"Reviving the American tradition of liberty"

A DISCOURSE ON THE CONSTITUTION AND GOVERNMENT OF THE UNITED STATES

John C. Calhoun

    OURS is a system of governments, compounded of the separate governments of the several States composing the Union, and of one common government of all its members, called the Government of the United States. The former preceded the latter, which was created by their agency. Each was framed by written constitutions; those of the several States by the people of each, acting separately, and in their sovereign character; and that of the United States, by the same, acting in the same character — but jointly instead of separately. All were formed on the same model. They all divide the powers of government into legislative, executive, and judicial; and are founded on the great principle of the responsibility of the rulers to the ruled. The entire powers of government are divided between the two; those of a more general character being specifically delegated to the United States; and all others not delegated, being reserved to the several States in their separate character. Each, within its appropriate sphere, possesses all the attributes, and performs all the functions of government. Neither is perfect without the other. The two combined, form one entire and perfect government. With these preliminary remarks, I shall proceed to the consideration of the immediate subject of this discourse.

The Government of the United States was formed by the Constitution of the United States — and ours is a democratic, federal republic.

It is democratic, in contradistinction to aristocracy and monarchy. It excludes classes, orders, and all artificial distinctions. To guard against their introduction, the constitution prohibits the granting of any title of nobility by the United States, or by any State.[1] The whole system is, indeed, democratic throughout. It has for its fundamental principle, the great cardinal maxim, that the people are the source of all power; that the governments of the several States and of the United States were created by them, and for them; that the powers conferred on them are not surrendered, but delegated; and, as such, are held in trust, and not absolutely; and can be rightfully exercised only in furtherance of the objects for which they were delegated.

It is federal as well as democratic. Federal, on the one hand, in contradistinction to national, and, on the other, to a confederacy. In showing this, I shall begin with the former.

It is federal, because it is the government of States united in political union, in contradistinction to a government of individuals socially united; that is, by what is usually called, a social compact. To express it more concisely, it is federal and not national, because it is the government of a community of States, and not the government of a single State or nation.

That it is federal and not national, we have the high authority of the convention which framed it. General Washington, as its organ, in his letter submitting the plan to the consideration of the Congress of the then confederacy, calls it, in one place — "the general government of the Union" — and in another — "the federal government of these States." Taken together, the plain meaning is, that the government proposed would be, if adopted, the government of the States adopting it, in their united character as members of a common Union; and, as such, would be a federal government. These expressions were not used without due consideration, and an accurate and full knowledge of their true import. The subject was not a novel one. The convention was familiar with it. It was much agitated in their deliberations. They divided, in reference to it, in the early stages of their proceedings. At first, one party was in favor of a national and the other of a federal government. The former, in the beginning, prevailed; and in the plans which they proposed, the constitution and government are styled "National." But, finally, the latter gained the ascendency, when the term "National" was superseded, and "United States" substituted in its place. The constitution was accordingly styled — "The constitution of the United States of America" — and the government — "The government of the United States" leaving out "America," for the sake of brevity. It cannot admit of a doubt, that the Convention, by the expression "United States," meant the States united in a federal Union; for in no other sense could they, with propriety, call the government, "the federal government of these States" — and "the general government of the Union" — as they did in the letter referred to. It is thus clear, that the Convention regarded the different expressions — "the federal government of the United States" — "the general government of the Union" — and — "government of the United States" — as meaning the same thing — a federal, in contradistinction to a national government.

Assuming it then, as established, that they are the same, it is only necessary, in order to ascertain with precision, what they meant by "federal government" — to ascertain what they meant by "the government of the United States." For this purpose it will be necessary to trace the expression to its origin.

It was, at that time, as our history shows, an old and familiar phrase — having a known and well-defined meaning. Its use commenced with the political birth of these States; and it has been applied to them, in all the forms of government through which they have passed, without alteration. The style of the present constitution and government is precisely the style by which the confederacy that existed when it was adopted, and which it superseded, was designated. The instrument that formed the latter was called — "Articles of Confederation and Perpetual Union." Its first article declares that the style of this confederacy shall be, "The United States of America;" and the second, in order to leave no doubt as to the relation in which the States should stand to each other in the confederacy about to be formed, declared — "Each State retains its sovereignty, freedom and independence; and every power, jurisdiction, and right, which is not, by this confederation, expressly delegated to the United States in Congress assembled." If we go one step further back, the style of the confederacy will be found to be the same with that of the revolutionary government, which existed when it was adopted, and which it superseded. It dates its origin with the Declaration of Independence. That act is styled — "The unanimous Declaration of the thirteen United States of America." And here again, that there might be no doubt how these States would stand to each other in the new condition in which they were about to be placed, it concluded by declaring — "that these United Colonies are, and of right ought to be, free and independent States;" "and that, as free and independent States, they have full power to levy war, conclude peace, contract alliances, and to do all other acts and things which independent States may of right do." The "United States" is, then, the baptismal name of these States — received at their birth — by which they have ever since continued to call themselves; by which they have characterized their constitution, government and laws — and by which they are known to the rest of the world.

The retention of the same style, throughout every stage of their existence, affords strong, if not conclusive evidence that the political relation between these States, under their present constitution and government, is substantially the same as under the confederacy and revolutionary government; and what that relation was, we are not left to doubt; as they are declared expressly to be "free, independent and sovereign States." They, then, are now united, and have been, throughout, simply as confederated States. If it had been intended by the members of the convention which framed the present constitution and government, to make any essential change, either in the relation of the States to each other, or the basis of their union, they would, by retaining the style which designated them under the preceding governments, have practised a deception, utterly unworthy of their character, as sincere and honest men and patriots. It may, therefore, be fairly inferred, that, retaining the same style, they intended to attach to the expression — "the United States," the same meaning, substantially, which it previously had; and, of course, in calling the present government — "the federal government of these States," they meant by "federal," that they stood in the same relation to each other — that their union rested, without material change, on the same basis — as under the confederacy and the revolutionary government; and that federal, and confederated States, meant substantially the same thing. It follows, also, that the changes made by the present constitution were not in the foundation, but in the superstructure of the system. We accordingly find, in confirmation of this conclusion, that the convention, in their letter to Congress, stating the reasons for the changes that had been made, refer only to the necessity which required a different "organization" of the government, without making any allusion whatever to any change in the relations of the States towards each other — or the basis of the system. They state that, "the friends of our country have long seen and desired, that the power of making war, peace, and treaties; that of levying money and regulating commerce, and the correspondent executive and judicial authorities, should be fully and effectually vested in the Government of the Union: but the impropriety of delegating such extensive trusts to one body of men is evident; hence results the necessity of a different organization." Comment is unnecessary.

We thus have the authority of the convention itself for asserting that the expression, "United States," has essentially the same meaning, when applied to the present constitution and government, as it had previously; and, of course, that the States have retained their separate existence, as independent and sovereign communities, in all the forms of political existence, through which they have passed. Such, indeed, is the literal import of the expression — "the United States" — and the sense in which it is ever used, when it is applied politically — I say, politically — because it is often applied, geographically, to designate the portion of this continent occupied by the States composing the Union, including territories belonging to them. This application arose from the fact, that there was no appropriate term for that portion of this continent; and thus, not unnaturally, the name by which these States are politically designated, was employed to designate the region they occupy and possess. The distinction is important, and cannot be overlooked in discussing questions involving the character and nature of the government, without causing great confusion and dangerous misconceptions.

But as conclusive as these reasons are to prove that the government of the United States is federal, in contradistinction to national, it would seem, that they have not been sufficient to prevent the opposite opinion from being entertained. Indeed, this last seems to have become the prevailing one; if we may judge from the general use of the term "national," and the almost entire disuse of that of "federal." National, is now commonly applied to "the general government of the Union" — and "the federal government of these States" — and all that appertains to them or to the Union. It seems to be forgotten that the term was repudiated by the convention, after full consideration; and that it was carefully excluded from the constitution, and the letter laying it before Congress. Even those who know all this — and, of course, how falsely the term is applied — have, for the most part, slided into its use without reflection. But there are not a few who so apply it, because they believe it to be a national government in fact; and among these are men of distinguished talents and standing, who have put forth all their powers of reason and eloquence, in support of the theory. The question involved is one of the first magnitude, and deserves to be investigated thoroughly in all its aspects. With this impression, I deem it proper — clear and conclusive as I regard the reasons already assigned to prove its federal character — to confirm them by historical references; and to repel the arguments adduced to prove it to be a national government. I shall begin with the formation and ratification of the constitution.

That the States, when they formed and ratified the constitution, were distinct, independent, and sovereign communities, has already been established. That the people of the several States, acting in their separate, independent, and sovereign character, adopted their separate State constitutions, is a fact uncontested and incontestable; but it is not more certain than that, acting in the same character, they ratified and adopted the constitution of the United States; with this difference only, that in making and adopting the one, they acted without concert or agreement; but, in the other, with concert in making, and mutual agreement in adopting it. That the delegates who constituted the convention which framed the constitution, were appointed by the several States, each on its own authority; that they voted in the convention by States; and that their votes were counted by States — are recorded and unquestionable facts. So, also, the facts that the constitution, when framed, was submitted to the people of the several States for their respective ratification; that it was ratified by them, each for itself; and that it was binding on each, only in consequence of its being so ratified by it. Until then, it was but the plan of a constitution, without any binding force. It was the act of ratification which established it as a constitution between the States ratifying it; and only between them, on the condition that not less than nine of the then thirteen States should concur in the ratification — as is expressly provided by its seventh and last article. It is in the following words: "The ratification of the conventions of nine States shall be sufficient for the establishment of this constitution between the States so ratifying the same." If additional proof be needed to show that it was only binding between the States that ratified it, it may be found in the fact, that two States, North Carolina and Rhode Island, refused, at first, to ratify; and were, in consequence, regarded in the interval as foreign States, without obligation, on their parts, to respect it, or, on the part of their citizens, to obey it. Thus far, there can be no difference of opinion. The facts are too recent and too well established — and the provision of the constitution too explicit, to admit of doubt.

