Volume I Part 13 (2/2)

2. That the union formed under the Articles of Confederation was a compact between the States, in which these attributes of ”sovereignty, freedom, and independence,” were expressly a.s.serted and guaranteed.

3. That, in forming the ”more perfect union” of the Const.i.tution, afterward adopted, the same contracting powers formed an amended compact, without any surrender of these attributes of sovereignty, freedom, and independence, either expressed or implied: on the contrary, that, by the tenth amendment to the Const.i.tution, limiting the power of the Government to its express grants, they distinctly guarded against the presumption of a surrender of anything by implication.

4. That political sovereignty resides, neither in individual citizens, nor in unorganized ma.s.ses, nor in fractional subdivisions of a community, but in the people of an organized political body.

5. That no ”republican form of government,” in the sense in which that expression is used in the Const.i.tution, and was generally understood by the founders of the Union-whether it be the government of a State or of a confederation of States-is possessed of any sovereignty whatever, but merely exercises certain powers delegated by the sovereign authority of the people, and subject to recall and rea.s.sumption by the same authority that conferred them.

[pg 158]

6. That the ”people” who organized the first confederation, the people who dissolved it, the people who ordained and established the Const.i.tution which succeeded it, the only people, in fine, known or referred to in the phraseology of that period-whether the term was used collectively or distributively-were the people of the respective States, each acting separately and with absolute independence of the others.

7. That, in forming and adopting the Const.i.tution, the States, or the people of the States-terms which, when used with reference to acts performed in a sovereign capacity, are precisely equivalent to each other-formed a new Government, but no new people; and that, consequently, no new sovereignty was created-for sovereignty in an American republic can belong only to a people, never to a government-and that the Federal Government is ent.i.tled to exercise only the powers delegated to it by the people of the respective States.

8. That the term ”people,” in the preamble to the Const.i.tution and in the tenth amendment, is used distributively; that the only ”people of the United States” known to the Const.i.tution are the people of each State in the Union; that no such political community or corporate unit as one people of the United States then existed, has ever been organized, or yet exists; and that no political action by the people of the United States in the aggregate has ever taken place, or ever can take place, under the Const.i.tution.

The fict.i.tious idea of one people of the United States, contradicted in the last paragraph, has been so impressed upon the popular mind by false teaching, by careless and vicious phraseology, and by the ever-present spectacle of a great Government, with its army and navy, its custom-houses and post-offices, its mult.i.tude of office-holders, and the splendid prizes which it offers to political ambition, that the tearing away of these illusions and presentation of the original fabric, which they have overgrown and hidden from view, have no doubt been unwelcome, distasteful, and even repellent to some of my readers. The artificial splendor which makes the deception attractive is even employed as an argument to prove its reality.

The glitter of the powers delegated to the agent serves to [pg 159] obscure the perception of the sovereign power of the princ.i.p.al by whom they are conferred, as, by the unpracticed eye, the showy costume and conspicuous functions of the drum-major are mistaken for emblems of chieftaincy-while the misuse or ambiguous use of the term ”Union” and its congeners contributes to increase the confusion.

So much the more need for insisting upon the elementary truths which have been obscured by these specious sophistries. The reader really desirous of ascertaining truth is, therefore, again cautioned against confounding two ideas so essentially distinct as that of government, which is derivative, dependent, and subordinate, with that of the people, as an organized political community, which is sovereign, without any other than self-imposed limitations, and such as proceed from the general principles of the personal rights of man.

It has been said, in a foregoing chapter, that the authors of the Const.i.tution could scarcely have antic.i.p.ated the idea of such a community as the people of the United States in one ma.s.s. Perhaps this expression needs some little qualification, for there is rarely a fallacy, however stupendous, that is wholly original. A careful examination of the records of the Convention of 1787 exhibits one or perhaps two instances of such a suggestion-both by the same person-and the result in each case is strikingly significant.

The original proposition made concerning the office of President of the United States contemplated his election by the Congress, or, as it was termed by the proposer, ”the national Legislature.” On the 17th of July, this proposition being under consideration, Mr. Gouverneur Morris moved that the words ”national Legislature” be stricken out, and ”citizens of the United States” inserted. The proposition was supported by Mr. James Wilson-both of these gentlemen being delegates from Pennsylvania, and both among the most earnest advocates of centralism in the Convention.

