§ 20. Significance of the Phrase "to form a more perfect Union." The concluding Article of Confederation provided that "the Union shall be perpetual." Patterson claimed in the Federal Convention, that no State could lawfully withdraw from it without the consent of the rest: "The Confederation is in the nature of a compact; and can any State, unless by the consent of the whole, either in politics or law, withdraw their powers? Let it be said by Pennsylvania and the other large States that they for the sake of peace consented to the Confederation; can she now resume her original right without the consent of the others? In a letter to Congress by Washington, written by the unanimous order of the Convention : "In all our deliberations on this subject we kept constantly in our view that which appears to us the greatest interest of every true American, the consolidation of our Union - in which is involved our prosperity, felicity, safety, perhaps our national existence." 2 It is clear that it was the intention of the Constitution that the former union should continue more perfect, more consolidated, and be perpetual.3 "The Union of the States never was a purely artificial arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to be perpetual.' And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained 'to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not? But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, or of the right of selfgovernment by the States. Under the Articles of Confederation each State retained its sovereignty, freedom, and independence, and every § 20, 1 Yates' Minutes, Elliot's Debates, 2d ed., vol. iv, p. 413. 2 Madison Papers, Elliot's Debates, 2d ed., vol. v, pp. 535, 536. 8 See Texas v. White, 7 Wall. 700. power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term, that the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence,' and that without the States in union, there could be no such political body as the United States.' Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National Government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.' Every clause in the Constitution in which it differed from the Articles of Confederation was designed to make the Union "more perfect." § 21. Significance of the Phrase, “to Establish Justice.” The phrase "to establish justice" is not found in the Articles of confederation. One of the chief evils which called the Federal Convention together was the "necessity of providing more effectually for the security of private rights, and the steady dispensation of justice. Interferences with these were evils which had, more perhaps than anything else, produced this Convention. Was it to be supposed that republican liberty could long exist under the abuses of it practiced in some of the States?" There was no Federal court to enforce rights of property secured by treaties and to hold invalid acts of State legislatures in contravention of treaty rights or for the prevention of the collection of debts due domestic as well as foreign creditors. For this reason, in order to establish justice, there was inserted in the Constitution an article,2 providing for courts of the United 4 Chief Justice Chase in Texas v. White, 7 Wall. 700, 724-725. § 21. 1 Madison in the Federal Con vention. Madison Papers, Elliot's Debates, vol., v, p. 162. 2 Article III, infra. States; the direction that "this Constitution, and the Laws of the United States, which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the Contrary notwithstanding; "3 and the inhibitions against the enactment by the States of tender laws, bills of attainder, and laws impairing the obligations of contracts. The prohibitions to the United States, as well as the States, of the enactment of bills of attainder and ex post facto laws, and the recognition of debts contracted by the United States before the adoption of the Constitution, were also designed for this end. The beneficial effects of these prohibitions cannot be overestimated.6 § 22. Significance of the Phrase "to Insure domestic Tranquillity." The Articles of Confederation provided no means for the insurance of domestic tranquillity. Congress could not, without the consent of the States, raise the money to arm and to pay an army with which to protect itself from domestic insult. It was at one time driven from the seat of government by a mutiny of 8 Article VI, infra. 4 Article I, § 10, infra. 5 Article I, §§ 9 and 10, infra. or rather republican institutions were among the which the It is al lessons of history, knew, that the masses of the peo ere subject to the influence of sup ed temporary interests, and of violent and casual forces' which might be in conflict with their own vital and permanent welfare. Realizing this truth, and the necessity of safe-guarding these vital and permanent interests, the founders of our political and legal institutions devised and the device has been supposed to be the crowning proof of their wisdom-the American polity of constitutional restraints upon all the departments of the governments which All the original the people established. eighty soldiers.1 The power of taxation which is granted in the Constitution was designed for that as well as other ends. Congress under the Confederation was similarly unable to assist in suppressing rebellions within the individual States. Even its right to do so, did it have the means, rested on a forced construction.2 For this reason, there was inserted the express provision that "The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence." § 23. Significance of the Phrase, "to provide for the Provision for the "common defense" was one of the express objects of the Confederation of the United States, and was more efficiently secured by the Constitution. The New England Confederation was formed "for offence and defence, mutuall advise and succour."2 The Constitution furnishes new means for that purpose in its provisions for raising armies and taxation.4 3 § 24. Significance of the Phrase, "to promote the ue object ,2 The The United Colonies of New England confederated, amongst other things," for their own mutuall safety and welfare." 1 The Articles of Confederation of the United States express of the league as for "their mutual and general welf word "general welfare" was used in the Constitutio than and inclusive of the word "mutual." The cla se granting Congress the power of taxation limits its exercise "to pay the debts and provide for the common defense and general welfare of the broader § 24. 1 Preston's Documents Illustrative of American History, p. 88, quoted supra, § 4, note 1. 2 Articles of Confederation, III. United States." 3 The phrase in the latter clause has been the excuse for the exercise of all doubtful powers by Congress, and will be considered more appropriately in connection with the power of taxation. Neither this nor any other part of the preamble is a grant of power.5 § 25. Significance of the Phrase, “to secure the Blessings of Liberty." The New England Confederation of 1643 assigned as an object of the league, "for preserveing and propagateing the truth and liberties of the Gospel." The experience of a century had taught the people that political liberty was more in danger, if not of more importance; and the Articles of Confederation of the United States included in the enumeration of their objects, "the security of their liberties."2 It required almost another hundred years for them to learn to extend the blessings of liberty to the people of every race within their borders. § 26. Significance of the Phrase, “Ordain and Establish.” The words "ordain and establish" are inconsistent with the theory that the new government was a league or treaty. They are words usually applied to legislation, especially legislation of an extraordinary character. Ordinances by the common law were originally regulations made by the King without the consent of Parliament. In 1641, when the Commons were discussing the manner in which Parliament could legislate without the consent of Charles, the antiquary D'Ewes, referring to an ancient precedent which did not support his position, boldly asserted they had the right to pass laws in the form of ordinances without the consent of the Crown.1 The suggestion was applauded, and almost 3 Constitution, Article I, § 8. 4 Infra. 5 Story on the Constitution, § 462. See infra. § 25. 1 Quoted supra, § 4, note 1. 2 Articles of Confederation, III. § 26. 1 The first ordinance which passed the Commons, was in 1641, authorizing commissioners to proceed to Edinburgh to treat with the Scottish Parliament. It did not take effect till it passed the Lords. The name and form were suggested by the antiquarian D'Ewes, who cited a precedent of 1373 under Edward III, which did not apply, since that, like all other previous ordinances, was made by the King without the consent of Parliament. Gardiner's Fall of the Monarchy of Charles I, vol. i, p. 238. |