That the States, then, retained, after the ratification of the constitution, the distinct, independent, and sovereign character in which they formed and ratified it, is certain; unless they divested themselves of it by the act of ratification, or by some provision of the constitution. If they have not, the constitution must be federal, and not national; for it would have, in that case, every attribute necessary to constitute it federal, and not one to make it national. On the other hand, if they have divested themselves, then it would necessarily lose its federal character, and become national. Whether, then, the government is federal or national, is reduced to a single question; whether the act of ratification, of itself, or the constitution, by some one, or all of its provisions, did, or did not, divest the several States of their character of separate, independent, and sovereign communities, and merge them all in one great community or nation, called the American people?

Before entering on the consideration of this important question, it is proper to remark, that, on its decision, the character of the government, as well as the constitution, depends. The former must, necessarily, partake of the character of the latter, as it is but its agent, created by it, to carry its powers into effect. Accordingly, then, as the constitution is federal or national, so must the government be; and I shall, therefore, use them indiscriminately in discussing the subject.

Of all the questions which can arise under our system of government, this is by far the most important. It involves many others of great magnitude; and among them, that of the allegiance of the citizen; or, in other words, the question to whom allegiance and obedience are ultimately due. What is the true relation between the two governments — that of the United States and those of the several States? and what is the relation between the individuals respectively composing them? For it is clear, if the States still retain their sovereignty as separate and independent communities, the allegiance and obedience of the citizens of each would be due to their respective States; and that the government of the United States and those of the several States would stand as equals and co-ordinates in their respective spheres; and, instead of being united socially, their citizens would be politically connected through their respective States. On the contrary, if they have, by ratifying the constitution, divested themselves of their individuality and sovereignty, and merged themselves into one great community or nation, it is equally clear, that the sovereignty would reside in the whole — or what is called the American people; and that allegiance and obedience would be due to them. Nor is it less so, that the government of the several States would, in such case, stand to that of the United States, in the relation of inferior and subordinate, to superior and paramount; and that the individuals of the several States, thus fused, as it were, into one general mass, would be united socially, and not politically. So great a change of condition would have involved a thorough and radical revolution, both socially and politically — a revolution much more radical, indeed, than that which followed the Declaration of Independence.

They who maintain that the ratification of the constitution effected so mighty a change, are bound to establish it by the most demonstrative proof. The presumption is strongly opposed to it. It has already been shown, that the authority of the convention which formed the constitution is clearly against it; and that the history of its ratification, instead of supplying evidence in its favor, furnishes strong testimony in opposition to it. To these, others may be added; and, among them, the presumption drawn from the history of these States, in all the stages of their existence down to the time of the ratification of the constitution. In all, they formed separate, and, as it respects each other, independent communities; and were ever remarkable for the tenacity with which they adhered to their rights as such. It constituted, during the whole period, one of the most striking traits in their character — as a very brief sketch will show.

During their colonial condition, they formed distinct communities — each with its separate charter and government — and in no way connected with each other, except as dependent members of a common empire. Their first union amongst themselves was, in resistance to the encroachments of the parent country on their chartered rights — when they adopted the title of — "the United Colonies." Under that name they acted, until they declared their independence — always, in their joint councils, voting and acting as separate and distinct communities — and not in the aggregate, as composing one community or nation. They acted in the same character in declaring independence; by which act they passed from their dependent, colonial condition, into that of free and sovereign States. The declaration was made by delegates appointed by the several colonies, each for itself, and on its own authority. The vote making the declaration was taken by delegations, each counting one. The declaration was announced to be unanimous, not because every delegate voted for it, but because the majority of each delegation did; showing clearly, that the body itself, regarded it as the united act of the several colonies, and not the act of the whole as one community. To leave no doubt on a point so important, and in reference to which the several colonies were so tenacious, the declaration was made in the name, and by the authority of the people of the colonies, represented in Congress; and that was followed by declaring them to be — "free and independent States." The act was, in fact, but a formal and solemn annunciation to the world, that the colonies had ceased to be dependent communities, and had become free and independent States; without involving any other change in their relations with each other, than those necessarily incident to a separation from the parent country. So far were they from supposing, or intending that it should have the effect of merging their existence, as separate communities, into one nation, that they had appointed a committee — which was actually sitting, while the declaration was under discussion — to prepare a plan of a confederacy of the States, preparatory to entering into their new condition. In fulfilment of their appointment, this committee prepared the draft of the articles of confederation and perpetual union, which afterwards was adopted by the governments of the several States. That it instituted a mere confederacy and union of the States has already been shown. That, in forming and assenting to it, the States were exceedingly jealous and watchful in delegating power, even to a confederacy; that they granted the powers delegated most reluctantly and sparingly; that several of them long stood out, under all the pressure of the revolutionary war, before they acceded to it; and that, during the interval which elapsed between its adoption and that of the present constitution, they evinced, under the most urgent necessity, the same reluctance and jealousy, in delegating power — are facts which cannot be disputed.

To this may be added another circumstance of no little weight, drawn from the preliminary steps taken for the ratification of the constitution. The plan was laid, by the convention, before the Congress of the confederacy, for its consideration and action, as has been stated. It was the sole organ and representative of these States in their confederated character. By submitting it, the convention recognized and acknowledged its authority over it, as the organ of distinct, independent, and sovereign States. It had the right to dispose of it as it pleased; and, if it had thought proper, it might have defeated the plan by simply omitting to act on it. But it thought proper to act, and to adopt the course recommended by the convention — which was, to submit it — "to a convention of delegates, chosen in each State, by the people thereof, for their assent and adoption." All this was in strict accord with the federal character of the constitution, but wholly repugnant to the idea of its being national. It received the assent of the States in all the possible modes in which it could be obtained: first — in their confederated character, through its only appropriate organ, the Congress; next, in their individual character, as separate States, through their respective State governments, to which the Congress referred it; and finally, in their high character of independent and sovereign communities, through a convention of the people, called in each State, by the authority of its government. The States acting in these various capacities, might, at every stage, have defeated it or not, at their option, by giving or withholding their consent.

With this weight of presumptive evidence, to use no stronger expression, in favor of its federal, in contradistinction to its national character, I shall next proceed to show, that the ratification of the constitution, instead of furnishing proof against, contains additional and conclusive evidence in its favor.

We are not left to conjecture, as to what was meant by the ratification of the constitution, or its effects. The expressions used by the conventions of the States, in ratifying it, and those used by the constitution in connection with it, afford ample means of ascertaining with accuracy, both its meaning and effect. The usual form of expression used by the former is: "We, the delegates of the State," (naming the State) "do, in behalf of the people of the State, assent to, and ratify the said constitution." All use, "ratify" — and all, except North Carolina, use, "assent to." The delegates of that State use, "adopt," instead of "assent to;" a variance merely in the form of expression, without, in any degree, affecting the meaning. Ratification was, then, the act of the several States in their separate capacity. It was performed by delegates appointed expressly for the purpose. Each appointed its own delegates; and the delegates of each, acted in the name of, and for the State appointing them. Their act consisted in, "assenting to," or, what is the same thing, "adopting and ratifying" the constitution.

By turning to the seventh article of the constitution, and to the preamble, it will be found what was the effect of ratifying. The article expressly 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." The preamble of the constitution is in the following words — "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." The effect, then, of its ratification was, to ordain and establish the constitution — and, thereby, to make, what was before but a plan — "The constitution of the United States of America." All this is clear.

It remains now to show, by whom, it was ordained and established; for whom, it was ordained and established; for what, it was ordained and established; and over whom, it was ordained and established. These will be considered in the order in which they stand.

Nothing more is necessary, in order to show by whom it was ordained and established, than to ascertain who are meant by — "We, the people of the United States;" for, by their authority, it was done. To this there can be but one answer — it meant the people who ratified the instrument; for it was the act of ratification which ordained and established it. Who they were, admits of no doubt. The process preparatory to ratification, and the acts by which it was done, prove, beyond the possibility of a doubt, that it was ratified by the several States, through conventions of delegates, chosen in each State by the people thereof; and acting, each in the name and by the authority of its State: and, as all the States ratified it — "We, the people of the United States" — mean, — We, the people of the several States of the Union. The inference is irresistible. And when it is considered that the States of the Union were then members of the confederacy — and that, by the express provision of one of its articles, "each State retains its sovereignty, freedom, and independence," the proof is demonstrative, that — "We, the people of the United States of America," mean the people of the several States of the Union, acting as free, independent, and sovereign States. This strikingly confirms what has been already stated; to wit, that the convention which formed the constitution, meant the same thing by the terms — "United States" — and, "federal" — when applied to the constitution or government — and that the former, when used politically, always mean — these States united as independent and sovereign communities.