Now, it is not at all certain that Mr. Morris had in view an election by the citizens of the United States ”in the aggregate,” voting as one people. The language of his proposition is entirely consistent with the idea of as election by the citizens of each [pg 160] State, voting separately and independently, though it is ambiguous, and may admit of the other construction. But this is immaterial. The proposition was submitted to a vote, and received the approval of only one State-Pennsylvania, of which Mr. Morris and Mr. Wilson were both representatives. Nine States voted against it.80

Six days afterward (July 23d), in a discussion of the proposed ratification of the Const.i.tution by Conventions of the people of each State, Mr. Gouverneur Morris-as we learn from Mr. Madison-”moved that the reference of the plan [i.e., of the proposed Const.i.tution] be made to one General Convention, chosen and authorized by the people, to consider, amend, and establish the same.”81

Here the issue seems to have been more distinctly made between the two ideas of people of the States and one people in the aggregate. The fate of the latter is briefly recorded in the two words, ”not seconded.” Mr. Morris was a man of distinguished ability, great personal influence, and undoubted patriotism, but, out of all that a.s.semblage-comprising, as it did, such admitted friends of centralism as Hamilton, King, Wilson, Randolph, Pinckney, and others-there was not one to sustain him in the proposition to incorporate into the Const.i.tution that theory which now predominates, the theory on which was waged the late b.l.o.o.d.y war, which was called a ”war for the Union.” It failed for want of a second, and does not even appear in the official journal of the Convention. The very fact that such a suggestion was made would be unknown to us but for the record kept by Mr. Madison.

The extracts which have been given, in treating of special branches of the subject, from the writings and speeches of the framers of the Const.i.tution and other statesmen of that period, afford ample proof of their entire and almost unanimous accord with the principles which have been established on the authority of the Const.i.tution itself, the acts of ratification by the several States, and other attestations of the highest authority and validity. I am well aware that isolated expressions may be [pg 161] found in the reports of debates on the General and State Conventions and other public bodies, indicating the existence of individual opinions seemingly inconsistent with these principles; that loose and confused ideas were sometimes expressed with regard to sovereignty, the relations between governments and people, and kindred subjects; and that, while the plan of the Const.i.tution was under discussion, and before it was definitely reduced to its present shape, there were earnest advocates in the Convention of a more consolidated system, with a stronger central government. But these expressions of individual opinion only prove the existence of a small minority of dissentients from the principles generally entertained, and which finally prevailed in the formation of the Const.i.tution. None of these ever avowed such extravagances of doctrine as are promulgated in this generation. No statesman of that day would have ventured to risk his reputation by construing an obligation to support the Const.i.tution as an obligation to adhere to the Federal Government-a construction which would have insured the sweeping away of any plan of union embodying it, by a tempest of popular indignation from every quarter of the country. None of them suggested such an idea as that of the amalgamation of the people of the States into one consolidated ma.s.s-unless it was suggested by Mr. Gouverneur Morris in the proposition above referred to, in which he stood alone among the delegates of twelve sovereign States a.s.sembled in convention.

As to the features of centralism, or nationalism, which they did advocate, all the ability of this little minority of really gifted men failed to secure the incorporation of any one of them into the Const.i.tution, or to obtain their recognition by any of the ratifying States. On the contrary, the very men who had been the leading advocates of such theories, on failing to secure their adoption, loyally accepted the result, and became the ablest and most efficient supporters of the principles which had prevailed. Thus, Mr. Hamilton, who had favored the plan of a President and Senate, both elected to hold office for life (or during good behavior), with a veto power in Congress on the action of the State Legislatures, became, through the ”Federalist,” in conjunction with his a.s.sociates, Mr. Madison and Mr. Jay, the most [pg 162] distinguished expounder and advocate of the Const.i.tution, as then proposed and afterward ratified, with all its Federal and State-rights features. In the ninth number of that remarkable series of political essays, he quotes, adopts, and applies to the then proposed Const.i.tution, Montesquieu's description of a ”CONFEDERATE REPUBLIC,” a term which he (Hamilton) repeatedly employs.

