the fourteenth year of the Independence of the United States of America.1

The following extract from the Journals of Congress 85. o. (under the Articles of Confederation), will show the action of that body upon the adoption of the new Constitution: 'IN CONGRESS, SATURDAY, SEPTEMBER 13, 1788.

'On the question to agree to the following proposition, it was resolved in the affirmative by the unanimous votes of nine States, viz., of New Hampshire, Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Virginia, South Carolina and Georgia.

'Whereas, the Convention assembled in Philadelphia, pursuant to the resolution of Congress of the 21st February, 1787, did, on the 17th of September in the same year, report to the United States in Congress assembled, a Constitution for the people of the United States; whereupon Congress, on the 28th of the same September, did resolve unanimously, "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:" and whereas, the Constitution so reported by the Convention, and by Congress transmitted to the several Legislatures, has been ratified in the manner therein declared to be sufficient for the establishment of the same, and such ratifications duly authenticated, have been received by Congress, and are filed in the office of the Secretary; therefore,

'Resolved, That the first Wednesday in January next be the day for appointing electors in the several States, which before the said day shall have ratified the said Constitution: that the first Wednesday in February next be the day for the electors to assemble in their several States and vote for a President: and that the first Wednesday in March next be the time, and the present seat of Congress 1 Elliot's Debates, Vol. 1, pp. 334-335.

lishment

of

the place, for commencing proceedings under the said

Constitution.'

86. Disso- Before the close of July, 1788, eleven of the thirteen lution of the states, namely, in the order of their action, Delaware, old and estab- Pennsylvania, New Jersey, Georgia, Connecticut, Massathe new union chusetts, Maryland, South Carolina, New Hampshire, Virginia, and New York, had severally adopted the new constitution of the union, each for itself, and as a part of its own political system. Thus the first confederation of the states was peaceably dissolved, and a new one formed: not by a minority of their number, indeed, nor yet by the unanimous consent of all (as the original compact seemed to require), but by a majority of more than three-fourths, and certainly sufficient for this or for any other purpose.

1

On Wednesday, the 4th of March, 1789, in the thirteenth year of American independence, the new government was inaugurated, and commenced operations, at the City of New York. The time of its commencement is wrapt in no mystery. In a case which presented the point for decision to the Supreme Court of the United States, Chief Justice Marshall said :-'Both Governments could not be understood to exist at the same time. The new Government did not commence till the old Government expired. It is apparent that the Government did not commence on the Constitution being ratified by the ninth State; for these ratifications were to be reported to Congress, whose continuing existence was recognized by the Convention, and who were requested to continue to exercise their powers for the purpose of bringing the new Government into operation. In fact, Congress did continue to act as a Government until it dissolved on the first of November by the successive disappearance of its members. It existed potentially until the second of March, the day preceding that on which the members of the new Congress were directed to assemble.'"

At this time, North Carolina and Rhode Island both stood apart from the union, each in its full political in

1 See Art. XII of the Articles of Confederation.

2 Owings v. Speed, et al., 5 Wheat. 420-422.

tegrity, as a free, sovereign and independent state; their former union with the others having been dissolved, either with or without their consent, and they having refused or at least delayed to ratify the new constitution. The new government accordingly proceeded to deal with them, in all respects, as foreign states: to enact that the manufactures of those states should be considered as foreign, and that the acts laying a duty on goods imported, and on tonnage, should extend to them. Commerce with them was foreign commerce; and the inconveniences arising from their situations and a foreign trade with their former allies, caused them to reflect upon the advantages offered by the union, and finally to give their assent and ratification to the new constitution: their several ratifications taking place, that of North Carolina, on the 21st of November, 1789,1 and that of Rhode Island, on the 29th of May, 1790. So that, in relation to them, the present government of the United States commenced operation at different dates, and not, as with respect to the others, on the 4th of March, 1789.

(3h) OF THE POWER TO AMEND THE FEDERAL CONSTITUTION, AND THE SEVERAL AMENDMENTS THERETO.

The all-important question, by whom, and in what man¿ 86. a. ner, the federal constitution was framed and established, is Mode of esconclusively answered, and forever put at rest, the moment tablishing the we turn to the records of sovereign legislation to which original. our attention has just been directed. That constitution was, as we have seen, framed and proposed by the sole authority of the several states;-in the words of the men who framed it, and of the instrument itself, 'Done in convention by the unanimous CONSENT OF THE STATES present." What then? by what means did it become the organic law of the union? As it came from the hands of the conven

1 Elliot's Debates, Vol. 1, p. 333.

2 Id. p. 334.

3 The last section of the last article.

tion, it was a mere proposition for 'a more perfect union,' upon the terms therein contained; and 'the ratification of the conventions of nine states was to be sufficient for its establishment, between the states so ratifying the same."1 The convention proposed that 'it be submitted to a conVENTION OF DELEGATES, CHOSEN IN EACH STATE BY THE PEOPLE THEREOF, under the recommendation of its legislature, for their assent AND RATIFICATION." It was accordingly so submitted, as we have seen, and finally ratified, 'ordained and established,' by conventions so chosen, and acting in their several, distinct, sovereign and independent capacities.

287. Mode It might very naturally seem, that any amendment, or of amending. alteration, of this organic compact of union, should be framed and established in precisely the same way, by the very same means, and with all the precautions and solemnities, which were adopted in framing and establishing the original. And had this principle of universal law been embodied in the original itself, as it came from the hands of the general convention of the states, it might have assured the system against all innovations or changes of a purely partisan character.

The method of amendment provided by the instrument itself, is given in these words:-'The congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this constitution, or, on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth sec

1 The concluding article.

2 Letter of the General Convention, ante, & 83.

3 See the several Ordinances of Ratification, under 2 85, ante.

tion of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the senate.'1

defect.

By this provision, as is seen at once, the discretionary 87. a. Its power is given to congress, not only to frame and propose amendments of the common organic law, which amendments may wholly new-model the government of the union, and even the governments of the several states, but also the power to choose the most available mode of securing their ratification, by further proposing that the state legislatures, not the people themselves, shall finally act upon them: a mode of ratification which, however conformable to the nature of the union under the original articles of confederation, which articles were sanctioned only by the state legislatures, is wholly at variance with the principle of the sovereignty of the people of each state, on which the union is at present founded. It should be observed, that the power to word and propose amendments, expressive of the sovereign will, is a positive and not a negative power, in itself of the highest importance, and one in the exercise of which, all the means and precautions that could have insured a truthful expression of the will of the sovereigns, should have been rendered constitutionally necessary. The power to reject proposed amendments, is a negative power; and it amounts to nothing except a power to prevent amendments. Add to this, that not even the safeguards of the state constitutions, respecting either the concurrence of two successive legislatures in the proposal of amendments, or the popular mode of ratification, have been preserved. The binding force of the original articles of union, was often questioned, because they 'never had a ratification by the people.' It was urged that delegated powers could not be re-delegated by those to whom delegated. Of what greater force are amendments, made by the state legislatures, and never submitted to the people? An amendment to the federal

1 Const. U. S. Art. v.

"The Federalist, No. 22, p. 103; No. 43, p. 205.

2