Having shown, by whom, it was ordained, there will be no difficulty in determining, for whom, it was ordained. The preamble is explicit — it was ordained and established for — "The United States of America;" adding, "America," in conformity to the style of the then confederacy, and the Declaration of Independence. Assuming, then, that the "United States" bears the same meaning in the conclusion of the preamble, as it does in its commencement (and no reason can be assigned why it should not) it follows, necessarily, that the constitution was ordained and established for the people of the several States, by whom it was ordained and established.

Nor will there be any difficulty in showing, for what, it was ordained and established. The preamble enumerates the objects. They are — "to form a more perfect union, to establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." To effect these objects, they ordained and established, to use their own language — "the constitution for the United States of America" — clearly meaning by "for," that it was intended to be their constitution; and that the objects of ordaining and establishing it were, to perfect their union, to establish justice among them — to insure their domestic tranquillity, to provide for their common defense and general welfare, and to secure the blessings of liberty to them and their posterity. Taken all together, it follows, from what has been stated, that the constitution was ordained and established by the several States, as distinct, sovereign communities; and that it was ordained and established by them for themselves — for their common welfare and safety, as distinct and sovereign communities.

It remains to be shown, over whom, it was ordained and established. That it was not over the several States, is settled by the seventh article beyond controversy. It declares, that the ratification by nine States shall be sufficient to establish the constitution between the States so ratifying. "Between," necessarily excludes "over" — as that which is between States cannot be over them. Reason itself, if the constitution had been silent, would have led, with equal certainty, to the same conclusion. For it was the several States, or, what is the same thing, their people, in their sovereign capacity, who ordained and established the constitution. But the authority which ordains and establishes, is higher than that which is ordained and established; and, of course, the latter must be subordinate to the former — and cannot, therefore, be over it. "Between," always means more than "over" — and implies in this case, that the authority which ordained and established the constitution, was the joint and united authority of the States ratifying it; and that, among the effects of their ratification, it became a contract between them; and, as a compact, binding on them — but only as such. In that sense the term, "between," is appropriately applied. In no other, can it be. It was, doubtless, used in that sense in this instance; but the question still remains, over whom, was it ordained and established? After what has been stated, the answer may be readily given. It was over the government which it created, and all its functionaries in their official character — and the individuals composing and inhabiting the several States, as far as they might come within the sphere of the powers delegated to the United States.

I have now shown, conclusively, by arguments drawn from the act of ratification, and the constitution itself, that the several States of the Union, acting in their confederated character, ordained and established the constitution; that they ordained and established it for themselves, in the same character; that they ordained and established it for their welfare and safety, in the like character; that they established it as a compact between them, and not as a constitution over them; and that, as a compact, they are parties to it, in the same character. I have thus established, conclusively, that these States, in ratifying the constitution, did not lose the confederated character which they possessed when they ratified it, as well as in all the preceding stages of their existence; but, on the contrary, still retained it to the full.

Those who oppose this conclusion, and maintain the national character of the government, rely, in support of their views, mainly on the expressions, "we, the people of the United States," used in the first part of the preamble; and, "do ordain and establish this constitution for the United States of America," used in its conclusion. Taken together, they insist, in the first place, that, "we, the people," mean, the people in their individual character, as forming a single community; and that, "the United States of America," designates them in their aggregate character, as the American people. In maintaining this construction, they rely on the omission to enumerate the States by name, after the word "people," (so as to make it read, "We, the people of New Hampshire, Massachusetts, &c.," as was done in the articles of the confederation, and, also, in signing the Declaration of Independence) — and, instead of this, the simple use of the general term "United States."

However plausible this may appear, an explanation perfectly satisfactory may be given, why the expression, as it now stands, was used by the framers of the constitution; and why it should not receive the meaning attempted to be placed upon it. It is conceded that, if the enumeration of the States after the word, "people," had been made, the expression would have been freed from all ambiguity; and the inference and argument founded on the failure to do so, left without pretext or support. The omission is certainly striking, but it can be readily explained. It was made intentionally, and solely from the necessity of the case. The first draft of the constitution contained an enumeration of the States, by name, after the word "people;" but it became impossible to retain it after the adoption of the seventh and last article, which provided, that the ratification by nine States should be sufficient to establish the constitution as between them; and for the plain reason, that it was impossible to determine, whether all the States would ratify — or, if any failed, which, and how many of the number; or, if nine should ratify, how to designate them. No alternative was thus left but to omit the enumeration, and to insert the "United States of America," in its place. And yet, an omission, so readily and so satisfactorily explained, has been seized on, as furnishing strong proof that the government was ordained and established by the American people, in the aggregate — and is therefore national.

But the omission, of itself, would have caused no difficulty, had there not been connected with it a two-fold ambiguity in the expression as it now stands. The term "United States," which always means, in constitutional language, the several States in their confederated character, means also, as has been shown, when applied geographically, the country occupied and possessed by them. While the term "people," has, in the English language, no plural, and is necessarily used in the singular number, even when applied to many communities or states confederated in a common union — as is the case with the United States. Availing themselves of this double ambiguity, and the omission to enumerate the States by name, the advocates of the national theory of the government, assuming that, "we, the people, meant individuals generally, and not people as forming States; and that "United States" was used in a geographical and not a political sense, made out an argument of some plausibility, in favor of the conclusion that, "we, the people of the United States of America," meant the aggregate population of the States regarded en masse, and not in their distinctive character as forming separate political communities. But in this gratuitous assumption, and the conclusion drawn from it, they overlooked the stubborn fact, that the very people who ordained and established the constitution, are identically the same who ratified it; for it was by the act of ratification alone, that it was ordained and established — as has been conclusively shown. This fact, of itself, sweeps away every vestige of the argument drawn from the ambiguity of those terms, as used in the preamble.

They next rely, in support of their theory, on the expression — "ordained and established this constitution." They admit that the constitution, in its incipient state, assumed the form of a compact; but contend that, "ordained and established," as applied to the constitution and government, are incompatible with the idea of compact; that, consequently, the instrument or plan lost its federative character when it was ordained and established as a constitution; and, thus, the States ceased to be parties to a compact, and members of a confederated union, and became fused into one common community, or nation, as subordinate and dependent divisions or corporations.

I do not deem it necessary to discuss the question whether there is any incompatibility between the terms — "ordained and established" — and that of "compact," on which the whole argument rests; although it would be no difficult task to show that it is a gratuitous assumption, without any foundation whatever for its support. It is sufficient for my purpose, to show, that the assumption is wholly inconsistent with the constitution itself — as much so, as the conclusion drawn from it has been shown to be inconsistent with the opinion of the convention which formed it. Very little will be required, after what has been already stated, to establish what I propose.

That the constitution regards itself in the light of a compact, still existing between the States, after it was ordained and established; that it regards the union, then existing, as still existing; and the several States, of course, still members of it, in their original character of confederated States, is clear. Its seventh article, so often referred to, in connection with the arguments drawn from the preamble, sufficiently establishes all these points, without adducing others; except that which relates to the continuance of the union. To establish this, it will not be necessary to travel out of the preamble and the letter of the convention, laying the plan of the constitution before the Congress of the confederation. In enumerating the objects for which the constitution was ordained and established, the preamble places at the head of the rest, as its leading object — "to form a more perfect union." So far, then, are the terms — "ordained and established," from being incompatible with the union, or having the effect of destroying it, the constitution itself declares that it was intended, "to form a more perfect union." This, of itself, is sufficient to refute the assertion of their incompatibility. But it is proper here to remark, that it could not have been intended, by the expression in the preamble — "to form a more perfect union" — to declare, that the old was abolished, and a new and more perfect union established in its place: for we have the authority of the convention which formed the constitution, to prove that their object was to continue the then existing union. In their letter, laying it before Congress, they say — "In all our deliberations on this subject, we kept steadily in our view, that which appears to us, the greatest interest of every true American, the consolidation of our union." "Our union," can refer to no other than the then existing union — the old union of the confederacy, and of the revolutionary government which preceded it — of which these States were confederated members. This must, of course, have been the union to which the framers referred in the preamble. It was this, accordingly, which the constitution intended to make more perfect; just as the confederacy made more perfect, that of the revolutionary government. Nor is there any thing in the term, "consolidation," used by the convention, calculated to weaken the conclusion. It is a strong expression; but as strong as it is, it certainly was not intended to imply the destruction of the union, as it is supposed to do by the advocates of a national government; for that would have been incompatible with the context, as well as with the continuance of the union — which the sentence and the entire letter imply. Interpreted, then, in conjunction with the expression used in the preamble — "to form a more perfect union" — although it may more strongly intimate closeness of connection; it can imply nothing incompatible with the professed object of perfecting the union — still less a meaning and effect wholly inconsistent with the nature of a confederated community. For to adopt the interpretation contended for, to its full extent, would be to destroy the union, and not to consolidate and perfect it.

