Harper's Encyclopedia of United States History
Benson Lossing, Ed.

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. 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 a 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 [24] 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 thing, 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 [25] 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 [26] 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 [27] 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 had 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 [28] 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 for 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 [29] 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 comformity 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 defence 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 sover eign 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 [30] 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 twofold 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 [31] 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 compatibility 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 [32] revolutionary government. Nor is there anything 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 everywhere 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 twothirds 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 [33] 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 plenitude, 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.