Mr.Madison lays great stress on the fact that though the constitution of the Union was formed by the States, it was formed, not by the governments, but by the people of the several States; but this makes no essential difference, if the people are the people of the States, and sovereign in their severalty, and not in their union.Had it been formed by the State governments with the acquiescence of the people, it would have rested on as high authority as if formed by the people of the State in convention assembled.The only difference is, that if the State ratified it by the legislature, she could abrogate it by the legislature; if in convention, she could abrogate it only in convention.Mr.Madison, following Mr.Jefferson, supposes the constitution makes the people of the several States one people for certain specific purposes, and leaves it to be supposed that in regard to all other matters, or in all other relations, they are sovereign; and hence he makes the government a mixture of a consolidated government and a confederated government, but neither the one nor the other exclusively.Say the people of the United States were one people in all respects, and under a government which is neither a consolidated nor a confederated government, nor yet a mixture of the two, but a government in which the powers of government are divided between a general government and particular governments, each emanating from the same source, and you will have the simple fact, and precisely what Mr.Madison means, when is eliminated what is derived from his theory of the origin of government in compact.It is this theory of the conventional origin of the constitution, and which excludes the Providential or real constitution of the people, that has misled him and so many other eminent statesmen and constitutional lawyers.
The convention did not create the Union or unite the States, for it was assembled by the authority of the United States who were present in it.The United States or Union existed before the convention, as the convention itself affirms in declaring one of its purposes to be "to provide for a more perfect union." If there had been no union, it could not and would not have spoken of providing for a more perfect union, but would have stated its purpose to be to create or form a union.The convention did not form the Union, nor in fact provide for a more perfect union; it simply provided for the more perfect representation or expression in the General government of the Union already existing.The convention, in common with the statesmen at the time, recognized no unwritten or Providential constitution of a people, and regarded the constitution of government as the constitution of the state, and consequently sometimes put the state for the government.In intepreting its language, it is necessary to distinguish between its act and its theory.Its act is law, its theory is not.The convention met, among other things, to organize a government which should more perfectly represent the union of the States than did the government created by the Articles of Confederation.
The convention, certainly, professes to grant or concede powers to the United States, and to prohibit powers to the States; but it simply puts the state for the government.The powers of the United States are, indeed, grants or trusts, but from God through the law of nature, and are grants, trusts, or powers always conceded to every nation or sovereign people.But none of them are grants from the convention.The powers the convention grants or concedes to the United States are powers granted or conceded by the United States to the General government it assembled to organize and establish, which, as it extends over the whole population and territory of the Union, and, as the interests it is charged with relate to all the States in common, or to the people as a whole, is with no great impropriety called the government of the United States, in contradistinction from the State governments, which have each only a local jurisdiction.
But the more exact term is, for the one, the general government, and for the others, particular governments, as having charge only of the particular interests of the State; and the two together constitute the government of the United States, or the complete national government; for neither the General government nor the State government is complete in itself.The convention developed a general government, and prescribed its powers, and fixed their limits and extent, as well as the bounds of the powers of the State or particular governments; but they are the United States assembled in convention that do all this, and, therefore, strictly speaking, no powers are conceded to the United States that they did not previously possess.The convention itself, in the constitution it ordained, defines very clearly from whom the General government holds its powers.It holds them, as we Ihave seen, from "We, the people of the United States;" not we, the people of the States severally, but of the States united.If it had meant the States severally, it would have said, We, the States; if it had recognized and meant the population of the country irrespective of its organization into particular States, it would have said simply, We, the people.By saying "We, the people of the United States," it placed the sovereign power where it is, in the people of the States united.
