Mr. Edward Everett, in his address delivered on the 4th of July, 1861, and already referred to, says of the Constitution: "That instrument does not purport to be a 'compact,' but a constitution of government. It appears, in its first sentence, not to have been entered into by the States, but to have been ordained and established by the people of the United States for themselves and their 'posterity.' The States are not named in it; nearly all the characteristic powers of sovereignty are expressly granted to the General Government and expressly prohibited to the States."[49] Mr. Everett afterward repeats the assertion that "the States are not named in it."[50]
But a yet more extraordinary statement of the "one people" theory is found in a letter addressed to the London "Times," in the same year, 1861, on the "Causes of the Civil War," by Mr. John Lothrop Motley, afterward Minister to the Court of St. James. In this letter Mr. Motley says of the Constitution of the United States:
"It was not a compact. Who ever heard of a compact to which there were no parties? or who ever heard of a compact made by a single party with himself? Yet the name of no State is mentioned in the whole document; the States themselves are only mentioned to receive commands or prohibitions; and the 'people of the United States' is the single party by whom alone the instrument is executed.
"The Constitution was not drawn up by the States, it was not promulgated in the name of the States, it was not ratified by the States. The States never acceded to it, and possess no power to secede from it. It was 'ordained and established' over the States by a power superior to the States; by the people of the whole land in their aggregate capacity," etc.
It would be very hard to condense a more amazing amount of audacious and reckless falsehood in the same space. In all Mr. Motley's array of bold assertions, there is not one single truth—unless it be, perhaps, that "the Constitution was not drawn up by the States." Yet it was drawn up by their delegates, and it is of such material as this, derived from writers whose reputation gives a semblance of authenticity to their statements, that history is constructed and transmitted.
One of the most remarkable—though, perhaps, the least important—of these misstatements is that which is also twice repeated by Mr. Everett—that the name of no State is mentioned in the whole document, or, as he puts it, "the States are not named in it." Very little careful examination would have sufficed to find, in the second section of the very first article of the Constitution, the names of every one of the thirteen then existent States distinctly mentioned, with the number of representatives to which each would be entitled, in case of acceding to the Constitution, until a census of their population could be taken. The mention there made of the States by name is of no special significance; it has no bearing upon any question of principle; and the denial of it is a purely gratuitous illustration of the recklessness of those from whom it proceeds, and the low estimate put on the intelligence of those addressed. It serves, however, to show how much credence is to be given to their authority as interpreters and expounders.
The reason why the names of the ratifying States were not mentioned has already been given: it was simply because it was not known which States would ratify. But, as regards mention of "the several States," "each State," "any State," "particular States," and the like, the Constitution is full of it. I am informed, by one who has taken the pains to examine carefully that document with reference to this very point, that—without including any mention of "the United States" or of "foreign states," and excluding also the amendments—the Constitution, in its original draft, makes mention of the States, as States, no less than seventy times; and of these seventy times, only three times in the way of prohibition of the exercise of a power. In fact, it is full of statehood. Leave out all mention of the States—I make no mere verbal point or quibble, but mean the States in their separate, several, distinct capacity—and what would remain would be of less account than the play of the Prince of Denmark with the part of Hamlet omitted.
But, leaving out of consideration for the moment all minor questions, the vital and essential point of inquiry now is, by what authority the Constitution was "ordained and established." Mr. Webster says it was done "by the people of the United States in the aggregate;" Mr. Everett repeats substantially the same thing; and Mr. Motley, taking a step further, says that "it was 'ordained and established' by a power superior to the States—by the people of the whole land in their aggregate capacity."
The advocates of this mischievous dogma assume the existence of an unauthorized, undefined power of a "whole people," or "people of the whole land," operating through the agency of the Philadelphia Convention, to impose its decrees upon the States. They forget, in the first place, that this Convention was composed of delegates, not of any one people, but of distinct States; and, in the second place, that their action had no force or validity whatever—in the words of Mr. Madison, that it was of no more consequence than the paper on which it was written—until approved and ratified by a sufficient number of States. The meaning of the preamble, "We, the people of the United States ... do ordain and establish this Constitution," is ascertained, fixed, and defined by the final article: "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 it was already established, what need was there of further establishment? It was not ordained or established at all, until ratified by the requisite number of States. The announcement in the preamble of course had reference to that expected ratification, without which the preamble would have been as void as the body of the instrument. The assertion that "it was not ratified by the States" is so plainly and positively contrary, to well-known fact—so inconsistent with the language of the Constitution itself—that it is hard to imagine what was intended by it, unless it was to take advantage of the presumed ignorance of the subject among the readers of an English journal, to impose upon them, a preposterous fiction. It was State ratification alone—the ratification of the people of each State, independently of all other people—that gave force, vitality, and validity to the Constitution.
Judge Story, referring to the fact that the voters assembled in the several States, asks where else they could have assembled—a pertinent question on our theory, but the idea he evidently intended to convey was that the voting of "the people" by States was a mere matter of geographical necessity, or local convenience; just as the people of a State vote by counties; the people of a county by towns, "beats," or "precincts"; and the people of a city by wards. It is hardly necessary to say that, in all organized republican communities, majorities govern. When we speak of the will of the people of a community, we mean the will of a majority, which, when constitutionally expressed, is binding on any minority of the same community.
If, then, we can conceive, and admit for a moment, the possibility that, when the Constitution was under consideration, the people of the United States were politically "one people"—a collective unit—two deductions are clearly inevitable: In the first place, each geographical division of this great community would have been entitled to vote according to its relative population; and, in the second, the expressed will of the legal majority would have been binding upon the whole. A denial of the first proposition would be a denial of common justice and equal rights; a denial of the second would be to destroy all government and establish mere anarchy.