The American Republic: Its Constitution, Tendencies, and Destiny

by Orestes Augustus Brownson

The unwritten or Providential constitution of the United States is peculiar, and difficult to understand, because incapable of being fully explained by analogies borrowed from any other state historically known, or described by political philosophers. It belongs to the Graeco-Roman family, and is republican as distinguished from despotic constitutions, but it comes under the head of neither monarchical nor aristocratic, neither democratic nor mixed constitutions, and creates a state which is neither a centralized state nor a confederacy. The difficulty of understanding it is augmented by the peculiar use under it of the word state, which does not in the American system mean a sovereign community or political society complete in itself, like France, Spain, or Prussia, nor yet a political society subordinate to another political society and dependent on it. The American States are all sovereign States united, but, disunited, are no States at all. The rights and powers of the States are not derived from the United States, nor the rights and powers of the United States derived from the States.

The simple fact is, that the political or sovereign people of the United States exists as united States, and only as united States. The Union and the States are coeval, born together, and can exist only together. Separation is dissolution—the death of both. The United States are a state, a single sovereign state; but this single sovereign state consists in the union and solidarity of States instead of individuals. The Union is in each of the States, and each of the States is in the Union.

It is necessary to distinguish in the outset between the United States and the government of the United States, or the so-called Federal government, which the convention refused, contrary to its first intention to call the national government. That government is not a supreme national government, representing all the powers of the United States, but a limited government, restricted by its constitution to certain specific relations and interests. The United States are anterior to that government, and the first question to be settled relates to their internal and inherent Providential constitution as one political people or sovereign state. The written constitution, in its preamble, professes to be ordained by "We, the people of the United States." Who are this people? How are they constituted, or what the mode and conditions of their political existence? Are they the people of the States severally? No; for they call themselves the people of the United States. Are they a national people, really existing outside and independently of their organization into distinct and mutually independent States? No; for they define themselves to be the people of the United States. If they had considered themselves existing as States only, they would have said "We, the States," and if independently of State organization, they would have said "We, the people," do ordain, &c.

The key to the mystery is precisely in this appellation United States, which is not the name of the country, for its distinctive name is America, but a name expressive of its political organization. In it there are no sovereign people without States, and no States without union, or that are not united States. The term united is not part of a proper name, but is simply an adjective qualifying States, and has its full and proper sense. Hence while the sovereignty is and must be in the States, it is in the States united, not in the States severally, precisely as we have found the sovereignty of the people is in the people collectively or as society, not in the people individually. The life is in the body, not in the members, though the body could not exist if it had no members; so the sovereignty is in the Union, not in the States severally; but there could be no sovereign union without the States, for there is no union where there is nothing united.

This is not a theory of the constitution, but the constitutional fact itself. It is the simple historical fact that precedes the law and constitutes the law-making power. The people of the United States are one people, as has already been proved: they were one people, as far as a people at all, prior to independence, because under the same Common Law and subject to the same sovereign, and have been so since, for as united States they gained their independence and took their place among sovereign nations, and as united States they have possessed and still possess the government. As their existence before independence in distinct colonies did not prevent their unity, so their existence since in distinct States does not hinder them from being one people. The States severally simply continue the colonial organizations, and united they hold the sovereignty that was originally in the mother country. But if one people, they are one people existing in distinct State organizations, as before independence they were one people existing in distinct colonial organizations. This is the original, the unwritten, and Providential constitution of the people of the United States.

This constitution is not conventional, for it existed before the people met or could meet in convention. They have not, as an independent sovereign people, either established their union, or distributed themselves into distinct and mutually independent States. The union and the distribution, the unity and the distinction, are both original in their constitution, and they were born United States, as much and as truly so as the son of a citizen is born a citizen, or as every one born at all is born a member of society, the family, the tribe, or the nation. The Union and the States were born together, are inseparable in their constitution, have lived and grown up together; no serious attempt till the late secession movement has been made to separate them; and the secession movement, to all persons who knew not the real constitution of the United States, appeared sure to succeed, and in fact would have succeeded if, as the secessionists pretended, the Union had been only a confederacy, and the States had been held together only by a conventional compact, and not by a real and living bond of unity. The popular instinct of national unity, which seemed so weak, proved to be strong enough to defeat the secession forces, to trample out the confederacy, and maintain the unity of the nation and the integrity of its domain.

