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The American Republic

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Moreover, the Articles of Confederation were drawn up and adopted
during the transition from colonial dependence to national
independence. Independence was declared in 1776, but it was not
a fact till l782, when the preliminary treaty acknowledging it
was signed at Paris. Till then the United States were not an
independent nation; they were only a people struggling to become
an independent nation. Prior to that preliminary treaty, neither
the Union nor the States severally were sovereign. The articles
were agreed on in Congress in 1777, but they were not ratified by
all the States till May, 1781, and in 1782 the movement was
commenced in the Legislature of New York for their amendment.
Till the organization under the constitution ordained by the
people of the United States in l787, and which went into
operation in 1789, the United States had in reality only a
provisional government, and it was not till then that the
national government was definitively organized, and the line of
demarcation between the General Government and the particular
State governments was fixed.

The Confederation was an acknowledged failure, and was rejected
by the American people, precisely because it was not in harmony
with the unwritten or Providential constitution of the nation;
and it was not in harmony with that constitution precisely
because it recognized the States as severally sovereign, and
substituted confederation for union. The failure of
confederation and the success of union are ample proofs of the
unity of the American nation. The instinct of unity rejected
State sovereignty in 1787 as it did in 1861. The first and the
last attempt to establish State sovereignty have failed, and the
failure vindicates the fact that the sovereignty is in the States
united, not in the States severally.




CHAPTER X

CONSTITUTION OF THE UNITED STATES


The constitution of the United States is twofold, written and
unwritten, the constitution of the people and the constitution of
the government.

The written constitution is simply a law ordained by the nation
or people instituting and organizing the government; the
unwritten constitution is the real or actual constitution of the
people as a state or sovereign community, and constituting them
such or such a state. It is Providential, not made by the
nation, but born with it. The written constitution is made and
ordained by the sovereign power, and presupposes that power as
already existing and constituted.

The unwritten or Providential constitution of the United States
is peculiar, and difficult to understand, because incapable of
being fully explained by analogies borrowed from any other state
historically known, or described by political philosophers. It
belongs to the Graeco-Roman family, and is republican as
distinguished from despotic constitutions, but it comes under the
head of neither monarchical nor aristocratic, neither democratic
nor mixed constitutions, and creates a state which is neither a
centralized state nor a confederacy. The difficulty of
understanding it is augmented by the peculiar use under it of the
word state, which does not in the American system mean a
sovereign community or political society complete in itself, like
France, Spain, or Prussia, nor yet a political society
subordinate to another political society and dependent on it.
The American States are all sovereign States united, but,
disunited, are no States at all. The rights and powers of the
States are not derived from the United States, nor the rights and
powers of the United States derived from the States.

The simple fact is, that the political or sovereign people of the
United States exists as united States, and only as united States.
The Union and the States are coeval, born together, and can exist
only together. Separation is dissolution--the death of both.
The United States are a state, a single sovereign state; but this
single sovereign state consists in the union and solidarity of
States instead of individuals. The Union is in each of the
States, and each of the States is in the Union.

It is necessary to distinguish in the outset between the United
States and the government of the United States, or the so-called
Federal government, which the convention refused, contrary to its
first intention to call the national government. That government
is not a supreme national government, representing all the powers
of the United States, but a limited government, restricted by its
constitution to certain specific relations and interests. The
United States are anterior to that government, and the first
question to be settled relates to their internal and inherent
Providential constitution as one political people or sovereign
state. The written constitution, in its preamble, professes to
be ordained by "We, the people of the United States." Who are
this people? How are they constituted, or what the mode and
conditions of their political existence? Are they the people of
the States severally? No; for they call themselves the people of
the United States. Are they a national people, really existing
outside and independently of their organization into distinct and
mutually independent States? No; for they define themselves to
be the people of the United States. If they had considered
themselves existing as States only, they would have said "We, the
States," and if independently of State organization, they would
have said "We, the people," do ordain, &c.

The key to the mystery is precisely in this appellation United
States, which is not the name of the country, for its distinctive
name is America, but a name expressive of its political
organization. In it there are no sovereign people without
States, and no States without union, or that are not united
States. The term united is not part of a proper name, but is
simply an adjective qualifying States, and has its full and
proper sense. Hence while the sovereignty is and must be in the
States, it is in the States united, not in the States severally,
precisely as we have found the sovereignty of the people is in
the people collectively or as society, not in the people
individually. The life is in the body, not in the members,
though the body could not exist if it had no members; so the
sovereignty is in the Union, not in the States severally; but
there could be no sovereign union without the States, for there
is no union where there is nothing united.

