Chapter 65

The Preamble to the Constitution.--"We, the People."

The preamble to the Constitution proposed by the Convention of 1787 is in these words:

"We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

The phraseology of this preamble has been generally regarded as the stronghold of the advocates of consolidation. It has been interpreted as meaning that "we, the people of the United States," as a collective body, or as a "nation," in our aggregate capacity, had "ordained and established" the Constitution _over_ the States.

This interpretation constituted, in the beginning, the most serious difficulty in the way of the ratification of the Constitution. It was probably this to which that sturdy patriot, Samuel Adams, of Massachusetts, alluded, when he wrote to Richard Henry Lee, "I stumble at the threshold." Patrick Henry, in the Virginia Convention, on the third day of the session, and in the very opening of the debate, attacked it vehemently. He said, speaking of the system of government set forth in the proposed Constitution:

"That this is a consolidated government is demonstrably clear; and the danger of such a government is, to my mind, very striking. I have the highest veneration for those gentlemen [its authors]; but, sir, give me leave to demand, What right had they to say, _We, the people_? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of '_We, the people_,' instead of _We, the States_? States are the characteristics and the soul of a confederation. If the States be not the agents of this compact, it must be one great consolidated national government of the people of all the States."[38]

Again, on the next day, with reference to the same subject, he said: "When I asked that question, I thought the meaning of my interrogation was obvious. The fate of this question and of America may depend on this. Have they said, We, the States? Have they made a proposal of a compact between States? If they had, this would be a confederation: it is otherwise most clearly a consolidated government. The question turns, sir, on that poor little thing--the expression, 'We, the people,' instead of the States of America."[39]

The same difficulty arose in other minds and in other conventions.

The scruples of Mr. Adams were removed by the explanations of others, and by the assurance of the adoption of the amendments thought necessary--especially of that declaratory safeguard afterward embodied in the tenth amendment--to be referred to hereafter.

Mr. Henry's objection was thus answered by Mr. Madison:

"Who are parties to it [the Constitution]? The people--but _not the people as composing one great body_; but the people as composing _thirteen sovereignties_: were it, as the gentleman [Mr. Henry] asserts, a consolidated government, the assent of a majority of the people would be sufficient for its establishment, and as a majority have adopted it already, the remaining States would be bound by the act of the majority, even if they unanimously reprobated it: were it such a government as is suggested, it would be now binding on the people of this State, without having had the privilege of deliberating upon it; but, sir, no State is bound by it, as it is, without its own consent. Should all the States adopt it, it will be then a government established by the thirteen States of America, not through the intervention of the Legislatures, but by the people at large. In this particular respect the distinction between the existing and proposed governments is very material. The existing system has been derived from the dependent, derivative authority of the Legislatures of the States, whereas this is derived from the superior power of the people."[40]

It must be remembered that this was spoken by one of the leading members of the Convention which formed the Constitution, within a few months after that instrument was drawn up. Mr. Madison's hearers could readily appreciate his clear answer to the objection made. The "people" intended were those of the respective States--the only organized communities of people exercising sovereign powers of government; and the idea intended was the ratification and "establishment" of the Constitution by direct act of the people in their conventions, instead of by act of their Legislatures, as in the adoption of the Articles of Confederation. The explanation seems to have been as satisfactory as it was simple and intelligible. Mr. Henry, although he fought to the last against the ratification of the Constitution, did not again bring forward this objection, for the reason, no doubt, that it had been fully answered. Indeed, we hear no more of the interpretation which suggested it, from that period, for nearly half a century, when it was revived, and has since been employed, to sustain that theory of a "great consolidated national government" which Mr. Madison so distinctly repudiated.

But _we_ have access to sources of information, not then available, which make the intent and meaning of the Constitution still plainer. When Mr. Henry made his objection, and Mr. Madison answered it, the journal of the Philadelphia Convention had not been published. That body had sat with closed doors, and among its rules had been the following:

"That no copy be taken of any entry on the journal during the sitting of the House, without the leave of the House.

"That members only be permitted to inspect the journal.

"That nothing spoken in the House be printed, or otherwise published or communicated, without leave."[41]

We can understand, by reference to these rules, how Mr. Madison should have felt precluded from making allusion to anything that had occurred during the proceedings of the Convention. But the secrecy then covering those proceedings has long since been removed. The manuscript journal, which was intrusted to the keeping of General Washington, President of the Convention, was deposited by him, nine years afterward, among the archives of the State Department. It has since been published, and we can trace for ourselves the origin, and ascertain the exact significance, of that expression, "We, the people," on which Patrick Henry thought the fate of America might depend, and which has been so grossly perverted in later years from its true intent.

The original language of the preamble, reported to the Convention by a committee of five appointed to prepare the Constitution, as we find it in the proceedings of August 6, 1787, was as follows:

"We, the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare, and establish, the following Constitution for the government of ourselves and our posterity."

