stance of no little weight, drawn from al form of expression used for the former is: "We, the delegates of the State" 66 66 pacity. It was performed by delegates appointed expressly for the purpose. Each appointed its own delegates; and the delegates of each acted in the name of, and for the State appointing them. Their act consisted in assenting to," or, what is the same thing, "adopting and ratifying" the Constitution. the preliminary steps taken for the ratification of the Constitution. The plan was laid, by the convention, before the Congress of the confederacy, for its consider ation and action, as has been stated. It was the sole organ and representative of these States in their confederated character. By submitting it, the convention recognized and acknowledged its authority over it, as the organ of distinct, independent, and sovereign States. It had the the several States in their separate caright to dispose of it as it pleased; and, if it had thought proper, it might have defeated the plan by simply omitting to act on it. But it thought proper to act, and to adopt the course recommended by the convention, which was, to submit it "to a convention of delegates, chosen in each State, by the people thereof, for their assent and adoption." All this was in strict accord with the federal character of the Constitution, but wholly repugnant to the idea of its being national. It received the assent of the States in all the possible modes in which it could be obtained: first, in their confederated character, through its only appropriate organ, the Congress; next, in their individual character, as separate States, through their respective State governments, to which the Congress referred it; and finally, in their high character of independent and sovereign communities, through a convention of the people, called in each State, by the authority of its government. The States acting in these various capacities might, at every stage, have defeated it or not, at their option, by giving or withholding their consent. With this weight of presumptive evidence, to use no stronger expression, in favor of its federal, in contradistinction to its national character, I shall next proceed to show that the ratification of the Constitution, instead of furnishing proof against, contains additional and conclusive evidence in its favor. We are not left to conjecture as to what was meant by the ratification of the Constitution, or its effects. The expressions used by the conventions of the States, in ratifying it, and those used by the Constitution in connection with it, afford ample means of ascertaining with accuracy, both its meaning and effect. The usu 66 By turning to the seventh article of the Constitution, and to the preamble, it will be found what was the effect of ratifying. The article expressly provides that, the ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution, between the States so ratifying the same." The preamble of the Constitution is in the following 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 defence, 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 effect, then, of its ratification was, to ordain and establish the Constitution, and thereby to make, what was before but a plan, "The Constitution of the United States of America." All this is clear. It remains now to show by whom it was ordained and established; for whom it was ordained and established; for what it was ordained and established; and over whom it was ordained and established. These will be considered in the order in which they stand. Nothing more is necessary, in order to show by whom it was ordained and established, than to ascertain who are meant by "We, the people of the United States "; for, by their authority, it was done. To this there can be but one answer: it meant the people who ratified the instrument; mon defence, promote the general welfare, for it was the act of ratification which and secure the blessings of liberty to ourordained and established it. Who they selves and our posterity." To effect thes were, admits of no doubt. The process objects, they ordained and established, to preparatory to ratification, and the acts use their own language, "the Constitu by which it was done, prove, beyond the tion for the United States of America," possibility of a doubt, that it was ratified clearly meaning by "for" that it was by the several States, through conventions intended to be their Constitution; and of delegates, chosen in each State by the that the objects of ordaining and estab people thereof; and acting, each in the lishing it were to perfect their union, to name and by the authority of its State: establish justice among them; to insure and, as all the States ratified it, "We, the their domestic tranquillity, to provide for people of the United States," mean We, their common defence and general welthe people of the several States of the fare, and to secure the blessings of liberty Union. The inference is irresistible. And to them and their posterity. Taken all when it is considered that the States of together, it follows, from what has been the Union were then members of the con- stated, that the Constitution was ordainfederacy, and that, by the express pro- ed and established by the several States, vision of one of its articles, "each State as distinct, sovereign communities; and retains its sovereignty, freedom, and in- that it was ordained and established by dependence," the proof is demonstrative, them for themselves-for their common that "We, the people of the United States welfare and safety, as distinct and sover. of America," mean the people of the sev- eign communities. eral States of the Union, acting as free, independent, and sovereign States. This strikingly confirms what has been already stated-to wit, that the convention which formed the Constitution meant the same thing by the terms "United States" and "federal," when applied to the Constitution or government; and that the former, when used politically, always mean these States united as independent and sovereign communities. neces It remains to be shown over whom it was ordained and established. That it was not over the several States is settled by the seventh article beyond controversy. It declares that the ratification by nine States shall be sufficient to establish the Constitution between the States so ratifying. "Between " sarily excludes over-as that which is between States cannot be over them. Reason itself, if the Constitution had been Having shown by whom it was ordain- silent, would have led, with equal certained, there will be no difficulty in deter- ty, to the same conclusion. For it was mining for whom it was ordained. The the several States, or, what is the same preamble is explicit-it was ordained and thing, their people, in their sovereign