THE CONSTITUTION OF THE UNITED STATES — ANALYSIS OF ITS PROVISIONS,
MUTUAL COVENANTS, AND DELEGATIONS OF POWER, AS IN THE ARTICLES OF
MR. STEPHENS. Let us now look into the Constitution itself,* and see the
nature of the Government instituted by it, so far as appears from the words,
and the terms used in it; — keeping closely in mind all the antecedent
facts these are mainly — the separate Sovereignty of the States, by whose
Delegates it was framed — the old law — the articles of Confederation
— the evils complained of under them, and the remedies proposed. Keep in
mind the purpose for which the Convention was called, the instructions and
powers, under which the Delegation from each State acted, as well as what the
Convention said of their work, after it was done, in transmitting it to the
States, then in Congress assembled. Recollect, also, what Ellsworth and Sherman
said of it, and what Washington, in his own name, said of it. All these matters
should be kept constantly in view in our examination of the terms of the
Constitution. With these facts, then, thoroughly impressed upon the mind, let
us enter upon an examination of the Instrument itself.
* See Appendix C.
Upon an analysis of the entire provisions of the Constitution, from the
beginning to the end, similar to the analysis made of the Articles of
Confederation, we see that the whole may be divided and arranged:
First, into mutual Covenants and Agreements between the States, and
Secondly, the delegation of specific powers, by the States severally, to
the States jointly, to be exercised by them jointly, in the mode and manner
specifically set forth in the mutual Covenants, as stated.
The mutual Covenants relate partly to the new organization, and the
general division of the exercise of the powers granted or delegated to the
different departments; and partly to restrictions upon the several States, and
duties or obligations assumed by them, just as under the former, or old
The Covenants of the First Class, for a clearer understanding, by proper
analysis, may be further subdivided under appropriate heads, and in
classification arranged accordingly. Those relating to the new organization and
division of powers being placed by themselves, in order, and those relating to
the restraints upon the several States and the duties and obligations assumed
by them as States, being, also, arranged by themselves, in like order.
Now, then, upon opening the Constitution, at the head of it, we find the
Preamble, of which we have spoken. That is in these words:
"CONSTITUTION OF THE UNITED STATES OF AMERICA.
"We the People of the United States, in order to form a more perfect
Union, establish Justice, insure domestic Tranquillity, provide for the common
defence, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this CONSTITUTION for the
United States of America."
From this, as has been shown, it clearly appears that it was the
intention of those who framed what follows, that it was to be a Constitution
for States, or, in other words, a Compact between States. No more on that point
First, then, in our examination into the body and substance of the
Instrument, let us arrange all the mutual Covenants or Agreements in their
order, according to the plan of analysis as stated.
Those relating to the new organization and the machinery of the
Government, and the distribution of Powers, may be placed as follows:
FIRST. — COVENANTS RELATING TO THE LEGISLATIVE DEPARTMENT.
1st. "All Legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate and House of
2d. "The House of Representatives shall be composed of Members chosen
every second Year by the People of the several. States, and the Electors in
each State shall have the Qualifications requisite for Electors of the most
numerous Branch of the State Legislature."
3d. "No Person shall be a Representative who shall not have attained to
the Age of twenty-five Years, and been seven Years a Citizen of the United
States, and who shall not, when elected, be an Inhabitant of that State in
which he shall be chosen."
4th. "Representatives and direct Taxes shall be apportioned among the
several States which may be included within this Union, according to their
respective Numbers, which shall be determined by adding to the whole Number of
free Persons, including those bound to Service for a Term of Years, and
excluding Indians not taxed, three fifths of all other Persons. The actual
Enumeration shall be made within three Years after the first Meeting of the
Congress of the United States, and within every subsequent Term of ten Years,
in such Manner as they shall by Law direct. The Number of Representatives shall
not exceed one for every thirty Thousand, but each State shall have at Least
one Representative; and until such enumeration shall be made, the State of New
Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island
and Providence Plantations one, Connecticut five, New-York six, New Jersey
four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North
Carolina five, South Carolina five, and Georgia three."
