We have seen how that, after long and anxious waiting, and after repeated efforts to get the States or the Congress to call a general convention, it was only when an appeal was made to the "people of America" that the movement for the creation of a national government was crowned with success. It was only when the "people of America" began to move that either Congress or the States could be brought to realize that they must move.
Providentially and logically, rather than intentionally, it was not in the proper order of things that the new movement should be carried out either by the States as such or by the Congress. It was the doctrine of the Declaration that rights belong to the people, and that governments "derive their just powers from the consent of the governed." It was therefore only the clear logic of the Declaration that the movement for the establishment of a new form of government should receive its original impulse from the people of America, rather than from the governments of America.
This word, "the people of these United States," "the people of America," which was rung out by the Committee of Congress, February 15, and by Madison, in November, 1786, was the spring of all that followed in the making of the nation. It was the keynote to which the paean of the liberty and the rights of the people in government was to be sung to all the world, and for all time.
At every step of the way in the making of the nation the idea was never lost sight of that it was "the peopleof these United States," "the people of America," and not the States who were doing it. This was made to appear in the published call of the convention, in the provision that when the Constitution should have been framed by the convention and agreed to by Congress, it was to be established and made of force, not by the Legislatures of the States, that is, not by the States as such, but by conventions in the States, chosen by the people. For Madison, who was the open and positive leader in the movement, "held it as a fixed principle that the new system should be ratified by the people of the several States, so that it might be clearly paramount to their individual legislative authority."-Bancroft, History of Constitution, Vol. I, p. 278.
How certainly this principle was recognized, and how strictly it was followed in the convention, is shown by a remarkable fact. And it is this: In the first draft of the Constitution, as arranged and printed, after "more than two months"' deliberation, and distributed to the members, the preamble ran as follows:-
"We, the people of the States[and then followed in detail the names of all the thirteen] do ordain, declare, and establish the following Constitution for the government of ourselves and our posterity."-Id., Vol. II, pp. 119, 120.
But when the Constitution, was completed, and was ready to be sent forth by the convention, the preamble stood thus:-
"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."
Where the first draft said, "We, the people of the States," the final preamble was made to say, "We, the people of the United States:" clearly showing that the question had been discussed and decided that it was not the people of the State as such, but the people of the United States by whom this thing was done.
Again, where the first draft said, "We, the people of States, do ordain and establish this Constitution for the government of ourselves"-the people of the States-the final preamble was made to say, "We, the people of the United States, do ordain and establish this Constitution for the United States of America."
It is true that the delegates in the convention voted by States, in accordance with the forms of the governments as they then existed; but in any, or all their action "they did not pretend to be 'the people,' and could not institute a general government in its name. The instrument which they framed was like the report of a bill beginning with the words 'be it enacted,' though the binding enactment awaits the will of the Legislature; or like a deed drawn up by an attorney for several parties awaiting its execution by the principals themselves. Only by its acceptance could the words, 'We, the people of the United States,' become words of truth and power."-Id., p. 208. And when afterwards in the Pennsylvania convention for the ratification of the Constitution, it was charged by one of the members that the "federal convention had exceeded the powers given them by their respective Legislatures," James Wilson answered in the following emphatic words:-
"The federal convention did not proceed at allupon the powers given them by the States, but upon original principles; and having framed a Constitution which they thought would promote the happiness of their country, they have submitted it to their [the people's] consideration, who may either adopt or reject it as they please."-Id, p. 246.
In the convention that framed the Constitution there was even "a disinclination to ask the approbation of Congress" upon the result of their labors, though this was not acted upon. Nevertheless the Constitution was not to be put to the risk of defeat by being submitted to Congress for a vote of approval or disapproval; but was to be submitted to the people only, for that purpose. This was made clear by the convention in its adoption, September 10, 1787, of the following "directory resolution":
"This Constitution shall be laid before the United States in Congress assembled; and it is the opinion of this convention that it should be afterwards submitted to a convention chosen in each State, under the recommendation of its Legislature, in order to receive the ratification of such convention."-Id., pp. 205, 206.
Later the "Committee on Style" reported, September 13, resolutions "for the ratification of the Constitution through Congress, by conventions of the people of the several States;" and in this report was embodied the above "directory resolution."
The object of having the Constitution pass through Congress and the Legislatures of the respective States, yet without allowing them to act in approval or disapproval upon it, was to give them the opportunity of proposing amendments if they should choose to do so.
The Constitution was laid before Congress September 20, 1787, and on the 28th of the same month that body unanimously resolved "that the said report, with the resolutions and letter accompanying the same, be transmitted to the several Legislatures in orderto be submitted to a convention of delegates chosen in each State by the people thereofin conformity to the resolves of the convention."-Id., p. 230.
In the Pennsylvania convention for the ratification of the Constitution, James Wilson, who from beginning to end was a master spirit in the framing of that masterly instrument, again defined its principles, November 24, 1787, in the following sublime passage:-
"To control the power and conduct of the Legislature by an overruling Constitution limiting and superintending the operations of the legislative authority, was an improvement in the science and practice of government reserved to the United States. Oft have I marked with silent pleasure and admiration the force and prevalence through the United States of the principle that the supreme power resides in the people, and that they never part with it. There can be no disorder in the community but may here receive a radical cure. Error in the Legislature may be corrected by the Constitution; error in the Constitution, by the people. The streams of power run in different directions, but they all originally flow from one abundant fountain. In this Constitution all authority is derived from the people."-Id., p. 245.
And finally, after the people of the United States through their conventions had passed upon the Constitution as originally framed and submitted, they ratified it, but yet with the addition of ten amendments, two of which, in the very words of that supreme law itself, define the rights of the people. The ninth amendment declares that-
"The enumeration in the Constitution of certain rights shall not be constructed to deny or disparage other retained by the people."
And the tenth amendment declares that-
"The powers not delegatedto the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people."
Thus was the nation made; these are they who made it; and thus the government of the United States of America became, and is, "a government of the people, by the people, and for the people."
Note:
Nothing in this chapter is to be constructed to convey the idea that in the action of "the people of the United States" the States are ignored. Not at all. The people of the United States, acting as such, do not act as a whole, but in divisions according to their respective States. The government of the United States, though distinct and separate from that of the States, is yet not a democracy in which the people act in a mass; but it is as truly a republic in which the people act through representatives, as is the government of the States. In all things in which the people act as the people of the United States, they do so through representatives chosen by themselves from within their respective States. Even the President, who, more than any other, is the representative of all the people, is not. directly chosen-voted for-by the people. No; the people in their respective States vote for electorschosen from among themselves in their respective States, and these electors elect the President. In all things the form of government, whether State or national, is republican; that is, the form in which the people govern and act is through representatives chosen by themselves.