The Preamble to the Constitution--subject continued.--Growth of
the Federal Government and Accretions of Power.--Revival of Old
Errors.--Mistakes and Misstatements.--Webster, Story, and
Everett.--Who "ordained and established" the Constitution?
In the progressive growth of the Government of the United States in
power, splendor, patronage, and consideration abroad, men have been led
to exalt the place of the _Government_ above that of the _States_ which
_created_ it. Those who would understand the true principles of the
Constitution can not afford to lose sight of the essential _plurality_
of idea invariably implied in the term "United States," wherever it is
used in that instrument. No such unit as the United States is ever
mentioned therein. We read that "no title of nobility shall be granted
by the United States, and no person holding any office of profit or
trust under _them_ shall, without the consent of Congress, accept,"
etc.[43] "The President ... shall not receive, within that period, any
other emolument from the United States, or any of _them_."[44] "The laws
of the United States, and treaties made or which shall be made under
_their_ authority," etc.[45] "Treason against the United States shall
consist only in levying war against _them_, or in adhering to _their_
enemies."[46] The Federal character of the Union is expressed by this
very phraseology, which recognizes the distinct integrity of its
members, not as fractional parts of one great unit, but as component
units of an association. So clear was this to contemporaries, that it
needed only to be pointed out to satisfy their scruples. We have seen
how effectual was the answer of Mr. Madison to the objections raised by
Patrick Henry. Mr. Tench Coxe, of Pennsylvania, one of the ablest
political writers of his generation, in answering a similar objection,
said: "If the Federal Convention had meant to exclude the idea of
'union'--that is, of several and separate sovereignties joining in a
confederacy--they would have said, 'We, the people of America'; for
union necessarily involves the idea of competent States, which complete
consolidation excludes."[47]
More than forty years afterward, when the gradual accretions to the
power, _prestige_, and influence of the central Government had grown to
such extent as to begin to hide from view the purposes for which it was
founded, those very objections, which in the beginning had been
answered, abandoned, and thrown aside, were brought to light again, and
presented to the country as expositions of the true meaning of the
Constitution. Mr. Webster, one of the first to revive some of those
early misconceptions so long ago refuted as to be almost forgotten, and
to breathe into them such renewed vitality as his commanding genius
could impart, in the course of his well-known debate in the Senate with
Mr. Hayne, in 1830, said:
"It can not be shown that the Constitution is a compact between
State governments. The Constitution itself, in its very front,
refutes that proposition: it declares that it is ordained and
established by the people of the United States. So far from
saying that it is established by the governments of the several
States, it does not even say that it is established by the
people of the several States; but it pronounces that it is
established by the people of the United States in the
aggregate."[48]
Judge Story about the same time began to advance the same theory, but
more guardedly and with less rashness of statement. It was not until
thirty years after that it attained its full development in the
annunciations of sectionists rather than statesmen. Two such may suffice
as specimens:
Mr. Edward Everett, in his address delivered on the 4th of July, 1861,
and already referred to, says of the Constitution: "That instrument does
not purport to be a 'compact,' but a constitution of government. It
appears, in its first sentence, not to have been entered into by the
States, but to have been ordained and established by the people of the
United States for themselves and their 'posterity.' The States are not
named in it; nearly all the characteristic powers of sovereignty are
expressly granted to the General Government and expressly prohibited to
the States."[49] Mr. Everett afterward repeats the assertion that "the
States are not named in it."[50]
But a yet more extraordinary statement of the "one people" theory is
found in a letter addressed to the London "Times," in the same year,
1861, on the "Causes of the Civil War," by Mr. John Lothrop Motley,
afterward Minister to the Court of St. James. In this letter Mr. Motley
says of the Constitution of the United States:
"It was not a compact. Who ever heard of a compact to which
there were no parties? or who ever heard of a compact made by a
single party with himself? Yet the name of no State is mentioned
in the whole document; the States themselves are only mentioned
to receive commands or prohibitions; and the 'people of the
United States' is the single party by whom alone the instrument
is executed.
"The Constitution was not drawn up by the States, it was not
promulgated in the name of the States, it was not ratified by
the States. The States never acceded to it, and possess no power
to secede from it. It was 'ordained and established' over the
States by a power superior to the States; by the people of the
whole land in their aggregate capacity," etc.
