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The ends or objects for which the sovereign power acts or speaks: (1) In order to form a more perfect union; (2) to establish justice; (3) to insure domestic tranquillity; (4) to provide for the common defense; (5) to promote the general welfare, and (6) to secure the blessings of liberty to ourselves and our posterity.
3. The thing done: Do ordain and establish this Coustitution for the United States of America.
238. Source of the Constitution.-This so-called preamble is decisive as to the sovereign power that ordained the Constitution, and so as to its source. In the two most solemn crises of their history, the American people, by their representatives, have spoken the same authoritative language. In 1776 they said, “We do solemnly publish and declare that these United Colonies are, and of right ought to be, free and independent States.' In 1787 they said: “We,
do ordain and establish this Constitution for the United States of America." The Declaration of Independence and the Constitution were National acts in the fullest sense of that term.
It is no valid objection to this view that Congress and che State Legislatures were prominent. In ordaining their Constitution, or in performing other sovereign acts, a people will naturally employ such agents as are at hand. It was the States that immediately called the Continental Congress, and appointed the delegates that comprised it; but the men who signed the Declaration of Independence did so in the name and by the authority of the good people of the States. So the Congress of the Confederation, and the State Legislatures, rendered important services in creating and establishing the Constitution ; but the thirty-nine signers stood in the same relation to the Constitution that the fifty-five signers stood to the Declaration. Still more, the calling of the Convention by the State Legislatures, and the framing of the Constitution by the Convention, were only preliminary steps to the grand and binding act of the adoption of the Constitution by the people in conven
tions. As C.-J. Marshall has said : “From these conventions the Constitution derives its whole authority. The Government proceeds directly from the people; is ordained and established in the name of the people. . . It required not the affirmance of, and could not be negotiated by, the State Governments.” Article V. provides that amendments to the Constitution may be made; Congress and the Legislatures do the formal work in making them ; but the amendments are, nevertheless, made by the people, the same as the original instrument.
The facts then are these : The nation, or the people, are sovereign; but they have committed some powers to one jurisdiction and some to another. Each of these jurisdictions is supreme in its own sphere. Or, as C.-J. Marshall states the case : “In America the powers ereignty are divided between the Government of the Union and those of the States. They are each sovereign with respect to the objects committed to it, and neither sovereigo with respect to the objects committed to the other.” 1
239. Influence of Words and Theories.—The statesmen of 1787– 89 made free use of such words and phrases as * National system,” · State plan,” consolidated government,” and “ 'confederation." We must not suppose, however, that these men used these expressions in fixed and absolute senses, Such terms are somewhat elusive and variable even in scientific treatises on government, and much more so in practical political discussions. Statesmen are not always free from using language that they think, by its meaning and associations, will win them favor or cast odium upon their opponents. Hence we must not approach the discussions of the Constitutional epoch with heads full of abstract theories and dictionary definitions. To do so, is to read into those discussions the controversies of a later day. We must go at once to the facts-listen to the debates, and read the Constitution--if we would not be misled. As a matter of course, such terms as “National plan” and “State plan" always implied more or less difference of opinion, and often a wide difference of opinion; but because William Patterson favored the State play it does not follow that he wished the Union to continue weak and helpless; and no more does it follow that such a staunch Nationalist as James Madison desired to emasculate the States.
1 McCulloch v, Maryland, 4 Wheaton, 316.
Again, the words “sovereignty” and “sovereign states" are of frequent occurrence in the period 1775-1789. The evidence shows conclusively that this language was loosely used. It is impossible to suppose that the men who put such language in the Articles of Confederation meant to declare that Rhode Island or Delaware was a sovereign in the sense that France or Great Britain was a sovereign. They did not mean thus to flatter the States, or to degrade the Union. There is good reason to think that when the wiser statesmen of that period used such language they were looking rather to the old relations of the States to England than to their new relations to the nations of the earth and to the American Union. No little mischief has resulted from the frequent habit of reading the history of the Revolution, and construing the Constitution, in the light of abstract definitions and speculative theories.
