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The Constitution of 1787 a Compact between the States.
The Language of the
The Convention of 1787 did, as we have seen, refuse to . call the government à national one, and gave it the name of "the government of the United States.” Did they then make it a national one by enacting that it should be ordained by “the whole people of the United States in the aggregate” as one political society? Again, when it was proposed in the Convention to ordain the Constitution by “the people of the United States in the aggregate,” in one general Convention assembled, the motion failed, as we have seen, to secure a second. Did Governor Morris, then, the author of that proposal, achieve by his style what he failed to accomplish by his motion? If so, what should we think of the incompetency of the Convention?
Nor was this all. For Madison introduced a motion which required “a concurrence of a majority of both the States and the people"* at large to establish the Constitution; and this proposition was rejected by the Convention. All these motions, designed to connect the new government with a national origin, were lost, and the decree went forth that the Constitution should be established by the accession of nine States, each acting for itself alone, and to be bound only by its own voluntary act. Now, the question is, was all this action of the Convention overruled and defeated by the committee on style,
*“ The Madison Papers,” p. 1470.
or rather by its penman, Gouverneur Morris? If he formed such design, then it must be admitted that the Northern theory of the Constitution was conceived in fraud and brought forth in iniquity; and every honest man at the North ought to be ashamed both of its origin and its existence. But, as we have already seen, Governor Morris did not understand his own words, “We, the people," as they are understood by the more modern expounders of the Constitution at the North. Hence we have no reason to believe that he intended, in this case at least, a fraud on the design and will of the Convention.
Was the whole thing done then, and the nature of the Constitution transformed, by a slip of the pen, or by accident? After all their opposition both to the name and to the thing did the Convention, by sheer oversight, blunder into the construction of a purely national government, by permitting it to be established by the people of America as one grand political community? If Mr. Justice Story's view of the words, “We, the people of the United States," be correct, how did it happen that the opponents of such a mode of ratification said absolutely nothing? The whole instrument, as amended by the committee on style, was read in the hearing of the Convention, beginning with the preamble, and yet the words, “We, the people of the United States,” now deemed so formidable to the advocates of State sovereignty, did not raise a single whisper of opposition. How could this have happened if the words in question were supposed to mean the people of America, or the whole people of the United States as one political society? Were Mason, and Martin, and Paterson, and Ellsworth, all too dull to perceive that meaning, which is so perfectly obvious to Mr. Justice Story, and which he imagines that nothing but the most purblind obstinacy can resist? Were all the friends of the States, as independent sovereignties, asleep on their posts while Gouverneur Morris thus transformed the nature of the Constitution, without knowing it himself, by causing it to emanate, not from the States, but from the people of America as one nation? No. Not one of these suppositions is the true one. The whole mystery is explained in the proceedings of the Convention of 1787, as exhibited in “The Madison Papers;" an explanation which, however, has hitherto been most unaccountably overlooked. We may there find the real meaning of the words in question, and see why they gave no alarm to the advocates of State sovereignty.
If we cast our eyes all along the subject of “the mode of ratification," ranging from page 735 to page 1632 of “The Madison Papers," we shall perceive that the question, whether the Constitution should be ratified by the people of “the United States in the aggregate," or by the several States, was not considered by the Convention at all. No such question was before the Convention. It was neither mooted nor considered by them. The error of Story and Webster is, that they construe the first clause of the Constitution as if it referred to one question; whereas, in fact, it referred to quite another and a far different question—that is, they construed this clause in profound darkness as to the origin of its words, as well as to their use and application in the Convention of 1787. If they had understood them as actually and uniformly used or applied by the framers of the Constitution, then they could 'neither have deceived themselves nor the people of the North. If, indeed, they had been members of that Convention, or had only examined its proceedings, they would have seen why the staunch advocates of State sovcignty raised not even the slightest whisper of opposition to the words, “We, the people.” Or, if Patrick Henry had been a member of that assembly, then he could not have exclaimed, as he did, “Why say We, the people, and not We, the States ?”—an exclamation so often quoted by Story, Webster, and the whole Northern school of politicians as a conclusive authority-for then he would have
seen that "We, the people,” in the language of the framers of the Constitution, meant precisely the same thing as “We, the States," and neither more nor less.
The question before the Convention was, whether the Constitution should be ratified by the legislatures or by the sovereign peoples of the several States.
No one doubted that it was to be ratified by the States. This, as we shall see,' was on all hands regarded as a settled point. The only question was, whether it should be ratified by the States, acting through their legislatures, or through Conventions elected to represent the people for that special purpose. In the discussion of this question, most of the members insisted that the Constitution should be ratified by the people, by the States in their sovereign capacity, or by their Conventions. These several modes of expression were, in the vocabulary of the Convention, used as convertible terms, as perfectly synonymous with each other. Hence the phrase, “the people of the United States," as used and understood by them, meant the people of the several States as contradistinguished from their legislatures, and not the people of America as contradistinguished from the distinct and separate sovereign peoples of the different States. This application of the words is the invention of theorists merely. It was unknown to the Convention of 1787, and has had no existence except in the imaginations of those by whom their labors have been systematically misconstrued and perverted from their original design.
Some few members of the Convention were in favor of leaving “the States to choose their own mode of ratification;" but the great majority of them insisted that the Constitution should be referred to the States for ratification, either through their legislatures or through their people in Conventions assembled. It was in regard to these two methods that the Convention was divided. All agreed that it should be done by the States," and the only ques
tion was as to how “the States” should do it. The idea that it was designed to be done, or that it was done, by the people of America as one nation, is the dream of a later day, and, as we shall see, is nothing but a dream.
Some insisted that it should be ratified by the States in their corporate capacity—that is, by their legislatures; and others that it should be ratified by the States in their sovereign political capacity-that is, by their Conventions assembled for that express purpose. Or, in other words, some contended that it ought to be ratified by their general agents, the legislatures; and others that it ought to be ratified by their special agents, the Conventions elected and assembled to perform that high act of sovereign power. In both cases, it was to be ratified by the States, but the opposite parties preferred different modes of ratification by them.
In debating this question, as to the mode of ratification by the States (the only one before the Convention), some of the most inflexible advocates of State sovereignty insisted that it should be ratified by the people of the United States." But then they understood this language, and every member of the Convention understood it to mean the peoples of the several States, as distinguished from their legislatures. If, for one moment, they had imagined that their language could have been construed to mean a ratification of the Constitution by the collective will of the whole people of America, they would have shrunk from its use with horror; for they dreaded nothing more than the idea of such an immense consolidated democracy. On the contrary, they clung to the States, and to their rights, as the only sheet-anchor of safety against the overwhelming and all-devouring floods of such a national union of mere numbers or individuals. George Mason, no less than Patrick Henry, would have exclaimed against the words, “We, the people," if, as a member of the Convention of 1787, he had not learned that they only meant “We, the States."