5th. "When vacancies happen in the Representation from any State, the
Executive Authority thereof shall issue Writs of Election to fill such
6th. "The House of Representatives shall chuse their Speaker and other
Officers; and shall have the sole Power of Impeachment."
7th. "The Senate of the United States shall be composed of two Senators
from each State, chosen by the Legislature thereof, for six Years; and each
Senator shall have one Vote."
8th. "Immediately after they shall be assembled in Consequence of the
first Election, they shall be divided as equally as may be into three Classes.
The Seats of the Senators of the first Class shall be vacated at the Expiration
of the second Year, of the second Class at the Expiration of the fourth Year,
and of the third Class at the Expiration of the sixth Year, so that one third
may be chosen every second Year; and if Vacancies happen by Resignation, or
otherwise, during the Recess of the Legislature of any State, the Executive
thereof may make temporary Appointments until the next Meeting of the
Legislature, which shall then fill such Vacancies."
9th. "No Person shall be a Senator who shall not have attained to the
Age of thirty Years, and been nine Years a Citizen of the United States, and
who shall not, when elected, be an Inhabitant of that State for which he shall
10th. "The Vice President of the United States shall be President of the
Senate, but shall have no Vote, unless they be equally divided."
11th. "The Senate shall chuse their other Officers, and also a President
pro tempore, in the Absence of the Vice President, or when he shall
exercise the Office of President of the United States."
12th. "The Senate shall have the sole Power to try all Impeachments.
When sitting for that Purpose, they shall be on Oath or Affirmation. When the
President of the United States is tried, the Chief Justice shall preside: And
no Person shall be convicted without the Concurrence of two thirds of the
13th. "Judgment in Cases of Impeachment shall not extend further than to
removal from Office, and Disqualification to hold and enjoy any Office of
honour, Trust or Profit under the United States: but the Party convicted shall
nevertheless be liable and subject to Indictment, Trial, Judgment and
Punishment, according to Law."
14th. "The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or alter such
Regulations, except as to the place of chusing Senators."
15th. "The Congress shall assemble at least once in every Year, and such
Meeting shall be on the first Monday in December, unless they shall by Law
appoint a different Day."
16th. "Each House shall be the Judge of the Elections, Returns and
Qualifications of its own Members, and a Majority of each shall constitute a
Quorum to do Business; but a smaller Number may adjourn from day to day, and
may be authorized to compel the attendance of absent Members, in such Manner,
and under such Penal. ties as each House may provide."
17th. "Each House may determine the Rules of its Proceedings, punish its
Members for disorderly Behaviour, and, with the Concurrence of two thirds,
expel a Member."
18th. "Each House shall keep a Journal of its Proceedings, and from time
to time publish the same, excepting such Parts as may in their Judgment require
Secrecy; and the Yeas and Nays of the Members of either House on any question
shall, at the Desire of one fifth of those Present, be entered on the
19th. "Neither House, during the Session of Congress, shall, without the
Consent of the other, adjourn for more than three days, nor to any other Place
than that in which the two Houses shall be sitting."
