CHAPTER XVI.
Report of the Committee of Detail, concluded.—Guaranty of Republican Government and Internal Tranquillity.—Oath to support the Constitution.—Mode of Amendment.—Ratification and Establishment of the Constitution.—Signing by the Members of the Convention.
The power and duty of the United States to guarantee a republican form of government to each State, and to protect each State against invasion and domestic violence, had been declared by a resolution, the general purpose of which has been already described. It should be said here, however, that the objects of such a provision were two; first, to prevent the establishment in any State of any form of government not essentially republican in its character, whether by the action of a minority or of a majority of the inhabitants; second, to protect the State against invasion from without, and against every form of domestic violence.[374] When the committee of detail came to give effect to the resolution, they prepared an article, which made it the duty of the United States to guarantee to each State a republican form of government, and to protect each State against invasion, without any application from its authorities; and to protect the State against domestic violence, on the application of its legislature.[375] No change was made by the Convention in the substance of this article, excepting to provide that the application, in a case of domestic violence, may be made by the executive of the State, when the legislature cannot be convened.[376]
It now remains for me to state what appears to have been the meaning of the framers of the Constitution, embraced in these provisions. It is apparent, then, from all the proceedings and discussions on this subject, that, by guaranteeing a republican form of government, it was not intended to maintain the existing constitutions of the States against all changes. This would have been to exercise a control over the sovereignty of the people of a State, inconsistent with the nature and purposes of the Union. The people must be left entirely free to change their fundamental law, at their own pleasure, subject only to the condition, that they continue the republican form of government. The question arises then, What is that form? Does it imply the existence of some organic law, establishing the departments of a government, and prescribing their powers, or does it admit of a form of the body politic under which the public will may be declared from time to time, either with or without the agency of any established organs or representatives? Is it competent to a State to abolish altogether that body of its fundamental law which we call its Constitution, and to proceed as a mere democracy, enacting, expounding, and executing laws by the direct action of the people, and without the intervention of any representative system constituting what is known as a government?
The Constitution of the United States assumes, in so many of its provisions, that the States will possess organized governments, in which legislative, executive, and judicial departments will be known and established, that it must be taken for granted that the existence of such agents of the public will is a necessary feature of a State government, within the meaning of this clause. No State could participate in the government of the Union, without at least two of these agents, namely, a legislature and an executive; for the people of a State, acting in their primary capacity, could not appoint a Senator of the United States; nor fill a vacancy in the office of Senator; nor appoint Electors of the President of the United States, without the previous designation by a legislature of the mode in which such Electors were to be chosen; nor apply to the government of the United States to protect them against "domestic violence," through any other agent than the legislature or the executive of the State. It is manifest, therefore, that each State must have a government, containing at least these distinct departments; and whether this government is organized periodically, under mere laws perpetually re-enacted, and subject to perpetual changes without reference to forms, or under standing and fundamental laws, changeable only in a prescribed form, and being so far what is called a constitution, it is apparent that there must be a "form of government" possessed of these distinct agencies.
There must be, moreover, not only this "form of government," but it must be a "republican" form; and in order to determine the sense in which this term qualifies the nature of the government in other respects besides those already referred to, it is necessary to take into view the previous history of American political institutions, because that history shows what is meant, in the American sense, by a "republican" government.
History, then, establishes the fact, that, in the American system of government, the people are regarded as the sole original source of all political authority; that all legitimate government must rest upon their will. But it also teaches that the will of the people is to be exercised through representative forms. For even in the exercise of original suffrage, which has never been universal in any of the States of the Union, and in the bestowal of power upon particular organs, those who are regarded as competent to express the will of society are, in that expression, deemed to represent all its members; and those who, in the distribution of political functions, exercise the sovereignty of the people, so far as it has been thus imparted to them, exercise a representative function, to which they are appointed, directly or indirectly, by popular suffrage, that may be more or less restricted, according to the public will. It may be said, therefore, with strictness, that in the American system a republican government is one based on the right of the people to govern themselves, but requiring that right to be exercised through public organs of a representative character; and these organs constitute the government. How much or how little power shall be imparted to this government, what restrictions shall be imposed upon it, and what the precise functions of its several departments shall be, with respect to the internal concerns of the State, the Constitution of the United States leaves untouched, except in a few particulars. It merely declares that a government having the essential characteristics of an American republican system shall be guaranteed by the United States; that is to say, that no other shall be permitted to be established.
