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ever that is clearly defined, the name will be made to suit it. If this term in the preamble was, by common consent, or the settled course of professional and judicial opinion, taken as a mere name given to a thing of an agreed determinate nature, it would be a waste of time to inquire whether the name was appropriate to the thing; or whether the reasoning, which makes the action of thirteen distinct bodies, at so many different times and places, produce the same result, as the action of one on the same object, and may be deemed in legal contemplation, the sole action of one body, was metaphysical or sound; for it would be merely a discussion on words, which would not determine the sense of the constitution as to substance and things. That the states acted in the same distinct and separate capacity, in the creation of the government, as they did, and yet do in selecting their agents who administer its powers, is apparent in the seventh article, before quoted. The mode of action was by the people of each state, in conventions of delegates chosen by themselves; the action of the separate conventions being, by their express authority, delegated for the special purpose, was the action of the people. The grant was theirs, of their powers; and thus made it was in perfect harmony with all the provisions in its body, and as declared in its front; that, “We, the people of the United States, do ordain and establish this constitution for the United States of America.” The meaning is clear and plain, by a reference to the people of each of those states who ratified it in convention, and to the people of the several states who were to elect the representatives of the state, in a congress of the United States; the same people performing different functions, the first in creating, the second in organizing the government of the states, which had been thus established between themselves. In so taking the declaratory part of the instrument, it harmonizes throughout; no violence is done, or a strained construction put to any part; every word has its own meaning, when it is referred to its subject matter of application; power flows from its original and acknowledged fountains, and is distributed by each depository, among the appropriate agents for its execution. It is the same power which had been exerted in the institution of a government for each state; was competent to do so for the states, which were united by an alliance of mere confederation, without any legislative power in their congress; by making any change which an organic power, absolute and unlimited, could effect, and which this Court has often declared it did effect in its exertion by separate bodies. If it was so taken as settled doctrine, it would be easy to expound the instrument in which this power was exerted, as a charter or grant, ea visuribus suis, the law at the time it was made, the common, the statute, and constitutional law of England, the history and state of the times then and before, the acts of the people, the states, and of congress, in their domestic and foreign relations, in some of which sources there would be found satisfactory means of its interpretation. Three of these cases turn on those clauses of the constitution
which restrain the states; the fourth depends, in my opinion, on those which are reserved by the tenth amendment: so that none can be decided, without identifying the power which made the grant, restrictions and reservations, by an original, inherent sovereign right, and which was competent for all these purposes. The preamble declares, that “We, the people of the United States, &c. do ordain and establish this constitution for the United States of America.” That it was done by the power of the people, and not of the state legislatures is universally admitted; as also that they had the competent power to do it. The only question which is open is, whether this power was in the people of the separate states, as separate bodies politic, or in the whole people of the United States, as one.
THE op1NIoNs of THE court APPLIED To THE PROvISIONs of THE
This Court, as the appropriate tribunal for expounding the constitution, has used various terms to express their sense of the term; as, The people of the United States, in 1 Wh. 324. The people of America, 4 Wh. 193. The American people, 4 Wh. 403. 6 Wh. 377, 381. It is deemed a term of “becoming dignity,” suited to the solemnity of the occasion and instrument. 2 Dall. 471; 12 Wh. 354. But when they use the term, and describe how the people acted, and by what acts the instrument was adopted, they add this expression; which one would think was in language comprehensible and clear, excluding all construction, and admitting of no two-fold meaning or interpretation: “No political dreamer was ever wild enough to think of breaking down the lines which separate, the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states.” 4 Wh. 403; M'Culloch v. Maryland.
Here is a declaration, that the organic power was not a compound mass of the people in their states. In a subsequent part of their opinion, they declare that the same power which established, is the same which is represented in, and exercised by congress, as well as what that power is, and in what body politic it was, is, and of right ought to be. “The people of all the states, have created the general government, and have conferred upon it the general power of taxation. The people of all the states, and the states themselves, are represented in congress, and by their representatives exercise this power.” 4 Wh. 435. In the same case they had explained the difference between the people of the states, and the states, or state sovereignties, state legislatures, or, as they afterwards called it, the supreme power; all meaning the same thing, when referred to the power of the state, as exercised by the legislatures thereof. 12 Wh. 347. (Wide 1 Bl. Com. 147, p. 52.)
