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and independent capacities, and not the power of the people of the United States, as contradistinguished from them. For congress was, as we have already remarked, strictly the representative of the States; and each State, being entitled to one vote, and one only, was precisely equal, in the deliberations of that body, to each other State. Nothing less, therefore, than a majority of the States, could have carried the measure in question, even in congress. But, surely there can be no doubt that the power to change their common government was reserved to the States alone, when we see it expressly provided that nothing less than their unanimous consent, as States, should be sufficient to effect that object. - There is yet another view of this subject. It results from the nature of all government, freely and voluntarily established, that there is no power to change, except the power which formed it. It will scarcely be denied by any one, that the confederation was a government strictly of the States, formed by them as such, and deriving all its powers from their consent and agreement. What authority was there, superior to the States, which could undo their work : What power was there, other than that of the States themselves, which was authorized to declare that their solemn league and agreement should be abrogated Could a majority of the people of all the States have done it? If so, whence did they derive that right? Certainly not from any agreement among the States, or the people of all the States; and it could not be legitimately derived from any other source. If, therefore, they had exercised such a power, it would have been a plain act of usurpation and violence. Besides, if we may judge from the apportionment of representation as proposed in the convention, a majority of the people of all [* 59] the States were to be found in the four *States of Massachusetts, New York, Pennsylvania and Virginia; so, that, upon this idea, the people of less than one-third of all the States could change the articles of confederation, although those articles expressly provided that they should not be changed without the consent of all the States / There was, then, no power superior to the power of the States; and, consequently, there was no power which could alter or abolish the government which they had established. If the Constitution has superseded

the articles of confederation, it is because the parties to those articles have agreed that it should be so. If they have not so agreed, there is no such Constitution, and the articles of confederation are still the only political tie among the States. We need not, however, look beyond the attestation of the Constitution itself, for full evidence upon this point. It professes to have been “done by the unanimous consent of the States present, &c.,” and not in the name or by the authority of “the people of the United States.” But it is not the mere framing of a constitution which gives it authority as such. It becomes obligatory only by its adoption and ratification; and surely that act, I speak of free and voluntary government, makes it the constitution of those only who do adopt it. Let us ascertain then, from the authentic history of the times, by whom our own constitution was adopted and ratified. . The resolution of congress already quoted, contemplates a convention “for the sole and express purpose of revising the articles of confederation,” and reporting suitable “alterations and provisions therein.” The proceedings of the convention were to be reported to congress and the several legislatures, and were to become obligatory, only when “agreed to in congress and confirmed by the States.” This is precisely the course of proceeding prescribed in the articles of confederation. Accordingly, the new constitution was submitted to congress; was by them approved and agreed to, and was afterwards, in pursuance of the recommendation of the convention, laid before conventions of the several States, and by them ratified and adopted. In this proceeding, each State acted for itself, without reference to any other State. They ratified at different periods; some of them unconditionally, and others with provisoes and propositions for amendment. This was certainly State action, in as distinct a form as can well be imagined. Indeed, it may well be doubted whether any other form of ratification, than by the States themselves would have been valid. At all events, none other was contemplated, since the Constitution itself provides, that it shall become obligatory, when ratified by “nine States,” between the States ratifying the same. “The *people of the *60] United States,” as an aggregate mass, are no where ap