In the eighty-first number of the same series, replying to apprehensions expressed by some that a State might be brought before the Federal courts to answer as defendant in suits inst.i.tuted against her, he repels the idea in these plain and conclusive terms. The italics are my own:

”It is inherent in the nature of sovereignty not to be amenable to the suit of any individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the Convention, it will remain with the States, and the danger intimated must be merely ideal.... The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting State; and to ascribe to the Federal courts, by mere implication, and in destruction of a preexisting right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarranted.”82

This extract is very significant, clearly showing that Mr. Hamilton a.s.sumed as undisputed propositions, in the first place, that the State was the ”SOVEREIGN”; secondly, that this sovereignty could not be alienated, unless by express surrender; thirdly, that no such surrender had been made; and, fourthly, that the idea of applying coercion to a State, even to enforce [pg 163] the fulfillment of a duty, would be equivalent to waging war against a State-it was ”altogether forced and unwarrantable.”

In a subsequent number, Mr. Hamilton, replying to the objection that the Const.i.tution contains no bill or declaration of rights, argues that it was entirely unnecessary, because in reality the people-that is, of course, the people, respectively, of the several States, who were the only people known to the Const.i.tution or to the country-had surrendered nothing of their inherent sovereignty, but retained it unimpaired. He says: ”Here, in strictness, the people surrender nothing; and, as they retain everything, they have no need of particular reservations.” And again: ”I go further, and affirm that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed Const.i.tution, but would be absolutely dangerous. They would contain various exceptions to powers not granted, and on this very account would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done, which there is no power to do?”83 Could language be more clear or more complete in vindication of the principles laid down in this work? Mr. Hamilton declares, in effect, that the grants to the Federal Government in the Const.i.tution are not surrenders, but delegations of power by the people of the States; that sovereignty remains intact where it was before; and that the delegations of power were strictly limited to those expressly granted-in this, merely antic.i.p.ating the tenth amendment, afterward adopted.

Finally, in the concluding article of the ”Federalist,” he bears emphatic testimony to the same principles, in the remark that ”every Const.i.tution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest.... Hence the necessity of molding and arranging all the particulars, which are to compose the whole, in such a manner as to satisfy all the parties to the compact.”84 There is no intimation here, or anywhere else, of the existence of any such idea as that of the aggregated people of one great consolidated state. It is an incidental enunciation of the same [pg 164] truth soon afterward a.s.serted by Madison in the Virginia Convention-that the people who ordained and established the Const.i.tution were ”not the people as composing one great body, but the people as composing thirteen sovereignties”.

Mr. Madison, in the Philadelphia Convention, had at first held views of the sort of government which it was desirable to organize, similar to those of Mr. Hamilton, though more moderate in extent. He, too, however, cordially conformed to the modifications in them made by his colleagues, and was no less zealous and eminent in defending and expounding the Const.i.tution as finally adopted. His interpretation of its fundamental principles is so fully shown in the extracts which have already been given from his contributions to the ”Federalist” and speeches in the Virginia Convention, that it would be superfluous to make any additional citation from them.

The evidence of Hamilton and Madison-two of the most eminent of the authors of the Const.i.tution, and the two preeminent contemporary expounders of its meaning-is the most valuable that could be offered for its interpretation. That of all the other statesmen of the period only tends to confirm the same conclusions. The ill.u.s.trious Was.h.i.+ngton, who presided over the Philadelphia Convention, in his correspondence, repeatedly refers to the proposed Union as a ”Confederacy” of States, or a ”confederated Government,” and to the several States as ”acceding,” or signifying their ”accession,” to it, in ratifying the Const.i.tution. He refers to the Const.i.tution itself as ”a compact or treaty,” and cla.s.sifies it among compacts or treaties between ”men, bodies of men, or countries.” Writing to Count Rochambeau, on January 8, 1788, he says that the proposed Const.i.tution ”is to be submitted to conventions chosen by the people in the several States, and by them approved or rejected”-showing what he understood by ”the people of the United States,” who were to ordain and establish it. These same people-that is, ”the people of the several States”-he says, in a letter to Lafayette, April 28, 1788, ”retain everything they do not, by express terms, give up.” In a letter written to Benjamin Lincoln, October 26, 1788, he refers to the expectation that North Carolina will accede to the Union, and [pg 165] adds, ”Whoever shall be found to enjoy the confidence of the States so far as to be elected Vice-President,” etc.-showing that in the ”confederated Government,” as he termed it, the States were still to act independently, even in the selection of officers of the General Government. He wrote to General Knox, June 17, 1788, ”I can not but hope that the States which may be disposed to make a secession will think often and seriously on the consequences.” June 28, 1788, he wrote to General Pinckney that New Hamps.h.i.+re ”had acceded to the new Confederacy,” and, in reference to North Carolina, ”I should be astonished if that State should withdraw from the Union.”

<script>