If we turn from the preamble and the ratifications, to the body of the constitution, we shall find that it furnishes most conclusive proof that the government is federal, and not national. I can discover nothing, in any portion of it, which gives the least countenance to the opposite conclusion. On the contrary, the instrument, in all its parts, repels it. It is, throughout, federal. It every where recognizes the existence of the States, and invokes their aid to carry its powers into execution. In one of the two houses of Congress, the members are elected by the legislatures of their respective States; and in the other, by the people of the several States, not as composing mere districts of one great community, but as distinct and independent communities. General Washington vetoed the first act apportioning the members of the House of Representatives among the several States, under the first census, expressly on the ground, that the act assumed as its basis, the former, and not the latter construction. The President and Vice-President are chosen by electors, appointed by their respective States; and, finally, the Judges are appointed by the President and the Senate; and, of course, as these are elected by the States, they are appointed through their agency.

But, however strong be the proofs of its federal character derived from this source, that portion which provides for the amendment of the constitution, furnishes, if possible, still stronger. It shows, conclusively, that the people of the several States still retain that supreme ultimate power, called sovereignty — the power by which they ordained and established the constitution; and which can rightfully create, modify, amend, or abolish it, at its pleasure. Wherever this power resides, there the sovereignty is to be found. That it still continues to exist in the several States, in a modified form, is clearly shown by the fifth article of the constitution, which provides for its amendment. By its provisions, Congress may propose amendments, on its own authority, by the vote of two-thirds of both houses; or it may be compelled to call a convention to propose them, by two-thirds of the legislatures of the several States: but, in either case, they remain, when thus made, mere proposals of no validity, until adopted by three-fourths of the States, through their respective legislatures; or by conventions, called by them, for the purpose. Thus far, the several States, in ordaining and establishing the constitution, agreed, for their mutual convenience and advantage, to modify, by compact, their high sovereign power of creating and establishing constitutions, as far as it related to the constitution and government of the United States. I say, for their mutual convenience and advantage; for without the modification, it would have required the separate consent of all the States of the Union to alter or amend their constitutional compact; in like manner as it required the consent of all to establish it between them; and to obviate the almost insuperable difficulty of making such amendments as time and experience might prove to be necessary, by the unanimous consent of all, they agreed to make the modification. But that they did not intend, by this, to divest themselves of the high sovereign right (a right which they still retain, notwithstanding the modification) to change or abolish the present constitution and government at their pleasure, cannot be doubted. It is an acknowledged principle, that sovereigns may, by compact, modify or qualify the exercise of their power, without impairing their sovereignty; of which, the confederacy existing at the time, furnishes a striking illustration. It must reside, unimpaired and in its plentitude, somewhere. And if it do not reside in the people of the several States, in their confederated character, where — so far as it relates to the constitution and government of the United States — can it be found? Not, certainly, in the government; for, according to our theory, sovereignty resides in the people, and not in the government. That it cannot be found in the people, taken in the aggregate, as forming one community or nation, is equally certain. But as certain as it cannot, just so certain is it, that it must reside in the people of the several States: and if it reside in them at all, it must reside in them as separate and distinct communities; for it has been shown, that it does not reside in them in the aggregate, as forming one community or nation. These are the only aspects under which it is possible to regard the people; and, just as certain as it resides in them, in that character, so certain is it that ours is a federal, and not a national government.

The theory of the nationality of the government, is, in fact, founded on fiction. It is of recent origin. Few, even yet, venture to avow it to its full extent; while they entertain doctrines, which spring from, and must necessarily terminate in it. They admit that the people of the several States form separate, independent, and sovereign communities — and that, to this extent, the constitution is federal; but beyond this, and to the extent of the delegated powers — regarding them as forming one people or nation, they maintain that the constitution is national.

Now, unreasonable as is the theory that it is wholly national, this, if possible, is still more so; for the one, although against reason and recorded evidence, is possible; but the other, while equally against both, is absolutely impossible. It involves the absurdity of making the constitution federal in reference to a class of powers, which are expressly excluded from it; and, by consequence, from the compact itself, into which the several States entered when they established it. The term, "federal," implies a league — and this, a compact between sovereign communities; and, of course, it is impossible for the States to be federal, in reference to powers expressly reserved to them in their character of separate States, and not included in the compact. If the States are national at all — or, to express it more definitely — if they form a NATION at all, it must be in reference to the delegated, and not the reserved powers. But it has already been established that, as to these, they have no such character — no such existence. It is, however, proper to remark, that while it is impossible for them to be federal, as to their reserved powers, they could not be federal without them. For had all the powers of government been delegated, the separate constitutions and governments of the several States would have been superseded and destroyed; and what is now called the constitution and government of the United States, would have become the sole constitution and government of the whole — the effect of which, would have been to supersede and destroy the States themselves. The people respectively composing them, instead of constituting political communities, having appropriate organs to will and to act — which is indispensable to the existence of a State — would, in such case, be divested of all such organs; and, by consequence, reduced into an unorganized mass of individuals — as far as related to the respective States — and merged into one community or nation, having but one constitution and government as the organ, through which to will and to act. The idea, indeed, of a federal constitution and government, necessarily implies reserved and delegated powers — powers reserved in part, to be exercised exclusively by the States in their original separate character — and powers delegated, by mutual agreement, to be exercised jointly by a common council or government. And hence, consolidation and disunion are, equally, destructive of such government — one by merging the States composing the Union into one community or nation; and the other, by resolving them into their original elements, as separate and disconnected States.

It is difficult to imagine how a doctrine so perfectly absurd, as that the States are federal as to the reserved, and national as to the delegated powers, could have originated; except through a misconception of the meaning of certain terms, sometimes used to designate the latter. They are sometimes called granted powers; and at others, are said to be powers surrendered by the States. When these expressions are used without reference to the fact, that all powers, under our system of government, are trust powers, they imply that the States have parted with such as are said to be granted or surrendered, absolutely and irrecoverably. The case is different when applied to them as trust powers. They then become identical, in their meaning, with delegated powers; for to grant a power in trust, is what is meant by delegating it. It is not, therefore, surprising, that they who do not bear in mind that all powers of government are, with us, trust powers, should conclude that the powers said to be granted and surrendered by the States, are absolutely transferred from them to the government of the United States — as is sometimes alleged — or to the people as constituting one nation, as is more usually understood — and, thence, to infer that the government is national to the extent of the granted powers.

But that such inference and conclusion are utterly unwarrantable — that the powers in the constitution called granted powers, are, in fact, delegated powers — powers granted in trust — and not absolutely transferred — we have, in addition to the reasons just stated, the clear and decisive authority of the constitution itself. Its tenth amended article provides that "the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

In order to understand the full force of this provision, it is necessary to state that this is one of the amended articles, adopted at the recommendation of several of the conventions of the States, contemporaneously with the ratification of the constitution — in order to supply what were thought to be its defects — and to guard against misconceptions of its meaning. It is admitted, that its principal object was to prevent the reserved from being drawn within the sphere of the granted powers, by the force of construction — a danger, which, at the time, excited great, and, as experience has proved, just apprehension. But in guarding against this danger, care was also taken to guard against others — and among them, against mistakes, as to whom powers were granted, and to whom they were reserved. The former was done by using the expression, "the powers not delegated to the United States," which, by necessary implication means, that the powers granted are delegated to them in their confederated character — and the latter, by the remaining portion of the article, which provides that such powers "are reserved to the States respectively, or to the people" — meaning clearly by, "respectively," that the reservation was to the several States and people in their separate character, and not to the whole, as forming one people or nation. They thus repudiate nationality, applied either to the delegated or to reserved powers.

But it may be asked — why was the reservation made both to the States and to the people? The answer is to be found in the fact, that, what are called, "reserved powers," in the constitution of the United States, include all powers not delegated to Congress by it — or prohibited by it to the States. The powers thus designated are divided into two distinct classes — those delegated by the people of the several States to their separate State governments, and those which they still retain — not having delegated them to either government. Among them is included the high sovereign power, by which they ordained and established both; and by which they can modify, change or abolish them at pleasure. This, with others not delegated, are those which are reserved to the people of the several States respectively.

But the article in its precaution, goes further — and takes care to guard against the term, "granted," used in the first article and first section of the constitution, which provides that, "all legislative powers herein granted, shall be vested in a Congress of the United States" — as well as against other terms of like import used in other parts of the instrument. It guarded against it, indirectly, by substituting, "delegated," in the place of "granted" — and instead of declaring that the powers not "granted," are reserved, it declares that the powers not "delegated," are reserved. Both terms — "granted," used in the constitution as it came from its framers, and "delegated," used in the amendments — evidently refer to the same class of powers; and no reason can be assigned, why the amendment substituted "delegated," in the place of "granted," but to free it from its ambiguity, and to provide against misconstruction.

It is only by considering the granted powers, in their true character of trust or delegated powers, that all the various parts of our complicated system of government can be harmonized and explained. Thus regarded, it will be easy to perceive how the people of the several States could grant certain powers to a joint — or, as its framers called it — a general government, in trust, to be exercised for their common benefit, without an absolute surrender of them — or without impairing their independence and sovereignty. Regarding them in the opposite light, as powers absolutely surrendered and irrevocably transferred, inexplicable difficulties present themselves. Among the first, is that which springs from the idea of divided sovereignty; involving the perplexing question — how the people of the several States can be partly sovereign, and partly, not sovereign — sovereign as to the reserved — and not sovereign, as to the delegated powers? There is no difficulty in understanding how powers, appertaining to sovereignty, may be divided; and the exercise of one portion delegated to one set of agents, and another portion to another: or how sovereignty may be vested in one man, or in a few, or in many. But how sovereignty itself — the supreme power — can be divided — how the people of the several States can be partly sovereign, and partly not sovereign — partly supreme, and partly not supreme, it is impossible to conceive. Sovereignty is an entire thing — to divide, is — to destroy it.

