“Resolved secondly, that the supreme Legislative, either in their proper capacity or in joint committee, are by no means a body proper to form and establish a Constitution or form of government for reasons following, viz.: First, because we conceive that Constitution in its proper idea intends a system of principles established to secure the subject in the possession of and enjoyment of their Rights and Privileges against any encroachment of the Governing Part. Secondly, because the same body that forms a Constitution have of consequence a power to alter it. Thirdly, because a Constitution alterable by the Supreme Legislative is no security at all to the subject against the encroachment of the Governing Part on any or on all their Rights and Privileges.”
(See Constitutional Review, April, 1918, p. 97.)
The people of Concord or New England were not alone in this knowledge. On this we have the later testimony of Marshall from the Bench of the Supreme Court. Speaking of that day, a few years after 1776, when the whole American people created their nation and gave enumerated powers of that kind to its government, he said:
But when, “in order to form a more perfect Union,” it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. (M’Culloch v. Maryland, 4 Wheat. 316.)
Fixing this knowledge of that day firmly in our mind, let us go on with the remarkable Americans of that generation through the next period in which the relation of government to government and of nation to nation was changed, but in which the status of the citizen of each nation and his relation to all governments remained exactly what he and his fellow citizens of that nation had made it.
On November 15, 1777, there came from the Congress at Philadelphia another suggestion, this time a proposal to the thirteen nations that they, already allied in an existing war, should form a permanent union or federation of nations. With that proposal went a drafted set of constitutional Articles, having for their purpose the establishment of a government (to be called a Congress) for the proposed federation, some of which Articles would give to that government ability to govern the members of the union, the thirteen nations. The proposal and the constitutional Articles were sent, for ratification or rejection, to the legislature of each nation as its proper attorney in fact in creating a federal union of nations and in giving federal ability to govern, which federal ability never directly interferes with individual freedom.
Let us reflect upon the accurate knowledge of the science of government again shown by the Americans of that generation in that proposal. Only a few short months earlier there had come, from the same men at Philadelphia, the proposal that national government be established in each nation. These men at Philadelphia had been subjects of the British Government until July, 1776. All government ability to interfere with human freedom, then as now, under British law, had its source in a legislature, the Westminster Parliament. And yet these men at Philadelphia, in the summer of 1776, had accurately known that, under basic American law, such government ability could only have one valid source, direct action by the citizens themselves assembled in conventions. Acting on this knowledge in the summer of 1776, the suggestion that government in each state be given national power to govern, namely, ability directly to interfere with individual freedom, had come as a suggestion to the citizens of each nation for their own direct action. That suggestion had been followed, and thus had been exercised, for the first time since Americans ceased to be subjects, the inherent and inalienable and always existing ability of the citizens of a free nation to make any kind of constitutional Articles of government, including the national kind which give government any power to interfere with individual freedom.
When, therefore, these same men at Philadelphia made their proposal of November, 1777, that other constitutional Articles of government be made in America, the proposed Articles of Union between nations, it might have been natural that this proposal also should have suggested ratification of these Articles by the people themselves. It would have seemed all the more natural, when we remember that one of the leaders at Philadelphia in that time was Jefferson, the historic champion of human individual freedom against all governments. But the Americans of that generation and their leaders were not as the leaders of our own time. They knew very accurately the difference between a national Article of government, which gave ability to interfere with human freedom, and a federal Article, which gave no ability of that kind but only ability to govern nations or states, as political entities. With this accurate knowledge of the vital distinction between a national and a federal Article, they naturally knew that either the people themselves or the legislative attorney in fact of the nation, which makes all agreements for the nation with other nations, may validly make a federal Article. Therefore, they sent the proposed Articles of Confederation between nations (not one of which gave national power to the proposed federal government) to the legislatures of the respective nations for ratification or rejection on behalf of the nations. As Marshall later summed up the knowledge which prompted that sending of those federal articles to the legislatures:
To the formation of a league, such as was the Confederation, the State sovereignties were certainly competent. (M’Culloch v. Maryland, 4 Wheat. 316.)
Each state legislature acted favorably upon the proposed articles and ratified them. By July 9, 1778, the legislatures of ten states had ratified. The legislatures of New Jersey and Delaware followed before the end of February, 1779. The legislature of Maryland did not ratify until March 1, 1781.