“The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by ‘the people of the United States.” Joseph Story Martin v Hunter 1821It is crystal clear on who created the constitution. In fact I can find no antebellum cases where the US Supreme Court ever stated that the states made or were a party to the constitution. It is clearly “We the people” that made the constitution, and that is all the people, no sub-set of the people.
It is apparent that you have not read and/or have not understood the out of context quotation of Justice Story. The quote is from Martin v. Hunter's Lessee, 14 U.S. 304 (1816).
Your contention that the consolidated people of the United States ordained and established the Constitution is reduced to absurdity by the history of the Framing and Ratification, not to mention by putting the Story quote into the context in which Story framed it.
The Constitution was approved at a convention by representatives of eleven (11) states, Rhode Island and New York not present or voting. Moreover, the representatives at the convention had no authorization from anyone to create a constitution or propose to change the form of government.
The Constitution was ratified by eleven (11) states, Rhode Island and North Carolina not ratifying.
A new union was formed by eleven (11) states, Rhode Island and North Carolina not being members.
North Carolina joined about six months after Washington's inauguration, and Rhode Island joined more than a year later.
Each state ratified seperately and membership in the resulting union was limited to the states so ratifying the Constitution.
There was no consolidated vote of the people. The people of each state cast one vote as a state.
It is not possible for the vote of eleven states to express the consolidated will of all thirteen (13) original states.
It is not possible for a consolidated vote of all the people of the thirteen (13) states to decide for all the people of those states, and result in having eleven (11) member states in the union, and two (2) member states out of the union.
It's nonsense.
The major problem is not what Story wrote, but the juvenile interpretation of what Story wrote. A more complete quote returns it to its proper context. "The Constitution was not, therefore, necessarily carved out of existing State sovereignties, nor a surrender of powers already existing in State institutions, for the powers of the States depend upon their own Constitutions, and the people of every State had the right to modify and restrain them according to their own views of the policy or principle." The people of each state collectively are the political community called the State. They have ever exercised their sovereignty as States. The people organized at States vote to elect delegates to the Electoral College who cast votres on behalf of the people of the State that elected them. Whether the delegates are winner-take-all or proportional is a matter for the State to decide. Ratifications of constitutional amendments are by States. And the Constitution itself proclaimed that, "The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the same." Any nine states. It could have comprised less than half the population, were it the nine least populous states. It did not form a union of all the thirteen states, but only of the nine or more States that ratified. The actual number was eleven.
Martin v. Hunter's Lessee, 14 U.S. 304, 324-327 (1816).
[324]Before proceeding to the principal questions, it may not be unfit to dispose of some preliminary considerations which have grown out of the arguments at the bar.
The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by "the people of the United States." There can be no doubt that it was competent to the people to invest the general go-
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vernment with all the powers which they might deem proper and necessary, to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be that the people had a right to prohibit to the States the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact, to make the powers of the State governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. The Constitution was not, therefore, necessarily carved out of existing State sovereignties, nor a surrender of powers already existing in State institutions, for the powers of the States depend upon their own Constitutions, and the people of every State had the right to modify and restrain them according to their own views of the policy or principle. On the other hand, it is perfectly clear that the sovereign powers vested in the State governments by their respective Constitutions remained unaltered and unimpaired except so far as they were granted to the Government of the United States.
These deductions do not rest upon general reasoning, plain and obvious as they seem to be. They have been positively recognised by one of the articles in amendment of the Constitution, which declares that
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people."
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The government, then, of the United States can claim no powers which are not granted to it by the Constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication.
On the other hand, this instrument, like every other grant, is to have a reasonable construction, according to the import of its terms, and where a power is expressly given in general terms, it is not to be restrained to particular cases unless that construction grow out of the context expressly or by necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged.
The Constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter, and restrictions and specifications which at the present might seem salutary might in the end prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature from time to
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time to adopt its own means to effectuate legitimate objects and to mould and model the exercise of its powers as its own wisdom and the public interests, should require.
With these principles in view, principles in respect to which no difference of opinion ought to be indulged, let us now proceed to the interpretation of the Constitution so far as regards the great points in controversy.
The introductory sentence eliminates any possibility of the paragraphs the follow to be more than obiter dictum.