20th. "The Senators and Representatives shall receive a Compensation for
their Services, to be ascertained by Law, and paid out of the Treasury of the
United States. They shall in all Cases,, except Treason, Felony and Breach of
the Peace, be privileged from Arrest during their Attendance at the Session of
their respective Houses, and in going to and returning from the same; and for
any Speech or Debate in either House, they shall not be questioned in any other
21st. "No Senator or Representative shall, during the Time for which he
was elected, be appointed to any civil Office under the Authority of the United
States, which shall have been created, or the Emoluments whereof shall have
been encreased during such time; and no Person holding any Office under the
United States, shall be a Member of either House during his Continuance in
22d. "All Bills for raising Revenue shall originate in the House of
Representatives; but the Senate may propose or concur with Amendments as on
23d. "Every Bill which shall have passed the House of Representatives
and the Senate; shall, before it become a law, be presented to the President of
the United States; If he approve he shall sign it, but if not he shall return
it, with his Objections to that House in which it shall have originated, who
shall enter the Objections at large on their Journal, and proceed to reconsider
it. If after, such Reconsideration two thirds of that House shall agree to pass
the Bill, it shall be sent, together with the Objections, to the other House,
by which it shall likewise be reconsidered, and if approved by two thirds of
that House, it shall become a Law. But in all such Cases the Votes of both
Houses shall be determined by Yeas and Nays, and the Names of the Persons
voting for and against the Bill shall be entered on the Journal of each House
respectively. If any Bill shall not be returned by the President within ten
Days (Sundays excepted) after it shall have been presented to him, the Same
shall be a law, in like Manner as if he had signed it, unless the Congress by
their Adjournment prevent its Return, in which Case it shall not be a Law."
24th. "Every Order, Resolution, or Vote to which the Concurrence of the
Senate and House of Representatives may be necessary (except on a question of
Adjournment) shall be presented to the President of the United States; and
before the same shall take effect, shall be approved by him, or being
disapproved by him, shall be repassed by two thirds of the Senate and House of
Representatives, according to the Rules and Limitations prescribed in the Case
of a Bill."
SECOND. — COVENANTS RELATING TO THE EXECUTIVE DEPARTMENT.
1st. "The Executive Power shall be vested in a President of the United
States of America. He shall hold his Office during the Term of four Years, and,
together with the Vice-President, chosen for the same Term, be elected, as
2d. "Each State shall appoint, in such Manner as the Legislature thereof
may direct, a Number of Electors, equal to the whole Number of Senators and
Representatives to which the State may be entitled in the Congress: but no
Senator or Representative, or Person holding an Office of Trust or Profit under
the United States, shall be appointed an Elector."
[* The Electors shall meet in their respective States, and vote by
Ballot for two Persons, of whom one at least shall not be an Inhabitant of the
same State with themselves. And they shall make a List of all the Persons voted
for, and of the Number of Votes for 6ach; which List they shall sign and
certify, and transmit sealed to the Seat of the Government of the United
States, directed to the President of the Senate. The President of the Senate
shall, in the Presence of the Senate and House of Representatives, open all the
Certificates, and the Votes shall then be counted. The Person having the
greatest Number of Votes shall be the President, if such Number be a Majority
of the whole Number of Electors appointed; and if there be more than one who
have such Majority, and have an equal Number of Votes, then the House of
Representatives shall immediately chuse by Ballot one of them for President;
and if no Person have a Majority, then from the five highest on the List the
said House shall in. like Manner chuse the President. But in chusing the
President, the Votes shall be taken by States, the Representation from each
State having one Vote; A Quorum for this Purpose shall consist of a Member or
Members from two thirds of the States, and a Majority of all the States shall
be necessary to a Choice. In every Case, after the Choice of the President, the
Person having the greatest Number of Votes of the Electors shall be the Vice
President. But if there should remain two or more who have equal Votes, the
Senate shall chuse from them by Ballot th 3 Vice President.]
* This clause within brackets has been superseded and annulled by the
3d. "The Congress may determine the Time of chusing the Electors, and
the Day on which they shall give their Votes; which Day shall be the same
throughout the United States."
4th. "No Person except a natural born Citizen, or a Citizen of the
United States, at the time of the Adoption of this Constitution, shall be
eligible to the Office of President; neither shall any Person be eligible to
that Office who shall not have attained to the Age of thirty five Years, and
been fourteen Years a Resident within the United States."