240. Constitutions a Growth.-Useful constitutions, even when they are put in a written form, are always in great part a growth. Wholly, or largely, the elements that compose them are the product of progressive history. But, more than this, constitutions continue to grow even after they are formed. They cannot be written in the unyielding language of the fixed sciences. Society changes, and constitutions must change with it, or they will be cast aside. Even amendments, if frequently made, will not maintain a positive adjustment between the two factors : Society, on the one hand, and the written fundamental law, on the other. The constitution that works is never just the same as the constitution that is printed in the statuce book. This growth, which consists in the adaptation of old forms to new conditions, is affected, amendments apart, through the process of constitutional interpretation, whereby its provisions are applied to the facts of social life. Hence it was impossible to tell in 1787 just what the new government would be. No two of the men who had assisted in framing the Constitution would have agreed throughout in explaining it; while no man would have ventured to predict, in any detailed way, how Congress, the President, and the Courts would construe its provisions. The general character of the Government was indeed determined, so long as the Constitution should remain in force and uuchanged; still there was abundant room for the Nation, as its growth should take this or that direction, speaking througu che organs which it had created, to give its terms very different practical interpretations on many subjects. For example, the phrase in the Preamble, “to promote the general welfare," and the last of the general powers of Congress, “to make all laws which shall be necessary," etc., opened a wide door for practical constitutional development. All this a century of history has fully shown.1
1 See Bryce : The American Commonwealth, Chaps. XXXI.-XXXV.
THE SOURCES OF THE CONSTITUTION.
Campbell, The Puritan in Holland, England, and America; Stevens, Sources of the Constitution of the U. S.; Johnston, A Century of the Constitution (New Princeton Review, Sept., 1887); Sir H. S. Maine, Popular Government, Essay IV. (The Constitution of the U. S.) The broadest features of the subject have been dealt with by Dr. Freeman, Comparative Politics, particularly Lect. II. (Greek, Roman, and Teuton.)
The sources of the National Constitution have only recently become the subject of historical discussion. They will be briefly treated in the present chapter.
241. Fiat Theory of the Constitution.--Chapters VI.-X. of this work show that, as one has said, “The Constitution was extorted from the grinding necessity of a reluctant people.” When it came to ratification, the change of 3 votes out of 60 in New York, of 5 out of 168 in Virginia, and 10 out of 355 in Massachusetts, on the decisive ballots, would have sufficed to defeat that end. For reasons that are here immaterial, the spirit of opposition fully died out in three or four years, and a feeling of admiration quite as strong took its place.“ The worship of the Constitution," and "the Constitution a national fetish," are among the strong phrases that Dr. Von Holst uses to express the feeling that the instrument has commonly inspired in the hearts of Americans. Often its formation has been described as a creative act, inspired by more than human vision. This view is something very like the one that Mr. Gladstone is understood to have expressed in his famous characterization. As the British Constitution is the most subtle organism which has proceeded from progressive history," he says, “so the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man."
242. The Organic Theory.-The making of the American Government, as its history has been traced in Part I. of this work, suggests a very different theory. This history points, not only to a long course of political evolution that took place partly in Germany, partly in England, and partly in America, and that elaborated the materials or elements out of which the Constitution was formed, but it also reveals the real nature of the work that was done in Philadelphia in 1787. The Federal Convention did not invent new political ideas, or create new governmental institutions; what it did was to select, combine, and adjust old ideas and institutions in a manner that, in the opinion of a majority of its members would constitute a working government for the American people. In respect to elements, therefore, the American Constitution as much proceeded from progressive history as the British Constitution; and it is only in respect to this work of selection, combination, and adaptation that it can be said that it was struck off at a given time by the brain and purpose of man. And this, it is not improbable, is what Mr. Gladstone really intended to say. Still, in this second particular, there is a marked difference between the two constitutions; the parts of the one slowly grew together like a living organism, while the parts of the other, in a measure, were put together at a given time like the parts of a building. No transaction like that at Philadelphia finds a place in British constitutional history.
243 Relations of the two Constitutions. In a large sense, the new Constitution that was made was a copy of the old one that had grown. The Colonists had not revolted against the British constitution, but only against the way in which, as affected themselves, the King and Parliament made that constitution work. On the