formed the Constitution,since they neither appointed the convention,nor ratified their act,nor otherwise adopted it as obligatory upon them.Even if the preamble be entitled to all the influence which has been allowed to it,Judge Story's construction of its language is not,as has already been remarked,the only one of which it is susceptible."We,the people of the United States,"may,without any violence to the rules of fair construction,mean "we,the people of the States united."In this acceptation,its terms conform to the history of the preamble itself,to that of the whole Constitution,and those who made it.In any other acceptation,they are either without meaning,or else they affirm what history proves to be false.17
It would not,perhaps,have been deemed necessary to bestow quite as much attention on this part of the work,if it were not evident that the author himself considered it of great consequence,not as matter of history,but as warranting and controlling his construction of the Constitution,in some of its most important provisions.The argument is not yet exhausted,and I am aware that much of what I have said is trite,and that little,perhaps no part of it,is new.Indeed,the subject has been so often and so ably discussed,particularly in parliamentary debates,that it admits very few new views,and still fewer new arguments in support of old views.
It is still,however,an open question,and there is nothing in the present condition of public opinion to deprive it of any portion of its original importance.The idea that the people of these States were,while colonists,and,consequently,are now,"one people,"in some sense which has never been explained,and to some extent which has never been defined,is constantly inculcated by those who are anxious to consolidate all the powers of the States in the Federal Government.It is remarkable,however,that scarcely one systematic argument,and very few attempts of any sort,have yet been made to prove this important position.Even the vast and clear mind of the late Chief Justice of the United States,which never failed to disembarrass and elucidate the most obscure and intricate subject,appears to have shrunk from this.In all his judicial opinions in which the question has been presented,the unity or identity of the people of the United States has been taken as a postulatum,without one serious attempt to prove it.The continued repetition of this idea,and the boldness with which it is advanced,have,I am induced to think,given it an undue credit with the public.
Few men,far too few,inquire narrowly into the subject,and even those who do,are not in general skeptical enough to doubt what is so often and so peremptorily asserted;and asserted,too,with that sort of hardy confidence which seems to say,that all argument to prove it true would be supererogatory and useless.It is not,therefore,out of place,nor out of time,to refresh the memory of the reader,in regard to those well established historical facts,which are sufficient in themselves to prove that the foundation on which the consolidationists build their theory,is unsubstantial and fallacious.
I would not be understood as contending,in what I have already said,that the Constitution is necessarily federative,merely because it was made by the States as such,and not by the aggregate people of the United States.I readily admit,that although the previous system was strictly federative,and could not have been changed except by the States who made it,yet there was nothing to prevent the States from surrendering,in the provisions of the new system which they adopted all their power,and even their separate existence,if they chose to do so.The true inquiry is,therefore,whether they have in fact done so or not;or,in other words,what is the true character,in this respect,of the present Constitution.
In this inquiry,the history of their previous condition,and of the Constitution itself,is highly influential and important.
The author,carrying out the idea of a unity between the people of the United States,which,in the previous part of his work,he had treated as a postulatum,very naturally,and indeed necessarily,concludes that the Constitution is not a compact among sovereign States.He contends that it is "not a contract imposing mutual obligations,and contemplating the permanent subsistence of parties having an independent right to construe,control,and judge of its obligations.If in this latter sense,it is to be deemed a compact,it must be,either because it contains,on its face,stipulations to that effect,or because it is necessarily implied,from the nature and objects of a frame of government."