5th. "In Case of the Removal of the President from Office, or of his
Death, Resignation, or Inability to discharge the Powers and Duties of the said
Office, the same shall devolve on the Vice President, and the Congress may by
Law provide for the Case of Removal, Death, Resignation, or Inability, both of
the President and Vice President, declaring what Officer shall then act as
President, and such Officer shall act accordingly, until the Disability be
removed, or a President shall be elected."
6th. "The President shall, at stated Times, receive for his Services, a
Compensation, which shall neither be encreased or diminished during the Period
for which he shall have been elected, and he shall not receive within that
Period any other Emolument from the United States, or any of them."
7th. "Before he enter on the Execution of his Office, he shall take the
following Oath or Affirmation: —
"'I do solemnly swear (or affirm) that I will faithfully execute the
Office of President of the United States, and will to the best of my Ability,
preserve, protect and defend the Constitution of the United States.'"
8th. "The President shall be Commander in Chief of the Army and Navy of
the United States, and of the Militia of the several States, when called into
the actual Service of the United States; he may require the Opinion, in
writing, of the principal Officer in each of the executive Departments, upon
any Subject relating to the Duties of their respective Offices, and he shall
have Power to grant Reprieves and Pardons for Offences against the United
States, except in Cases of Impeachment."
9th. "He shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided. two thirds of the Senators present concur;
and he shall nominate, and by and with the Advice and Consent of the Senate,
shall appoint Ambassadors, other public Ministers and Consuls, Judges of the
supreme Court and all other Officers of the United States, whose Appointments
are not herein otherwise provided for, and which shall be established by Law:
but the Congress may by Law vest the Appointment of such inferior Officers, as
they think proper, in the President alone, in the Courts of Law, or in the
Heads of Departments."
10th. "The President shall have power to fill up all Vacancies that may
happen during the Recess of the Senate, by granting Commissions which shall
expire at the End of their next Session."
11th. "He shall from time to time give to the Congress Information of
the State of the Union, and recommend to their Consideration such Measures as
he shall judge necessary and expedient; he may, on extraordinary Occasions,
convene both Houses, or either of them, and in Case of Disagreement between
them, with respect to the Time of Adjournment, he may adjourn them to such Time
as he shall think proper; he shall receive Ambassadors and other public
Ministers; he shall take Care that the Laws be faithfully executed, and shall
Commission all the officers of the United States."
12th. "The President, Vice President and all civil Officers of the
United States, shall be removed from office on Impeachment for, and Conviction
of, Treason, Bribery. or other high Crimes and Misdemeanors."
THIRD. — COVENANTS RELATING TO THE JUDICIAL DEPARTMENT.
1st. "The judicial Power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the Congress may from time ordain
and establish. The Judges, both of the supreme and inferior Courts, shall hold
their offices during good Behavior, and shall, at stated Times, receive for
their Services, a Compensation? which shall not be diminished during their
Continuance in Office."
2d. "The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and Treaties
made, or which shall be made, under their Authority; — to all Cases
affecting Ambassadors, other public Ministers, and Consuls;to all Cases of
admiralty and maritime Jurisdiction; — to Controversies to which the
United States shall be a Party;to Controversies between two or more States;
— between a State and Citizens of another State; — between Citizens
of different States, — between Citizens of the same State claiming Lands
under Grants of different States, and between a State, or the Citizens thereof,
and foreign States,, Citizens or subjects."
3d. "In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party, the supreme Court shall
have original jurisdiction. In all the other Cases before mentioned, the
supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with
such Exceptions, and under such Regulations as the Congress shall make."
4th. "The Trial of all Crimes, except in Cases of Impeachment, shall be
by Jury; and such Trial shall be held in the State where the said Crimes shall
have been committed; but when not committed within any State, the Trial shall
be at such Place or Places as the Congress may by Law have directed."
NOW THE COVENANTS OF THE SECOND CLASS IN ORDER.
1st. "No State shall enter into any Treaty, Alliance, or Confederation;
grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make
any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill
of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts,
or grant any Title of Nobility."