Of course, the same Joseph Story wrote in Commentaries on the Constitution, vol. III, Sec. 321, that,
§ 321. The obvious deductions, which may be, and indeed have been, drawn from considering the constitution as a compact between the states, are, that it operates as a mere treaty, or convention between them, and has an obligatory force upon each state no longer, than suits its pleasure, or its consent continues; that each state has a right to judge for itself in relation to the nature extent, and obligations. Of the instrument, without being at all bound by the interpretation of the federal government, or by that of any other state; and that each retains the power to withdraw from the confederacy and to dissolve the connexion, when such shall be its choice; and may suspend the operations of the federal government, and nullify its acts within its own territorial limits, whenever, in its own opinion, the exigency of the case may require. These conclusions may not always be avowed; but they flow naturally from the doctrines, which we have under consideration. They go to the extent of reducing the government to a mere confederacy during pleasure; and of thus presenting the extraordinary spectacle of a nation existing only at the will of each of its constituent parts.
That is the more mature and considered opinion of Joseph Story.
You may wish to rethink your support for the early Joseph Story who stated in Martin v. Hunter's Lessee, that the Constitution was a compact. Oh my, just look at what flows from such finding, according to Story.
And it was the Great Expounder, Daniel Webster, who said in The Constitution Is Not a Compact, 1861, p. 8:
If a league between sovereign powers have no limitation as to the time of duration, and contain nothingmaking it perpetual, it subsists only during the good pleasure of the parties, although no violation be complained of. If, in the opinion of either party, it be violated, such party may say he will no longer fulfil its obligations on his part, but will consider te whole league or compact at an end, although it might be one of its stipulations that it should be perpetual.
Farrand's Records — In a Committee of the Whole House. Wednesday May 30, 1787.
It was then moved by Mr Randolph and seconded by Mr G Morris to substitute the following resolution in the place of the first resolutionResolved that an union of the States, merely foederal, will not accomplish the objects proposed by the articles of confederation, namely "common defence, security of liberty, and general welfare.
It was moved by Mr Butler seconded by Mr Randolph to postpone the consideration of the said resolution in order to take up the following resolution submitted by Mr Randolph namely
Resolved that a national government ought to be established consisting of a supreme legislative, judiciary and executive.
It was moved by Mr Read seconded by Mr C. C. Pinckney to postpone the consideration of the last resolution in order to take up the following
Resolved That in order to carry into execution the design of the States in forming this convention and to accomplish the objects proposed by the confederation "a more effective government consisting of a Legislative, Judiciary, and Executive ought to be established"
On the question to postpone, in order to take up the last resolution, the question was lost.
On motion to agree to the said resolution moved by Mr Butler it passed in the affirmative [ayes -- 6; noes -- 1; divided 1.]2 -- and the resolution, as agreed to, is as follows.
[Note 2: 2 Vote 2, Detail of Ayes and Noes, see below note 6.]Resolved that it is the opinion of this Committee that a
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national government ought to be established consisting of a supreme Legislative, Judiciary, and Executive
Yea verily, the considered and approved a national, as opposed to a federal government.
Farrand's Records — May 30th, 1st resolution from Mr. Randol.
Mr. R. wishes to have that resol. dissented to. The resol. postponed to take up the following:
1st. That a union of the States merely foederal will not accomplish the object proposed by the articles of confederation, namely, "common defence, security of liberty, and general welfare".Mr. C. Pinkney wishes to know whether the establishment of this Resolution is intended as a ground for a consolidation of the several States into one.
Mr. Randol has nothing further in contemplation than what the propositions he has submitted yesterday has expressed.
2. Resolved that no treaty or treaties between the whole or a less number of the States in their sovereign capacities will accomplish their common defence, liberty or welfare.
3. Resolved therefore that a national governmen ought to be established consisting of a supreme legislature, judiciary and executive.
Mr. Whythe presumes from the silence of the house that they gentn. are prepared to pass on the resolution and proposes its being put.
Mr. Butler — does not think the house prepared, that he is not. Wishes Mr. Randolph to shew that the existence of the States cannot be preserved by any other mode than a national government.
Gen. Pinkney — Thinks agreeing to the resolve is declaring that the convention does not act under the authority of the recommendation of Congress.
The first resolution postponed to take up the 3d. viz -- Resolved that a national government ought to be established consisting of a supreme legislature, judiciary and executive.
1787, 21 Febry. Resolution of Congress.