caestablished for "The United States of pacity, who ordained and established the America," adding "America," in comformi- Constitution. But the authority which ty to the style of the then confederacy, and ordains and establishes is higher than the Declaration of Independence. Assum- that which is ordained and established; ing, then, that the "United States bears and, of course, the latter must be suborthe same meaning in the conclusion of the dinate to the former, and cannot, therepreamble as it does in its commencement fore, be over it. "Between" always means (and no reason can be assigned why it more than over, and implies in this case should not), it follows, necessarily, that that the authority which ordained and esthe Constitution was ordained and estab- tablished the Constitution was the joint fished for the people of the several States, and united authority of the States ratify by whom it was ordained and established. ing it; and that, among the effects of their Nor will there be any difficulty in show- ratification, it became a contract between ing for what it was ordained and es- them; and, as a compact, binding on tablished. The preamble enumerates the them; but only as such. In that sense objects. They are" to form a more the term "between" is appropriately apperfect union, to establish justice, insure plied. In no other can it be. domestic tranquillity, provide for the com- doubtless, used in that sense in this in It was, stance; but the question still remains, explanation perfectly satisfactory may be 66 given, why the expression, as it now stands, was used by the framers of the Constitution, and why it should not receive the meaning attempted to be placed upon it. It is conceded that, if the enumeration of the States after the word, 'people," had been made, the expression would have been freed from all ambiguity, and the inference and argument founded on the failure to do so left without pretext or support. The omission is certainly striking, but it can be readily explained. It was made intentionally, and solely from the necessity of the case. The first draft over whom was it ordained and established? After what has been stated, the answer may be readily given. It was over the government which it created, and all its functionaries in their official character, and the individuals composing and inhabiting the several States, as far as they might come within the sphere of the powers delegated to the United States. I have now shown, conclusively, by arguments drawn from the act of ratification, and the Constitution itself, that the several States of the Union, acting in their confederated character, ordained and established the Constitution; that of the Constitution contained an enumerthey ordained and established it for themselves, in the same character; that they ordained and established it for their welfare and safety, in the like character; that they established it as a compact between them, and not as a Constitution over them; and that, as a compact, they are parties to it, in the same character. I have thus established, conclusively, that these States, in ratifying the Constitution, did not lose the confederated character which they possessed when they ratified it, as well as in all the preceding stages of their existence; but, on the contrary, still retained it to the full. Those who oppose this conclusion, and maintain the national character of the government, rely, in support of their views, mainly on the expressions, "We, the people of the United States," used in the first part of the preamble; and "do ordain and establish this Constitution for the United States of America," used in its conclusion. Taken together, they insist, in the first place, that "we, the people," mean the people in their individual character, as forming a single community; and that "the United States of America " designates them in their aggregate character as the American people. In maintaining this construction, they rely on the omission to enumerate the States by name, after the word "people" (so as to make it read, "We, the people of New Hampshire, Massachusetts, &c.," as was done in the articles of the confederation, and, also, in signing the Declaration of Independence); and, instead of this, the simple use of the general term " United States." However plausible this may appear, an ation of the States, by name, after the word "people"; but it became impossible to retain it after the adoption of the seventh and last article, which provided, that the ratification by nine States should be sufficient to establish the Constitution as between them; and for the plain reason, that it was impossible to determine whether all the States would ratify; or, if any failed, which, and how many of the number; or, if nine should ratify, how to designate them. No alternative was thus left but to omit the enumeration, and to insert the "United States of America" in its place. And yet, an omission, so readily and so satisfactorily explained, has been seized on, as furnishing strong proof that the government was ordained and established by the American people, in the aggregate, and is therefore national. But the omission, of itself, would have caused no difficulty, had there not been connected with it a twofold ambiguity in the expression as it now stands. The term "United States," which always means, in Constitutional language, the several States in their confederated character, means also, as has been shown, when applied geographically, the country occupied and possessed by them. While the term, dividuals generally, and not people as That the Constitution regards itself in the light of a compact, still existing between the States, after it was ordained and established; that it regards the union, then existing, as still existing; and the several States, of course, still members of it, in their original character of confederated States, is clear. Its seventh article, so often referred to, in connection with the arguments drawn from the preamble, sufficiently establishes all these points, without adducing others; except that which relates to the continuance of the union. To establish this, it will not be necessary to travel out of the preamble and the letter of the convention, laying the plan of the Constitution before the Congress of the confederation. In enumerating the objects for which the Constitution was ordained and established, the preamble places at the head of the rest, as its leading object-" to form a more perfect union." So far, then, are the terms "ordained and established" from being incompatible with the union, or having the effect of destroying it, the Constitution itself declares that it was intended "to form a more perfect union." This, of itself, is sufficient to refute the assertion of their incompatibility. But