It would be very hard to condense a more amazing amount of audacious and
reckless falsehood in the same space. In all Mr. Motley's array of bold
assertions, there is not one single truth--unless it be, perhaps, that
"the Constitution was not drawn up by the States." Yet it was drawn up
by their delegates, and it is of such material as this, derived from
writers whose reputation gives a semblance of authenticity to their
statements, that history is constructed and transmitted.
One of the most remarkable--though, perhaps, the least important--of
these misstatements is that which is also twice repeated by Mr.
Everett--that the name of no State is mentioned in the whole document,
or, as he puts it, "the States are not named in it." Very little careful
examination would have sufficed to find, in the second section of the
very first article of the Constitution, the names of every one of the
thirteen then existent States distinctly mentioned, with the number of
representatives to which each would be entitled, in case of acceding to
the Constitution, until a census of their population could be taken. The
mention there made of the States by name is of no special significance;
it has no bearing upon any question of principle; and the denial of it
is a purely gratuitous illustration of the recklessness of those from
whom it proceeds, and the low estimate put on the intelligence of those
addressed. It serves, however, to show how much credence is to be given
to their authority as interpreters and expounders.
The reason why the names of the ratifying States were not mentioned has
already been given: it was simply because it was not known which States
would ratify. But, as regards mention of "the several States," "each
State," "any State," "particular States," and the like, the Constitution
is full of it. I am informed, by one who has taken the pains to examine
carefully that document with reference to this very point, that--without
including any mention of "the United States" or of "foreign states," and
excluding also the amendments--the Constitution, in its original draft,
makes mention of the States, _as_ States, no less than _seventy_ times;
and of these seventy times, only _three_ times in the way of prohibition
of the exercise of a power. In fact, it is full of statehood. Leave out
all mention of the States--I make no mere verbal point or quibble, but
mean the States in their separate, several, distinct capacity--and what
would remain would be of less account than the play of the Prince of
Denmark with the part of _Hamlet_ omitted.
But, leaving out of consideration for the moment all minor questions,
the vital and essential point of inquiry now is, by what authority the
Constitution was "ordained and established." Mr. Webster says it was
done "by the people of the United States in the aggregate;" Mr. Everett
repeats substantially the same thing; and Mr. Motley, taking a step
further, says that "it was 'ordained and established' by a _power
superior to the States_--by the people of the whole land in their
aggregate capacity."
The advocates of this mischievous dogma assume the existence of an
unauthorized, undefined power of a "whole people," or "people of the
whole land," operating through the agency of the Philadelphia
Convention, to impose its decrees upon the States. They forget, in the
first place, that this Convention was composed of delegates, not of any
one people, but of distinct States; and, in the second place, that their
action had no force or validity whatever--in the words of Mr. Madison,
that it was of no more consequence than the paper on which it was
written--until approved and ratified by a sufficient number of States.
The meaning of the preamble, "We, the people of the United States ... do
ordain and establish this Constitution," is ascertained, fixed, and
defined by the final article: "The ratification of the conventions of
_nine States_ shall be sufficient for the _establishment_ of this
Constitution between _the States so ratifying_ the same." If it was
already established, what need was there of further establishment? It
was not ordained or established at all, until ratified by the requisite
number of States. The announcement in the preamble of course had
reference to that expected ratification, without which the preamble
would have been as void as the body of the instrument. The assertion
that "it was not ratified by the States" is so plainly and positively
contrary, to well-known fact--so inconsistent with the language of the
Constitution itself--that it is hard to imagine what was intended by it,
unless it was to take advantage of the presumed ignorance of the subject
among the readers of an English journal, to impose upon them, a
preposterous fiction. It was State ratification alone--the ratification
of the _people_ of each State, independently of all other people--that
gave force, vitality, and validity to the Constitution.
Judge Story, referring to the fact that the voters assembled in the
several States, asks where else they could have assembled--a pertinent
question on our theory, but the idea he evidently intended to convey was
that the voting of "the people" by States was a mere matter of
geographical necessity, or local convenience; just as the people of a
State vote by counties; the people of a county by towns, "beats," or
"precincts"; and the people of a city by wards. It is hardly necessary
to say that, in all organized republican communities, majorities govern.
When we speak of the will of the people of a community, we mean the will
of a majority, which, when constitutionally expressed, is binding on any
minority of the same community.