But suppose this difficulty surmounted — another not less perplexing remains. If sovereignty be surrendered and transferred, in part or entirely, by the several States, it must be transferred to somebody; and the question is, to whom? Not, certainly, to the government — as has been thoughtlessly asserted by some; for that would subvert the fundamental principle of our system — that sovereignty resides in the people. But if not to the government, it must be transferred — if at all — to the people, regarded in the aggregate, as a nation. But this is opposed, not only by a force of reason which cannot be resisted, but by the preamble and tenth amended article of the constitution, as has just been shown. If then it be transferred neither to the one nor the other, it cannot be transferred at all; as it is impossible to conceive to whom else the transfer could have been made. It must, therefore, and of course, remain unsurrendered and unimpaired in the people of the several States — to whom, it is admitted, it appertained when the constitution was adopted.

Having now established that the powers delegated to the United States, were delegated to them in their confederated character, it remains to be explained in what sense they were thus delegated. The constitution here, as in almost all cases, where it is fairly interpreted, furnishes the explanation necessary to expel doubt. Its first article, already cited, affords it in this case. It declares that "all legislative power herein granted (delegated), shall be vested in the Congress of the United States;" that is, in the Congress for the time being. It also declares, that "the executive power shall be vested in the President of the United States" — and that "the judicial power shall be vested in a Supreme Court, and such inferior courts, as Congress may, from time to time, ordain and establish." They are then delegated to the United States, by vesting them in the respective departments of the government, to which they appropriately belong; to be exercised by the government of the United States, as their joint agent and representative, in their confederated character. It is, indeed, difficult to conceive how else it could be delegated to them — or in what other way they could mutually participate in the exercise of the powers delegated. It has, indeed, been construed by some to mean, that each State, reciprocally and mutually, delegated to each other, the portion of its sovereignty embracing the delegated powers. But besides the difficulty of a divided sovereignty, which it would involve, the expression, "delegated powers," repels that construction. If, however, there should still remain a doubt, the articles of confederation would furnish conclusive proof of the truth of that construction which I have placed upon the constitution; and, also, that not a particle of sovereignty was intended to be transferred, by delegating the powers conferred on the different departments of the government of the United States. I refer to its second article — so often referred to already. It declares, as will be remembered, that — "each State retains its sovereignty, freedom, and independence; and every power, jurisdiction, and right, which is not, by this confederation, expressly delegated to the United States in Congress assembled." The powers delegated by it were, therefore, delegated, like those of the present constitution, to the United States. The only difference is, that "the United States," is followed, in the articles of confederation, by the words — "in Congress assembled" — which are omitted in the parallel expression in the amended article of the constitution. But this omission is supplied in it, by the first article, and by others of a similar character, already referred to: and by vesting the powers delegated to the United States, in the respective appropriate departments of the government. The reason of the difference is plain. The constitution could not vest them in Congress alone — because there were portions of the delegated powers vested also in the other departments of the government: while the articles of confederation could, with propriety, vest them in Congress — as it was the sole representative of the confederacy. Nor could it vest them in the government of the United States; for that would imply that the powers were vested in the whole, as a unit — and not, as the fact is, in its separate departments. The constitution, therefore, in borrowing this provision from the articles of confederation, adopted the mode best calculated to express the same thing that was expressed in the latter, by the words — "in Congress assembled." That the articles of confederation, in delegating powers to the United States, did not intend to declare that the several States had parted with any portion of their sovereignty, is placed beyond doubt by the declaration contained in them, that — "each State retains its sovereignty, freedom, and independence;" and it may be fairly inferred, that the framers of the constitution, in borrowing this expression, did not design that it should bear a different interpretation.

If it be possible still to doubt that the several States retained their sovereignty and independence unimpaired, strong additional arguments might be drawn from various other portions of the instrument — especially from the third article, section third, which declares, that — "treason against the United States, shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort." It might be easily shown that — "the United States" — mean here — as they do everywhere in the constitution — the several States in their confederated character — that treason against them, is treason against their joint sovereignty — and, of course, as much treason against each State, as the act would be against any one of them, in its individual and separate character. But I forbear. Enough has already been said to place the question beyond controversy. Having now established that the constitution is federal throughout, in contradistinction to national; and that the several States still retain their sovereignty and independence unimpaired, one would suppose that the conclusion would follow, irresistibly, in the judgment of all, that the government is also federal. But such is not the case. There are those, who admit the constitution to be entirely federal, but insist that the government is partly federal, and partly national. They rest their opinion on the authority of the "Federalist." That celebrated work comes to this conclusion, after explicitly admitting that the constitution was ratified and adopted by the people of the several States, and not by them as individuals composing one entire nation — that the act establishing the constitution is, itself, a federal, and not a national act — that it resulted neither from the act of a majority of the people of the Union, nor from a majority of the States; but from the unanimous assent of the several States — differing no otherwise from their ordinary assent than as being given, not by their legislatures, but by the people themselves — that they are parties to it — that each State, in ratifying it, was considered as a sovereign body, independent of all others, and is bound only by its own voluntary act — that, in consequence, the constitution itself is federal and not national — that, if it had been formed by the people as one nation or community, the will of the majority of the whole people of the Union would have bound the minority — that the idea of a national government involves in it, not only authority over individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government — that among the people consolidated into one nation, this supremacy is completely vested in the government; that State governments, and all local authorities, are subordinate to it, and may be controlled, directed, or abolished by it at pleasure — and, finally, that the States are regarded, by the constitution, as distinct, independent, and sovereign.[2]

How strange, after all these admission, is the conclusion that the government is partly federal and partly national! It is the constitution which determines the character of the government. It is impossible to conceive how the constitution can be exclusively federal (as it is admitted, and has been clearly proved to be) and the government partly federal and partly national. It would be just as easy to conceive how a constitution can be exclusively monarchical, and the government partly monarchical, and partly aristocratic or popular; and vice versa. Monarchy is not more strongly distinguished from either, than a federal is from a national government. Indeed, these are even more adverse to each other; for the other forms may be blended in the constitution and the government; while, as has been shown, and as is indirectly admitted by the work referred to, the one of these so excludes the other, that it is impossible to blend them in the same constitution, and, of course, in the same government. I say, indirectly admitted, for it admits, that a federal government is one to which States are parties, in their distinct, independent, and sovereign character; and that — "the idea of a national government involves in it, not only an authority over individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government" — and, "that it is one, in which all local authorities are subordinate to the supreme, and may be controlled, directed, and abolished by it at pleasure." How, then, is it possible for institutions, admitted to be so utterly repugnant in their nature as to be directly destructive of each other, to be so blended as to form a government partly federal and partly national? What can be more contradictious? This, of itself, is sufficient to destroy the authority of the work on this point — as celebrated as it is — without showing, as might be done, that the admissions it makes throughout, are, in like manner, in direct contradiction to the conclusions, to which it comes.

But, strange as such a conclusion is, after such admissions, it is not more strange than the reasons assigned for it. The first, and leading one — that on which it mainly relies — is drawn from the source whence, as it alleges, the powers of the government are derived. It states, that the House of Representatives will derive its powers from the people of "America;" and adds, by way of confirmation, "The people will be represented in the same proportion, and on the same principle, as they are in the legislatures of each particular State" — and hence concludes that it would be national and not federal. Is the fact so? Does the House of Representatives really derive its powers from the people of America? — that is, from the people in the aggregate, as forming one nation; for such must be the meaning — to give the least force, or even plausibility, to the assertion. Is it not a fundamental principle, and universally admitted — admitted even by the authors themselves — that all the powers of the government are derived from the constitution — including those of the House of Representatives, as well as others? And does not this celebrated work admit — most explicitly, and in the fullest manner — that the constitution derives all its powers and authority from the people of the several States, acting, each for itself, in their independent and sovereign character as States? that they still retain the same character, and, as such, are parties to it? and that it is a federal, and not a national, constitution? How, then, can it assert, in the face of such admissions, that the House of Representatives derives its authority from the American people, in the aggregate, as forming one people or nation? To give color to the assertion, it affirms, that the people will be represented on the same principle, and in the same proportion, as they are in the legislature of each particular State. Are either of these propositions true? On the contrary, is it not universally known and admitted, that they are represented in the legislature of every State of the Union, as mere individuals — and, by election districts, entirely subordinate to the government of the State — while the members of the House of Representatives are elected — be the mode of election what it may — as delegates of the several States, in their distinct, independent, and sovereign character, as members of the Union — and not as delegates from the States, considered as mere election districts? It was on this ground, as has been stated, that President Washington vetoed the act to apportion the members, under the first census, among the several States; and his opinion has, ever since, been acquiesced in.

Neither is it true that the people of each State are represented in the House of Representatives in the same proportion as in their respective legislatures. On the contrary, they are represented in the former according to one uniform ratio proportion among the several States, fixed by the constitution itself;[3] while in each State legislature, the ratio, fixed by its separate State constitution, is different in different States — and in scarcely any are they represented in the same proportion in the legislature, as in the House of Representatives. The only point of uniformity in this respect is, that "the electors of the House of Representatives shall have the qualifications requisite for electors of the most numerous branch of the State legislatures;"[4] a rule which favors the federal, and not the national character of the government.

