Wednesday, October 17, 2012

Thoughts on the Constitution (2)

The Preamble

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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 preamble to the Constitution declares both the purposes for which the document was written and the authority by which it was created. The new form of government is said to be authorized by We the People of the United States. These famous words have become so much a part of the American ethos that we can hardly imagine any patriot in the founding era raising an objection to them. The words, however, were objected to in the most strenuous terms by Patrick Henry, who argued that the authority to create a federal government rested with the states as states and not with the people of the states.

I would make this inquiry of those worthy characters who composed a part of the late federal Convention. I am sure they were fully impressed with the necessity of forming a great consolidated government, instead of a confederation. 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; 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 agents of this compact, it must be one great, consolidated, national government, of the people of all the states.[1]

Henry argued that it was not the people who had sent the delegates to Philadelphia for the convention, but the states. The delegates were chosen by the state legislatures and were commissioned to act on behalf of the states, and not on behalf of the people. The people, he argued, “have no right to enter into leagues, alliances, or confederations: they are not the proper agents for this purpose:  States and sovereign powers are the only proper agents for this kind of government.”[2]
Henry feared the creation of a consolidated or national government as opposed to a federal government. A federal government is a government that unites states, whereas a national government is one that unites people. His concern was that a national government would effectively alter the nature of the republic by turning it into a democracy with the result that “the sovereignty of the states will be relinquished.”[3] In our day, when the individual states have become little more than administrative districts of the federal government, Henry’s words seem prophetic.
Henry’s objection is mentioned here, not as a mere historical curiosity, but as illustrating one of the chief concerns of those who opposed ratification—that a national government would overwhelm state governments and essentially reduce them to a nullity. The relationship between the individual states and the national government was an issue that continued to be problematic well into the following century.[4]
James Madison sought to allay the fears of men like Henry by explaining that what the Constitution created was a government that was partly national and partly federal. In The Federalist, Number 39, he argued that in the all-important matter of ratification, the Constitution was clearly on the side of federalism.

It appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State,—the authority of the people themselves. The act, therefore establishing the Constitution, will not be a national, but a federal act.[5]

Madison pointed to other provisions of the Constitution as well that had either national or federal characteristics. And some of them, he observed, had both. Congress, for instance, as he explained, had one chamber (the House of Representatives) that derived its powers from the people of America, and another chamber (the Senate) that derived its powers from the states.

“The people will be represented in the same proportion, and on the same principle, as they as they are in the legislature of a particular State. So far the government is national, not federal. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress.[6] So far the government is federal, not national.[7]

After giving several other examples of how the provisions of the Constitution partake of either the spirit of nationalism or federalism, he states, “The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both.”[8]
Henry was not convinced and argued for a bill of rights to be added to the Constitution “securing to the states and the people every right which was not conceded to the general government.”[9] The ninth and tenth amendments were put forward in order to alleviate the fear that the “general” government would deny the states of their rightful powers.
In the end, the wording, “We the People,” prevailed so that the Constitution is grounded in the authority of the people.

We said a few moments ago that the preamble declares both the purposes for which the Constitution was written and the authority by which it was created. As we have seen, the Constitution was created by the authority of the people of the United States as they acted in and through their state ratifying conventions. “We the People of the United States…do ordain and establish this Constitution for the United States of America.” We must now discuss the purposes for which the Constitution was created. There were six. The Constitution was ordained and established “in Order to”:

(1)    form a more perfect Union
(2)    establish justice
(3)    insure domestic Tranquility
(4)    provide for the common defence,
(5)    promote the general Welfare, and
(6)    secure the Blessings of Liberty to ourselves and our Posterity