Resolved that in the opinion of Congress it is expedient
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that on the 2d Monday of May next a convention of delegates who shall have been appointed by the several States to be held at Philada. for the sole and expres 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 grates, render the foederal constitution, adequate to the exigencies of government and the preservation of the union."
Mr. Randolph explains the intention of the 3d Resolution. Repeats the substance of his yesterdays observations. It is only meant to give the national government a power to defend and protect itself. To take therefore from the respective legislatures or States, no more sovereignty than is competent to this end.
Mr. Dickinson. Under obligations to the gentlemen who brought forward the systems laid before the house yesterday. Yet differs from the mode of proceeding to which the resolutions or propositions before the Committee lead. Would propose a more simple mode. All agree that the confederation is defective all agree that it ought to be amended. We are a nation altho' consisting of parts or States--we are also confederated, and he hopes we shall always remain confederated. The enquiry should be—
1. What are the legislative powers which we should vest in Congress.2. What judiciary powers.
3 What executive powers.
We may resolve therefore, in order to let us into the business. That the confederation is defective; and then proceed to the definition of such powers as may be thought adequate to the objects for which it was instituted.
And they voted on a national form of government,
The Records of the Federal Convention of 1787 [Farrand's Records, Volume 2] JOURNAL Monday August 6. 1787.
Page 176The House met agreeably to adjournment.
The honorable John Francis Mercer Esq, One of the Deputies from the State of Maryland, attended and took his seat.
The honorable Mr Rutledge, from the Committee to whom were referred the Proceedings of the Convention for the purpose of reporting a Constitution for the establishment of a national Government conformable to these Proceedings, informed the House that the Committee were prepared to report— The report was then delivered in at the Secretary's table, and being read once throughout and copies thereof given to the members-- It was moved and seconded to adjourn till wednesday morning
which passed in the negative. [Ayes--3; noes--5.]
The house then adjourned till to-morrow morning at 11 o'Clock A. M
Back in the day, they sure had a way with words. It passed in the negative. That is pre-Trek talk for it's dead Jim.
A national form of government was considered and rejected.
You do get credit for knowing buzz phrases though.
§ 321. The obvious deductions, which may be, and indeed have been, drawn from considering the constitution as a compact between the states, are, that it operates as a mere treaty, or convention between them, and has an obligatory force upon each state no longer, than suits its pleasure, or its consent continues; that each state has a right to judge for itself in relation to the nature extent, and obligations. Of the instrument, without being at all bound by the interpretation of the federal government, or by that of any other state; and that each retains the power to withdraw from the confederacy and to dissolve the connexion, when such shall be its choice; and may suspend the operations of the federal government, and nullify its acts within its own territorial limits, whenever, in its own opinion, the exigency of the case may require. These conclusions may not always be avowed; but they flow naturally from the doctrines, which we have under consideration. They go to the extent of reducing the government to a mere confederacy during pleasure; and of thus presenting the extraordinary spectacle of a nation existing only at the will of each of its constituent parts. ding sentence.
He is rejecting that the states have the right to nullify federal law. He is saying this doctrine would reduce the government to a confederacy and presents an extraordinary spectacle of a nation(America) existing only at the will of each of it's constituent parts. This is a rejection of the so called right of secession.
As far as who ratified the constitution and who was party to it. This was discussed at the constitutional convention when they debated resolution 19.
Resol: 19. [FN6] "referring the new Constitution to Assemblies to be chosen by the people for the express purpose of ratifying it" was next taken into consideration.
Mr. ELSEWORTH moved that it be referred to the Legislatures of the States for ratification. Mr. PATTERSON 2ded. the motion.
Col. MASON considered a reference of the plan to the authority of the people as one of the most important and essential of the Resolutions. The Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and can not be greater than their creators. And he knew of no power in any of the Constitutions, he knew there was no power in some of them, that could be competent to this object. Whither then must we resort? To the people with whom all power remains that has not been given up in the Constitutions derived from them. It was of great moment he observed that this doctrine should be cherished as the basis of free Government. Another strong reason was that admitting the Legislatures to have a competent authority, it would be wrong to refer the plan to them, because succeeding Legislatures having equal authority could undo the acts of their predecessors; and the National Govt. would stand in each State on the weak and tottering foundation of an Act of Assembly. There was a remaining consideration of some weight. In some of the States the Govts. were not derived from the clear & undisputed authority of the people. This was the case in Virginia Some of the best & wisest citizens considered the Constitution as established by an assumed authority. A National Constitution derived from such a source would be exposed to the severest criticisms.
