Part II

The Constitution Made By States

       As everything in this discussion depends on the Constitution it seems prudent to state with some particularity its origin, its establishment and its terms. The confederation was found to be inadequate to the ends of an effective government. The states adopted conflicting and even hostile commercial regulations and trade suffered from these embarrassments. The legislature of Virginia, impressed with the necessity of a government of larger powers, appointed in 1786 commissioners to meet commissioners from other States, at Annapolis, to prepare for adoption by the States a uniform plan of commercial regulations. Some met and recommended to their respective legislatures to appoint delegates to meet in general convention at Philadelphia for the purpose of reforming the government as the interests of the States might require. Congress approved the recommendation and suggested a convention of delegates to be appointed by the several States to meet in Philadelphia and to report to Congress and the several legislatures such alteration of the Articles of Confederation 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. Accordingly, the convention was composed of deputies appointed by the States, and they voted as States. Madison, in recording their action, on agreeing to the Constitution, says: "It passes in the affirmative, all the States concurring." It was transmitted to the several State legislatures to be by them submitted to State conventions and each State for itself ratified at different times, without concert of action, except in the result to be ascertained. As the jurisdiction of a State was limited to its own territory, its ratification was limited to its own people. The Constitution got its validity, its vitality, not from the inhabitants as constituting one great nation, nor from the people of all the States considered as one people, but from the concurrent action of a prescribed number of States, each acting separately and pretending to no claim or right to act for or control other States. That each of these States had the right to decline to ratify and remain out of the Union for all time to come, no sane man will deny. Rhode Island and North Carolina did, in the undoubted exercise of an undisputed right, refuse to enter the compact until after the government was organized and Washington entered upon his duties as president. "The assent and ratification of the people," says Madison, "not as individuals composing an entire nation, but as composing the distinct and independent States to which they belong, are the sources of the Constitution. It is, therefore, not a national but a federal compact."
       Virginia, in her ratification as a distinct, sovereign community, had said: "The delegates do, in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will." (5 Bulletin of the Bureau of Rolls, 145.) Calhoun's Works, 248-251.
       Maryland declared that nothing in the Constitution "warrants a construction that the States do not retain every power not expressly relinquished by them and vested in the general government of the Union." New York more explicitly said: "That the powers of government may be reassumed by the people whenever it should become necessary to their happiness, that every power, jurisdiction and right which is not by the said Constitution clearly delegated to the Congress of the United States or the departments of the government thereof, remains to the people of the several States, or to their respective State governments, to whom they may have granted the same; and that those clauses in the said Constitution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers or as inserted merely for greater caution." Rhode Island lingered until 1790, and then adopted the cautious phraseology of New York, specifying certain rights and declaring that they shall not be abridged or violated and that the proposed amendments would speedily become a part of the Constitution, gave her assent to the compact, but declared that"the powers of government may be reassumed by the people, whenever it shall become necessary to their happiness." (5 Bureau of Rolls, 140-145, 190, 191, 311.) Other States showed equal concern and jealousy.
       Besides the clear assertion on the part of ratifying States of the right to reassume delegated powers, a larger number were so apprehensive and distrustful of federal encroachment, so jealous in the maintenance of their respective rights, that they attached bills of rights to their assent, or proposed amendments to restrict the general government; the incorporation of which into the Constitution was earnestly insisted upon.
       It has now been demonstrated that with jealous vigilance the States retained their separateness as sovereign communities in all the forms of political existence through which they passed. That they adopted their separate State constitutions in their sovereign character is indisputable. That the deputies who framed the federal constitution were appointed by the several States each on its own authority; that they voted in the convention by States; that their votes were counted by States; that when framed the instrument was submitted to the people of the several States for their independent ratification; that the States ratified and adopted, each for itself, as distinct sovereign communities; that the Constitution had no binding force over a State or its citizens except in consequence of this adoption; that it was valid as a covenant o union, the federal compact, only as between the States so ratifying the same; are facts alike incontestable. All these acts were by the States and for the States, without any participation on the part of the people regarded in the aggregate as forming a nation. Our controversy arose, not so much from these historical incidents (although historians, judges, editors and congressmen have denied or misinterpreted them all) as from the import and effect and construction of the agreement so formally and cautiously made.