If, then, we can conceive, and admit for a moment, the possibility that,
when the Constitution was under consideration, the people of the United
States were politically "one people"--a collective unit--two deductions
are clearly inevitable: In the first place, each geographical division
of this great community would have been entitled to vote according to
its relative population; and, in the second, the expressed will of the
legal majority would have been binding upon the whole. A denial of the
first proposition would be a denial of common justice and equal rights;
a denial of the second would be to destroy all government and establish
mere anarchy.
Now, _neither_ of these principles was practiced or proposed or even
imagined in the case of the action of the people of the United States
(if they were one political community) upon the proposed Constitution.
On the contrary, seventy thousand people in the State of Delaware had
precisely the same weight--one vote--in its ratification, as seven
hundred thousand (and more) in Virginia, or four hundred thousand in
Pennsylvania. Would not this have been an intolerable grievance and
wrong--would no protest have been uttered against it--if these had been
fractional parts of one community of people?
Again, while the will of the consenting majority _within_ any State was
binding on the opposing minority in the same, no majority, or
majorities, of States or people had any control whatever upon the people
of _another_ State. The Constitution was established, not "_over_ the
States," as asserted by Motley, but "_between_ the States," and only
"between _the States so ratifying_ the same." Little Rhode Island, with
her seventy thousand inhabitants, was not a mere fractional part of "the
people of the whole land," during the period for which she held aloof,
but was as free, independent, and unmolested, as any other sovereign
power, notwithstanding the majority of more than three millions of "the
whole people" on the other side of the question.
Before the ratification of the Constitution--when there was some excuse
for an imperfect understanding or misconception of the terms
proposed--Mr. Madison thus answered, in advance, the objections made on
the ground of this misconception, and demonstrated its fallacy. He
wrote:
"That it will be a federal and not a national act, as these
terms are understood by objectors--the act of the people, as
forming so many independent States, not as forming one aggregate
nation--is obvious from this single consideration, that it is to
result neither from the decision of a _majority_ of the people
of the Union nor from that of a _majority_ of _the States_. It
must result from the _unanimous_ assent of the several _States
that are parties to it_, differing no otherwise from their
ordinary assent than in its being expressed, not by the
legislative authority, but by that of the people themselves.
Were the people regarded in this transaction as forming one
nation, the will of the majority of the whole people of the
United States would bind the minority, in the same manner as the
majority in each State must bind the minority; and the will of
the majority must be determined either by a comparison of the
individual votes or by considering the will of the majority of
the States as evidence of the will of a majority of the people
of the United States. Neither of these has been adopted. Each
State, in ratifying the Constitution, is considered as a
sovereign body, independent of all others, and only to be bound
by its own voluntary act."[51]
It is a tedious task to have to expose the misstatements, both of fact
and of principle, which have occupied so much attention, but it is
rendered necessary by the extent to which they have been imposed upon
the acceptance of the public, through reckless assertion and confident
and incessant repetition.
"'I remember,' says Mr. Webster, 'to have heard Chief-Justice
Marshall ask counsel, who was insisting upon the authority of an
act of legislation, _if he thought an act of legislation could
create or destroy a fact, or change the truth of history_?
"Would it alter the fact," said he, "if a Legislature should
solemnly enact that Mr. Hume never wrote the History of
England?" A Legislature may alter the law,' continues Mr.
Webster, 'but no power can reverse a fact.' Hence, if the
Convention of 1787 had expressly declared that the Constitution
was [to be] ordained by 'the people of the United States _in the
aggregate_,' or by the people of America as one nation, this
would not have destroyed the fact that it was ratified by each
State for itself, and that each State was bound only by 'its own
voluntary act.'" (Bledsoe.)
But the Convention, as we have seen, said no such thing. No such
community as "the people of the United States in the aggregate" is known
to it, or ever acted on it. It was ordained, established, and ratified
by the people of the several States; and no theories or assertions of a
later generation can change or conceal this fixed fact, as it stands
revealed in the light of contemporaneous records.
[Footnote 43: Article I, section 9, clause 8.]
[Footnote 44: Article II, section 1, clause 6.]
[Footnote 45: Article III, section 2.]
[Footnote 46: Article III, section 3.]
[Footnote 47: "American Museum," February, 1788.]
[Footnote 48: Benton's "Abridgment," vol. x, p. 448.]
[Footnote 49: See address by Edward Everett at the Academy of Music, New
York, July 4, 1861.]
[Footnote 50: Ibid.]
[Footnote 51: "Federalist," No. xxxix.]