The authors of the work conclude, on the same affirmation — and by a similar course of reasoning — that the executive department of the government is partly national, and partly federal — federal, so far as the number of electors of each State, in the election of President, depends on its Senatorial representation — and so far as the final election (when no choice is made by the electoral college) depends on the House of Representatives — because they vote and count by the States — and national, so far as the number of its electors depends on its representation in the Lower House. As the argument in support of this proposition is the same as that relied on to prove that the House of Representatives is national, I shall pass it by with a single remark. It overlooks the fact that the electors, by an express provision of the constitution, are appointed by the several States;[5] and, of course, derive their powers from them. It would, therefore, seem, according to their course of reasoning, that the executive department, when the election is made by the colleges, ought to be regarded as federal — while, on the other hand, when it is made by the House of Representatives, in the event of a failure on the part of the electors to make a choice, it ought to be regarded as national, and not federal, as they contend. It would, indeed, seem to involve a strange confusion of ideas to make the same department partly federal and partly national, on such a process of reasoning. It indicates a deep and radical error somewhere in the conception of the able authors of the work, in reference to a question the most vital that can arise under our system of government.

The next reason assigned is, that the government will operate on individuals composing the several States, and not on the States themselves. This, however, is very little relied on. It admits that even a confederacy may operate on individuals without losing its character as such — and cites the articles of confederation in illustration; and it might have added, that mere treaties, in some instances, operate in the same way. It is readily conceded that one of the strongest characteristics of a confederacy is, that it usually operates on the states or communities which compose it, in their corporate capacity. When it operates on individuals, it departs, to that extent, from its appropriate sphere. But this is not the case with a federal government — as will be shown when I come to draw the line of distinction between it and a confederacy. The argument, then, might be appropriate to prove that the government is not a confederacy — but not that it is a national government.

It next relies on the amending power to prove that it is partly national and partly federal. It states that — "were it wholly national, the supreme and ultimate authority would reside in a majority of the people of the whole Union; and this authority would be competent, at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to any alteration, that would be binding on all." It is remarkable how often this celebrated work changes its ground, as to what constitutes a national, and what a federal government — and this, too, after defining them in the clearest and most precise manner. It tells us, in this instance, that were the government wholly national — the supreme and ultimate authority would reside in the people of the Union; and, of course, such a government must derive its authority from that source. It tells us, elsewhere, that a federal government is one, to which the States, in their distinct, independent and sovereign character, are parties — and, of course, such a government must derive its authority from them as its source. A government, then, to be partly one, and partly the other, ought, accordingly, to derive its authority partly from the one, and partly from the other; and no government could be so, which did not — and yet we are told, at one time, that the constitution is federal, because it derived its authority, neither from the majority of the people of the Union, nor a majority of the States — implying, of course, that a government, which derived its authority from a majority of the States, would be national; as well as that which derived it from a majority of the people — and, at another, that the election of the President by the House of Representatives would be a federal act — although the House, itself, is national, because it derived its authority from the American people. And now we are told, that the amending power is partly national, because three-fourths of the States, voting as States, without regard to population, can, instead of the whole, amend the constitution; although the vote of a majority of the House of Representatives, taken by States, made the election of the President, to that extent, federal. If we turn from this confusion of ideas, to its own clear conceptions of what makes a federal, and what a national government, nothing is more evident than that the amending power is not derived from, nor exercised under the authority of the people of the Union, regarded in the aggregate — but from the several States, in their original, distinct and sovereign character; and that it is but a modification of the original creating power, by which the constitution was ordained and established — and which required the consent of each State to make it a party to it — and not a negation or inhibition of that power — as has been shown. In support of these views, it endeavors to show, by reasons equally unsatisfactory and inconclusive, that the object of the convention which framed the constitution was, to establish, "a firm national government." To ascertain the powers and objects of the convention, reference ought to be made, one would suppose, to the commissions given to their respective delegates, by the several States, which were represented in it. If that had been done, it would have been found that no State gave the slightest authority to its delegates to form a national government, or made the least allusion to such government as one of its objects. The word, National, is not even used in any one of the commissions. On the contrary, they designate the objects to be, to revise the federal constitution, and to make it adequate to the exigencies of the Union. But, instead of to these, the authors of this work resort to the act of Congress referring the proposition for calling a convention, to the several States, in conformity with the recommendation of the Annapolis convention — which, of itself, could give no authority. And further — even in this reference, they obviously rely, rather on the preamble of the act, than on the resolution adopted by Congress, submitting the proposition to the State governments. The preamble and resolution are in the following words — "Whereas, there is a provision, in the articles of confederation and perpetual union, for making alterations therein, by the assent of a Congress of the United States and of the legislatures of the several States — and, whereas, experience has evinced that there are defects in the present confederation — as a mean to the remedy of which, several of the States, and particularly the State of New York, by express instruction to their delegates in Congress, have suggested a convention for the purpose expressed in the following resolution, and such convention appearing to be the most probable mean of establishing, in the States, a firm National Government,

Resolved, That, in the opinion of Congress, it is expedient that, on the second Monday of May next, a convention of delegates, who shall have been appointed by the several States, be held in Philadelphia, for the sole and express purpose of revising the articles of confederation; and reporting to Congress and the several legislatures, such alterations and provisions therein as shall render the federal constitution adequate to the exigencies of the government and the preservation of THE UNION."

Now, assuming that the mere opinion of Congress, and not the commissions of the delegates from the several States, ought to determine the object of the convention — is it not manifest, that it is clearly in favor, not of establishing a firm national government, but of simply revising the articles of confederation for the purposes specified? Can any expression be more explicit than the declaration contained in the resolution, that the convention shall be held, "for the sole and express purpose of revising the articles of confederation?" If to this it be added, that the commissions of the delegates of the several States, accord with the resolution, there can be no doubt that the real object of the convention was — (to use the language of the resolution) — "to render the federal constitution adequate to the exigencies of the government and the preservation of the Union;" and not to establish a national constitution and government in its place — and, that such was the impression of the convention itself, the fact (admitted by the work) that they did establish a federal, and not a national constitution, conclusively proves. How the distinguished and patriotic authors of this celebrated work fell — against their own clear and explicit admissions — into an error so radical and dangerous — one which has contributed, more than all others combined, to cast a mist over our system of government, and to confound and lead astray the minds of the community as to a true conception of its real character, cannot be accounted for, without adverting to their history and opinions as connected with the formation of the constitution. The two principal writers were prominent members of the convention; and leaders, in that body, of the party, which supported the plan for a national government. The other, although not a member, is known to have belonged to the same party. They all acquiesced in the decision, which overruled their favorite plan, and determined, patriotically, to give that adopted by the convention, a fair trial; without, however, surrendering their preference for their own scheme of a national government. It was in this state of mind, which could not fail to exercise a strong influence over their judgments, that they wrote the Federalist: and, on all questions connected with the character of the government, due allowance should be made for the force of the bias, under which their opinions were formed.

From all that has been stated, the inference follows, irresistibly, that the government is a federal, in contradistinction to a national government — a government formed by the States; ordained and established by the States, and for the States — without any participation or agency whatever, on the part of the people, regarded in the aggregate as forming a nation; that it is throughout, in whole, and in every part, simply and purely federal — "the federal government of these States" — as is accurately and concisely expressed by General Washington, the organ of the convention, in his letter laying it before the old Congress — words carefully selected, and with a full and accurate knowledge of their import. There is, indeed, no such community, politically speaking, as the people of the United States, regarded in the light of, and as constituting one people or nation. There never has been any such, in any stage of their existence; and, of course, they neither could, nor ever can exercise any agency — or have any participation, in the formation of our system of government, or its administration. In all its parts — including the federal as well as the separate State governments, it emanated from the same source — the people of the several States. The whole, taken together, form a federal community — a community composed of States united by a political compact — and not a nation composed of individuals united by, what is called, a social compact.

I shall next proceed to show that it is federal, in contradistinction to a confederacy.

It differs and agrees, but in opposite respects, with a national government, and a confederacy. It differs from the former, inasmuch as it has, for its basis, a confederacy, and not a nation; and agrees with it in being a government: while it agrees with the latter, to the extent of having a confederacy for its basis, and differs from it, inasmuch as the powers delegated to it are carried into execution by a government — and not by a mere congress of delegates, as is the case in a confederacy. To be more full and explicit — a federal government, though based on a confederacy, is, to the extent of the powers delegated, as much a government as a national government itself. It possesses, to this extent, all the authorities possessed by the latter, and as fully and perfectly. The case is different with a confederacy; for, although it is sometimes called a government — its Congress, or Council, or the body representing it, by whatever name it may be called, is much more nearly allied to an assembly of diplomatists, convened to deliberate and determine how a league or treaty between their several sovereigns, for certain defined purposes, shall be carried into execution; leaving to the parties themselves, to furnish their quota of means, and to cooperate in carrying out what may have been determined on. Such was the character of the Congress of our confederacy; and such, substantially, was that of similar bodies in all confederated communities, which preceded our present government. Our system is the first that ever substituted a government in lieu of such bodies. This, in fact, constitutes its peculiar characteristic. It is new, peculiar, and unprecedented.