       Did the act of ratification of itself, or does the Constitution in its grants, divest the States of their character as separate political communities and merge them all into one nation, one American people? The Constitution superseded the Articles of Confederation because the parties to those articles agreed that it should be so. If they have not so agreed, the articles are still binding on the States. In point of fact the Constitution did become obligatory as a compact of government by the voluntary and separate ratification and adoption of the several States. Massachusetts and New Hampshire, in their ratification, call the Constitution a compact, and the federal Union must be so, or the result of a compact, because sovereign States would not otherwise have agreed and expressed their agreement. Some made provisos, others suggested amendments, which make plain the intention of the fathers in entering the Union. The apprehensions of consolidation were so strong that to guard against such a possible evil, provisions to prevent were incorporated in the acts of assent. The right to resume surrendered powers, as affirmed by three of the States, has been mentioned. Massachusetts, South Carolina, New Hampshire and Virginia were so alarmed at the liability to absorption of unsurrendered powers, that they proposed an amendment to the effect that each State shall respectively retain every power, jurisdiction and right which had not been delegated in the Constitution. This was modified and adopted in regular constitutional form and is known as the Ninth article. All the suggestions were in the nature of limitations and restrictions, showing distrust of centralization and a determined purpose to preserve from invasion or impairment the rights of the States. It was felt that time and experience would show the wisdom of changes and of adaptations to new environments, and thus it was wisely provided that amendments might be made but should be valid only "when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof." As the States only could make a constitution, so three-fourths of them, as separate political corporations, could amend the instrument. The favorite theory of many, that the States were merged into the government of the Union, into an aggregated unit, is an assumption totally irreconcilable with the fact that this same people can neither alter nor amend their government. When that essential function has to be performed, it is indispensable to summon into new life and activity those very State sovereignties, which, by the supposition, lost their individual power and vitality by the very act creating the instrument which they are required to amend. Had the Constitution originated from the people inhabiting the territories of the whole Union, its amendment would have remained to them, as the amendment of a State constitution belongs to the people of a State. But as such a body of associated people is a myth, a figment of the brain, the power of amendment is left in the hands of the existing bodies politic, the creators of the Constitution and of the Union. The positive supervising power bestowed by the compact upon the State governments and the people over the whole Federal government flatly contradicts the idea that the same compact designed constructively to bestow a supervising power upon Congress, or other department, over the State governments.
       The government was organized in 1789 and assumed its place among the nations of the earth. Soon, amendments proposed by the ratifying States were submitted, as the Constitution prescribed, to the respective States and adopted by them. These amendments have no direct relation to the immediate objects for which the Union was formed, and, with few exceptions, were intended to guard against improper constructions of the Constitution, or the abuse of the delegated powers, or to protect the government itself in the exercise of its proper functions. They sought to guard the people and the States against Federal usurpation, and one of them Jefferson pronounced "the corner stone of the Constitution." The ninth amendment prohibits a construction by which the rights retained by the people shall be denied or disparaged by the enumeration, but the tenth, in language that tyranny cannot pervert or dispute, "reserves to the States respectively or to the people the powers not delegated to the United States, nor prohibited to the States." Could any language more conclusively show the ultimate authority of the States, or that the general government has no more right to enforce its decisions against those of the several States where they disagree as to the extent of their respective powers than the latter have of enforcing their decisions in like cases? 'This reservation was incorporated from a caution deemed unnecessary and excessive by some, because such a reservation is of the very essence and structure of the Constitution, but it has been vindicated as a marked demonstration of the wisdom and sagacity of the fathers. Instead of receiving powers the States had bestowed them, and in confirmation of their original authority most carefully reserved every right they had not relinquished, The powers reserved by those who possessed them, the distinct people of each State, are those not delegated or prohibited, and were intended to remove a suspicion of a tendency in the Constitution toward consolidation which had been vigorously charged by some of those who had opposed the ratification. It cannot be reiterated too often that the people do not derive their rights from government. In England, Magna Charta and other franchises were granted by kings and residuary rights remain in and with the government; here, un-granted rights remain with the grantors and these are the people of the States.

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