Mr. RANDOLPH. One idea has pervaded all our proceedings, to wit, that opposition as well from the States as from individuals, will be made to the System to be proposed. Will it not then be highly imprudent, to furnish any unnecessary pretext by the mode of ratifying it. Added to other objections agst. a ratification by Legislative authority only, it may be remarked that there have been instances in which the authority of the Common law has been set up in particular States agst. that of the Confederation which has had no higher sanction than Legislative ratification. Whose opposition will be most likely to be excited agst. the System? That of the local demagogues who will be degraded by it from the importance they now hold. These will spare no efforts to impede that progress in the popular mind which will be necessary to the adoption of the plan, and which every member will find to have taken place in his own, if he will compare his present opinions with those brought with him into the Convention. It is of great importance therefore that the consideration of this subject should be transferred from the Legislatures where this class of men, have their full influence to a field in which their efforts can be less mischeivous. It is moreover worthy of consideration that some of the States are averse to any change in their Constitution, and will not take the requisite steps, unless expressly called upon to refer the question to the people.
Mr. GERRY. The arguments of Col. Mason & Mr. Randolph prove too much. they prove an unconstitutionality in the present federal system even in some of the State Govts. Inferences drawn from such a source must be inadmissible. Both the State Govts. & the federal Govt. have been too long acquiesced in, to be now shaken. He considered the Confederation to be paramount to any State Constitution. The last article of it authorizing alterations must consequently be so as well as the others, and every thing done in pursuance of the article must have the same high authority with the article. -Great confusion he was confident would result from a recurrence to the people. They would never agree on any thing. He could not see any ground to suppose that the people will do what their rulers will not. The rulers will either conform to, or influence the sense of the people.
Mr. GHORUM was agst. referring the plan to the Legislatures.
1. Men chosen by the people for the particular purpose, will discuss the subject more candidly than members of the Legislature who are to lose the power which is to be given up to the Genl. Govt.
2. Some of the Legislatures are composed of several branches. It will consequently be more difficult in these cases to get the plan through the Legislatures, than thro' a Convention.
3. in the States many of the ablest men are excluded from the Legislatures, but may be elected into a Convention. Among these may be ranked many of the Clergy who are generally friends to good Government. Their services were found to be valuable in the formation & establishment of the Constitution of Massachts.
4. the Legislatures will be interrupted with a variety of little business, by artfully pressing which, designing men will find means to delay from year to year, if not to frustrate altogether, the national system.
5. If the last art: of the Confederation is to be pursued the unanimous concurrence of the States will be necessary. But will any one say, that all the States are to suffer themselves to be ruined, if Rho. Island should persist in her opposition to general measures. Some other States might also tread in her steps. The present advantage which N. York seems to be so much attached to, of taxing her neighbours by the regulation of her trade, makes it very probable, that she will be of the number. It would therefore deserve serious consideration whether provision ought not to be made for giving effect to the System without waiting for the unanimous concurrence of the States.
Mr. ELSEWORTH. If there be any Legislatures who should find themselves incompetent to the ratification, he should be content to let them advise with their constituents and pursue such a mode as wd. be competent. He thought more was to be expected from the Legislatures than from the people. The prevailing wish of the people in the Eastern States is to get rid of the public debt; and the idea of strengthening the Natl. Govt. carries with it that of strengthening the public debt. It was said by Col. Mason
1. that the Legislatures have no authority in this case.
2. that their successors having equal authority could rescind their acts.
As to the 2d. point he could not admit it to be well founded. An Act to which the States by their Legislatures, make themselves parties, becomes a compact from which no one of the parties can recede of itself. As to the 1st. point, he observed that a new sett of ideas seemed to have crept in since the articles of Confederation were established. Conventions of the people, or with power derived expressly from the people, were not then thought of. The Legislatures were considered as competent. Their ratification has been acquiesced in without complaint. To whom have Congs. applied on subsequent occasions for further powers? To the Legislatures; not to the people. The fact is that we exist at present, and we need not enquire how, as a federal Society, united by a charter one article of which is that alterations therein may be made by the Legislative authority of the States. It has been said that if the confederation is to be observed, the States must unanimously concur in the proposed innovations. He would answer that if such were the urgency & necessity of our situation as to warrant a new compact among a part of the States, founded on the consent of the people; the same pleas would be equally valid in favor of a partial compact, founded on the consent of the Legislatures.