In asserting that such is the difference between our present government and the confederacy, which it superseded, I am supported by the authority of the convention which framed the constitution. It is to be found in the second paragraph of their letter, already cited. After stating the great extent of powers, which it was deemed necessary to delegate to the United States — or as they expressed it — "the general government of the Union" — the paragraph concludes in the following words: "But the impropriety of delegating such extensive trusts to one body of men (the Congress of the confederacy) is evident; and hence results the necessity of a different organization." This "different organization," consisted in substituting a government in place of the Congress of the confederation; and was, in fact, the great and essential change made by the convention. All others were, relatively, of little importance — consisting rather in the modification of its language, and the mode of executing its powers, made necessary by it — than in the powers themselves. The restrictions and limitations imposed on the powers delegated, and on the several States, are much the same in both. The change, though the only essential one, was, of itself, important, viewed in relation to the structure of the system; but it was much more so, when considered in its consequences as necessarily implying and involving others of great magnitude; as I shall next proceed to show.

It involved, in the first place, an important change in the source whence it became necessary to derive the delegated powers, and the authority by which the instrument delegating them should be ratified. Those of the confederacy were derived from the governments of the several States. They delegated them, and ratified the instrument by which they were delegated, through their representatives in Congress assembled, and duly authorized for the purpose. It was, then, their work throughout; and their powers were fully competent to it. They possessed, as a confederate council, the power of making compacts and treaties, and of constituting the necessary agency to superintend their execution. The articles of confederation and union constituted, indeed, a solemn league or compact, entered into for the purposes specified; and Congress was but the joint agent or representative appointed to superintend its execution. But the governments of the several States could go no further, and were wholly deficient in the requisite power to form a constitution and government in their stead. That could only be done by the sovereign power; and that power, according to the fundamental principles of our system, resides, not in the government, but exclusively in the people — who, with us, mean the people of the several States — and hence, the powers delegated to the government had to be derived from them — and the constitution to be ratified, and ordained and established by them. How this was done has already been fully explained.

It involved, in the next place, an important change in the character of the system. It had previously been, in reality, a league between the governments of the several States; or to express it more fully and accurately, between the States, through the organs of their respective governments; but it became a union, in consequence of being ordained and established between the people of the several States, by themselves, and for themselves, in their character of sovereign and independent communities. It was this important change which (to use the language of the preamble of the constitution) "formed a more perfect union." It, in fact, perfected it. It could not be extended further, or be made more intimate. To have gone a step beyond, would have been to consolidate the States, and not the Union — and thereby to have destroyed the latter.

It involved another change, growing out of the division of the powers of government, between the United States and the separate States — requiring that those delegated to the former should be carefully enumerated and specified, in order to prevent collision between them and the powers reserved to the several States respectively. There was no necessity for such great caution under the confederacy, as its Congress could exercise little power, except through the States, and with their co-operation. Hence the care, circumspection and precision, with which the grants of powers are made in the one, and the comparatively loose, general, and more indefinite manner in which they are made in the other.

It involved another, intimately connected with the preceding, and of great importance. It entirely changed the relation which the separate governments of the States sustained to the body, which represented them in their confederated character, under the confederacy; for this was essentially different from that which they now sustain to the government of the United States, their present representative. The governments of the States sustained, to the former, the relation of superior to subordinate — of the creator to the creature; while they now sustain, to the latter, the relation of equals and co-ordinates. Both governments — that of the United States and those of the separate States, derive their powers from the same source, and were ordained and established by the same authority — the only difference being, that in ordaining and establishing the one, the people of several States acted with concert or mutual understanding — while, in ordaining and establishing the others, the people of each State acted separately, and without concert or mutual understanding — as has been fully explained. Deriving their respective powers, then, from the same source, and being ordained and established by the same authority — the two governments, State and Federal, must, of necessity, be equal in their respective spheres; and both being ordained and established by the people of the States, respectively — each for itself, and by its own separate authority — the constitution and government of the United States must, of necessity, be the constitution and government of each — as much so as its own separate and individual constitution and government; and, therefore, they must stand, in each State, in the relation of co-ordinate constitutions and governments. It is on this ground only, that the former is the constitution and government of all the States — not because it is the constitution and government of the whole, considered in the aggregate as constituting one nation, but because it is the constitution and government of each respectively: for to suppose that they are the constitution and government of each, because of the whole, would be to assume, what is not true, that they were ordained and established by the American people in the aggregate, as forming one nation. This would be to reduce the several States to subordinate and local divisions; and to convert their separate constitutions and governments into mere charters and subordinate corporations: when, in truth and fact, they are equals and co-ordinates.

It, finally, involved a great change in the manner of carrying into execution the delegated powers. As a government, it was necessary to clothe it with the attribute of deciding, in the first instance, on the extent of its powers — and of acting on individuals, directly, in carrying them into execution; instead of appealing to the agency of the governments of the States — as was the case with the Congress of the confederacy.

Such are the essential distinctions between a federal government and a confederacy — and such, in part, the important changes necessarily involved, in substituting a government, in the place of the Congress of the confederacy.

It now remains to be shown, that the government is a republic — a republic — or (if the expression be preferred) a constitutional democracy, in contradistinction to an absolute democracy.

It is not an uncommon impression, that the government of the United States is a government based simply on population; that numbers are its only element, and a numerical majority its only controlling power. In brief, that it is an absolute democracy. No opinion can be more erroneous. So far from being true, it is, in all the aspects in which it can be regarded, preeminently a government of the concurrent majority: with an organization, more complex and refined, indeed, but far better calculated to express the sense of the whole (in the only mode by which this can be fully and truly done — to wit, by ascertaining the sense of all its parts) than any government ever formed, ancient or modern. Instead of population, mere numbers, being the sole element, the numerical majority is, strictly speaking, excluded, even as one of its elements; as I shall proceed to establish, by an appeal to figures; beginning with the formation of the constitution, regarded as the fundamental law which ordained and established the government; and closing with the organization of the government itself, regarded as the agent or trustee to carry its powers into effect.

I shall pass by the Annapolis convention, on whose application, the convention which framed the constitution, was called; because it was a partial and informal meeting of delegates from a few States; and commence with the Congress of the confederation, by whom it was authoritatively called. That Congress derived its authority from the articles of confederation; and these, from the unanimous agreement of all the States — and not from the numerical majority, either of the several States, or of their population. It voted, as has been stated, by delegations; each counting one. A majority of each delegation, with a few important exceptions, decided the vote of its respective State. Each State, without regard to population, had thus an equal vote. The confederacy consisted of thirteen States; and, of course, it was in the power of any seven of the smallest, as well as the largest, to defeat the call of the convention; and, by consequence, the formation of the constitution.

By the first census, taken in 1790 — three years after the call — the population of the United States amounted to 3,394,563, estimated in federal numbers. Assuming this to have been the whole amount of its population at the time of the call (which can cause no material error) the population of the seven smallest States was 959,801; or less than one third of the whole: so that, less than one-third of the population could have defeated the call of the convention.

The convention voted, in like manner, by States; and it required the votes of a majority of the delegations present, to adopt the measure. There were twelve States represented — Rhode Island being absent — so that the votes of seven delegations were required; and, of course, less than one-third of the population of the whole, could have defeated the formation of the constitution.

The plan, when adopted by the convention, had again to be submitted to Congress — and to receive its sanction, before it could be submitted to the several States for their approval — a necessary preliminary to its final reference to the conventions of the people of the several States for their ratification. It had thus, of course, to pass again the ordeal of Congress; when the delegations of seven of the smallest States, representing less than one-third of the population, could again have defeated, by refusing to submit it for their consideration. And, stronger still — when submitted, it required, by an express provision, the concurrence of nine of the thirteen, to establish it, between the States ratifying it; which put it in the power of any four States, the smallest as well as the largest, to reject it. The four smallest, to wit: Delaware, Rhode Island, Georgia, and New Hampshire, contained, by the census of 1790, a federal population of only 336,948 — but a little more than one-eleventh of the whole: but, as inconsiderable as was their population, they could have defeated it, by preventing its ratification. It thus appears, that the numerical majority of the population, had no agency whatever in the process of forming and adopting the constitution; and that neither this, nor a majority of the States, constituted an element in its ratification and adoption.

In the provision for its amendment, it prescribes, as has been stated, two modes — one, by two-thirds of both houses of Congress; and the other, by a convention of delegates from the States, called by Congress, on the application of two-thirds of their respective legislatures. But, in neither case can the proposed amendment become a part of the constitution, unless ratified by the legislatures of three-fourths of the States, or by conventions of the people of three-fourths — as Congress may prescribe; so that, in the one, it requires the consent of two-thirds of the States to propose amendments — and, in both cases, of three-fourths to adopt and ratify them, before they can become a part of the constitution. As there are, at present, thirty States in the Union, it will take twenty to propose, and, of course, would require but eleven to defeat, a proposition to amend the constitution; or, nineteen votes in the Senate — if it should originate in Congress — and the votes of eleven legislatures, if it should be to call a convention. By the census of 1840, the federal population of all the States — including the three, which were then territories, but which have since become States — was 16,077,604. To this add Texas, since admitted, say 110,000 — making the aggregate, 16,187,604. Of this amount, the eleven smallest States (Vermont being the largest of the number) contained a federal population of but 1,638,521: and yet they can prevent the other nineteen States, with a federal population of 14,549,082, from even proposing amendments to the constitution: while the twenty smallest (of which Maine is the largest) with a federal population of 3,526,811, can compel Congress to call a convention to propose amendments, against the united votes of the other ten, with a federal population of 12,660,793. Thus, while less than one-eighth of the population, may, in the one case, prevent the adoption of a proposition to amend the constitution — less than one-fourth can, in the other, adopt it.

