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PROCEEDINGS WHICH DIRECTLY LED TO THE ADOPTION OF THE
§ 76. The alarming results of the policy which had, for a while, abandoned the idea of one nationality, and taken up that of independent state sovereignty, were producing their legitimate effects upon the people. It was seen that something must be done, and that at once; for the wheels of government had actually stopped, and society would ere long become disintegrated. What to do, what measures to adopt, was as yet involved in doubt and dispute. An amendment to the Articles of Confederation, which, it will be remembered, would require the assent of Congress and of the legislature of every state, was at first suggested. The public acts of Congress and of the various legislatures at the time, point to this remedy; show conclusively that those who managed the public affairs were prepared to take no further step than the mere reforming and enlarging the existing government. This fact is important to be noticed ; for it is, in many respects, the key to the subsequent action of the constitutional convention and of the people.
§ 77. Let us take a rapid review of the proceedings of the various legislative bodies, which terminated in the ratification of the present Constitution.
On the 21st of January, 1786, the legislature of Virginia adopted a resolution and appointed commissioners “ who were to meet such as might be appointed by the other states of the Union, at a time and place to be agreed on, to take into con sideration the trade of the United States ; to examine the relative situation and trade of the said states; to consider how far a uniform system in their commercial relations may be necessary to their common interest, and their permanent harmony; and to report to the several states such an act relative to this great object, as, when unanimously ratified by them, will ena
ble the United States, in Congress assembled, effectually to provide for the same.” 1
Four states only, New York, New Jersey, Pennsylvania, and Delaware, responded to this call ; and their delegates, together with those of Virginia, met at Annapolis in September, 1786. Deeming their numbers tuo small, and their powers too limited for any permanent good, they separated after making a report to the several states and to Congress, in which they recommend that the states should appoint commissioners, “ to meet at Philadelphia on the second Monday of May next, to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the Union ; and to report such an act for that purpose to the United States in Congress assembled, as, when agreed to by them, and afterwards confirmed by the legislatures of every state, will effectually provide for the same.” ?
$78. After some delay, Congress acted upon this suggestion, and on the 21st day of February, 1787, passed a resolution, wherein, after reciting the power given in the Articles of Confederation to amend the same, and the existence of defects demanding a remedy, they recommend that “a convention of delegates, who shall have been appointed by the several states, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress, and confirmed by the states, render the Federal Constitution adequate to the exigencies of government, and the preservation of the Union." 3
$ 79. The Convention thus recommended by Congress met at the time and place appointed, and was composed of delegates from twelve states. Rhode Island alone refused to be represented.
: See Elliots Debates, Vol. 1, p. 115.
This Convention proceeded to do, and did accomplish, what they were not authorized to do by the resolution of Congress that called them together. That resolution plainly contemplated amendments to the Articles of Confederation, to be submitted to and passed by the Congress, and afterwards ratified by all the state legislatures, in the manner pointed out by the existing organic law. But the Convention soon became convinced that any amendments were powerless to effect a cure ; that the disease was too deeply seated to be reached by such tentative means. They saw that the system they were called to improve must be totally abandoned, and that the national idea must be reëstablished at the centre of their political society.
$ 80. It was objected by some members, that they had no power, no authority, to construct a new government. They certainly had no authority, if their decisions were to be final; and no authority whatever, under the Articles of Confederation, to adopt the course they did. But they knew that their labors were only to be suggestions; and that they as well as any private individuals, and any private individuals as well as they, had a right to propose a plan of government to the people for their adoption. They were, in fact, a mere assemblago of private citizens, and their work had no more binding sanction than a constitution drafted by Mr. Hamilton, in his office, would have had. The people, by their expressed will, transformed this suggestion, this proposal, into an organic law, and the prople might have done the same with a constitution submitted to them by a single citizen. This point, that the Convention had no authority for the work they actually did, that they were mere volunteers, is one of great importance, and has not received the attention it deserves from those writers who have expounded the fundamental law.
$81. On the 17th of September. 1787, the Convention completed their labors, laid the proposed Constitution before Congress, and advised “ that it should be submitted to a convention of delegates chosen in each state by the people thereof, under a recommendation of its legislature, for their
assent and ratification."1 The Constitution itself provided that, when ratified by at least nine states, it should become established in the states so ratifying the same.2
The Convention also enforced their recommendation by a letter addressed to Congress and through them to the country, from which some extracts will be interesting.
• In all our deliberations we kept steadily in our view that which appears to us the greatest interest of every true Arnerican, — the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on minds, led each state in the Convention to be less rigid, on points of inferior magnitude, than might have been otherwise expected; and thus, the Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable.”
82. What was the real meaning of all these proceedings ? The Convention knew that they were not amending the Articles of Confederation; for in that case the proposed alterations must be submitted to Congress, and then to the state legislatures, and approved by all ; but in no instance would any direct reference to the people be necessary. They knew, on the contrary, that they were proposing a new government, and that in creating this government, neither they, nor Congress, nor the legislatures of the states, had the slightest power, the smallest voice; that such a creation was the work of the people alone, of the nation in its imperial capacity, by virtue of imperial powers which existed in them indissoluble and incommunicable, above and beyond all existing forms, all congresses, legislatures, and state organizations. To the people, then, they appealed. But the people could only express their will by voting, and to vote requires some organized method. The Convention itself could not provide means for taking, ascertaining, and publishing this vote, for they were, in fact, a mere body of volunteers, without any power except that moral influence which knowledge and worth always give. Nor could Congress make the provision, for this was an emergency which the Articles of Confederation had not anticipated ; any attempt of Congress to submit the proposed plan to the people, would have been without warrant, a mere nullity. The state governments were the only bodies which possessed the requisite ability to call upon the people, duly and in order to register their supreme and sovereign decree in ruference to the question before them, and thus to render the popular act legal in form as well as in substance. Therefore the Constitution was handed over to the various state legislatures as mere depositaries and agents, for them to submit to the people. Were this to be done in our own time, the submission would doubtless be direct; but ideas of popular government were not quite so advanced at the close of the last century as they are in our own day; and the only act of the people deemed possible was that of delegating their powers to special representatives who should meet and ratify the instrument in their name. This was the proceeding advised by the framers of the Constitution and followed by the state authorities. All were acting merely as the channels, the mechanical means, to ascertain, convey, and publish the will of the real nation.
1 Resolution of Convention, Elliot's Debates, Vol. 1, p. 16. 2 Constitution, Art. VII.
$ 83. While the Constitution was before the people awaiting their approval, the friends and partisans of the state-sovereignty theory marshalled their forces and attacked it with a virulence and malignity of which we can now hardly form a conception. They understood the effect of the change; they knew that local power was slipping away from them, and that local pride must be humbled before the majesty of the nation.
But they felt that it would be unsafe to discuss the question of ratification from this standpoint alone, and therefore assailed the gove ernment as a mere scheme of tyranny. They declared that it would be destructive of all liberty. They pronounced the Executive to be worse than an absolute monarclı, and predicted that he would soon be able to usurp all power, and to reign for life, without the aid of Congress and without reference to the people. These attacks called forth from the pens of Hamilton, Madison, and Jay, a series of letters since known