“To the formation of a league, such as was the confederation, the state sovereignties were certainly competent. But when in order to form a more perfect union, it was deemed necessary to change the alliance into an effective government, possessing great and sover
eign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all;” 4 Wh. 404. In this language there is neither a mystical or an erudite meaning, in its clear and conclusive explanations of the two systems. The congress of the confederation, was a body which conducted the affairs of the league, under the authority of state legislatures only; and as the power could not rise higher than its source, congress could operate only by their secondary power; and reach the people only by requisitions on the states, to be enforced by state laws. The congress of the constitution, representing both “the states,” and “the people of the several states,” by a grant emanating directly from them, could operate on the people of the state; and carrying into effect their own laws, could, without the intervention of any intermediate power, execute them to the full extent of their granted powers. Let these judicial expositions be applied to the constitution, to ascertain by its language, the meaning of the terms, people, states, representation, congress: taking them in the same order as the constitution does, in its ordaining part. Art. 1. Sec. 1. “All legislative powers herein granted, shall be vested in a congress of the United States, which shall consist of a Senate and House of Representatives.” This is a definition of the general term congress, and its constituent parts; which are composed as follows: Sec. 2. “The House of Representatives shall be composed of members chosen every second year, by the people of the several states; and the electors in each state, shall have the qualifications requisite for the most numerous branch of the state legislature.” This defines the parts of the one constituent body of the congress, and who shall elect them. The next clause prescribes the ratio of each state. Clause 3. “Representatives and direct taxes, shall be apportioned among the several states which may be included within this Union, according to their respective numbers; which shall be determined, by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed— three-fifths of all other persons.” This defines the basis of representation to be, the federal numbers within the several states; not the people of the states only, who elect the representatives of each; they are included as free persons, each an unit; but all other persons are also included, five of whom make three units; the aggregate determines the number of members who shall be chosen by the people of the several states, to compose the House of Representatives. “The number of representatives shall not exceed one for every thirty thousand; but each state shall have at least one representative: and until such enumeration shall be made, the state of New Hampshire shall have three,” &c. Thus, the members of the House of Representatives, elected by the people of the several states, according to an enumeration of the re
spective federal numbers of the several states, are the representatives of the several states. Clause 4. “When vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancy.” The several representatives of the several states, thus compose the representation from the several states, in the House of Representatives, as a constituent of a Congress of the United States. Sec. 3. “The Senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof, for six years; and each senator shall have one vote.” Such senators are therefore the representatives of each state, in the Senate, who compose the other component part of a congress of the United States. Sec. 4, clause 2. “The congress shall assemble at least once in every year.” Here, then, we have a definition of the body in whom all legislative powers granted by the constitution, are vested: after their meeting it is, “The United States in Congress assembled,” the same as all preceding congresses had been termed. The mode in which the two constituent parts act in their legislative capacity, is by majorities, or two-thirds of the members, as the case may be; by the appropriate provision, applicable to all other legislative bodies. Though they are individually the representatives of the several states, and the members from each state are its representation in congress; yet that body being invested with legislative powers, authorized to act by majorities of votes, without any reference to states, as in the old congress, it follows, that as they may thus legislate to the full extent of their constitutional powers, their laws are binding throughout the territory of the states, who are within the Union. “They serve for all.” Wide 1 Bl. Com. 159. In creating the executive power of the government, the constitution introduces a new principle, in directing how, and by whom, the person who is to hold the office of President, shall be elected; as it is neither by the people or the states, but by a third body, he is the representative of neither; but the officer designated in the mode prescribed, to perform the duties enjoined, and execute the powers conferred on him as an officer. The separate and distinct character of the states is, however, carried into his election. Art. 2. Sec. 1. clause 2. “Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives, to which the state may be entitled in the congress,” &c. Clause 3. “The electors shall meet in their respective states, and vote by ballot for a President.” (Vide 12. Amendment.) “And if no person have a majority, then from the five highest on the list, the said House (of Representatives) shall in like manner choose the President; but in choosing the President, the votes shall be taken by states, the representation from each state having one vote,” &c., (as in the old congress of states and colonies. 1 Journ. 11: 1 Laws 14.) These terms, “representation,” “representation from each state,” “having one vote,” are peculiarly definite, and appropriate to the apportionment thereof, among the several states, who are separately represented in the House; another term, equally so to the Senate, as composed of two senators from each state, in a body in which the representation from the states, is the same in number, is used in the last clause of the fifth article of the constitution, relative to amendments: “And that no state, without its consent, shall be deprived of its equal suffrage in the Senate.” Thus far the constitution delineates the action of the people, the states, or state legislatures, and the electors, in organizing the legislative and executive departments of the government, which enables it to execute all its functions and powers: it remains only to be seen, how, and by what power, this organization of government, the distribution and administration of its powers, was authorized and directed. Art. 7. “The ratifications of the conventions of nine states shall be sufficient for the establishment of this constitution, between the states so ratifying the same.” It is then, by the separate action of the states, in conventions of nine states, (not of a convention of nine states) that the grant was made; the act of eight produced no result; but when the ninth acted, the great work was effected as between the nine. Until the other four so acted, they were no part of the United States; nor were the people of the nonratifying states, any part of the people of the United States, who ordained and established it. That the term, conventions of states, meant conventions of delegates, elected by the people of the several states, for the express purpose of assenting or dissenting, to their adoption of the proposed constitution, is admitted by all; as also, that no general convention of the whole people was ever convened for any purpose: and that the members of the convention which framed it, met, and acted as states, consented to, and signed it for and in behalf of the states, whom they respectively represented, appears on its face. It was proposed to the people of each state separately, and was so ratified; it existed only between those states, whose people had so accepted it. It would, therefore, most strangely contradict itself, throughout all its provisions, to so construe the preamble, as to make it a declaration, that it was ordained by any other power than that of the people of the several states, as distinct bodies politic, over whom no external power could be exerted, but by their own consent. These are not only the necessary conclusions, which flow from the plain language and definite provisions of the constitution itself, but their settled interpretation by this Court. “From these conventions the constitution derives its whole authority. The government proceeds directly from the people, and is ordained and established in the name of the people.” 4 Wh. 403. If it is asked what people; the answer is at hand, “..? convention of delegates chosen in each state, by the people thereof, assembled in their several states.” Ib. sup.