This constitution is not conventional, for it existed before the people met or could meet in convention.They have not, as an independent sovereign people, either established their union, or distributed themselves into distinct and mutually independent States.The union and the distribution, the unity and the distinction, are both original in their constitution, and they were born United States, as much and as truly so as the son of a citizen is born a citizen, or as every one born at all is born a member of society, the family, the tribe, or the nation.The Union and the States were born together, are inseparable in their constitution, have lived and grown up together; no serious attempt till the late secession movement has been made to separate them; and the secession movement, to all persons who knew not the real constitution of the United States, appeared sure to succeed, and in fact would have succeeded if, as the secessionists pretended, the Union had been only a confederacy, and the States had been held together only by a conventional compact, and not by a real and living bond of unity.The popular instinct of national unity, which seemed so weak, proved to be strong enough to defeat the secession forces, to trample out the confederacy, and maintain the unity of the nation and the integrity of its domain.
The people can act only as they exist, as they are, not as they are not.Existing originally only as distributed in distinct and mutually independent colonies, they could at first act only through their colonial organizations, and afterward only through their State organizations.The colonial people met in convention, in the person of representatives chosen by colonies, and after independence in the person of representatives chosen by States.Not existing outside of the colonial or State organizations, they could not act outside or independently of them.They chose their representatives or delegates by colonies or States, and called at first their convention a Congress; but by an instinct surer than their deliberate wisdom, they called it not the Congress of the confederate, but of the United States, asserting constitutional unity as well as constitutional multiplicity.It is true, in their first attempt to organize a general government, they called the constitution they devised Articles of Confederation, but only because they had not attained to full consciousness of themselves; and that they really meant union, not confederation, is evident from their adopting, as the official style of the nation or new power, united, not confederate States.
That the sovereignty vested in the States united, and was represented in some sort by the Congress, is evident from the fact that the several States, when they wished to adopt State constitutions in place of colonial charters, felt not at liberty to do so without asking and obtaining the permission of Congress, as the elder Adams informs us in his Diary, kept at the time;that is, they asked and obtained the equivalent of what has since, in the case of organizing new States, been called an "enabling act." This proves that the States did not regard themselves as sovereign States out of the Union, but as completely sovereign only in it.And this again proves that the Articles of Confederation did not correspond to the real, living constitution of the people.Even then it was felt that the organization and constitution of a State in the Union could be regularly effected only by the permission of Congress; and no Territory can, it is well known, regularly organize itself as a State, and adopt a State constitution, without an enabling act by Congress, or its equivalent.
New States, indeed, have been organized and been admitted into the Union without an enabling act of Congress; but the case of Kansas, if nothing else, proves that the proceeding is irregular, illicit, invalid, and dangerous.Congress, of course, can condone the wrong and validate the act, but it were better that the act should be validly done, and that there should be no wrong to condone.Territories have organized as States, adopted State constitutions, and instituted State governments under what has been called "squatter sovereignty;" but such sovereignty has no existence, because sovereignty is attached to the domain; and the domain is in the United States.It is the offspring of that false view of popular sovereignty which places it in the people personally or generically, irrespective of the domain, which makes sovereignty a purely personal right, not a right fixed to the soil, and is simply a return to the barbaric constitution of power.In all civilized nations, sovereignty is inseparable from the state, and the state is inseparable from the domain.The will of the people, unless they are a state, is no law, has no force, binds nobody, and justifies no act.