This is not a theory of the constitution, but the constitutional
fact itself. It is the simple historical fact that precedes the
law and constitutes the law-making power. The people of the
United States are one people, as has already been proved: they
were one people, as far as a people at all, prior to
independence, because under the same Common Law and subject to
the same sovereign, and have been so since, for as united States
they gained their independence and took their place among
sovereign nations, and as united States they have possessed and
still possess the government. As their existence before
independence in distinct colonies did not prevent their unity,
so their existence since in distinct States does not hinder them
from being one people. The States severally simply continue the
colonial organizations, and united they hold the sovereignty that
was originally in the mother country. But if one people, they
are one people existing in distinct State organizations, as
before independence they were one people existing in distinct
colonial organizations. This is the original, the unwritten, and
Providential constitution of the people of the United States.

This constitution is not conventional, for it existed before the
people met or could meet in convention. They have not, as an
independent sovereign people, either established their union, or
distributed themselves into distinct and mutually independent
States. The union and the distribution, the unity and the
distinction, are both original in their constitution, and they
were born United States, as much and as truly so as the son of a
citizen is born a citizen, or as every one born at all is born a
member of society, the family, the tribe, or the nation. The
Union and the States were born together, are inseparable in their
constitution, have lived and grown up together; no serious
attempt till the late secession movement has been made to
separate them; and the secession movement, to all persons who
knew not the real constitution of the United States, appeared
sure to succeed, and in fact would have succeeded if, as the
secessionists pretended, the Union had been only a confederacy,
and the States had been held together only by a conventional
compact, and not by a real and living bond of unity. The popular
instinct of national unity, which seemed so weak, proved to be
strong enough to defeat the secession forces, to trample out the
confederacy, and maintain the unity of the nation and the
integrity of its domain.

The people can act only as they exist, as they are, not as they
are not. Existing originally only as distributed in distinct and
mutually independent colonies, they could at first act only
through their colonial organizations, and afterward only through
their State organizations. The colonial people met in
convention, in the person of representatives chosen by colonies,
and after independence in the person of representatives chosen by
States. Not existing outside of the colonial or State
organizations, they could not act outside or independently of
them. They chose their representatives or delegates by colonies
or States, and called at first their convention a Congress; but
by an instinct surer than their deliberate wisdom, they called it
not the Congress of the confederate, but of the United States,
asserting constitutional unity as well as constitutional
multiplicity. It is true, in their first attempt to organize a
general government, they called the constitution they devised
Articles of Confederation, but only because they had not attained
to full consciousness of themselves; and that they really meant
union, not confederation, is evident from their adopting, as the
official style of the nation or new power, united, not
confederate States.

That the sovereignty vested in the States united, and was
represented in some sort by the Congress, is evident from the
fact that the several States, when they wished to adopt State
constitutions in place of colonial charters, felt not at liberty
to do so without asking and obtaining the permission of Congress,
as the elder Adams informs us in his Diary, kept at the time;
that is, they asked and obtained the equivalent of what has
since, in the case of organizing new States, been called an
"enabling act." This proves that the States did not regard
themselves as sovereign States out of the Union, but as
completely sovereign only in it. And this again proves that the
Articles of Confederation did not correspond to the real, living
constitution of the people. Even then it was felt that the
organization and constitution of a State in the Union could be
regularly effected only by the permission of Congress; and no
Territory can, it is well known, regularly organize itself as a
State, and adopt a State constitution, without an enabling act by
Congress, or its equivalent.

New States, indeed, have been organized and been admitted into
the Union without an enabling act of Congress; but the case of
Kansas, if nothing else, proves that the proceeding is irregular,
illicit, invalid, and dangerous. Congress, of course, can
condone the wrong and validate the act, but it were better that
the act should be validly done, and that there should be no wrong
to condone. Territories have organized as States, adopted State
constitutions, and instituted State governments under what has
been called "squatter sovereignty;" but such sovereignty has no
existence, because sovereignty is attached to the domain; and the
domain is in the United States. It is the offspring of that
false view of popular sovereignty which places it in the people
personally or generically, irrespective of the domain, which
makes sovereignty a purely personal right, not a right fixed to
the soil, and is simply a return to the barbaric constitution of
power. In all civilized nations, sovereignty is inseparable from
the state, and the state is inseparable from the domain. The
will of the people, unless they are a state, is no law, has no
force, binds nobody, and justifies no act.

