The only possible alternative to the view here taken of the seventh article of the Constitution, as a provision for the secession of any nine States, which might think proper to avail themselves of it, from union with such as should refuse to do so, and the formation of an amended or "more perfect union" with one another, is to regard it as a provision for the continuance of the old Union, or Confederation, under altered conditions, by the majority which should accede to them, with a recognition of the right of the recusant minority to withdraw, secede, or stand aloof. The idea of compelling any State or States to enter into or to continue in union with the others by coercion, is as absolutely excluded under the one supposition as under the other—with reference to one State or a minority of States, as well as with regard to a majority. The article declares that "the ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution"—not between all, but—"between the States so ratifying the same." It is submitted whether a fuller justification of this right of the nine States to form a new Government is not found in the fact of the sovereignty in each of them, making them "a law unto themselves," and therefore the final judge of what the necessities of each community demand.
Here—although, perhaps, in advance of its proper place in the argument—the attention of the reader may be directed to the refutation, afforded by this article of the Constitution, of that astonishing fiction, which has been put forward by some distinguished writers of later date, that the Constitution was established by the people of the United States "in the aggregate." If such had been the case, the will of a majority, duly ascertained and expressed, would have been binding upon the minority. No such idea existed in its formation. It was not even established by the States in the aggregate, nor was it proposed that it should be. It was submitted for the acceptance of each separately, the time and place at their own option, so that the dates of ratification did extend from December 7, 1787, to May 29, 1790. The long period required for these ratifications makes manifest the absurdity of the assertion, that it was a decision by the votes of one people, or one community, in which a majority of the votes cast determined the result.
We have seen that the delegates to the Convention of 1787 were chosen by the several States, as States—it is hardly necessary to add that they voted in the Convention, as in the Federal Congress, by States—each State casting one vote. We have seen, also, that they were sent for the "sole and express purpose" of revising the Articles of Confederation and devising means for rendering the Federal Constitution, "adequate to the exigencies of government and the preservation of the Union"; that the terms "Union," "United States," "Federal Constitution;" and "Constitution of the Federal Government," were applied to the old Confederation in precisely the same sense in which they are used under the new; that the proposition to constitute a "national" Government was distinctly rejected by the Convention; that the right of any State, or States, to withdraw from union with the others was practically exemplified, and that the idea of coercion of a State, or compulsory measures, was distinctly excluded under any construction that can be put upon the action of the Convention.
To the original copy of the Constitution, as set forth by its framers for the consideration and final action of the people of the States, was attached the following words:
"Done in Convention, by the unanimous consent of the States present, the seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven, and of the Independence of the United States of America, the twelfth. In witness whereof, we have hereunto subscribed our names."
[Followed by the signatures of "George Washington, President, and deputy from Virginia," and the other delegates who signed it.]
This attachment to the instrument—a mere attestation of its authenticity, and of the fact that it had the unanimous consent of all the States then present by their deputies—not of all the deputies, for some of them refused to sign it—has been strangely construed by some commentators as if it were a part of the Constitution, and implied that it was "done," in the sense of completion of the work.[34]
But the work was not done when the Convention closed its labors and adjourned. It was scarcely begun. There was no validity or binding force whatever in what had been already "done." It was still to be submitted to the States for approval or rejection. Even if a majority of eight out of thirteen States had ratified it, the refusal of the ninth would have rendered it null and void. Mr. Madison, who was one of the most distinguished of its authors and signers, writing after it was completed and signed, but before it was ratified, said: "It is time now to recollect that the powers [of the Convention] were merely advisory and recommendatory; that they were so meant by the States, and so understood by the Convention; and that the latter have accordingly planned and proposed a Constitution, which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed."—("Federalist," No. XL.)
The mode and terms in which this approval was expressed will be considered in the next chapter.