2d. "No State shall, without the consent of the Congress, lay any
Imposts or Duties on Imports or Exports, except what may be absolutely
necessary for executing it's inspection Laws: and the net Produce of all Duties
and Imposts, laid by any State on Imports or Exports, shall be for the Use of
the Treasury of the United States; and all such Laws shall be subject to the
Revision and Controul of the Congress."
3d. "No State shall, without the Consent of Congress, lay any Duty of
Tonnage, keep Troops, or Ships of War in time of Peace, enter into any
Agreement or Compact with another State, or with a foreign Power, or engage in
War, unless actually invaded, or in such imminent Danger as will not admit of
4th. "Full Faith and Credit shall be given in each State to the public
Acts, Records, and judicial Proceedings of every other State. And the Congress
may by general Laws prescribe the Manner in which such Acts, Records and
Proceedings shall be proved, and the Effect thereof."
5th. "The Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States."
6th. "A Person charged in any State with Treason, Felony, or other
Crime, who shall flee from Justice, and be found in another State, shall on
demand of the executive authority of the State from which he fled, be delivered
up, to be removed to the State having Jurisdiction of the Crime."
7th. "No Person held to Service or Labour in one State, under the Laws
thereof, escaping into another, shall, in Consequence of any Law or Regulation
therein, be discharged from such Service or Labour, but shall be delivered up
on Claim of the Party to whom such Service or Labour may be due."
8th. "All Debts contracted and Engagements entered into, before the
Adoption of this Constitution, shall be as valid against the United States
under this Constitution, as under the Confederation."
9th. "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, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding."
10th. "The Senators and Representatives before mentioned, and the
Members of the several State Legislatures, and all executive and judicial
Officers, both of the United States and of the several States, shall be bound
by Oath or Affirmation, to support this Constitution; but no religious Test
shall ever be required as a Qualification to any Office or public Trust under
the United States."
11th. "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."
These are all the Covenants between the States, arranged in order by
analysis, as stated, except two, which may more properly be set forth, after we
examine the enumeration of the Powers delegated and the terms used in their
These are as follows: First, specific grants of power; and secondly,
certain limitations upon the Powers so granted or delegated.
FIRST. — THE SPECIFIC POWERS DELEGATED.
"The Congress shall have power"
1st. "To lay and collect Taxes, Duties, Imposts and Excises, to pay the
Debts and provide for the common Defence and general Welfare of the United
States; but all Duties, Imposts and Excises shall be uniform throughout the
2d. "To borrow Money on the credit of the United States;"
3d. "To regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes;"
4th. "To establish an uniform Rule of Naturalization, and uniform Laws
on the subject of Bankruptcies throughout the United States;"
5th. "To coin Money, regulate the Value thereof, and of foreign Coin,
and fix the Standard of Weights and Measures;"
6th. "To provide for the Punishment of counterfeiting the Securities and
current Coin of the United States,"
7th. "To establish Post Offices and post Roads;"
8th. "To promote the progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries;"
9th. "To constitute Tribunals inferior to the supreme Court;"
10th. "To define and punish Piracies and Felonies committed on the high
Seas, and Offences against the Law of Nations;
"Treason against the United States, shall consist only in levying War
against them, or in adhering to their Enemies, giving them Aid and Comfort. No
Person shall be convicted of Treason unless on the Testimony of two Witnesses
to the same overt Act, or on Confession in open Court."
11th. "The Congress shall have Power to declare the Punishment of
Treason, but no Attainder of Treason shall work Corruption of Blood, or
Forfeiture except during the Life of the Person attainted."
