THE ADOPTION OF THE CONSTITUTION.

Twelve states met in convention by their separate delegations, to digest, reduce to form, and submit to a congress of the states, a frame of government for such of the states, as should, in conventions of the state, ratify it as their act: the frame was made, it proposed the institution of a government between the states who should adopt it, nine of whom were declared competent. These separate conventions were not to be like the general convention, composed of members appointed by state legislatures, with power only to propose an act to them as their constituents, and through them to the people of the state. To the proposed act was prefaced a declaration, that it was to be the act of the people, and a constitution for a government, such as it delineated. So it was submitted to congress, and by them to each state legislature, who called conventions of delegates elected by the people of each state; nine of these conventions separately ratified the act, in the name of the people who had authorized it; and thus the proposed frame of government was established as a constitution for those nine states, who then composed "The United States of America;" and between themselves only. The declaration, in its front, therefore, necessarily refers, not to the time when it was proposed, but when it was ordained and established, by "the ratification of the conventions of nine states," as this was done by the people of those states; so the act declares, "We, the people of the United States, (which have ratified) do ordain (by our separate ratifications) this constitution," for (the states, and between the states so ratifying the same, who are thereby) "The United States of America."

Here is simplicity of movement, and plainness in delineating, by whom, for whom the act was done, and what the act was when ordained. All history proves, and all opinions agree that it was in this way that the great work was accomplished in fact, and if so, there was no other way in which it could have been done; no reasoning can reverse the fact, or ingenuity make the act of nine distinct bodies of people the act of one, in whom all the power exerted, was previously vested.

How it may be in theory, is not material; but taking the constitution as the creation of a competent power, existing and acting practically, and not one ideal and imaginary, operating only by theory; I find in the fifth article, and the tenth and eleventh amendments, express provisions, which point to the true source of power from which it emanated.

Every part of the constitution may be amended save one, without invoking the power of the whole people, or all the states; the amending power is in "the legislatures of three-fourths of the states," or by conventions of three-fourths thereof, "as the one or other mode may be proposed by congress." It depends on the number of the states, when each acts by its legislative power; and the majority of the delegates of the people in convention of each state, when it acts by its people, not a majority of the people of all.

The tenth amendment excepts from the constitution, and reserves "to the states respectively, or the people," all powers not delegated or prohibited. The eleventh amendment annuls a jurisdiction expressly granted to the judicial power, by the third article of the constitution; by prohibiting its exercise, in suits against a state, by individuals, it operates on suits pending, and makes void the exercise of any judicial power in such cases, either past, present, or future. 3 Dallas, 382, 3; 6 Wh. 405 to 409, S. P.; 9 Wh. 206, 16, 858; 12 Wh. 438; 6 Pet. 310, 741.

When, then, it is undeniable that there is behind the constitution a power which can, by amendments, erect a new structure of government; revoke the grant of any of the powers of congress; remove the restrictions on the states; make exceptions to the grant, and reservations out of it, of what would be otherwise included in it; and annul the judicial power, in cases on which they were actually exercising an undoubted constitutional jurisdiction; it has seemed to me, that the judicial eye could easily see, and the judicial mind fully understand, what, and where was that power, which forbade this Court to move; and which it felt bound to obey, when the constitution authorized them to proceed to judgment, as the right and law of the case should appear.

It is no imaginary power that can arrest the judicial arm, or a subordinate power that can, by its own authority, avoid the exercise of that judicial power over itself, which has been granted by a paramount power. Nor can "the absolute sovereignty of the nation, which when the constitution was adopted," was "in the people of the nation," be controlled by the "residuary sovereignty" of threefourths of the states, in the people thereof, when the amendments were made. That sovereignty which can control all others, must be absolute: that which is controlled must be subordinate. If it is said that the constitution authorized this amendment, we should impute little of wisdom, foresight, or common prudence, to those who framed or adopted it, by ascribing its creation to a power so indifferent to its preservation; or to make three-fourths of the states competent to throw off the shackles on their laws, which all the states, and the whole people thereof, had imposed. There cannot, therefore, be, in my opinion, a proposition more hostile to the provisions of the fifth article, and these amendments as understood by this Court, than that the constitution was a creation of the whole people of the United States, in their aggregate collective capacity; as the one people, of one nation or state, acting by the plenary sovereignty, and in the unity of absolute political power. In thus viewing this amendment, as to "the feature" which it thus expunged, I use it as this Court does. "This feature is no longer found in the constitution; but it aids in the construction of those clauses with which it was originally connected." 6 Cr. 139. Independently of these considerations, there is another which arises from the relative condition of the states as to extent and population; to which we must refer for the discovery of the intention of those who have left us a work "designed for immortality." 6 Wh. 387.

