The Preamble to the Constitution.--"We, the People."
The preamble to the Constitution proposed by the Convention of 1787 is
in these words:
"We, the people of the United States, in order to form a more
perfect union, establish justice, insure domestic tranquillity,
provide for the common defense, promote the general welfare, and
secure the blessings of liberty to ourselves and our posterity,
do ordain and establish this Constitution for the United States
of America."
The phraseology of this preamble has been generally regarded as the
stronghold of the advocates of consolidation. It has been interpreted as
meaning that "we, the people of the United States," as a collective
body, or as a "nation," in our aggregate capacity, had "ordained and
established" the Constitution _over_ the States.
This interpretation constituted, in the beginning, the most serious
difficulty in the way of the ratification of the Constitution. It was
probably this to which that sturdy patriot, Samuel Adams, of
Massachusetts, alluded, when he wrote to Richard Henry Lee, "I stumble
at the threshold." Patrick Henry, in the Virginia Convention, on the
third day of the session, and in the very opening of the debate,
attacked it vehemently. He said, speaking of the system of government
set forth in the proposed Constitution:
"That this is a consolidated government is demonstrably clear;
and the danger of such a government is, to my mind, very
striking. I have the highest veneration for those gentlemen [its
authors]; but, sir, give me leave to demand, What right had they
to say, _We, the people_? My political curiosity, exclusive of
my anxious solicitude for the public welfare, leads me to ask,
Who authorized them to speak the language of '_We, the people_,'
instead of _We, the States_? States are the characteristics and
the soul of a confederation. If the States be not the agents of
this compact, it must be one great consolidated national
government of the people of all the States."[38]
Again, on the next day, with reference to the same subject, he said:
"When I asked that question, I thought the meaning of my interrogation
was obvious. The fate of this question and of America may depend on
this. Have they said, We, the States? Have they made a proposal of a
compact between States? If they had, this would be a confederation: it
is otherwise most clearly a consolidated government. The question turns,
sir, on that poor little thing--the expression, 'We, the people,'
instead of the States of America."[39]
The same difficulty arose in other minds and in other conventions.
The scruples of Mr. Adams were removed by the explanations of others,
and by the assurance of the adoption of the amendments thought
necessary--especially of that declaratory safeguard afterward embodied
in the tenth amendment--to be referred to hereafter.
Mr. Henry's objection was thus answered by Mr. Madison:
"Who are parties to it [the Constitution]? The people--but _not
the people as composing one great body_; but the people as
composing _thirteen sovereignties_: were it, as the gentleman
[Mr. Henry] asserts, a consolidated government, the assent of a
majority of the people would be sufficient for its
establishment, and as a majority have adopted it already, the
remaining States would be bound by the act of the majority, even
if they unanimously reprobated it: were it such a government as
is suggested, it would be now binding on the people of this
State, without having had the privilege of deliberating upon it;
but, sir, no State is bound by it, as it is, without its own
consent. Should all the States adopt it, it will be then a
government established by the thirteen States of America, not
through the intervention of the Legislatures, but by the people
at large. In this particular respect the distinction between the
existing and proposed governments is very material. The existing
system has been derived from the dependent, derivative authority
of the Legislatures of the States, whereas this is derived from
the superior power of the people."[40]
It must be remembered that this was spoken by one of the leading members
of the Convention which formed the Constitution, within a few months
after that instrument was drawn up. Mr. Madison's hearers could readily
appreciate his clear answer to the objection made. The "people" intended
were those of the respective States--the only organized communities of
people exercising sovereign powers of government; and the idea intended
was the ratification and "establishment" of the Constitution by direct
act of the people in their conventions, instead of by act of their
Legislatures, as in the adoption of the Articles of Confederation. The
explanation seems to have been as satisfactory as it was simple and
intelligible. Mr. Henry, although he fought to the last against the
ratification of the Constitution, did not again bring forward this
objection, for the reason, no doubt, that it had been fully answered.
Indeed, we hear no more of the interpretation which suggested it, from
that period, for nearly half a century, when it was revived, and has
since been employed, to sustain that theory of a "great consolidated
national government" which Mr. Madison so distinctly repudiated.
But _we_ have access to sources of information, not then available,
which make the intent and meaning of the Constitution still plainer.
When Mr. Henry made his objection, and Mr. Madison answered it, the
journal of the Philadelphia Convention had not been published. That body
had sat with closed doors, and among its rules had been the following:
"That no copy be taken of any entry on the journal during the
sitting of the House, without the leave of the House.
"That members only be permitted to inspect the journal.
"That nothing spoken in the House be printed, or otherwise
published or communicated, without leave."[41]
We can understand, by reference to these rules, how Mr. Madison should
have felt precluded from making allusion to anything that had occurred
during the proceedings of the Convention. But the secrecy then covering
those proceedings has long since been removed. The manuscript journal,
which was intrusted to the keeping of General Washington, President of
the Convention, was deposited by him, nine years afterward, among the
archives of the State Department. It has since been published, and we
can trace for ourselves the origin, and ascertain the exact
significance, of that expression, "We, the people," on which Patrick
Henry thought the fate of America might depend, and which has been so
grossly perverted in later years from its true intent.
The original language of the preamble, reported to the Convention by a
committee of five appointed to prepare the Constitution, as we find it
in the proceedings of August 6, 1787, was as follows:
"We, the people of the States of New Hampshire, Massachusetts,
Rhode Island and Providence Plantations, Connecticut, New York,
New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North
Carolina, South Carolina, and Georgia, do ordain, declare, and
establish, the following Constitution for the government of
ourselves and our posterity."