The provision by which the State is protected against domestic violence was necessary to complete the republican character of the system intended to be upheld. The Constitution of the United States assumes that the governments of the States, existing when it goes into operation, are rightfully in the exercise of the authority of the State, and will so continue until they are changed. But it means that no change shall be made by force, by public commotion, or by setting aside the authority of the existing government. It recognizes the right of that government to be protected against domestic violence; in which expression is to be included every species of force directed against that government, excepting the will of the people operating to change it through the forms of constitutional action.
The next topic on which the Convention was required to act was the question whether the Constitution should be made capable of amendment, and in what mode amendments were to be proposed and adopted. The Confederation, from its nature as a league between States otherwise independent of each other, was made incapable of alteration excepting by the unanimous consent of the States. It affords a striking illustration of the different character of the government established by the Constitution, that a mode was devised by which changes in the organic law could become obligatory upon all the States, by the action of a less number than the whole.
The frame of government which the members of the Convention were endeavoring to establish, if once adopted, was to endure, as a continuing power, indefinitely; and that it might, as far as possible, be placed beyond the danger of destruction, it was necessary to make it subject to such peaceful changes as experience might render proper, and which, by being made capable of introduction by the organic law itself, would preserve the identity of the government. The existence and operation of a prescribed method of changing particular features of a government mark the line between amendment and revolution, and render a resort to the latter, for the purpose of melioration or reform, save in extreme cases of oppression, unnecessary. According to our American theory of government, revolution and amendment both rest upon the doctrine, that the people are the source of all political power, and each of them is the exercise of an ultimate right. But this right is exercised, in the process of amendment, in a prescribed form, which preserves the continuity of the existing government, and changes only such of its fundamental rules as require revision, without the destruction of any public or private rights that may have become vested under the former rule. Revolution, on the contrary, proceeds without form, is the violent disruption of the obligations resting on the authority of the former government, and terminates its existence often, without saving any of the rights which may have grown up under it. The question, therefore, whether the Constitution should be made capable of amendment, was identical with the question whether some mode of amending it should be prescribed in the instrument itself, since, without an ascertained and limited method of proceeding, all change becomes, in effect, revolution; and this was accordingly, in substance, the same as the question whether revolution should be the only method by which the American people could ever modify their system of government, when in the progress of time changes might become indispensable.
It was originally proposed in the Convention, that provision should be made for amending the Constitution, without requiring the assent of the national legislature.[377] But this was justly regarded as a very important question, and the Convention came to no other decision, when the committee of detail were instructed, than to declare that provision ought to be made for amending the Constitution whenever it should seem necessary.[378] The mode selected by the committee, and embraced in the first draft of the instrument, was to have a convention called by the Congress, when applied for by the legislatures of two thirds of the States; but they did not declare whether the legislatures were to propose amendments and the convention was to adopt them, or whether the convention was both to propose and adopt them, or only to propose them for adoption by some other body or bodies not specified. There lay, therefore, at the basis of this whole subject, the very grave question whether there should ever be another national convention, to act in any manner upon or in reference to the national Constitution, after its adoption, and if so, what its functions and authority were to be. There would follow, also, the further question, whether this should be the sole method in which the Constitution should be made capable of amendment. Several reasons concurred to render it highly inexpedient to make a resort to a convention the sole method of reaching amendments, and we can now see that the decision that was made on this subject was a wise one. It was a rare combination of circumstances that gave to the first national Convention its success. The war of the Revolution, and the exigencies which it caused, had produced a class of men, possessing an influence, as well as qualifications for the duty assigned to them, that would not be likely to be again witnessed. Of these men, Washington was the head; and no second Washington could be looked for. The peculiar crisis, too, occasioned by the total failure of the Confederation, notwithstanding the apparent fitness and actual necessity of that government at the time of its formation, could never occur again. There were, moreover, but thirteen States in the confederacy, nearly all of which dated their settlement and their existence as political communities from about the same period, and all had passed through the same revolutionary history. But the number of the States was evidently destined to be greatly increased, and the new members of the Union would also be likely to be very different in character from the old States. It was not probable, therefore, that the time would ever arrive when the people of the United States would feel that another national convention, for the purpose of acting on the national Constitution, would be safe or practicable. Still, it would not have been proper to have excluded the possibility of a resort to this method of amendment; since the national legislature might itself be interested to perpetuate abuses springing from defects in the Constitution, and to incur the hazards attending a convention might become a far less evil than the continuance of such abuses, or the failure to make the necessary reforms.
