of each as a state. (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, p. 14.) 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." (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, p. 18.) There never has been, or can be any difference of opinion as to the meaning of the ordaining parts of the constitution in the terms, "the people of the several states; the several states which may be included in this union; each state;" for they do not admit of two meanings. They refer to those states which, having ratified the constitution, are each a constituent part of the United States, composing, by their union, the United States of America; and to the people of each state, as the people of these United States. When terms are so definite in the body of an instrument, and one less definite is used in the preamble, which can be made equally definite by reference, the established maxim appliesid certum est quod certum reddi potest." (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, p. 30.) I have only to add one other consideration, to illustrate the meaning of the preamble. All agree that the constitution was to be established by the people of the United States, whenever the conventions of nine states should ratify it; all must agree, that when it was proposed for adoption in 1787, it could not be foreseen which of the states would so ratify it; the states therefore could not be named till their separate ratifications were given. It provided for the admission of new states, but no one could divine their names or locality; states could be "formed by the junction of two or more states," but none could say of which. The constitution was intended for posterity, through all time; and for "the land," the whole territory, and all the states, old and new; as one law, speaking in the same words, and with the same intention, at the time it was proposed, and at each period when any state ratified it, and thus became one of "the United States of America," by the act of the people of the states respectively. When the terms we, the people,' of the United States," are thus applied, they seem to me not only appropriate to the instrument, but the only terms that would be so; it uses terms in all its parts, yet we find no definitions or explanations; it was not intended for a code; and the term people," was a mere designation of the power by which the constitution was made, as "the states' were designated by their separate ratifications. Hence it referred, in 1789, to eleven only, then to the old thirteen states, and now refers to the thirteen new states: and when others shall be admitted into the Union, it will refer to them as it did to the old, and now does to the new. "The people" "of the several states, which may be included within this Union," as the constituent power of the federal government. (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, p. 97.) Each state still has two constitutions of government, one for state, the other for federal purposes; both ordained by the same people, and in the same manner, in a convention of their representatives, elected by the electors of the states, for the special object, whereby in the simple, impressive, instructive, and strictly constitutional language of this Court, "The national and state systems are to be regarded as one whole." 6 Wh. 419. 44 "The powers of government 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. (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, p. 91.) Art. 7. "The ratifications of the conventions of nine states shall be sufficient for the establishment of this constitution, between the states so ratifying the same." It is then, by the separate action of the states, in conventions of nine states, (not of a convention of nine states) that the grant was made; the act of eight produced no result; but when the ninth acted, the great work was effected as between the nine. Until the other four so acted, they were no part of the United States; nor were the people of the non-ratifying states, any part of the people of the United States, who ordained and established it. That the term, conventions of states, meant conventions of delegates, elected by the people of the several states, for the express purpose of assenting or dissenting, to their adoption of the proposed constitution, is admitted by all; as also, that no general convention of the whole people was ever convened for any purpose: and that the members of the convention which framed it, met, and acted as states, consented to, and signed it for and in behalf of the states, whom they respectively represented, appears on its face. It was proposed to the people of each state separately, and was so ratified; it existed only between those states, whose people had so accepted it. It would, therefore, most strangely contradict itself, throughout all its provisions, to so construe the preamble, as to make it a declaration, that it was ordained by any other power than that of the people of the several states, as distinct bodies politic, over whom no external power could be exerted, but by their own consent. These are not only the necessary conclusions, which flow from the plain language and definite provisions of the constitution itself, but their settled interpretation by this Court. "From these conventions the constitution derives its whole authority. The government proceeds directly from the people, and is ordained and established in the name of the people." 