Common
Law and subject to the same sovereign, and have been so since, for as
united States they gained their independence and took their place among
sovereign nations, and as united States they have possessed and still
possess the government. As their existence before independence in
distinct colonies did not prevent their unity, so their existence since
in distinct States does not hinder them from being one people. The
States severally simply continue the colonial organizations, and united
they hold the sovereignty that was originally in the mother country.
But if one people, they are one people existing in distinct State
organizations, as before independence they were one people existing in
distinct colonial organizations. This is the original, the unwritten,
and Providential constitution of the people of the United States.
This constitution is not conventional, for it existed before the people
met or could meet in convention. They have not, as an independent
sovereign people, either established their union, or distributed
themselves into distinct and mutually independent States. The union
and the distribution, the unity and the distinction, are both original
in their constitution, and they were born United States, as much and as
truly so as the son of a citizen is born a citizen, or as every one
born at all is born a member of society, the family, the tribe, or the
nation. The Union and the States were born together, are inseparable
in their constitution, have lived and grown up together; no serious
attempt till the late secession movement has been made to separate
them; and the secession movement, to all persons who knew not the real
constitution of the United States, appeared sure to succeed, and in
fact would have succeeded if, as the secessionists pretended, the Union
had been only a confederacy, and the States had been held together only
by a conventional compact, and not by a real and living bond of unity.
The popular instinct of national unity, which seemed so weak, proved to
be strong enough to defeat the secession forces, to trample out the
confederacy, and maintain the unity of the nation and the integrity of
its domain.
The people can act only as they exist, as they are, not as they are
not. Existing originally only as distributed in distinct and mutually
independent colonies, they could at first act only through their
colonial organizations, and afterward only through their State
organizations. The colonial people met in convention, in the person of
representatives chosen by colonies, and after independence in the
person of representatives chosen by States. Not existing outside of
the colonial or State organizations, they could not act outside or
independently of them. They chose their representatives or delegates
by colonies or States, and called at first their convention a Congress;
but by an instinct surer than their deliberate wisdom, they called it
not the Congress of the confederate, but of the United States,
asserting constitutional unity as well as constitutional multiplicity.
It is true, in their first attempt to organize a general government,
they called the constitution they devised Articles of Confederation,
but only because they had not attained to full consciousness of
themselves; and that they really meant union, not confederation, is
evident from their adopting, as the official style of the nation or new
power, united, not confederate States.
That the sovereignty vested in the States united, and was represented
in some sort by the Congress, is evident from the fact that the several
States, when they wished to adopt State constitutions in place of
colonial charters, felt not at liberty to do so without asking and
obtaining the permission of Congress, as the elder Adams informs us in
his Diary, kept at the time; that is, they asked and obtained the
equivalent of what has since, in the case of organizing new States,
been called an "enabling act." This proves that the States did not
regard themselves as sovereign States out of the Union, but as
completely sovereign only in it. And this again proves that the
Articles of Confederation did not correspond to the real, living
constitution of the people. Even then it was felt that the
organization and constitution of a State in the Union could be
regularly effected only by the permission of Congress; and no Territory
can, it is well known, regularly organize itself as a State, and adopt
a State constitution, without an enabling act by Congress, or its
equivalent.
New States, indeed, have been organized and been admitted into the
Union without an enabling act of Congress; but the case of Kansas, if
nothing else, proves that the proceeding is irregular, illicit,
invalid, and dangerous. Congress, of course, can condone the wrong and
validate the act, but it were better that the act should be validly
done, and that there should be no wrong to condone. Territories have
organized as States, adopted State constitutions, and instituted State
governments under what has been called "squatter sovereignty;" but such
sovereignty has no existence, because sovereignty is attached to the
domain; and the domain is in the United States. It is the offspring of
that false view of popular sovereignty which places it in the people
personally or generically, irrespective of the domain, which makes
sovereignty a purely personal right, not a right fixed to the soil, and
is simply a return to the barbaric constitution of power. In all
civilized nations, sovereignty is inseparable from the state, and the
state is inseparable from the domain. The will of the people, unless
they are a state, is no law, has no force, binds nobody, and justifies
no act.
