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Chapter 6:

  • 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 cannot 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.1 “The President . . . shall not receive, within that period, any other emolument from the United States, or any of them.”2 “The laws of the United States, and treaties made or which shall be made under their authority,” etc.3 “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies.”4 The federal character of the Union is expressed by this very phaseology, 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 Madison to the objections raised by Patrick Henry. 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.”5

More than forty years afterward, when the gradual accretions to the power, prestige, and influence of the central government had grown to [110] 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. 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 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.6

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:

Edward Everett, in his address delivered on July 4, 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.7

Mr. Everett afterward repeats the assertion that “the States are not named in it.”8

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 John Lothrop Motley, afterward Minister to the Court of St. James. In this letter 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 [111] 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 . . . .

It would be very hard to condense a more amazing amount of audacious and reckless falsehood in the same space. In all 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 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; 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, [112] 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.” Webster says it was done “by the people of the United States in the aggregate”; Everett repeats substantially the same thing; 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; in the second place, that their action had no force or validity whatever—in the words of 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 [113] 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; 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—Madison thus answered, in advance, the objections made on [114] 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.9

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; 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.

1 Article I, section 9, clause 8.

2 Article II, section 1, clause 6.

3 Article III, section 2.

4 Article III, section 3.

5 “American Museum,” February, 1788.

6 Benton's Abridgment, Vol. X, p. 448.

7 See address by Edward Everett at the Academy of Music, New York, July 4, 1861.

8 Ibid.

9 Federalist, No. Xxxix.

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