But, striking as are these results, the process, when examined with reference to the ratification of proposals to amend, will present others still more so. Here the consent of three-fourths of the States is required; which, with the present number, would make the concurrence of twenty-three States necessary to give effect to the act of ratification; and, of course, puts it in the power of any eight States to defeat a proposal to amend. The federal population of the eight smallest is but 776,969; and yet, small as this is, they can prevent amendments, against the united votes of the other twenty-two, with a federal population of 15,410,635; or nearly twenty times their number. But while so small a portion of the entire population can prevent an amendment, twenty-three of the smallest States — with a federal population of only 7,254,400 — can amend the constitution, against the united votes of the other seven, with a federal population of 8,933,204. So that a numerical minority of the population can amend the constitution, against a decided numerical majority; when, at the same time, one-nineteenth of the population can prevent the other eighteen-nineteenths from amending it. And more than this: any one State — Delaware, for instance, with a federal population of only 77,043 — can prevent the other twenty-nine States, with a federal population of 16,110,561, from so amending the constitution as to deprive the States of an equality of representation in the Senate. To complete the picture: Sixteen of the smallest States — that is, a majority of them, with a population of only 3,411,672 — a little more than one-fifth of the whole — can, in effect, destroy the government and dissolve the Union, by simply declining to appoint Senators; against the united voice of the other fourteen States, with a population of 12,775,932 — being but little less than four-fifths of the whole.

These results, resting on calculations, which exclude doubt, incontestably prove — not only that the authority which formed, ratified, and even amended the constitution, regulates entirely the numerical majority, as one of its elements — but furnish additional and conclusive proof, if additional were needed, that ours is a federal government — a government made by the several States; and that States, and not individuals, are its constituents. The States, throughout, in forming, ratifying and amending the constitution, act as equals, without reference to population.

Regarding the Government, apart from the Constitution, and simply as the trustee or agent to carry its powers into execution, the case is somewhat different. It is composed of two elements: One, the States, regarded in their corporate character — and the other, their representative population — estimated in, what is called, "federal numbers" — which is ascertained, "by adding to the whole number of free persons, including those bound to service for a term of years — and excluding Indians not taxed — three-fifths of all others."[6] These elements, in different proportions, enter into, and constitute all the departments of the government; as will be made apparent by a brief sketch of its organization.

The government is divided into three separate departments, the legislative, the executive, and the judicial. The legislative consists of two bodies — the Senate, and the House of Representatives. The two are called the Congress of the United States: and all the legislative powers delegated to the government, are vested in it. The Senate is composed of two members from each State, elected by the legislature thereof, for the term of six years; and the whole number is divided into three classes; of which one goes out at the expiration of every two years. It is the representative of the States, in their corporate character. The members vote per capita, and a majority decides all questions of a legislative character. It has equal power with the House, on all such questions — except that it cannot originate "bills for raising revenue." In addition to its legislative powers, it participates in the powers of the other two departments. Its advice and consent are necessary to make treaties and appointments; and it constitutes the high tribunal, before which impeachments are tried. In advising and consenting to treaties, and in trials of impeachments, two-thirds are necessary to decide. In case the electoral college fails to choose a Vice-President, the power devolves on the Senate to make the selection from the two candidates having the highest number of votes. In selecting, the members vote by States, and a majority of the States decide. In such cases, two-thirds of the whole number of Senators are necessary to form a quorum.

The House of Representatives is composed of members elected by the people of the several States, for the term of two years. The right of voting for them, in each State, is confined to those who are qualified to vote for the members of the most numerous branch of its own legislature. The number of members is fixed by law, under each census — which is taken every ten years. They are apportioned among the several States, according to their population, estimated in federal numbers; but each State is entitled to have one. The House, in addition to its legislative powers, has the sole power of impeachment; as well as of choosing the President (in case of a failure to elect by the electoral college) from the three candidates, having the greatest number of votes. The members, in such case, vote by States — the vote of each delegation, if not equally divided, counts one, and a majority decides. In all other cases they vote per capita, and the majority decides; except only on a proposition to amend the constitution.

The executive powers are vested in the President of United States. He and the Vice-President, are chosen for the term of four years, by electors, appointed in such manner as the several States may direct. Each State is entitled to a number, equal to the whole number of its Senators and Representatives for the time. The electors vote per capita, in their respective States, on the same day throughout the Union; and a majority of the votes of all the electors is requisite to a choice. In case of a failure to elect, either in reference to the President or Vice-President, the House or the Senate, as the case may be, make the choice, in the manner before stated. If the House fail to choose before the fourth day of March next ensuing — or in case of the removal from office, death, resignation, or inability of the President — the Vice-President acts as President. In addition to the ordinary executive powers, the President has the authority to make treaties and appointments, by, and with the advice and consent of the Senate; and to approve or disapprove all bills before they become laws; as well as all orders, resolutions or votes, to which the concurrence of both houses of Congress is necessary — except on questions of adjournment — before they can take effect. In case of his disapproval, the votes of two-thirds of both houses are necessary to pass them. He is allowed ten days (Sundays not counted) to approve or disapprove; and if he fail to act within that period, the bill, order, resolution or vote (as the case may be) becomes as valid, to all intents and purposes, as if he had signed it; unless Congress, by its adjournment, prevent its return.

The judicial power is vested in one Supreme Court, and such inferior courts, as Congress may establish. The Judges of both are appointed by the President in the manner above stated; and hold their office during good behavior.

The President, Vice-President, Judges, and all the civil officers, are liable to be impeached for treason, bribery, and other high crimes and misdemeanors.

From this brief sketch, it is apparent that the States, regarded in their corporate character, and the population of the States, estimated in federal numbers, are the two elements, of which the government is exclusively composed; and that they enter, in different proportions, into the formation of all its departments. In the legislative they enter in equal proportions, and in their most distinct and simple form. Each, in that department, has its appropriate organ; and each acts by its respective majorities — as far as legislation is concerned. No bill, resolution, order, or vote, partaking of the nature of a law, can be adopted without their concurring assent: so that each house has a veto on the other, in all matters of legislation. In the executive they are differently blended. The powers of this department are vested in a single functionary; which made it impossible to give to them separate organs, and concurrent action. In lieu of this, the two elements are blended in the constitution of the college of electors, which chooses the President: but as this gave a decided preponderance to the element of population — because of the greater number of which it was composed — in order to combat and to compensate this advantage — and to preserve, as far as possible, the equipoise between the two, the power was vested in the House, voting by States, to choose him from the three candidates, having the largest number of votes, in case of a failure of choice by the college; and in case of a failure to select by the House, or of removal, death, resignation, or inability, the Vice-President was authorized to act as President. These provisions gave a preponderance, even more decided, to the other element, in the eventual choice. This was still more striking as the constitution stood at its adoption. It originally provided that each elector should vote for two candidates, without designating which should be the President, or which the Vice-President; the person having the highest number of votes to be the President, if it should be a majority of the whole number given. If there should be more than one having such majority — and an equal number of votes — the House, voting by States, should choose between them, which should be President — but if none should have a majority, the House, voting in the same way, should choose the President from the five having the greatest number of votes; the person having the greatest number of votes, after the choice of the President, to be the Vice-President. But in case of two or more having an equal number, the Senate should elect from among them the Vice-President.

Had these provisions been left unaltered, and not superseded, in practice, by caucuses and party conventions, their effect would have been to give to the majority of the people of the several States, the right of nominating five candidates; and to the majority of the States, acting in their corporate character, the right of choosing from them, which should be President, and which Vice-President. The President and Vice-President would, virtually, have been elected by the concurrent majority of the several States, and of their population, estimated in federal numbers; and, in this important respect, the executive would have been assimilated to the legislative department. But the Senate, in addition to its legislative, is vested also with supervisory powers in respect to treaties and appointments, which give it a participation in executive powers, to that extent; and a corresponding weight in the exercise of two of its most important functions. The treaty-making power is, in reality, a branch of the law-making power; and we accordingly find that treaties as well as the constitution itself, and the acts of Congress, are declared to be the supreme law of the land. This important branch of the law-making power includes all questions between the United States and foreign nations, which may become the subjects of negotiation and treaty; while the appointing power is intimately connected with the performance of all its functions.

In the Judiciary the two elements are blended, in proportions different from either of the others. The President, in the election of whom they are both united, nominates the judges; and the Senate, which consists exclusively of one of the elements, confirms or rejects: so that they are, to a certain extent, concurrent in this department; though the States, considered in their corporate capacity, may be said to be its predominant element.

In the impeaching power, by which it was intended to make the executive and judiciary responsible, the two elements exist and act separately, as in the legislative department — the one, constituting the impeaching power, resides in the House of Representatives; and the other, the power that tries and pronounces judgment, in the Senate: and thus, although existing separately in their respective bodies, their joint and concurrent action is necessary to give effect to the power.

It thus appears, on a view of the whole, that it was the object of the framers of the constitution, in organizing the government, to give to the two elements, of which it is composed, separate, but concurrent action; and, consequently, a veto on each other, whenever the organization of the department, or the nature of the power would admit: and when