There can be no question here what was meant: it was "_the people of the States_," designated by name, that were to "ordain, declare, and establish" the compact of union for themselves and their posterity. There is no ambiguity nor uncertainty in the language; nor was there any difference in the Convention as to the use of it. The preamble, as perfected, was submitted to vote on the next day, and, as the journal informs us, "it passed _unanimously_ in the affirmative."

There was no subsequent change of opinion on the subject. The reason for the modification afterward made in the language is obvious. It was found that unanimous ratification of all the States could not be expected, and it was determined, as we have already seen, that the consent of _nine_ States should suffice for the establishment of the new compact "between the States so ratifying the same." _Any_ nine would be sufficient to put the proposed government in operation as to them, thus leaving the remainder of the thirteen to pursue such course as might be to each preferable. When this conclusion was reached, it became manifestly impracticable to designate beforehand the consenting States by name. Hence, in the final revision, the specific enumeration of the thirteen States was omitted, and the equivalent phrase "people of the United States" inserted in its place--plainly meaning the people of such States as should agree to unite on the terms proposed. The imposing fabric of political delusion, which has been erected on the basis of this simple transaction, disappears before the light of historical record.

Could the authors of the Constitution have foreseen the perversion to be made of their obvious meaning, it might have been prevented by an easy periphrasis--such as, "We, the people of the States hereby united," or something to the same effect. The word "people" in 1787, as in 1880, was, as it is, a collective noun, employed indiscriminately, either as a unit in such expressions as "this people," "a free people," etc., or in a distributive sense, as applied to the citizens or inhabitants of one state or country or a number of states or countries. When the Convention of the colony of Virginia, in 1774, instructed their delegates to the Congress that was to meet in Philadelphia, "to obtain a redress of those grievances, without which _the people of America_ can neither be safe, free, nor happy," it was certainly not intended to convey the idea that the people of the American Continent, or even of the British colonies in America, constituted one political community. Nor did Edmund Burke have any such meaning when he said, in his celebrated speech in Parliament, in 1775, "The people of the colonies are descendants of Englishmen."

We need go no further than to the familiar language of King James's translation of the Bible for multiplied illustrations of this indiscriminate use of the term, both in its collective and distributive senses. For example, King Solomon prays at the dedication of the temple:

"That thine eyes may be open unto the supplication ... of _thy people_ Israel, to hearken unto them in all that they call for unto thee. For thou didst separate them from among _all the people_ of the earth, to be thine inheritance." (1 Kings viii, 52, 53.)

Here we have both the singular and plural senses of the same word--_one people_, Israel, and _all the people of the earth_--in two consecutive sentences. In "the people of the earth," the word _people_ is used precisely as it is in the expression "the people of the United States" in the preamble to the Constitution, and has exactly the same force and effect. If in the latter case it implies that the people of Massachusetts and those of Virginia were mere fractional parts of one political community, it must in the former imply a like unity among the Philistines, the Egyptians, the Assyrians, Babylonians, and Persians, and all other "people of the earth," except the Israelites. Scores of examples of the same sort might be cited if it were necessary.[42]

In the Declaration of Independence we find precisely analogous instances of the employment of the singular form for both singular and plural senses--"one people," "a free people," in the former, and "the good people of these colonies" in the latter. Judge Story, in the excess of his zeal in behalf of a theory of consolidation, bases upon this last expression the conclusion that the assertion of independence was the act of "_the whole people_ of the united colonies" as a unit; overlooking or suppressing the fact that, in the very same sentence, the colonies declare themselves "free and independent _States_"--not a free and independent _state_--repeating the words "independent States" three times.

If, however, the Declaration of Independence constituted one "_whole people_" of the colonies, then that geographical section of it, formerly known as the colony of Maryland, was in a state of revolt or "rebellion" against the others, as well as against Great Britain, from 1778 to 1781, during which period Maryland refused to ratify or be bound by the Articles of Confederation, which, according to this theory, was binding upon her, as a majority of the "whole people" had adopted it. _A fortiori_, North Carolina and Rhode Island were in a state of rebellion in 1789-'90, while they declined to ratify and recognize the Constitution adopted by the other eleven fractions of this united people. Yet no hint of any such pretension--of any claim of authority over them by the majority--of any assertion of "the supremacy of the Union"--is to be found in any of the records of that period.

It might have been unnecessary to bestow so much time and attention in exposing the absurdity of the deductions from a theory so false, but for the fact that it has been specious enough to secure the countenance of men of such distinction as Webster, Story, and Everett; and that it has been made the plea to justify a bloody war against that principle of State sovereignty and independence, which was regarded by the fathers of the Union as the corner-stone of the structure and the basis of the hope for its perpetuity.

[Footnote 38: Elliott's "Debates" (Washington edition, 1836), vol. iii, p. 54.]

[Footnote 39: Ibid., p. 72.]

[Footnote 40: Elliott's "Debates" (Washington edition, 1836), vol. iii, pp. 114, 115.]

[Footnote 41: Journal of the Federal Convention, May 29, 1787, 1 Elliott's "Debates."]

[Footnote 42: For a very striking illustration, see Deuteronomy vii, 6, 7.]