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The first appearance of the preamble in the reports of the Convention is in Charles Pinckney's plan as now preserved, where it is in the same form as in the draft of the Committee of Detail.2 His plan was referred to that Committee together with the resolutions specifically adopted, of which the first was :—

“Resolved, that the government of the United States ought to consist of a supreme legislative, judiciary and executive."

In the report of the Committee of Detail, the preamble appeared:

"We, the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare, and establish, the following Constitution for the government of ourselves and our posterity:

"Article I.

6

The style of the government shall be, The United

States of America.'"' 4

At that time it had not been determined to ignore that part of the Articles of Confederation which required unanimous consent to any amendment of the same. After the Convention had decided that a ratification by nine States should be sufficient to establish the Constitution between themselves, the Committee of Style, without any apparent discussion of the subject in the Convention, changed the preamble to its present form. The substitution of the phrase, "people of the United States," for "the people of the States of New Hampshire" and the other twelve States, had evidently no signification except to make it clear that the United States might consist of a less number than the original thirteen.

2 Madison Papers, Elliot's Debates, 2d ed., vol. v, p. 129. In the opinion of Mr. Madison, this copy contains many alterations made by the other in the original paper during the progress of the Convention. (Appendix, No. 2, to Madison Papers, Elliot's De

bates, 2d ed., vol. v, p. 578, quoted before, § 17, note 4.) The preamble seems more likely to be correct than any other part of the paper.

8 Ibid., p. 375.

4 Ibid., pp. 376, 377.

5 Articles of Confederation, XIII.

§ 19. Significance of the Phrase, "We the People of the United States."

From the use of the phrase, "We the people of the United States," some writers of respectable authority have argued that the Constitution was adopted by the people of the United States at large, and not by the people of the different States which ratified the Constitution.

The best statement of this view is that of Webster:

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"It," the Constitution, "declares that it is ordained and established by the People of the United States. So far from saying that it is established by the governments of the several States, it does not even say that it is established by the people of the several States. But it pronounces that it is established by the people of the United States in the aggregate. Doubtless the people of the several States taken collectively constitute the people of the United States, but it is in this their collective capacity, it is as all the people of the United States that they establish the Constitution." 1

The history of the formation and ratification of the Constitution contradicts these statements. As originally drawn the preamble ran, "We the people of" the thirteen States, each of which was specifically named. It was then intended not to violate the Articles of Confederation, but to require unanimous consent to the change. When, at a later session, the Convention ventured to require the assent of but nine States to put the new government in force, the language was altered so that it might serve in such a case; and no other intent was suggested or contemplated. The States did accede to the Federal Constitution. Each State

§ 19. 1 Webster's Reply to Hayne. It is thus put by the historian Motley: "The Constitution was not drawn up by the States, it was not promulgated in the name of the States, it was not ratified by the States. The States never acceded to it, and possess It was no power to secede from it. 'ordained and established' over the States by a power superior to the States by the people of the whole land in their aggregate capacity, acting through conventions of delegates

expressly chosen for the purpose within each State, independently of the State governments, after the project had been framed." (John Lothrop Motley's letter to the London Times. Rebellion Record, vol. i, p. 210.) The most elaborate argument in its support is in the Appendix to volume ix of Dane's Abridgment, which was published immediately after the debate between Hayne and Webster on Foote's Resolutions. See also Story on the Constitution, §§415-418, 463.

Convention acted and claimed to act only in the name of the people of its own State.2

The reasons for requiring a ratification by the people of each State instead of the State legislatures were principally the grave doubts as to the power of the State legislatures to delegate to Congress part of the legislative powers vested in them by their respective peoples; but also the intention to deprive those legislatures of all claim to the right of secession, and to give to the Constitution the sanction of a fundamental law ordained by all the people upon whom it operated.

These views were thus expressed by Madison: —

"Mr. Madison 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 and 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 latter. In point of political operation, there were two important distinctions in favor of the latter. First, a law violating a treaty ratified by a pre-existing law might be respected by the judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves would be considered by the judges as null and void. Secondly, 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 the case of a union of people under one constitution, the nature of the fact 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." 8

2 Supra, § 13. See the Federalist, No. xxxix, quoted infra, § 28.

3 Madison Papers, Elliot's Debates, 2d ed., vol. v, pp. 355, 356.

§ 20. Significance of the Phrase "to form a more perfect

Union."

The concluding Article of Confederation provided that "the Union shall be perpetual." Patterson claimed in the Federal Convention, that no State could lawfully withdraw from it without the consent of the rest:

"The Confederation is in the nature of a compact; and can any State, unless by the consent of the whole, either in politics or law, withdraw their powers? Let it be said by Pennsylvania and the other large States that they for the sake of peace consented to the Confederation; can she now resume her original right without the consent of the others?''1 In a letter to Congress by Washington, written by the unanimous order of the Convention:

"In all our deliberations on this subject we kept constantly in our view that which appears to us the greatest interest of every true American, the consolidation of our Union-in which is involved our prosperity, felicity, safety, perhaps our national existence." 2

It is clear that it was the intention of the Constitution that the former union should continue more perfect, more consolidated, and be perpetual.3

"The Union of the States never was a purely artificial arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to be perpetual.' And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained 'to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not? But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, or of the right of selfgovernment by the States. Under the Articles of Confederation each State retained its sovereignty, freedom, and independence, and every

§ 20, 1 Yates' Minutes, Elliot's Debates, 2d ed., vol. iv, p. 413.

2 Madison Papers, Elliot's Debates, 2d ed., vol. v, pp. 535, 536.

8 See Texas v. White, 7 Wall. 700.

power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term, that the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence,' and that without the States in union, there could be no such political body as the United States.' Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National Government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States."

4

Every clause in the Constitution in which it differed from the Articles of Confederation was designed to make the Union "more perfect."

§ 21. Significance of the Phrase, “to Establish Justice." The phrase "to establish justice" is not found in the Articles of confederation. One of the chief evils which called the Federal Convention together was the

"necessity of providing more effectually for the security of private rights, and the steady dispensation of justice. Interferences with these were evils which had, more perhaps than anything else, produced this Convention. Was it to be supposed that republican liberty could long exist under the abuses of it practiced in some of the States?"1

There was no Federal court to enforce rights of property secured by treaties and to hold invalid acts of State legislatures in contravention of treaty rights or for the prevention of the collection of debts due domestic as well as foreign creditors. For this reason, in order to establish justice, there was inserted in the Constitution an article,2 providing for courts of the United

4 Chief Justice Chase in Texas v.

White, 7 Wall. 700, 724-725.

§ 21. 1 Madison in the Federal Con

vention. Madison Papers, Elliot's Debates, vol., v, p. 162.

2 Article III, infra.

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