The first purpose stated is to form a more perfect Union. The phrase recalls the Articles of Confederation which served as the governing document for the states from 1777 until the Constitution was implemented in March of 1789. The Articles of Confederation suffered from several weaknesses, among them:  (1) the Confederation did not have the power to enforce treaties with foreign nations; (2) it did not have the power to levy taxes; (3) it lacked a stable currency; (4) it had no power to regulate commerce; (5) it provided no courts to adjudicate grievances between states; and (6) it had no power to call out troops. These defects made for a rather weak union of states. The Articles of Confederation represented the relationship between the states as a “firm league of friendship with each other.”
The weaknesses of the Articles of Confederation were felt so keenly during the crisis of the War for Independence and its aftermath that a convention was called for for the purpose of revising the Articles and strengthening the powers of the Confederation. The convention met in Philadelphia from May 25 to September 17, 1787. The delegates soon decided that a simple revision of the Articles of Confederation was inadequate and that a whole new form of government was needed. The Constitution was thus put forward as a means to achieving “a more perfect union.”
The second purpose of the Constitution was to establish Justice. Establishing justice is the essential function of all government and contributes social order. Where justice cannot be obtained through the due process of law, injured parties often resort to violence as a means to right the wrongs done to them. This is true whether the parties to a dispute are individuals or states.
Under the Articles of Confederation each state had its own courts, but where there was a true union of states, there needed to be an additional court system that transcended the state courts. The first Chief Justice of the Supreme Court, John Jay, explains why:

Prior to the date of the constitution, the people had not any national tribunal, to which they could resort for justice; the distribution of justice was then confined to state judicatories, in whose institution and organization the people of the other states had no participation, and over whom they had not the least control. There was then no general court of appellate jurisdiction, by whom the errors of state courts, affecting either the nation at large, or the citizens of any other state, could be revised and corrected. Each state was obliged to acquiesce in the measure of justice, which another state might yield to her, or to her citizens; and that, even in cases where state considerations were not always favourable to the most exact measure. There was danger, that from this source animosities would in time result; and as the transition from animosities to hostilities was frequent in the history of independent states, a common tribunal for the termination of controversies became desirable, from motives both of justice and of policy.
Prior also to that period, the United States had, by taking a place among the nations of the earth, become amenable to the laws of nations; and it was their interest as well as their duty to provide, that those laws should be respected and obeyed. In their national character and capacity, the United States were responsible to foreign nations for the conduct of each state, relative to the laws of nations, and the performance of treaties; and there the inexpediency of referring all such questions to state courts, and particularly to the courts of delinquent states became apparent. While all the states were bound to protect each, and the citizens of each, it was highly proper and reasonable, that they should be in a capacity, not only to cause justice to be done to each, and the citizens of each; but also to cause justice to be done by each, and the citizens of each; and that, not by violence and force, but in a stable, sedate, and regular course of judicial procedure.[10]

[1] The Debates in the Several State Conventions on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia in 1787, edited by Jonathan Elliot, 5 vols. (Philadelphia, PA:  Lippincott Company, 1891), vol. 3, p. 22. The debates are available to download for free at www,
[2] The Anti-Federalist Papers and the Constitutional Convention Debates, ed. Ralph Ketcham (New York, NY:  The Penguin Group, 1986), p. 207
[3] The Debates in the Several State Conventions, p. 44
[4] See Forrest McDonald, States’ Rights and the Union:  Imperium in Imperia, 1776-1876 (Lawrence, KS:  University of Kansas, 2000)
[5] Federalist No. 39
[6] He means the Congress as it existed under the Articles of Confederation, in which each state had equal representation. The members of Congress under the Articles were chosen by the state legislatures, which is what the Constitution originally required in the Senate. Prior to the passage of the 17th Amendment, Senators were not elected by the people of the states as they are today; they were chosen by the state legislature. Compare Art. I, Sec. 3 and Amendment XVII.
[7] Ibid.
[8] Madison concludes by saying, “In its foundation it [the Constitution] is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.”
[9] The Debates in the Several State Conventions, vol. 3, p. 150
[10] Cited in Joseph Story, Commentaries on the Constitution of the United States, par. 488, n. 2, originally published in 1833 (

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