But it was indispensable that the precise functions and authority of such a convention should be defined, lest its action might result in revolution. The method of amendment proposed by the committee of detail did not enable the Congress to call a convention on their own motion, and did not prescribe the action of such a body, or provide any mode in which the amendments proposed by it should be adopted. Hamilton and Madison both opposed this plan;—the former, because it was inadequate, and because he considered it desirable that a much easier method should be devised for remedying the defects that would become apparent in the new system; the latter, on account of the vagueness of the plan itself. Accordingly, Mr. Madison brought forward, as a substitute, a method of proceeding, which, with some modifications, became what is now the fifth article of the Constitution; namely, that the Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments; or, on the application of the legislatures of two thirds of the States, shall call a convention for proposing amendments. In either case, the amendments proposed are to become valid as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths of the States, as the one or the other mode of ratification may be proposed by the Congress.[379]
But when this provision had been agreed upon, the grave question arose, whether the power of amendment was to be subjected to any limitations. There were two objects, in respect to which, as we have more than once had occasion to see, different classes of the States felt great jealousy. One of them had been covered by the stipulations that the States should not be prohibited before the year 1808 from admitting further importations of slaves, and that no capitation or other direct tax should be laid unless in proportion to the census or enumeration of the inhabitants of the States, in which three fifths only of the slaves were included.[380] The other was the equality of representation in the Senate, so long and at length so successfully contended for by the smaller States.[381] At the instance of Mr. Rutledge of South Carolina, a proviso was added, which forbade any amendment before the year 1808 affecting in any manner the clauses relating to the slave-trade and the capitation or other direct taxes.[382] This proviso having now become inoperative, those clauses are, like others, subject to amendment. At the instance of Mr. Sherman of Connecticut, a restriction that is of perpetual force was placed upon the power of amendment, which prevents each State from being deprived of its equality of representation in the Senate, without its consent.[383]
The oath or affirmation to support the Constitution was provided for by the committee of detail, in accordance with the resolution directing that it should be taken by the members of both houses of Congress and of the State legislatures, and by all executive and judicial officers of the United States and of the several States; and for the purpose of for ever preventing any connection between church and state, and any scrutiny into men's religious opinions, the Convention unanimously added the clause, that "no religious test shall ever be required as a qualification to any office or public trust under the United States."[384]
We are next to ascertain in what mode the Constitution, which had thus been framed, was to provide for its own establishment and authority. There is a great difference between the importance of this question, as it presented itself to the framers of the Constitution, and its importance to this or any succeeding generation. To us it is chiefly interesting because it displays the basis of a government which has been established for seventy years over the thirteen original States of the confederacy, and is now acknowledged by more than twice the number of those original States. To those who made the Constitution, and to the people who were to vote upon it and to put it into operation, the mode in which it was to become the organic law of the Union was a topic of serious import and delicacy. It involved the questions, of what course would be politic with reference to the people; of what would be practicable; of the initiation of the new government without force; of its establishment on a firm, just, and legitimate authority; and of its right to supersede the Confederation, without a breach of faith toward the members of that body by whose inhabitants the new system might be rejected.