4 Wh. 403. If it is asked what people; the answer is at hand, "A convention of delegates chosen in each state, by the people thereof, assembled in their several states." Ib. sup. (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, p. 35.) CHAPTER XV AMENDMENTS AND RATIFICATIONS THE members of the Convention were too wise not to foresee that, however perfect they might themselves consider their work, it would suffer revision at other hands. They were indeed ostensibly engaged in revising one instrument of government, and while attempting to correct the obvious defects in the Articles of Confederation which experience had disclosed, they could not, nor did they attempt, to forecast events in such a way as to exclude the possibility of change in the fundamental charter of the Union. They wisely left the future to "posterity." Indeed they were so convinced of the necessity of revision that they facilitated it by rejecting the requirement that it could only be brought about by the unanimous consent of the States. sions for The thirteenth of Mr. Randolph's resolutions stated that "provision ought Provi to be made for the amendment of the Articles of Union whensoever it shall Amendment seem necessary, and that the assent of the National Legislature ought not to be required thereto." This was indefinite, and purposely so, inasmuch as the question was difficult in itself and depended upon the adoption of a satisfactory form of government by the States in Convention assembled. Without entering into details, it is sufficient to note in this connection that the unanimous consent required by the thirteenth of the Articles of Confederation was rejected, as it had been found impracticable if not impossible to obtain the consent of each of the States to a modification of the Articles when, rightly or wrongly, the interest of any State was supposed to be unfavorably affected by the amendment; and it is not too much to say that the Articles of Confederation failed and were discarded largely because of the practical if not the theoretical lack of power of amendment. As in so many other parts of the Constitution, the fifth Article, which states the final views of the Convention on this subject, was the result of concession and compromise. Thus, the States themselves conceded that all might be bound by the decision of a lesser number, eventually fixed at threefourths. But the parties which had stood for their interests and had secured their recognition were unwilling to lose the fruits of victory through amendment. For example, the States in which slavery existed and appeared to be profitable, or at least was the basis of their economic system, insisted that the slave trade, guaranteed by Article I, Section 9 of the Constitution, should Representation of Small States Not Subject to Amendment Methods of Amendment not be lost. Therefore, it was provided that "no Amendment which may Admitting therefore that the Constitution was to be amended, that certain interests were so important that they should not be affected, one for the period of twenty years, the other for all time, the question of amendment, accepted in principle, became a matter of detail. Extreme advocates of the rights of the States, such as Mr. Luther Martin of Maryland, would insist that no modification should be made in the instrument of government without the consent of all the States. The advocates of a consolidated government could not propose less than a majority. Neither of these views could prevail. The matter was plainly one for compromise, and a compromise was effected. It will be recalled that, in the matter of amendment, Mr. Randolph's resolution on the subject proposed "the assent of the national Legislature ought not to be required thereto," a proposal made, no doubt, because of the difficulty in getting Congress to move; but the Congress of the more perfect Union was to be different from the Congress of the Confederation. It was in any event a central authority, and it might appropriately be used as an agent for this purpose, provided, however, that it was only an agent, not a principal and that the States might take the initiative in the matter if they so desired. By concession and compromise, it therefore resulted that twothirds of both houses or the legislatures of two-thirds of the several States were to propose amendments, but their ratification was in no event to depend Documentary History of the Constitution, Vol. III, p. 758. 1 upon the Congress, which is after all only the agent of the States for certain defined legislative purposes, but upon the States or their citizens, who are the source of power. The amendments thus proposed were to be submitted by the Congress. Whether they were proposed by the Congress or by a convention called by the Congress upon the initiative of the States, the proposals themselves were to be "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 the Congress. Whereupon the amendments thus approved are "valid to all Intents and Purposes, as Part of this Constitution." It will be observed that the ratification by the legislature or special convention of a State is regarded as of equal force and effect, whereas Article VII of the Constitution provides 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." It is also to be noted that, in the letter of the President of the Convention transmitting on its behalf the Constitution to the Congress, it is "Resolved, That the preceding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards 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; and that each Convention assenting to, and ratifying the Same, should give Notice thereof to the United States in Congress assembled.” 1 The question may arise as to the difference of procedure in ratifying the Constitution and the amendments thereto, for the Constitution receives its validity only from the approval of conventions of the several States, whereas an amendment changing the Constitution is valid if made by the legislature or convention of the States. The question is not unimportant. The fifteenth of Mr. Randolph's resolutions provided "that the amendments which shall be offered to the Confederation, by the Convention ought at a proper time, or times, after the approbation of Congress to be submitted to an assembly or assemblies of Representatives, recommended by the several Legislatures to be expressly chosen by the people, to consider & decide thereon.” The slightest familiarity with the proceedings of the Convention shows that the advocates of the more perfect Union regarded the ratification of the Constitution by conventions specially called within the States instead of the legislatures therein existing as both fundamental and essential to its success. To extreme advocates of the rights of the State, such as Mr. Luther Martin, the ratification by the State was sufficient, as the State was sovereign and it was immaterial whether it be by special assembly or by the legislature of the |