The people can act only as they exist, as they are, not as they are not. Existing originally only as distributed in distinct and mutually independent colonies, they could at first act only through their colonial organizations, and afterward only through their State organizations. The colonial people met in convention, in the person of representatives chosen by colonies, and after independence in the person of representatives chosen by States. Not existing outside of the colonial or State organizations, they could not act outside or independently of them. They chose their representatives or delegates by colonies or States, and called at first their convention a Congress; but by an instinct surer than their deliberate wisdom, they called it not the Congress of the confederate, but of the United States, asserting constitutional unity as well as constitutional multiplicity. It is true, in their first attempt to organize a general government, they called the constitution they devised Articles of Confederation, but only because they had not attained to full consciousness of themselves; and that they really meant union, not confederation, is evident from their adopting, as the official style of the nation or new power, united, not confederate States.

That the sovereignty vested in the States united, and was represented in some sort by the Congress, is evident from the fact that the several States, when they wished to adopt State constitutions in place of colonial charters, felt not at liberty to do so without asking and obtaining the permission of Congress, as the elder Adams informs us in his Diary, kept at the time; that is, they asked and obtained the equivalent of what has since, in the case of organizing new States, been called an "enabling act." This proves that the States did not regard themselves as sovereign States out of the Union, but as completely sovereign only in it. And this again proves that the Articles of Confederation did not correspond to the real, living constitution of the people. Even then it was felt that the organization and constitution of a State in the Union could be regularly effected only by the permission of Congress; and no Territory can, it is well known, regularly organize itself as a State, and adopt a State constitution, without an enabling act by Congress, or its equivalent.

New States, indeed, have been organized and been admitted into the Union without an enabling act of Congress; but the case of Kansas, if nothing else, proves that the proceeding is irregular, illicit, invalid, and dangerous. Congress, of course, can condone the wrong and validate the act, but it were better that the act should be validly done, and that there should be no wrong to condone. Territories have organized as States, adopted State constitutions, and instituted State governments under what has been called "squatter sovereignty;" but such sovereignty has no existence, because sovereignty is attached to the domain; and the domain is in the United States. It is the offspring of that false view of popular sovereignty which places it in the people personally or generically, irrespective of the domain, which makes sovereignty a purely personal right, not a right fixed to the soil, and is simply a return to the barbaric constitution of power. In all civilized nations, sovereignty is inseparable from the state, and the state is inseparable from the domain. The will of the people, unless they are a state, is no law, has no force, binds nobody, and justifies no act.

The regular process of forming and admitting new States explains admirably the mutual relation of the Union and the several States. The people of a Territory belonging to the United States or included in the public domain not yet erected into a State and admitted into the Union, are subjects of the United States, without any political rights whatever, and, though a part of the population, are no part of the sovereign people of the United States. They become a part of that people, with political rights and franchises, only when they are erected into a State, and admitted into the Union as one of the United States. They may meet in convention, draw up and adopt a constitution declaring or assuming them to be a State, elect State officers, senators, and representatives in the State legislature, and representatives and senators in Congress, but they are not yet a State, and are, as before, under the Territorial government established by the General Government. It does not exist as a State till recognized by Congress and admitted into the Union. The existence of the State, and the rights and powers of the people within the State, depend on their being a State in the Union, or a State united. Hence a State erected on the national domain, but itself outside of the Union, is not an independent foreign State, but simply no State at all, in any sense of the term. As there is no union outside of the States, so is there no State outside of the Union; and to be a citizen either of a State or of the United States, it is necessary to be a citizen of a State, and of a State in the Union. The inhabitants of Territories not yet erected into States are subjects, not citizens—that is, not citizens with political rights. The sovereign people are not the people outside of State organization, nor the people of the States severally, but the distinct people of the several States united, and therefore most appropriately called the people of the United States.