The regular process of forming and admitting new States explains
admirably the mutual relation of the Union and the several
States. The people of a Territory belonging to the United States
or included in the public domain not yet erected into a State and
admitted into the Union, are subjects of the United States,
without any political rights whatever, and, though a part of the
population, are no part of the sovereign people of the United
States. They become a part of that people, with political rights
and franchises, only when they are erected into a State, and
admitted into the Union as one of the United States. They may
meet in convention, draw up and adopt a constitution declaring or
assuming them to be a State, elect State officers, senators, and
representatives in the State legislature, and representatives and
senators in Congress, but they are not yet a State, and are, as
before, under the Territorial government established by the
General Government. It does not exist as a State till recognized
by Congress and admitted into the Union. The existence of the
State, and the rights and powers of the people within the State,
depend on their being a State in the Union, or a State united.
Hence a State erected on the national domain, but itself outside
of the Union, is not an independent foreign State, but simply no
State at all, in any sense of the term. As there is no union
outside of the States, so is there no State outside of the Union;
and to be a citizen either of a State or of the United States, it
is necessary to be a citizen of a State, and of a State in the
Union. The inhabitants of Territories not yet erected into
States are subjects, not citizens--that is, not citizens with
political rights. The sovereign people are not the people
outside of State organization, nor the people of the States
severally, but the distinct people of the several States united,
and therefore most appropriately called the people of the United
States.

This is the peculiarity of the American constitution and is
substantially the very peculiarity noted and dwelt upon by
Mr. Madison in his masterly letter to Edward Everett, published
in the "North American Review," October, 1830.

"I In order to understand the true character of the constitution
of the United States," says Mr. Madison, "the error, not
uncommon, must be avoided of viewing it through the medium either
of a consolidated government or of a confederated government,
whilst it is neither the one nor the other, but a mixture of
both. And having, in no model, the similitudes and analogies
applicable to other systems of government, it must, more than any
other, be its own interpreter, according to its text and the
facts in the case.

"From these it will be seen that the characteristic peculiarities
of the constitution are: 1. The mode of its formation. 2. The
division of the supreme powers of government between the States
in their united capacity and the States in their individual
capacities.

"1. It was formed not by the governments of the component States,
as the Federal Government, for which it was substituted, was
formed; nor was it formed by a majority of the people of the
United States as a single community, in the manner of a
consolidated government. It was formed by the States; that is,
by the people in each of the States, acting in their highest
sovereign capacity, and formed consequently by the same authority
which formed the State constitution.

"Being thus derived from the same source as the constitutions of
the States, it has within each State the same authority as the
constitution of the State, and is as much a constitution in the
strict sense of the term, within its prescribed sphere, as the
constitutions of the States are within their respective spheres;
but with this obvious and essential difference, that, being a
compact among the States in their highest capacity, and
constituting the people thereof one people for certain purposes,
it cannot be altered or annulled at the will of the States
individually, as the constitution of a State may be at its
individual will.

"2. And that it divides the supreme powers of government between
the government of the United States and the governments of the
individual States, is stamped on the face of the instrument; the
powers of war and of taxation, of commerce and treaties, and
other enumerated powers vested in the government of the United
States, are of high and sovereign a character as any of the
powers reserved to the State governments."

Mr. Jefferson, Mr. Webster, Chancellor Kent, Judge Story, and
nearly all the old Republicans, and even the old Federalists, on
the question as to what is the actual constitution of the United
States, took substantially the same view; but they all, as well
as Mr. Madison himself, speak of the written constitution, which
on their theory has and can have only a conventional value.
Mr. Madison evidently recognizes no constitution of the people
prior to the written constitution, from which the written
constitution, or the constitution of the government, derives all
its force and vitality. The organization of the American people,
which he knew well--no man better,--and which he so justly
characterizes, he supposes to have been deliberately formed by
the people themselves, through the convention--not given them by
Providence as their original and inherent constitution. But this
was merely the effect of the general doctrine which he had
adopted, in common with nearly all his contemporaries, of the
origin of the state in compact, and may be eliminated from his
view of what the constitution actually is, without affecting that
view itself.