The Convention had already decided that the Constitution must be ratified by the people of the States; but a difficulty had all along existed, in the opinions held by some of the members respecting the compact then subsisting between the States, which they regarded as indissoluble but by the consent of all the parties to it. The resolution, which the committee of detail were instructed to carry out, had declared that the new plan of government should first be submitted to the approbation of the existing Congress, and then to assemblies of representatives to be recommended by the State legislatures and to be expressly chosen by the people to consider and decide upon it. But this direction embraced no decision of the question, whether the ratification by the people of a less number than all the States should be sufficient for putting the government into operation. If the people of a smaller number than the whole of the States could establish this form of government, what was to be its future relation to the States which might reject or refuse to consider it? Could any number of the States thus withdraw themselves from the Confederation, and establish for themselves a new general government, and could that government have any authority over the rest? Various and widely opposite theories were maintained. One opinion was, that all the States must accept the Constitution, or it would be a nullity;—another, that a majority of the States might establish it, and so bind the minority, upon the principle that the Union was a society subject to the control of the greater part of its members;—still another, that the States which might ratify it would bind themselves, but no one else.
The truth with regard to these questions, which perplexed the minds of men in that assembly somewhat in proportion to their acuteness and their proneness to metaphysical speculations, was in reality not very far off. The Articles of Confederation had certainly declared that no alteration should be made in any of them, unless first proposed by the Congress, and afterwards unanimously agreed to by the State legislatures. But in two very important particulars the Convention had already passed beyond what could be deemed an alteration of those Articles. They had prepared and were about to propose a system of government that would not merely alter, but would abolish and supersede, the Confederation; and they had determined to obtain, what they regarded as a legitimate authority for this purpose, the consent of the people of the States, by whose will the State governments existed, from whom those governments derived their authority to enter into the compact of the Confederation, and whose sovereign right to ameliorate their own political condition could not be disputed. This system they intended should be offered to all. The refusal of some States to accept it could not, upon principles of natural justice and right, oblige the others to remain fettered to a government which had been pronounced by twelve of the thirteen legislatures to be defective and inadequate to the exigencies of the Union. At the same time, the independent political existence of the people of each State made it impossible to treat them as a minority subject to the power of such majority as would be formed by the States that might adopt the Constitution. If the people of a State should ratify it, they would be bound by it. If they should refuse to ratify it, they would simply remain out of the new Union that would be formed by the rest. It was therefore determined that the Constitution should undertake to be in force only in those States by whose inhabitants it might be adopted.[385]
Then came the question, in what mode the assent of the people of the States was to be given. The constitution of one of the States[386] provided that it should be altered only in a prescribed mode; and it was said that the adoption of the Constitution now proposed would involve extensive changes in the constitution of every State. This was equally true of the constitutions of those States which had provided no mode for making such changes, and in which the State officers were all bound by oath to support the existing constitution. These difficulties, however, were by no means insurmountable. It was universally acknowledged that the people of a State were the fountain of all political power, and if, in the method of appealing to them, the consent of the State government that such appeal should be made were involved, there could be no question that the proceeding would be in accordance with what had always been regarded as a cardinal principle of American liberty. For, since the birth of that liberty, it had been always assumed that, when it has become necessary to ascertain the will of the people on a new exigency, it is for the existing legislative power to provide for it by an ordinary act of legislation.[387]
Whatever changes, therefore, in the State constitutions might become necessary in consequence of the adoption of the national Constitution, it would be a just presumption that the will of the people, duly ascertained by their legislature, had decided, by that adoption, that such changes should be made; and the formal act of making them could follow at any time when arrangements might be made for it. But if no mode of ratification of the national Constitution were to be prescribed, and it were left to each State to act upon it in any manner that it might prefer, there would be no uniformity in the mode of creating the new government in the different States; and if the Convention and the Congress were to refer its adoption to the State legislatures, it would not rest on the direct authority of the people. For these reasons, the Convention adhered to the plan of having the Constitution submitted directly to assemblies of representatives of the people in each State, chosen for the express purpose of deciding on its adoption.[388]