pealed to, for authority and sanction to that instrument. Even if they could have made it their constitution, by adopting it, they could not, being as they were separate and distinct political communities, have united themselves into one mass for that purpose, without previously overthrowing their own municipal governments; and, even then, the new constitution would have been obligatory only on those who agreed to and adopted it, and not on the rest. The distinction between the people of the several States and the people of the United States, as it is to be understood in reference to the present subject, is perfectly plain. I have already explained the terms “a people,” when used in a political sense. The distinction of which I speak may be illustrated by a single example. If the Constitution had been made by “the people of the United States,” a certain portion of those people would have had authority to adopt it. In the absence of all express provision to the contrary, we may concede that a majority would, prima facie, have had that right. Did that majority, in fact, adopt it? Was it ever ascertained whether a majority of the whole people were in favor of it or not? Was there any provision, either of law or constitution, by which it was possible to ascertain that fact It is perfectly well known that there was no such provision; that no such majority was ever ascertained, or even contemplated. Let us suppose that the people of the States of Massachusetts, New York, Pennsylvania and Virginia, containing, as we have seen they probably did, a majority of the whole people, had been unanimous against the Constitution, and that a bare majority of the people in each of the other nine States, acting in their separate character as States, had adopted and ratified it. There can be no doubt, that it would have become the constitution of the United States; and that, too, by the suffrages of a decided minority, probably not exceeding one-fourth of the aggregate people of all the States. This single example shows, conclusively, that the people of the United States, as contradistinguished from the people of the several States, had nothing to do, and could not have had any thing to do with the matter. This brief history of the formation and adoption of the Constitution, which is familiar to the mind of every one who has attended to the subject at all, ought, as it seems to me, to be perfectly satisfactory and conclusive; and should silence for ever, all those arguments in favor of consolidation, which are founded on the preamble to that instrument. I do not perceive with what propriety “it can be said, that the “people of [*61] the United States,” formed the Constitution, since they neither appointed the convention, nor ratified their act, nor otherwise adopted it as obligatory upon them. Even if the preamble be entitled to all the influence which has been allowed to it, our author's construction of its language is not, as has already been remarked, the only one of which it is susceptible. “We, the people of the United States,” may, without any violence to the rules of fair construction, mean “we, the people of the States united.” In this acceptation, its terms conform to the history of the preamble itself, to that of the whole Constitution, and those who made it. In any other acceptation, they are either without meaning, or else they affirm what history proves to be false. It would not, perhaps, have been deemed necessary to bestow quite so much attention on this part of the work, if it were not evident that the author himself considered it of great consequence, not as matter of history, but as warranting and controlling his construction of the Constitution, in some of its most important provisions. The argument is not yet exhausted, and I am aware that much of what I have said is trite, and that little, perhaps no part of it, is new. Indeed, the subject has been so often and so ably discussed, particularly in parliamentary debates, that it admits very few new views, and still fewer new arguments in support of old views. It is still, however, an open question, and there is nothing in the present condition of public opinion, to deprive it of any portion of its original importance. The idea that the people of these States were, while colonists, and, consequently, are now, “one people,” in some sense which has never been explained, and to some extent which has never been defined, is constantly inculcated by those who are anxious to consolidate all the powers of the States in the federal government. It is remarkable, however, that scarcely one systematic argument, and very few attempts of any sort, have yet been made to prove this important position. Even the vast and clear mind of the late chief justice of the United States, which never failed to disembarrass and elucidate the most obscure and intricate subject, appears to have shrunk from this. In all his judicial opinions in which the question has been presented, the unity or identity of the people of the United States has been taken as a postulatum, without one serious attempt to prove it. The continued repetition of this idea, and the boldness with which it is advanced, have, I am induced to think, given it an undue credit with the public. Few men, far too few, enquire narrowly into the subject, and even those who do, are [*62] not in general sceptical enough to doubt *what is so often and so peremptorily asserted; and asserted, too, with that sort of hardy confidence which seems to say, that all argument to prove it true would be supererogatory and useless. It is not, therefore, out of place, nor out of time, to refresh the memory of the reader, in regard to those well established historical facts, which are sufficient in themselves, to prove that the foundation on which the consolidationists build their theory is unsubstantial and fallacious. I would not be understood as contending, in what I have already said, that the Constitution is necessarily federative, merely because it was made by the States as such, and not by the aggregate people of the United States. I readily admit, that although the previous system was strictly federative, and could not have been changed except by the States who made it, yet there was nothing to prevent the States from surrendering, in the provisions of the new system which they adopted, all their power, and even their separate existence, if they chose to do so. The true enquiry is, therefore, whether they have in fact done so, or not; or, in other words, what is the true character, in this respect, of the present Constitution. In this enquiry, the history of their previous condition, and of the Constitution itself, is highly influential and important. The author, carrying out the idea of a unity between the people of the United States, which, in the previous part of his work, he had treated as a postulatum, very naturally, and indeed necessarily, concludes that the Constitution is not a compact among sovereign States. He contends that it is “not a contract imposing mutual obligations, and contemplating the

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