government of these states." Its frame was "done in convention, by the unanimous consent of the states present." The 7th article whereof declared that, "the ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution, between the states so ratifying the same." And, to leave no doubt of their intention, as to what should be deemed a convention of a state, the members thereof, by the unanimous order of the convention, laid it before congress, with their opinions, that it should be submitted to a convention of delegates chosen in each state, by the people thereof, under the recommendation of its legislatures, for their assent and ratification. 1 Vol. Laws U. S. 70, 71. No language can be more plain and clear, than the words of the constitution; nor can the intention of its framers more definitely appear, than by the unanimous order of the convention, submitting it to the old congress, under whose resolution the members had been appointed by the federal states. The intention of congress is equally manifest, in their unanimous resolution, adopted after receiving "the report of the convention, lately assembled in Philadelphia, in the words following: (the constitution) "That the said report, with the resolutions and letter accompanying the same, be transmitted to the several legislatures, in order to be submitted to a convention of delegates, chosen in each state, by the people thereof, in conformity to the resolves of the convention, made and provided in that case. 1 Laws, 59, 60. But this coincidence of the words of the constitution, with the expressed and unanimous declaration of the members of the convention, and the congress, is neither the only nor most satisfactory mode, by which to identify the grantor, who conveyed the powers invested by the grant; and the constituent, who appointed the appropriate agents for their execution by delegation.

There are other objects of the grant, besides the delegated powers of agency; the grant imposes conditions, limitations, prohibitions, and makes exceptions on the exercise of the powers of the states, and the people thereof; which form an all important part of that supreme law, which declares, that "the judges in every state shall be bound thereby, any thing in the constitution or laws of any state, to the contrary notwithstanding."

It is therefore, a law, paramount in authority over the people of the several states, who adopted it in their conventions; supreme, as well over their supreme law, ordained by their sovereign power, as those laws enacted in the ordinary course of legislation, by delegated power. The effect of which is, that the constitution, the creature, prescribes rules to its creator, which expressly confine its action within defined limits, and annuls all acts which are prohibited or excepted. Nay, it goes further, it imposes as a condition, that states shall not act by their own law, or compact, or agreement, with another state, without the consent of congress; which is a creature created by the grant of the people of the states, in their separate conventions from which it necessarily results, that this grant, this constitution, and appointment of agents, must emanate from

tucky, (taken from Virginia) contained 2,226,000, the other 12 contained 2,021,000; these 4 states had 74 votes in the House, 8 in the Senate, and 82 for President; the other 12 states had 67 votes in the House, 24 in the Senate, and 91 for President; the minority, in effect, controlling every branch of the government, and competent to amend the constitution. What became then of the government of the majority of the free white population, composing the people of the United States?

At the census of 1810, there were 17 states, with a white population of 5,765,000: of which, these states contained 2,948,000, the other 13 contained 2,717,000; these 4 states had 93 votes in the House, 8 in the Senate, and 101 for President; the other 13 states had 88 votes in the House, 26 in the Senate, and 114 for President, the minority of the people still controlling.

At the census of 1820, there were 24 states, the white population 7,856,000; the 4 states, with Maine (taken from Massachusetts) and Kentucky, contained 4,199,000; the other 18 contained 3,657,000; the 6 states having 114 votes in the House, 12 in the Senate, and 126 for President; the other 18 states had 99 votes in the House, 36 in the Senate, and 135 for President-the minority still ascendant.

