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,forgottenbooks.org
[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 (http://www.constitution.org/js/js_306.htm)
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