The regular process of forming and admitting new States explains
admirably the mutual relation of the Union and the several States. The
people of a Territory belonging to the United States or included in the
public domain not yet erected into a State and admitted into the Union,
are subjects of the United States, without any political rights
whatever, and, though a part of the population, are no part of the
sovereign people of the United States. They become a part of that
people, with political rights and franchises, only when they are
erected into a State, and admitted into the Union as one of the United
States. They may meet in convention, draw up and adopt a constitution
declaring or assuming them to be a State, elect State officers,
senators, and representatives in the State legislature, and
representatives and senators in Congress, but they are not yet a State,
and are, as before, under the Territorial government established by the
General Government. It does not exist as a State till recognized by
Congress and admitted into the Union. The existence of the State, and
the rights and powers of the people within the State, depend on their
being a State in the Union, or a State united. Hence a State erected on
the national domain, but itself outside of the Union, is not an
independent foreign State, but simply no State at all, in any sense of
the term. As there is no union outside of the States, so is there no
State outside of the Union; and to be a citizen either of a State or of
the United States, it is necessary to be a citizen of a State, and of a
State in the Union. The inhabitants of Territories not yet erected
into States are subjects, not citizens--that is, not citizens with
political rights. The sovereign people are not the people outside of
State organization, nor the people of the States severally, but the
distinct people of the several States united, and therefore most
appropriately called the people of the United States.
This is the peculiarity of the American constitution and is
substantially the very peculiarity noted and dwelt upon by Mr. Madison
in his masterly letter to Edward Everett, published in the "North
American Review," October, 1830.
"I In order to understand the true character of the constitution of the
United States," says Mr. Madison, "the error, not uncommon, must be
avoided of viewing it through the medium either of a consolidated
government or of a confederated government, whilst it is neither the
one nor the other, but a mixture of both. And having, in no model, the
similitudes and analogies applicable to other systems of government, it
must, more than any other, be its own interpreter, according to its
text and the facts in the case.
"From these it will be seen that the characteristic peculiarities of
the constitution are: 1. The mode of its formation. 2. The division of
the supreme powers of government between the States in their united
capacity and the States in their individual capacities.
"1. It was formed not by the governments of the component States, as
the Federal Government, for which it was substituted, was formed; nor
was it formed by a majority of the people of the United States as a
single community, in the manner of a consolidated government. It was
formed by the States; that is, by the people in each of the States,
acting in their highest sovereign capacity, and formed consequently by
the same authority which formed the State constitution.
"Being thus derived from the same source as the constitutions of the
States, it has within each State the same authority as the constitution
of the State, and is as much a constitution in the strict sense of the
term, within its prescribed sphere, as the constitutions of the States
are within their respective spheres; but with this obvious and
essential difference, that, being a compact among the States in their
highest capacity, and constituting the people thereof one people for
certain purposes, it cannot be altered or annulled at the will of the
States individually, as the constitution of a State may be at its
individual will.
"2. And that it divides the supreme powers of government between the
government of the United States and the governments of the individual
States, is stamped on the face of the instrument; the powers of war and
of taxation, of commerce and treaties, and other enumerated powers
vested in the government of the United States, are of high and
sovereign a character as any of the powers reserved to the State
governments."
Mr. Jefferson, Mr. Webster, Chancellor Kent, Judge Story, and nearly
all the old Republicans, and even the old Federalists, on the question
as to what is the actual constitution of the United States, took
substantially the same view; but they all, as well as Mr. Madison
himself, speak of the written constitution, which on their theory has
and can have only a conventional value. Mr. Madison evidently
recognizes no constitution of the people prior to the written
constitution, from which the written constitution, or the constitution
of the government, derives all its force and vitality. The
organization of the American people, which he knew well--no man
better,--and which he so justly characterizes, he supposes to have been
deliberately formed by the people themselves, through the
convention--not given them by Providence as their original and inherent
constitution. But this was merely the effect of the general doctrine
which he had adopted, in common with nearly all his contemporaries, of
the origin of the state in compact, and may be eliminated from his view
of what the constitution actually is, without affecting that view
itself.
