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In discussing the question as to the mode of ratification by “the States,” Mr. Mason said “he considered a reference of the plan to the authority of the people as one of the most important and essential of the resolutions. The legislatures have no power to ratify it............. Another strong reason (said he) was that admitting the legislatures to have a competent authority it would be wrong to refer the plan to them, because succeeding legislatures, having equal authority, could undo the acts of their predecessors.” This argument was repeatedly urged by other members; and it was insisted that if the Constitution should be ratified by the legislatures of the States, instead of by the people of the States, it would rest upon a weak and tottering foundation, since the legislatures which had established might claim the power to repeal.
In like manner Mr. Madison said, “For these reasons, as well as for others, he thought it indispensable that the new Constitution should be ratified in the unexceptionable form, and by the supreme authority of the people themselves”f—that is, as the context shows, by the supreme authority of the people of the several States in opposition to their “legislative sanction only.” Not one word was ever said during the whole of the debate about referring the Constitution to the people of the whole country in the aggregate for ratification. This idea had not then risen above the horizon of the political world, though it afterwards became the great political sun of the Northern section of the Union.
Those who advocated the mode of ratification by the people, or by the Conventions of the States elected for that purpose, prevailed over those who urged the ratification by the legislatures. The majority favored the mode of ratification by the people or the Conventions. Accordingly, when the committee of detail reported a draft of
the Constitution, we find these words—“Article XXI. The ratifications of the Conventions of States shall be sufficient for the organization of this Constitution.” Thus it came to be perfectly understood that it should be ratified by the Conventions or the peoples of the several States, and not by their legislatures. But here the question arose, if the blank for the number of States should be filled with “seven,” “eight,” or “nine.” The Constitution, as it stood, might, in the opinion of Mr. Madison, be put in force over “the whole body of the people, though less than a majority of them should ratify it.” But, in the opinion of Mr. Wilson, “As the Constitution stands, the States only which ratify can be bound.”f In order to remove this difficulty, and settle the question, Mr. King moved to add, at the end of Article XXI, the words “between the said States, so as to confine the operation of the government to the States ratifying the same.”f Thus it was Rufus King, at first one of the most strenuous advocates in the Convention of 1787 for a strong national government, who introduced the words by which the Constitution was made binding “between the States so ratifying the same.” These words proved acceptable to Madison and Wilson, though both were among the most zealous advocates of a strong general government in the Convention of 1787, and they became a part of the new Constitution. Thus it was universally understood by the Convention, and so expressed, that the new Constitution was to be established “by the ratification of the Conventions of States,” and to be binding only “between the States so ratifying the same.” During all this time the name of each State still retained its place in the preamble to the Constitution, in which the committee of detail made no change; and if the party, with Gerry and Hamilton at their head, who wished to fill
* Madison Papers, p. 1241. Ibid, p. 1469. I Ibid, p. 1470.
the blank with the whole thirteen States, had prevailed, we have no reason to believe that any alteration would in this respect have been made in the preamble to the Constitution. But when, after debate, the blank was filled with “nine,” it became impossible to specify the States between whom the new Constitution might be established or the new government organized. Hence it became proper, if not necessary, to drop the specifiation of the States by name—a change which, as we have seen, was first introduced by the committee on style, and read to the Convention without raising the slightest objection or murmur.
We are now prepared to see, as in the clear light of noon-day, why the words, “We, the people of the United States,” which have since made so much noise in the political world, did not make any whatever in the Convention of 1787. Why should George Mason, or any other adherent of State sovereignty, object to the words introduced by the committee on style? They merely expressed the very thing for which he had contended, and which had been fully expressed in the seventh Article of the new Constitution. For when it was determined that the Constitution should be ratified by “the Conventions of the States,” and not by the legislatures, this was exactly equivalent, in the uniform language of the Convention of 1787, to saying that it shall be ratified by “the people of the States.” Hence, the most a dent friend of State rights, or State sovereignty, saw no reason why he should object to the words, “We, the people of the United States,” because he knew they were only intended to express the mode of ratification by the States for which he had contended—that is, by the States in their sovereign capacity, as so many politicial societies or peoples, as distinguished from their legislatures.
The Constitution of 1787 a Compact between the States. The views of Hamilton, Madison, Morris, and other Framers of the Constitution.
THIs subject has already been anticipated, but by no means exhausted. Considering the unparalleled boldness of Northern assertion, it is necessary to lay bare a few more of its hidden mysteries. “Indeed,” says Mr. Webster, “if we look into all contemporary history; to the numbers of The Federalist; to the debates in the Convention; to the publication of friends and foes, they all agree, . that a change had been made from a confederacy of States to a different system; they all agree, that the Convention had formed a Constitution for a national government. With this result some were satisfied, and some were dissatisfied; but all admitted that the thing had been done. In none of the various productions and publications, did any one intimate that the new Constitution was but another compact between States in their sovereign capacity. I do not find such an opinion advanced in a single instance.”
Now this is certainly as bold and sweeping an assertion as could well be made in human language. It is certainly as full, round, and complete an untruth as was ever uttered. It will, upon examination, be found that, to use the mildest possible terms, it is fitly characterized by the two words–high-sounding and hollow. It would, perhaps, be difficult for any man, except Mr. Webster and his successor in the Senate of the United States, to produce a
* Speech in Senate, Feb. 16, 1838.
bold and sweeping an assertion, which, like the above, is at every point diametrically opposed to the truth. I shall proceed to prove, and to establish beyond the shadow of a doubt, this heavy accusation against “the great expounder,” by extracts from the records and publications to which he so solemnly, and yet so unscrupulously, appeals. I shall begin with the Convention that formed the Constitution itself. It will not be necessary to reproduce the language of Gouverneur Morris, one of the most celebrated men of that Convention, and one of the warmest advocates of a strong national government. We have already seen,” that he pronounced the Constitution “a compact - - - - - - - - - - - between the United States, each enjoying sovereign power.” Indeed, in the Convention of 1787, he expressly declared, that the object was to form a “compact with other States;” and he afterwards declared, that “the thing had been done.” Again, James Madison himself, “the father of the Constitution,” and the most laborious member of the Convention of 1787, called it, as we have seen, “a pact” between the States in that Convention;f and from that day to the end of his life, Mr. Madison continued to pronounce the new Constitution “a compact to which the States are the parties.” In the Virginia ratifying Convention of 1788, in “the numbers of the Federalist,” in the Virginia Resolutions of '98 and '99, in the Virginia Report of 1800, in his celebrated letter to Mr. Everett of 1830; in one and all of these well-known public documents, as well as in others from his pen, this illustrious architect of the Constitution most emphatically pronounced it “a compact to which the States are the parties.” In the Virginia Resolutions, a political formula which the American people, of all parties and all sections, had sworn by for more than thirty years, Mr. Madison wrote for the legislature of his State: “This Assembly doth explicitly and peremptorily declare, that