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should determine otherwise; nor could they keep on foot any body of forces in time of peace, except such as congress should think necessary for garrisoning their forts;- and in order to prevent their confederating with each other, to the detriment of the union, no two or more states were to enter into any treaty, confederation or alliance whatever with each other, without the consent of the United States in congress assembled. But those prohibitions, while they paralyzed the action of the states, added no strength to that of the union, which still was dependent on the precarious compliance of each individual state with the requisitions of the federal head.
As congress had no power to levy taxes or imposts of any kind, the regulation of commerce remained entirely with the individual states. Each state might act in that respect as it thought proper; and therefore the nation, as such, could not countervail the fiscal regulations of foreign powers, however much they might tend to the detriment of the agriculture, commerce or manufactures of the country; while, on the other hand, it was lawful for the states to carry on a war of commercial regulations against each other, which would inevitably have resulted in a dissolution of the union, and perhaps at last in bloody hostilities betweep its members.
Such were the most prominent features of that confederation, which, as it were by a miracle, carried the
United States through the "war of independence.” A
peace made its imperfections manifest to all; and in the year 1787, a convention of delegates from all the states met at Philadelphia, in order to remedy its defeets. The result of their labours was the present constitution of the United States.
GENERAL VIEW OF THE CONSTITUTION.
The title of this instrument at once points out the difference between it and the confederation that existed before. It bears on its face the stamp of a national government; and it was, no doubt, the view of the framers to give that character to the new compact that was about to be entered into, without, however, infringing on the sovereignty of the states more than was absolutely necessary to attain the objects declared in the instrument, and those were expressed to be “to form a more perfect union; to establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure for ever the blessings of liberty."
This was a most difficult task to be accomplished. A confederation, in the strict sense of the word, had been attempted and had failed; a consolidation of the states under one general government, of which they should be mere subordinate districts or provinces, was not even thought of, it being well understood that such a government could not exist over such a widely extended coun
try under republican forms, and that it would inevitably lead to a monarchy, and perhaps to despotism. A form of government therefore was resolved upon, which should be compounded of both, in such a manner as not to deprive the states of more of their sovereignty and independence, than was necessary to insure the permanency of the union and the welfare and safety of the whole.
To designate this new form of government, the word constitution was substituted to that of confederation, while on the other hand the denomination of United States was retained, the former being expressive of a national, the latter of a federal system. The purely federal clauses by which, in the articles of confederation, the states are said to retain their sovereignty, freedom and independence," "to be bound to each other in a firm league of friendship, and to bind themselves to assist each other against foreign aggression," were left out of the new compact, as inconsistent with its spirit, and what remained of sovereignty in the states after the concessions made to the government of the union, was left, as a matter of inference, to be gathered from the context of the whole instrument, in which the word "sovereignty" is not once used, as applied to the states. And in order to stamp the national character upon it from the
outset, the preamble begins with these remarkable words. “We, the people of the United States
do ordain and establish this constitution for the
United States of America.” Thus excluding the idea of a mere confederation of independent communities, by making the people at large a party to this compact, and binding not only each state, but every individual to each other, and to the government of their creation. In these terms the constitution was afterwards ratified by the people of the states, assembled in conventions for that purpose. After its adoption, however, it received some amendments, made in one of the forms which the constitution prescribes. By one of those amendments, it is provided, that “the enumeration, in the constitution, of certain rights, shall not be construed to deny or disparage others, retained by the people;” and by another, that "the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” This last clause was borrowed from the articles of confederation; but is less strongly expressed.
That there are strong federal features in this instrument is not to be denied; but upon the whole, the national character is predominant, as will be seen from the distribution of the powers mutually conceded and reserved.
Among the powers with which the rulers of mankind are or may be invested, are those which writers on public law have denominated, by way of preeminence, jura summi imperii, that is to say, the rights of sove