Mr. Madison lays great stress on the fact that though the constitution
of the Union was formed by the States, it was formed, not by the
governments, but by the people of the several States; but this makes no
essential difference, if the people are the people of the States, and
sovereign in their severalty, and not in their union. Had it been
formed by the State governments with the acquiescence of the people, it
would have rested on as high authority as if formed by the people of
the State in convention assembled. The only difference is, that if the
State ratified it by the legislature, she could abrogate it by the
legislature; if in convention, she could abrogate it only in
convention. Mr. Madison, following Mr. Jefferson, supposes the
constitution makes the people of the several States one people for
certain specific purposes, and leaves it to be supposed that in regard
to all other matters, or in all other relations, they are sovereign;
and hence he makes the government a mixture of a consolidated
government and a confederated government, but neither the one nor the
other exclusively. Say the people of the United States were one people
in all respects, and under a government which is neither a consolidated
nor a confederated government, nor yet a mixture of the two, but a
government in which the powers of government are divided between a
general government and particular governments, each emanating from the
same source, and you will have the simple fact, and precisely what Mr.
Madison means, when is eliminated what is derived from his theory of
the origin of government in compact. It is this theory of the
conventional origin of the constitution, and which excludes the
Providential or real constitution of the people, that has misled him
and so many other eminent statesmen and constitutional lawyers.
The convention did not create the Union or unite the States, for it was
assembled by the authority of the United States who were present in it.
The United States or Union existed before the convention, as the
convention itself affirms in declaring one of its purposes to be "to
provide for a more perfect union." If there had been no union, it
could not and would not have spoken of providing for a more perfect
union, but would have stated its purpose to be to create or form a
union. The convention did not form the Union, nor in fact provide for
a more perfect union; it simply provided for the more perfect
representation or expression in the General government of the Union
already existing. The convention, in common with the statesmen at the
time, recognized no unwritten or Providential constitution of a people,
and regarded the constitution of government as the constitution of the
state, and consequently sometimes put the state for the government. In
interpreting its language, it is necessary to distinguish between its
act and its theory. Its act is law, its theory is not. The convention
met, among other things, to organize a government which should more
perfectly represent the union of the States than did the government
created by the Articles of Confederation.
The convention, certainly, professes to grant or concede powers to the
United States, and to prohibit powers to the States; but it simply puts
the state for the government. The powers of the United States are,
indeed, grants or trusts, but from God through the law of nature, and
are grants, trusts, or powers always conceded to every nation or
sovereign people. But none of them are grants from the convention.
The powers the convention grants or concedes to the United States are
powers granted or conceded by the United States to the General
government it assembled to organize and establish, which, as it extends
over the whole population and territory of the Union, and, as the
interests it is charged with relate to all the States in common, or to
the people as a whole, is with no great impropriety called the
government of the United States, in contradistinction from the State
governments, which have each only a local jurisdiction. But the more
exact term is, for the one, the general government, and for the others,
particular governments, as having charge only of the particular
interests of the State; and the two together constitute the government
of the United States, or the complete national government; for neither
the General government nor the State government is complete in itself.
The convention developed a general government, and prescribed its
powers, and fixed their limits and extent, as well as the bounds of the
powers of the State or particular governments; but they are the United
States assembled in convention that do all this, and, therefore,
strictly speaking, no powers are conceded to the United States that
they did not previously possess. The convention itself, in the
constitution it ordained, defines very clearly from whom the General
government holds its powers. It holds them, as we I have seen, from
"We, the people of the United States;" not we, the people of the States
severally, but of the States united. If it had meant the States
severally, it would have said, We, the States; if it had recognized and
meant the population of the country irrespective of its organization
into particular States, it would have said simply, We, the people. By
saying "We, the people of the United States," it placed the sovereign
power where it is, in the people of the States united.