In 1830, the entire white population was 10,846,000, of which, these 6 states contained 5,535,000; the other 18 states, including the territories, 5,311,000; the 6 states have 124 votes in the House, 12 in the Senate, and 136 for President; the other 18 states, have 117 votes in the House, 36 in the Senate, and 153 for President.

It thus appears, that from the year 1790, till this time, the four states of Massachusetts, New York, Pennsylvania and Virginia, have contained within their original boundaries, a majority of the whole people of the United States: yet such is the structure of the government, that there is no one act which could be effected by such majority.

Adding to the free white population of these states, according to the last census, and their present boundaries, that of Ohio and Tennessee, the 6 states contain 6,090,000; the other 18 states 4,646,000, leaving a majority in the 6 states of 1,444,000; which may be found to be perfectly passive for all purposes, except representation, in the House of Representatives. There are 9 states, which contain in all, only 1,345,000 free inhabitants, which can defeat a treaty, impeachment, proposition to amend the constitution, or the passage of a law, without the approbation of the President, against the will of fifteen states, containing a majority of 8,146,000 of the people of the United States, in the aggregate. Thirteen states, with a population of 2,504,300, can elect a President in the last resort, in opposition to eleven states, with 8,232,000. Congress is bound to call a convention to amend the constitution, on the application of the legislatures of two-thirds of states, whose population is only 3,546,000, less than one-third of the aggregate of all the states: and amendments may be adopted by eighteen states, in opposition to an aggregate majority of 1,444,000; one of which amendments might give the smallest state,

and things, had been before taught by the same instructor. "This term United States, designates the whole American empire." It is the name given to our great republic, composed of states and territories; 5 Wh. 514; "constituent parts of one great empire;" 6 Wh. 414; who have formed a confederated government;" 12 Wh. 334; 2 Pet. 590, 1; by the act of the people of the "great empire," the "great republic," the "American empire," the United States. "The people of America," "the American people," "the people of the United States," are but terms and names, to designate the grantor of the thing, which was thus formed, by the people, of the constituent parts; the thing, the power which formed it, by a thing, this constitution, established by the ratifications of nine things, conventions of nine states, by the people of each as a state.

"These states are constituent parts of the United States. They are members of one great empire," ("members of the American confederacy;" 2 Pet. 312,) "for some purposes sovereign, for some purposes subordinate." 6 Wh. 414. The political character of the several states of this Union, in relation to each other, is this: "For all national purposes, the states and the citizens thereof, are one; united under the same sovereign authority, and governed by the same laws. In all other respects the states are necessarily foreign to and independent of each other. "They form a confederated government; yet the several states retain their individual sovereignties, and with respect to their municipal regulations, are to each other sovereign." 2 Pet. 590, 1; 10 Pet. 579. S. P.; 12 Wh. 334. "The national and state systems are to be regarded as one whole." 6 Wh. 419. "In America, the powers of sovereignty are divided between the government of the Union, and those of the states. They are each sovereign with respect to the objects committed to it; and neither sovereign with respect to the objects committed to the other." 4 Wh. 410.

"The

"The powers of the states depend on their own constitution; the people of every state had the right to modify and restrain them according to their own views of policy or principle; and they remain unaltered and unimpaired, except so far as they were granted to the government of the United States. These deductions have been positively recognised by the tenth amendment." 1 Wh. 325. powers retained by the states, proceed not from the people of America, but from the people of the several states, and remain after the adoption of the constitution what they were before, except so far as they may be abridged by that instrument." 4 Wh. 193. S. P.; 5 Wh. 17, 54; 9 Wh. 203, 9. "In our system, the legislature of a state is the supreme power; in all cases where its action is not restrained by the constitution of the United States." 12 Wh. 347. "Its jurisdiction is coextensive with its territory, coextensive with its legislative power," 3. Wh. 387;" and "subject to this grant of power, adheres to the territory as a portion of sovereignty not yet given away." The residuary powers of legislation are still in the state. Ib. 389 "The sovereignty of a state extends to every thing