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I have endeavored to show, in the preceding part of this review, that the people of the several States, while in a colo
nial condition, were not “one people” in any political sense of .
the terms; that they did not become so by the declaration of
ever, soon discovered that the execution of the particular trust with which they were clothed, involved other subjects not within their commission, and which could not be properly adjusted [*55] without a great *enlargement of their powers. They therefore simply reported this fact, and recommended to their respective legislatures to appoint delegates to meet in general convention in Philadelphia, for the purpose not merely of forming a uniform system of commercial regulations, but of reforming the government in any and every particular in which the interests of the States-might require it. This report was also transmitted to congress, who approved of the recommendation it contained, and on the 21st of February, 1787, resolved, “that in the opinion of congress, it is expedient that, on the second Monday in May next, a convention of delegates who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the articles of confederation, and reporting to congress and the several legislatures, such alterations and provisions therein, as shall, when agreed to in congress, and confirmed by the States, render the federal constitution adequate to the exigencies of government, and the preservation of the union.” (1 Elliott's Debates, 155.) Such was the origin of the convention of 1787. It is apparent that the delegates to that body were to be “appointed by the several States,” and not by “the people of the United States;” that they were to report their proceedings to “congress and the several legislatures,” and not to “the people of the United States;” and that their proceedings were to be part of the constitution, only when “agreed to in congress and confirmed by the States,” and not when confirmed by “the people of the United States.” Accordingly, delegates were, in point of fact, appointed by the States; those delegates did, in point of fact, report to congress and the States; and congress did, in point of fact, approve, and the States did, in point of fact, adopt, ratify and confirm the constitution which they formed. No other agency than that of the States as such, and of congress, which was strictly the representative of the States, is to be discerned in any part of this whole proceeding. We may well ask, there. fore, from what unknown source our author derives the idea,
that the constitution was formed by “the people of the United States,” since the history of the transaction, even as he has himself detailed it, proves that “the people of the United States” did not appoint delegates to the convention, were not represented in that body, and did not adopt and confirm its act as their own | Even, however, if the question now before us be not, merely and exclusively, a question of historical fact, there are other views of it scarcely less decisive against our author's position. In the first place, I have to remark, that there were no such people as “the people of the United States,” in the sense in which he uses those terms. The *articles of confedera-r, 56 tion formed, at that time, the only government of the [ I United States; and, of course, we are to collect from them alone the true nature of the connexion of the States with one another. Without deeming it necessary to enumerate all the powers which they conferred on congress, it is sufficient to remark that they were all exercised in the name of the States, as free, sovereign and independent States. Congress was, in the strictest sense, the representative of the States. The members were appointed by the States, in whatever mode each State might choose, without reference either to congress or the other States. They could, at their own will and pleasure, recall their representatives, and send others in their places, precisely as any sovereign may recall his minister at a foreign court. The members voted in congress by States, each State having one vote, whatever might be the number of its representatives. There was no president, or other common executive head. The States alone, as to all the more important operations of the government, were relied on to execute the resolves of congress. In all this, and in other features of the confederation which it is unnecessary to enumerate, we recognize a league between independent sovereignties, and not one nation composed of all of them together. It would seem to follow, as a necessary consequence, that if the States, thus united together by league, did not form one nation, there could not be a citizen or subject of that nation. Indeed, congress had no power to make such citizen, either by naturalization or otherwise. It is true, the citizens of every State were entitled, with certain exceptions, such as paupers, vagabonds, &c., to all the privileges of citizens of every other State, when within the territories thereof; but this was by express compact in the articles of confederation, and did not otherwise result from the nature of their political connexion. It was only by virtue of citizenship in some particular
State, that its citizens could enjoy within any other State the
rights of citizens thereof. They were not known as citizens of the United States, in the legislation either of congress or of the several States. He who ceased to be a citizen of some particular State, without becoming a citizen of some other particular State, forfeited all the rights of a citizen in each and all of the States. There was no one right which the citizen could exercise, and no one duty which he could be called on to perform, except as a citizen of some particular State. In that character alone could he own real estate, vote at elections, sue or be sued; and in that character alone could he be called on to bear arms, or to pay taxes. What, then, was this citizenship of the United States, which [*57] *involved no allegiance, conferred no right and subjected to no duty 2 Who were “the people of the United States?” Where was their domicil, and what were the political relations, which they bore to one another? What was their sovereignty, and what was the nature of the allegiance which it claimed ? Whenever these questions shall be satisfactorily answered without designating the people of the several States, distinctively as such, I shall feel myself in posession of new and unexpected lights upon the subject. Even, however, if we concede that there was such a people as “the people of the United States,” our author's position is still untenable. I admit that the people of any country may, if they choose, alter, amend or abrogate their form of government, or establish a new one, without invoking the aid of their constituted authorities. They may do this, simply because they have the physical power to do it, and not because such a proceeding would be either wise, just, or expedient. It would be revolution in the strictest sense of the term. Be this as it may, no one
ever supposed that this course was pursued in the case under
consideration. Every measure, both for the calling of the convention and for the ratification of the constitution, was adopted
in strict conformity with the recommendations, resolutions and laws of congress and the State legislatures. And as “the people of the United States” did not, in point of fact, take the subject into their own hands, independent of the constituted authorities, they could not do it by any agency of those authorities. So far as the federal government was concerned, the articles of confederation, from which alone it derived its power, contained no provision by which “the people of the United States” could express authoritatively a joint and common purpose to change their government. A law of congress authorizing them to do so would have been void, for want of right in that body to pass it. No mode, which congress might have prescribed for ascertaining the will of the people upon the subject, could have had that sanction of legal authority, which would have been absolutely necessary to give it force and effect. It is equally clear that there was no right or power reserved to the States themselves, by virtue of which any such authoritative expression of the common will and purpose of the people of all the States could have been made. The power and jurisdiction of each state were limited to its own territory; it had no power to legislate for the people of any other State. No single State, therefore, could have effected such an object; and if they had all concurred in it, each acting, as it was only authorized to act, for itself, that would have been strictly the action of the States as such, and as "contradistinguished from the action of r.
the mass of the people of all the States. If “the people [*58] of the United States” could not, by any aid to be derived from their common government, have effected such a change in their constitution, that government itself was equally destitute of all power to do so. The only clause in the articles of confederation, touching this subject, is in the following words: “And the articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration, at any time hereafter, be made in any of them, unless such alteration be agreed to in congress of the United States, and be afterwards confirmed by the legislature of every State.” Even if this power had been given to congress alone, without subjecting the exercise of it to the negative of the States, it would still have been the power of the States in their separate