There can be no question here what was meant: it was "_the people of the
States_," designated by name, that were to "ordain, declare, and
establish" the compact of union for themselves and their posterity.
There is no ambiguity nor uncertainty in the language; nor was there any
difference in the Convention as to the use of it. The preamble, as
perfected, was submitted to vote on the next day, and, as the journal
informs us, "it passed _unanimously_ in the affirmative."
There was no subsequent change of opinion on the subject. The reason for
the modification afterward made in the language is obvious. It was found
that unanimous ratification of all the States could not be expected, and
it was determined, as we have already seen, that the consent of _nine_
States should suffice for the establishment of the new compact "between
the States so ratifying the same." _Any_ nine would be sufficient to put
the proposed government in operation as to them, thus leaving the
remainder of the thirteen to pursue such course as might be to each
preferable. When this conclusion was reached, it became manifestly
impracticable to designate beforehand the consenting States by name.
Hence, in the final revision, the specific enumeration of the thirteen
States was omitted, and the equivalent phrase "people of the United
States" inserted in its place--plainly meaning the people of such States
as should agree to unite on the terms proposed. The imposing fabric of
political delusion, which has been erected on the basis of this simple
transaction, disappears before the light of historical record.
Could the authors of the Constitution have foreseen the perversion to be
made of their obvious meaning, it might have been prevented by an easy
periphrasis--such as, "We, the people of the States hereby united," or
something to the same effect. The word "people" in 1787, as in 1880,
was, as it is, a collective noun, employed indiscriminately, either as a
unit in such expressions as "this people," "a free people," etc., or in
a distributive sense, as applied to the citizens or inhabitants of one
state or country or a number of states or countries. When the Convention
of the colony of Virginia, in 1774, instructed their delegates to the
Congress that was to meet in Philadelphia, "to obtain a redress of those
grievances, without which _the people of America_ can neither be safe,
free, nor happy," it was certainly not intended to convey the idea that
the people of the American Continent, or even of the British colonies in
America, constituted one political community. Nor did Edmund Burke have
any such meaning when he said, in his celebrated speech in Parliament,
in 1775, "The people of the colonies are descendants of Englishmen."
We need go no further than to the familiar language of King James's
translation of the Bible for multiplied illustrations of this
indiscriminate use of the term, both in its collective and distributive
senses. For example, King Solomon prays at the dedication of the temple:
"That thine eyes may be open unto the supplication ... of _thy
people_ Israel, to hearken unto them in all that they call for
unto thee. For thou didst separate them from among _all the
people_ of the earth, to be thine inheritance." (1 Kings viii,
52, 53.)
Here we have both the singular and plural senses of the same word--_one
people_, Israel, and _all the people of the earth_--in two consecutive
sentences. In "the people of the earth," the word _people_ is used
precisely as it is in the expression "the people of the United States"
in the preamble to the Constitution, and has exactly the same force and
effect. If in the latter case it implies that the people of
Massachusetts and those of Virginia were mere fractional parts of one
political community, it must in the former imply a like unity among the
Philistines, the Egyptians, the Assyrians, Babylonians, and Persians,
and all other "people of the earth," except the Israelites. Scores of
examples of the same sort might be cited if it were necessary.[42]
In the Declaration of Independence we find precisely analogous instances
of the employment of the singular form for both singular and plural
senses--"one people," "a free people," in the former, and "the good
people of these colonies" in the latter. Judge Story, in the excess of
his zeal in behalf of a theory of consolidation, bases upon this last
expression the conclusion that the assertion of independence was the act
of "_the whole people_ of the united colonies" as a unit; overlooking or
suppressing the fact that, in the very same sentence, the colonies
declare themselves "free and independent _States_"--not a free and
independent _state_--repeating the words "independent States" three
times.
If, however, the Declaration of Independence constituted one "_whole
people_" of the colonies, then that geographical section of it, formerly
known as the colony of Maryland, was in a state of revolt or "rebellion"
against the others, as well as against Great Britain, from 1778 to 1781,
during which period Maryland refused to ratify or be bound by the
Articles of Confederation, which, according to this theory, was binding
upon her, as a majority of the "whole people" had adopted it. _A
fortiori_, North Carolina and Rhode Island were in a state of rebellion
in 1789-'90, while they declined to ratify and recognize the
Constitution adopted by the other eleven fractions of this united
people. Yet no hint of any such pretension--of any claim of authority
over them by the majority--of any assertion of "the supremacy of the
Union"--is to be found in any of the records of that period.
It might have been unnecessary to bestow so much time and attention in
exposing the absurdity of the deductions from a theory so false, but for
the fact that it has been specious enough to secure the countenance of
men of such distinction as Webster, Story, and Everett; and that it has
been made the plea to justify a bloody war against that principle of
State sovereignty and independence, which was regarded by the fathers of
the Union as the corner-stone of the structure and the basis of the hope
for its perpetuity.
[Footnote 38: Elliott's "Debates" (Washington edition, 1836), vol. iii,
p. 54.]
[Footnote 39: Ibid., p. 72.]
[Footnote 40: Elliott's "Debates" (Washington edition, 1836), vol. iii,
pp. 114, 115.]
[Footnote 41: Journal of the Federal Convention, May 29, 1787, 1
Elliott's "Debates."]
[Footnote 42: For a very striking illustration, see Deuteronomy vii, 6,
7.]