The convention ordains that the powers not conceded to the General
government or prohibited to the particular governments, "are reserved
to the States respectively, or to the people." But the powers reserved
to the States severally are reserved by order of the United States, and
the powers not so reserved are reserved to the people. What people?
The first thought is that they are the people of the States severally;
for the constitution understands by people the state as distinguished
from the state government; but if this had been its meaning in this
place, it would have said, "are reserved to the States respectively, or
to the people" thereof. As it does not say so, and does not define the
people it means, it is necessary to understand by them the people
called in the preamble "the people of the United States." This is
confirmed by the authority reserved to amend the constitution, which
certainly is not reserved to the States severally, but necessarily to
the power that ordains the constitution--"We, the people of the United
States." No power except that which ordains is or can be competent to
amend a constitution of government. The particular mode prescribed by
the convention in which the constitution of the government may be
amended has no bearing on the present argument, because it is
prescribed by the States united, not severally, and the power to amend
is evidently reserved, not indeed to the General government, but to the
United States; for the ratification by any State or Territory not in
the Union counts for nothing. The States united, can, in the way
prescribed, give more or less power to the General government, and
reserve more or less power to the States individually. The so-called
reserved powers are really reserved to the people of the United States,
who can make such disposition of them as seems to them good.
The conclusion, then, that the General government holds from the States
united, not from the States severally, is not invalidated by the fact
that its constitution was completed only by the ratification of the
States in their individual capacity. The ratification was made
necessary by the will of the people in convention assembled; but the
convention was competent to complete it and put it in force without
that ratification, had it so willed. The general practice under the
American system is for the convention to submit the constitution it has
agreed on to the people, to be accepted or rejected by a plebiscitum;
but such submission, though it may be wise and prudent, is not
necessary. The convention is held to be the convention of the people,
and to be clothed with the full authority of the sovereign people, and
it is in this that it differs from the congress or the legislature. It
is not a congress of delegates or ministers who are obliged to act
under instructions, to report their acts to their respective sovereigns
for approval or rejection; it is itself sovereign, and may do whatever
the people themselves can do. There is no necessity for it to appeal
to a plebiscitum to complete its acts. That the convention, on the
score of prudence, is wise in doing so, nobody questions; but the
convention is always competent, if it chooses, to ordain the
constitution without appeal. The power competent to ordain the
constitution is always competent to change, modify, or amend it. That
amendments to the constitution of the government can be adopted only by
being proposed by a convention of all the States in the Union, or by
being proposed, by a two-thirds vote of both houses of Congress, and
ratified by three-fourths of the States, is simply a conventional
ordinance, which the convention can change at its pleasure. It proves
nothing as it stands but the will of the convention.
The term ratification itself, because the term commonly used in
reference to treaties between sovereign powers, has been seized on,
since sometimes used by the convention, to prove that the constitution
emanates from the States severally, and is a treaty or compact between
sovereign states, not an organic or fundamental law ordained by a
single sovereign will; but this argument is inadmissible, because, as
we have just seen, the convention is competent to ordain the
constitution without submitting it for ratification, and because the
convention uses sometimes the word adopt instead of the word ratify.
That the framers of the constitution held it to be a treaty, compact,
or agreement among sovereigns, there is no doubt, for they so held in
regard to all constitution of government; and there is just as little
doubt that they intended to constitute, and firmly believed that they
were constituting a real government. Mr. Madison's authority on this
point is conclusive. They unquestionably regarded the States, prior to
the ratification of the constitution they proposed, as severally
sovereign, as they were declared to be by the old Articles of
Confederation, but they also believed that all individuals are
sovereign prior to the formation of civil society. Yet very few, if
any, of them believed that they remained sovereign after the adoption
of the constitution; and we may attribute to their belief in the
conventional origin of all government,--the almost universal belief of
the time among political philosophers,--the little account which they
made of the historical facts that prove that the people of the United
States were always one people, and that the States never existed as
severally sovereign states.