Mr. WILLIAMSON thought the Resoln.: 19 so expressed as that it might be submitted either to the Legislatures or to Conventions recommended by the Legislatures. He observed that some Legislatures were evidently unauthorized to ratify the system. He thought too that Conventions were to be preferred as more likely to be composed of the ablest men in the States.
Mr. Govr. MORRIS considered the inference of Mr. Elseworth from the plea of necessity as applied to the establishment of a new System on ye. consent of the people of a part of the States, in favor of a like establishment. on the consent of a part of the Legislatures as a non sequitur. If the Confederation is to be pursued no alteration can be made without the unanimous consent of the Legislatures: Legislative alterations not conformable to the federal compact, would clearly not be valid. The Judges would consider them as null & void. Whereas in case of an appeal to the people of the U. S., the supreme authority, the federal compact may be altered by a majority of them; in like manner as the Constitution of a particular State may be altered by a majority of the people of the State. The amendmt. moved by Mr. Elseworth erroneously supposes that we are proceeding on the basis of the Confederation. This Convention is unknown to the Confederation.
Mr. KING thought with Mr. Elseworth that the Legislatures had a competent authority, the acquiescence of the people of America in the Confederation, being equivalent to a formal ratification by the people. He thought with Mr. E-also that the plea of necessity was as valid in the one case as in [FN10] the other. At the same time he preferred a reference to the authority of the people expressly delegated to Conventions, as the most certain means of obviating all disputes & doubts concerning the legitimacy of the new Constitution; as well as the most likely means of drawing forth the best men in the States to decide on it. He remarked that among other objections made in the State of N. York to granting powers to Congs. one had been that such powers as would operate within the State, [FN11] could not be reconciled to the Constitution; and therefore were not grantible by the Legislative authority. He considered it as of some consequence also to get rid of the scruples which some members of the State Legislatures might derive from their oaths to support & maintain the existing Constitutions.
Mr. MADISON thought it clear that the Legislatures were incompetent to the proposed changes. These changes would make essential inroads on the State Constitutions, and it would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence. There might indeed be some Constitutions within the Union, which had given a power to the Legislature to concur in alterations of the federal Compact. But there were certainly some which had not; and in the case of these, a ratification must of necessity be obtained from the people. He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution. The former in point of moral obligation might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. 1. A law violating a treaty ratified by a pre-existing law, might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null & void. 2. The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation. Comparing the two modes in point of expediency he thought all the considerations which recommended this Convention in preference to Congress for proposing the reform were in favor of State Conventions in preference to the Legislatures for examining and adopting it.
On question on Mr. Elseworth's motion to refer the plan to the Legislatures of the States.
N. H. no. Mas. no. Ct. ay. no. Pa. no. Del. ay. Md. ay. Va. no. N. C. no. S. C. no. Geo. no.
As you can see the constitutional convention discussed who should ratify, the states through their legislatures or the people through special conventions. The discussion makes it clear that if the state's ratified then they are a party to it and can leave just as easily as they entered. If the people ratify it this is not the case. Mr. Elsworth motion that the state legislatures, and therefore the states, should ratify the constitution was voted down.
As Madison said; "He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution.
Whether Story's statement in the case is ratio decidendi or ober dictum, even ober dictum is considered persuasive.
The constitutionality of secession was explicitly settled in Texas v White 1869. This case was about bonds sold by the rebel Texas Government and if that government had authority to do so. Before the supreme court could decide the case they had to determine if they had jurisdiction. To determine if they had jurisdiction they had to determine what the status of Texas was. To determine what the status of Texas was they had to determine the legality of secession.
Since the legality of secession was germane to their decision that make their statements on secession ratio decidendi. In fact this decision was cited as evidence that secession is unconstitutional as recently as 2006 by the Alaska Supreme Court in the case of Kohlhaas v. State, Alaska. The Alaska Supreme Court also ruled that secession was unconstitutional.
I stand by my statement that there is no antebellum case by the Supreme Court that said, in either ratio decidendi or obiter dictum that the states were party to ratification of the constitution. If you believe there is I would be interested in seeing it.
I do give you points for selectively quoting.