it is proper here to remark that it could not have been intended, by the expression in the preamble, "to form a more perfect union," to declare that the old was abolished, and a new and more perfect union established in its place: for we have the authority of the convention which formed the Constitution, to prove that their ob ject was to continue the then existing I do not deem it necessary to discuss union. In their letter, laying it before the question whether there is any compat- Congress, they say, "In all our deliberibility between the terms "ordained and ations on this subject, we kept steadily established" and that of " compact," on in our view that which appears to us the which the whole argument rests; although greatest interest of every true American, it would be no difficult task to show that the consolidation of our union." "Our it is a gratuitous assumption, without any union" can refer to no other than the foundation whatever for its support. It then existing union, the old union of is sufficient for my purpose to show that the confederacy, and of the revoluthe assumption is wholly inconsistent with che Constitution itself-as much so, as the conclusion drawn from it has been shown to be inconsistent with the opinion of the convention which formed it. Very little will be required, after what has been already stated, to establish what I propose. They next rely, in support of their theory, on the expression, "ordained and established this Constitution." They admit that the Constitution, in its incipient state, assumed the form of a compact; but contend that "ordained and established," as applied to the Constitution and government, are incompatible with the idea of compact; that, consequently, the instrument or plan lost its federative character when it was ordained and established as a Constitution; and, thus, the States ceased to be parties to a compact, and members of a confederated union, and became fused into one common community, or nation, as subordinate and dependent divisions or corporations. tionary government which preceded it, of which these States were confederated members. This must, of course, have been the union to which the framers referred in the preamble. It was this, accordingly, which the Constitution intended to make more perfect; just as the confederacy made more perfect that of the revolutionary government. Nor is there But however strong be the proofs of anything in the term "consolidation," used its federal character derived from this by the convention, calculated to weaken source, that portion which provides for the conclusion. It is a strong expression; the amendment of the Constitution, furbut as strong as it is, it certainly was nishes, if possible, still stronger. It shows, not intended to imply the destruction of conclusively, that the people of the sevthe union, as it is supposed to do by the eral States still retain that supreme ultiadvocates of a national government; for mate power called sovereignty-the power that would have been incompatible with by which they ordained and established the context, as well as with the continu- the Constitution; and which can rightance of the union, which the sentence and fully create, modify, amend, or abolish the entire letter imply. Interpreted, then, it, at its pleasure. Wherever this power in conjunction with the expression used resides, there the sovereignty is to be in the preamble, "to form a more perfect found. That it still continues to exist in union," although it may more strongly the several States, in a modified form, is intimate closeness of connection, it can clearly shown by the fifth article of the imply nothing incompatible with the pro- Constitution, which provides for fessed object of perfecting the union, still less a meaning and effect wholly inconsistent with the nature of a confederated community. For to adopt the interpretation contended for, to its full extent, would be to destroy the union, and not to consolidate and perfect it. amendment. its By its provisions, Congress may propose amendments, on its own authority, by the vote of two-thirds of both Houses; or it may be compelled to call a convention to propose them, by twothirds of the legislatures of the several States: but, in either case, they remain, when thus made, mere proposals of no validity, until adopted by three-fourths of the States, through their respective If we turn from the preamble and the ratifications, to the body of the Constitution, we shall find that it furnishes most conclusive proof that the government is legislatures; or by conventions, called by federal, and not national. I can discover nothing, in any portion of it, which gives the least countenance to the opposite conclusion. On the contrary, the instrument, in all its parts, repels it. It is, throughout, federal. It everywhere recognizes the existence of the States, and invokes their aid to carry its powers into execution. In one of the two Houses of Congress the members are elected by the legislatures of their respective States; and in the other by the people of the several States, not as composing mere districts of one great community, but as distinct and independent communities. General Washington vetoed the first act apportioning the members of the House of Representatives among the several States, under the first census, expressly on the ground that the act assumed, as its basis, the former and not the latter construction. The President and Vice-President are chosen by electors, appointed by their respective States; and, finally, the judges are appointed by the President and the Senate; and, of course, as these are elected by the States, they are appointed through their agency. them for the purpose. Thus far, the several States, in ordaining and establishing the Constitution, agreed, for their mutual convenience and advantage, to modify, by compact, their high sovereign power of creating and establishing constitutions, as far as it related to the Constitution and government of the United States. I say, for their mutual convenience and advantage; for without the modification, it would have required the separate consent of all the States of the Union to alter or amend their constitutional compact; in like manner as it required the consent of all to establish it between them; and to obviate the almost insuperable difficulty of making such amendments as time and experience might prove to be necessary, by the unanimous consent of all, they agreed to make the modification. But that they did not intend, by this, to divest themselves of the high sovereign right (a right which they still retain, notwithstanding the modification) to change or abolish the present Constitution and government at their pleasure, cannot be doubted. It is an acknowledged principle, that sovereigns |