There was still another question, of great practical importance, to be determined. Was the Constitution to go into operation at all, unless adopted by all the States, and if so, what number should be sufficient for its establishment? It appeared clearly enough, that to require a unanimous adoption would defeat all the labors of the Convention. Rhode Island had taken no part in the formation of the Constitution, and could not be expected to ratify it. New York had not been represented for some weeks in the Convention, and it was at least doubtful how the people of that State would receive the proposed system, to which a majority of their delegates had declared themselves to be strenuously opposed.[389] Maryland continued to be present in the Convention, and a majority of her delegates still supported the Constitution; but Luther Martin confidently predicted its rejection by the State, and it was evident that his utmost energies would be put forth against it. Under these circumstances, to have required a unanimous adoption by the States would have been fatal to the experiment of creating a new government. Some of the members were in favor of such a number as would form both a majority of the States and a majority of the people of the United States. But there was an idea familiar to the people, in the number that had been required under the Confederation upon certain questions of grave importance; and in order that the Constitution might avail itself of this established usage, it was determined that the ratifications of the conventions of nine States should be sufficient to establish the Constitution between the States that might so ratify it.[390]
The Constitution, as thus finally prepared, received the formal assent of the States in the Convention, on the last day of the session.[391] The great majority of the members desired that the instrument should go forth to the public, not only with an official attestation that it had been agreed upon by the States represented, but also with the individual sanction and signatures of their delegates. Three of the members present, however, Randolph and Mason of Virginia, and Gerry of Massachusetts, notwithstanding the proposed form of attestation contained no personal approbation of the system, and signified only that it had been agreed to by the unanimous consent of the States then present, refused to sign the instrument.[392] The objections which these gentlemen had to different features of the Constitution would have been waived, if the Convention had been willing to take a course quite opposite to that which had been thought expedient. They desired that the State conventions should be at liberty to propose amendments, and that those amendments should be finally acted upon by another general convention.[393] The nature of the plan, however, and the form in which it was to be submitted to the people of the States, made it necessary that it should be adopted or rejected as a whole, by the convention of each State. As a process of amendment by the action of the Congress and the State legislatures had been provided in the instrument, there was the less necessity for holding a second convention. The State conventions would obviously be at liberty to propose amendments, but not to make them a condition of their acceptance of the government as proposed.
A letter having been prepared to accompany the Constitution, and to present it to the consideration and action of the existing Congress, the instrument was formally signed by all the other members then present. The official record sent to the Congress of the resolutions, which directed that the Constitution be laid before that body, recited the presence of the States of New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. New York was not regarded as officially present; but in order that the proceedings might have all the weight that a name of so much importance could give to them, in the place that should have been filled by his State, was recited the name of "Mr. Hamilton from New York." The prominence thus given to the name of Hamilton, by the absence of his colleagues, was significant of the part he was to act in the great events and discussions that were to attend the ratification of the instrument by the States. His objections to the plan were certainly not less grave and important than those which were entertained by the members who refused to give to it their signatures; but like Madison, like Pinckney and Franklin and Washington, he considered the choice to be between anarchy and convulsion, on the one side, and the chances of good to be expected of this plan, on the other. Upon this issue, in truth, the Constitution went to the people of the United States. There is a tradition, that, when Washington was about to sign the instrument, he rose from his seat, and, holding the pen in his hand, after a short pause, pronounced these words:—"Should the States reject this excellent Constitution, the probability is that an opportunity will never again offer to cancel another in peace,—the next will be drawn in blood."[394]