A System of Double Constitutions

State, as this was an internal matter. To the delegates of the small States ratification by the legislatures seemed adequate, inasmuch as the legislature represented the State, which was thus necessarily bound by its act. And it must be confessed that this view is reasonable, and that the difference seems to be one of form, not of substance, unless we look below the surface. If we do we see that the whole theory of the Constitution depends upon this conception, for the purpose of Mr. Madison, who may be considered as the exponent of this view, was not merely to have a constitution for the more perfect Union, but to have this constitution become, by means of its ratification by the people of each of the States, the constitution of the State as if it had originated within the State. In this event the constitution would be the constitution of the State and similar to an ordinary State constitution in that it referred to matters affecting the State and therefore properly determined by it. It differed, however, from the ordinary constitution in that it also affected the other States. It was therefore devised by delegates of the States and ratified by conventions of their people. In this way it became the constitution of all for general purposes, or for matters in common. The constitution framed in first instance and adopted by the people of the State deals with local or particular interests and not with interests held by the States in common. It begins and ends in the State in the sense that its provisions do not affect the States in general. It is confined to the State and is accordingly considered in the narrower sense the constitution of the State. In either case ratified by a Convention of the people of the State called for that purpose, it is the constitution of that State, just as the instrument of government, whether originating in the State, framed in convention and ratified by the voters of the State, is the constitution of that State. The purpose of the Convention was that each State should have two constitutions, one for general purposes, dealing with their interests in common, framed by their delegates in the Federal Convention submitted to and ratified by the Conventions of the States to be bound; the other for local purposes, confined to or not extending beyond the State, framed by its delegates in legislature or in convention and ratified by the people of the State according to their pleasure.

But this was not enough, for if the general and the special constitution were each ratified by the people of the States, each would have an equal validity and the later expression of the popular will would prevail. That is to say, if the State constitution were adopted subsequent to the ratification of the Federal Constitution the provisions of the State constitution would necessarily govern. Therefore, in order to prevent this, and by one act to make the Federal Constitution the supreme law of the State as well as the instrument of government of the Union, and irrevocable and not

subject to amendment except by the vote of three-fourths of the States, it was provided in the second clause of Article VI that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or the Laws of any State to the Contrary notwithstanding."

The meaning of this is clear: the Constitution, the acts of Congress passed in accordance with its terms and the treaties of the United States are to be "the supreme law of the land," an expression ultimately substituted by the Committee on Style and adopted by the Convention September 12, 1787, for "the supreme law of the several States, and of their citizens and inhabitants" (Article 8 of the first draft of the Constitution, submitted on August 6th).

There was to be one constitution of each State for general purposes. There could be as many State constitutions as the people thereof were minded to make, but the Constitution adopted by the delegates of the States, when ratified by the people of the State, was to be supreme, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." It will be observed that the judges of each of the States are to be bound by the Constitution, the acts of Congress made in pursuance thereof and the treaties of the United States. This was naturally and properly so, because the Constitution of the United States was also the law of the land, that is to say, of each State. The act of Congress in pursuance of its terms was a law of the State. A treaty of the United States, being a law of the United States, was necessarily a law of each State. The judicial power of the State would necessarily extend to the provisions of the Constitution, acts of Congress and treaties of the United States. There would, however,

'The question as to what constitutes the government of a community seeking admission to the Union is a political rather than a judicial one, and the power of recognizing a State government was left in the hands of Congress. This was made clear in the case of Luther v. Borden (7 Howard, 1, 42), decided in 1849, in which the constitutionality of the accepted form of government in Rhode Island was disputed. Mr. Chief Justice Taney, in delivering the opinion of the court, said:

It rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not.

A similar issue arose in the case of Minor v. Happersett (21 Wallace, 162), decided in 1874, and was settled in the following language:

The guarantee [for a republican form of government] necessarily implies a duty on the part of the States themselves to provide such a government. All the States had governments when the Constitution was adopted. In all, the people participated to some extent, through their representatives elected in the manner specially provided. These governments the Constitution did not change. They were accepted precisely as they were, and it is, therefore, to be presumed that they were such as it was the duty of the States to provide. Thus we have unmistakable evidence of what was republican in form, within the meaning of that term, as employed in the Constitution.

The Power to Amend

be a difference in the action of the Federal and of the State courts. An error of the State court in the interpretation of the Federal law would be corrected on appeal by the Supreme Court of the United States; whereas the constructions put upon the State Constitution and the laws of the State would be followed by the Supreme Court in so far as they were not inconsistent with the Federal Constitution, with acts of Congress made in pursuance thereof, or with treaties of the United States. In matters of general as distinguished from local jurisprudence, the Federal Court would be free to decide for itself, yet would be inclined to accept the decision of the State Court.

That there might be no doubt as to the supremacy of the Federal Constitution, the acts of Congress consistent with its terms and treaties of the United States, it was further and wisely provided that all officers of the States as well as of the United States should bind their consciences by oath or affirmation to support the Federal Constitution; thus making it not merely supreme on paper and of general application, but supreme in fact in the special and concrete case. Thus the clause of Article VI immediately following the one last quoted proceeds:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.