Mr. Madison lays great stress on the fact that though the
constitution of the Union was formed by the States, it was
formed, not by the governments, but by the people of the several
States; but this makes no essential difference, if the people are
the people of the States, and sovereign in their severalty, and
not in their union. Had it been formed by the State governments
with the acquiescence of the people, it would have rested on as
high authority as if formed by the people of the State in
convention assembled. The only difference is, that if the State
ratified it by the legislature, she could abrogate it by the
legislature; if in convention, she could abrogate it only in
convention. Mr. Madison, following Mr. Jefferson, supposes the
constitution makes the people of the several States one people
for certain specific purposes, and leaves it to be supposed that
in regard to all other matters, or in all other relations, they
are sovereign; and hence he makes the government a mixture of a
consolidated government and a confederated government, but
neither the one nor the other exclusively. Say the people of the
United States were one people in all respects, and under a
government which is neither a consolidated nor a confederated
government, nor yet a mixture of the two, but a government in
which the powers of government are divided between a general
government and particular governments, each emanating from the
same source, and you will have the simple fact, and precisely
what Mr. Madison means, when is eliminated what is derived from
his theory of the origin of government in compact. It is this
theory of the conventional origin of the constitution, and which
excludes the Providential or real constitution of the people,
that has misled him and so many other eminent statesmen and
constitutional lawyers.

The convention did not create the Union or unite the States, for
it was assembled by the authority of the United States who were
present in it. The United States or Union existed before the
convention, as the convention itself affirms in declaring one of
its purposes to be "to provide for a more perfect union." If
there had been no union, it could not and would not have spoken
of providing for a more perfect union, but would have stated its
purpose to be to create or form a union. The convention did not
form the Union, nor in fact provide for a more perfect union; it
simply provided for the more perfect representation or expression
in the General government of the Union already existing. The
convention, in common with the statesmen at the time, recognized
no unwritten or Providential constitution of a people, and
regarded the constitution of government as the constitution of
the state, and consequently sometimes put the state for the
government. In intepreting its language, it is necessary to
distinguish between its act and its theory. Its act is law, its
theory is not. The convention met, among other things, to
organize a government which should more perfectly represent the
union of the States than did the government created by the
Articles of Confederation.

The convention, certainly, professes to grant or concede powers
to the United States, and to prohibit powers to the States; but
it simply puts the state for the government. The powers of the
United States are, indeed, grants or trusts, but from God through
the law of nature, and are grants, trusts, or powers always
conceded to every nation or sovereign people. But none of them
are grants from the convention. The powers the convention grants
or concedes to the United States are powers granted or conceded
by the United States to the General government it assembled to
organize and establish, which, as it extends over the whole
population and territory of the Union, and, as the interests it
is charged with relate to all the States in common, or to the
people as a whole, is with no great impropriety called the
government of the United States, in contradistinction from the
State governments, which have each only a local jurisdiction.
But the more exact term is, for the one, the general government,
and for the others, particular governments, as having charge only
of the particular interests of the State; and the two together
constitute the government of the United States, or the complete
national government; for neither the General government nor the
State government is complete in itself. The convention developed
a general government, and prescribed its powers, and fixed their
limits and extent, as well as the bounds of the powers of the
State or particular governments; but they are the United States
assembled in convention that do all this, and, therefore,
strictly speaking, no powers are conceded to the United States
that they did not previously possess. The convention itself, in
the constitution it ordained, defines very clearly from whom the
General government holds its powers. It holds them, as we I
have seen, from "We, the people of the United States;" not we,
the people of the States severally, but of the States united. If
it had meant the States severally, it would have said, We, the
States; if it had recognized and meant the population of the
country irrespective of its organization into particular States,
it would have said simply, We, the people. By saying "We, the
people of the United States," it placed the sovereign power where
it is, in the people of the States united.

The convention ordains that the powers not conceded to the
General government or prohibited to the particular governments,
"are reserved to the States respectively, or to the people." But
the powers reserved to the States severally are reserved by order
of the United States, and the powers not so reserved are reserved
to the people. What people? The first thought is that they are
the people of the States severally; for the constitution
understands by people the state as distinguished from the state
government; but if this had been its meaning in this place, it
would have said, "are reserved to the States respectively, or to
the people" thereof. As it does not say so, and does not define
the people it means, it is necessary to understand by them the
people called in the preamble "the people of the United States."
This is confirmed by the authority reserved to amend the
constitution, which certainly is not reserved to the States
severally, but necessarily to the power that ordains the
constitution--"We, the people of the United States." No power
except that which ordains is or can be competent to amend a
constitution of government. The particular mode prescribed by
the convention in which the constitution of the government may be
amended has no bearing on the present argument, because it is
prescribed by the States united, not severally, and the power to
amend is evidently reserved, not indeed to the General
government, but to the United States; for the ratification by any
State or Territory not in the Union counts for nothing. The
States united, can, in the way prescribed, give more or less
power to the General government, and reserve more or less power
to the States individually. The so-called reserved powers are
really reserved to the people of the United States, who can make
such disposition of them as seems to them good.

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