The political philosophers of the present day do not generally accept
the theory held by our fathers, and it has been shown in these pages to
be unsound and incompatible with the essential nature of government.
The statesmen of the eighteenth century believed that the state is
derived from the people individually, and held that sovereignty is
created by the people in convention. The rights and powers of the
state, they held, were made up of the rights held by individuals under
the law of nature, and which the individuals surrendered to civil
society on its formation. So they supposed that independent sovereign
states might meet in convention, mutually agree to surrender a portion
of their rights, organize their surrendered rights into a real
government, and leave the convention shorn, at least, of a portion of
their sovereignty. This doctrine crops out everywhere in the writings
of the elder Adams, and is set forth with rare ability by Mr. Webster,
in his great speech in the Senate against the State sovereignty
doctrine of General Hayne and Mr. Calhoun, which won for him the
honorable title of Expounder of the Constitution--and expound it he, no
doubt, did in the sense of its framers. He boldly concedes that prior
to the adoption of the constitution, the people of the United States
were severally sovereign states, but by the constitution they were made
one sovereign political community or people, and that the States,
though retaining certain rights, have merged their several sovereignty
in the Union.
The subtle mind of Mr. Calhoun, who did not hold that a state can
originate in compact, proved to Mr. Webster that his theory could not
stand; that, if the States went into the convention sovereign States,
they came out of it sovereign States; and that the constitution they
formed could from the nature of the case be only a treaty, compact, or
agreement between sovereigns. It could create an agency, but not a
government. The sovereign States could only delegate the exercise of
their sovereign powers, not the sovereign powers themselves. The
States could agree to exercise certain specific powers of sovereignty
only in common, but the force and vitality of the agreement depended on
the States, parties to the agreement retaining respectively their
sovereignty. Hence, he maintained that sovereignty, after as before
the convention, vested in the States severally. Hence State
sovereignty, and hence his doctrine that in all cases that cannot come
properly before the Supreme Court of the United States for decision,
each State is free to decide for itself, on which he based the right of
nullification, or the State veto of acts of Congress whose
constitutionality the State denies. Mr. Calhoun was himself no
secessionist, but he laid down the premises from which secession is the
logical deduction; and large numbers of young men, among the most open,
the most generous, and the most patriotic in the country, adopted his
premises, without being aware of this fact any more than he himself
was, and who have been behind none in their loyalty to the Union, and
in their sacrifices to sustain it, in the late rebellion.
The formidable rebellion which is now happily suppressed, and which
attempted to justify itself by the doctrine of State sovereignty, has
thrown, in many minds, new light on the subject, and led them to
re-examine the historical facts in the case from a different point of
view, to see if Mr. Calhoun's theory is not as unfounded as he had
proved Mr. Webster's theory to be. The facts in the case really
sustain neither, and both failed to see it: Mr. Calhoun because he had
purposes to accomplish which demanded State sovereignty, and Mr.
Webster because he examined them in the distorting medium of the theory
or understanding of the statesmen of the eighteenth century. The civil
war has vindicated the Union, and defeated the armed forces of the
State sovereignty men; but it has not refuted their doctrine, and as
far as it has had any effect, it has strengthened the tendency to
consolidation or centralism.
But the philosophy, the theory of government, the understanding of the
framers of the constitution, must be considered, if the expression will
be allowed, as obiter dicta, and be judged on their merits. What binds
is the thing done, not the theory on which it was done, or on which the
actors explained their work either to themselves or to others. Their
political philosophy, or their political theory, may sometimes affect
the phraseology they adopt, but forms no rule for interpreting their
work. Their work was inspired by and accords with the historical facts
in the case, and is authorized and explained by them. The American
people were not made one people by the written constitution, as Mr.
Jefferson, Mr. Madison, Mr. Webster, and so many others supposed, but
were made so by the unwritten constitution, born with and inherent in
them.