Finally, in this connection, it is to be noted that the Federal Constitution was, by these various provisions, made the supreme and fundamental law of each State of the Union and was adopted in its entirety by each of the States ratifying it. Article V, concerning amendments, was therefore necessarily adopted as an integral part of the Constitution, which, in providing for its amendment, made its ratification depend not merely upon the sovereign pleasure of any one State but upon the approval of three-fourths of the States of the Union. It was therefore beyond the power of any one State to change an iota of its fundamental constitution, except in conjunction with threefourths of the States. An attempt to do so would be illegal and could only be looked upon as an attempt to amend this constitution in a method contrary to its provisions. It could not be done according to the law of the land. It could only be done by revolution. It was, after the formal ratification of the Constitution by conventions of the peoples within the State, immaterial whether the amendments were made by legislature or convention within the States, inasmuch as the supremacy of the Constitution had been established, and inasmuch as it could not be disestablished except by the votes of threefourths of the States, in which event the will of three-fourths of the States,

whether expressed in legislature or in convention, would prevail in fact and

should prevail in law.

1

In a letter addressed to Edmund Randolph, under date of April 8, 1787, Ratification Mr. Madison outlined the principles which he thought should be contained in the new Federal pact, and expressed the opinion that "to give the new system its proper energy, it will be desirable to have it ratified by the authority of the people, and not merely by that of the Legislatures." This provision, therefore, appeared in the fifteenth of Mr. Randolph's resolutions, and it was debated at large and in detail in the Convention. In the session of June 5th it appears to have first been taken up, on which occasion Mr. Sherman thought such a popular ratification unnecessary: the articles of Confederation providing for changes and alterations with the assent of Congs. and ratification of State Legislatures." Naturally, Mr. Madison, as the author of the clause, thought " this provision essential," saying in reply to Mr. Sherman that:

The articles of Confed". themselves were defective in this respect, resting in many of the States on the Legislative sanction only. Hence in conflicts between acts of the States, and of Congs, especially where the former are of posterior date, and the decision is to be made by State Tribunals, an uncertainty must necessarily prevail, or rather perhaps a certain decision in favor of the State authority. He suggested also that as far as the articles of Union were to be considered as a Treaty only of a particular sort, among the Governments of Independent States, the doctrine might be set up that a breach of any one article, by any of the parties, absolved the other parties from the whole obligation. For these reasons as well as others he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves."

After an exchange of views the question was postponed, but was passed on the 12th, Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina and Georgia voting for, Connecticut, New York and New Jersey against, and the delegations of Delaware and Maryland divided. On July 23d, three days before Mr. Randolph's resolutions as amended were referred to the Committee of Detail to report a draft of a Constitution, the question Discussion again came before the Convention and was very carefully and elaborately Mode of considered. Mr. Ellsworth of Connecticut moved that the Constitution be referred to the legislatures of the States for ratification and was appropriately seconded by Mr. Patterson of New Jersey. In the course of the debate Messrs. Mason and Madison argued strongly for the submission of the Constitution to conventions within the States; Mr. Ellsworth stood out for

'The Writings of James Madison, Hunt ed., Vol. II, p. 340. 'Documentary History, Vol. III, pp. 65-6.

of the Ratification

submission to the Legislatures, and the reasons pro and con were admirably stated. Thus,

Col. Mason considered a reference of the plan to the authority of the people as one of the most important and essential of the Resolutions. The Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators. And he knew of no power in any of the Constitutions, he knew there was no power in some of them, that could be competent to this object. Whither then must we resort? To the people with whom all power remains that has not been given up in the Constitutions derived from them. It was of great moment he observed that this doctrine should be cherished as the basis of free Government. Another strong reason was that admitting the Legislatures to have a competent authority, it would be wrong to refer the plan to them, because succeeding Legislatures having equal authority could undo the acts of their predecessors; and the National Govt. would stand in each State on the weak and tottering foundation of an Act of Assembly. There was a remaining consideration of some weight. In some of the States the Govts. were not derived from the clear & undisputed authority of the people. This was the case in Virginia. Some of the best & wisest citizens considered the Constitution as established by an assumed authority. A National Constitution derived from such a source would be exposed to the severest criticisms.1

Mr. Madison, as sponsor for the proposition, added the weight of his authority to its adoption, saying, in his own summary of his views, that he

1

thought it clear that the Legislatures were incompetent to the proposed changes. These changes would make essential inroads on the State Constitutions, and it would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence. There might indeed be some Constitutions within the Union, which had given a power to the Legislature to concur in alterations of the federal Compact. But there were certainly some which had not; and in the case of these, a ratification must of necessity be obtained from the people. He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution. The former in point of moral obligation might be as inviolable as the later. In point of political operation, there were two important distinctions in favor of the latter. 1. A law violating a treaty ratified by a preexisting law, might be respected by the Judges as a law, though an unwise & perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null & void. 2. The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation. Comparing the two modes in point of expediency he thought all the considerations which recommended this Convention in preference to Congress for proposing the reform were in favor of State Conventions in preference to the Legislatures for examining and adopting it.2

Documentary History, Vol. iii, p. 405.

Ibid., Vol. iii, pp. 410-11.