12th. "To declare War, grant Letters of Marque and Reprisal, and make
Rules concerning Captures on Land and Water;"
13th. "To raise and support Armies, but no Appropriation of Money to
that Use shall be for a longer Term than two Years;"
14th. "To provide and maintain a Navy;"
15th. "To make Rules for the Government and Regulation of the land and
16th. "To provide for calling forth the Militia to execute the Laws of
the Union, suppress Insurrections and repel Invasions;"
17th. "To provide for organizing, arming, and disciplining the Militia,
and for governing such Part of them as may be employed in the Service of the
United States, reserving to the States respectively, the Appointment of the
Officers, and the Authority of training the Militia according to the Discipline
prescribed by Congress;"
18th. "To exercise exclusive Legislation in all Cases whatsoever, over
such District (not exceeding ten Miles square) as may, by Cession of particular
States, and the Acceptance of Congress, become the Seat of the Government of
the United States, and to exercise like Authority over all Places purchased by
the Consent of the Legislature of the State in which the Same shall be for the
Erection of Forts, Magazines, Arsenals, Dock — Yards, and other needful
buildings; — And"
19th. "To make all Laws which shall be necessary and proper for carrying
into Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department or
20th. "New States may be admitted by the Congress into this Union; but
no new State shall be formed or erected within the Jurisdiction of any other
State; nor any State be formed by the Junction of two or more States, or Parts
of States, without the Consent of the Legislatures of the States concerned as
well as of the Congress."
21st. "The Congress shall have Power to dispose of and make all needful
Rules and Regulations respecting the Territory or other Property belonging to
the United States; and nothing in this Constitution shall be so construed as to
Prejudice any Claims of the United States, or of any particular State."
SECONDLY. — LIMITATIONS ON THE POWERS DELEGATED.
1st. "The Migration or Importation of such Persons as any of the States
now existing shall think proper to admit, shall not be prohibited by the
Congress prior to the Year one thousand eight hundred and eight, but a Tax or
Duty may be imposed on such Importation, not exceeding ten dollars for each
2d. "The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may require
3d. "No Bill of Attainder or ex post facto Law shall be passed."
4th. "No Capitation, or other direct, Tax shall be laid, unless in
Proportion to the Census or Enumeration herein before directed to be
5th. "No Tax or Duty shall be laid on Articles exported from any
6th. "No preference shall be given by any Regulation of Commerce or
Revenue to the Ports of one State over those of another: nor shall Vessels
bound to, or from, one State, be obliged to enter, clear, or pay Duties in
7th. "No money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law; and a regular Statement and Account of the Receipts
and, Expenditures of all public Money shall be published from time to
8th. "No title of Nobility shall be granted by the United States: And no
Person holding any Office of Profit or Trust under them, shall, without the
Consent of the Congress, accept of any present, Emolument, Office, or Title, of
any kind whatever, from any King, Prince, or foreign State."
These are all the powers delegated, with their limitations. We come,
now, in our classification and arrangement of the entire Constitution, to the
two remaining stipulations. which belong properly to the Covenants between the
States, but which, in any general classification, may more properly be put at
the conclusion of the whole.
1st. "The Congress, whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution, or, on the
Application of — the Legislatures of two thirds of the several States,
shall call a Convention for proposing Amendments, which, in either Case, shall
be valid to all Intents and Purposes, as Part of this Constitution, when
ratified by the Legislatures of three fourths of the several States, or by
Conventions in three fourths thereof, as the one or the other Mode of
Ratification may be proposed by the Congress; Provided that no Amendment, which
may be made prior to the Year one thousand eight hundred and eight, shall in
any Manner affect the first and fourth Clauses in the Ninth Section of the
first Article; and that no State, without its Consent, shall be deprived of its
equal Suffrage in the Senate."
2d. "The Ratification of the Conventions of nine States, shall be
sufficient for the Establishment of this Constitution between the States so
ratifying the Same.
"DONE — in Convention by the Unanimous Consent of the States
present the Seventeenth day of September, in the Year of our Lord one thousand
seven hundred and Eighty-seven, and of the Independence of the United States of
America the Twelfth.
"IN WITNESS whereof We have hereunto subscribed our Names.
"GEORGE WASHINGTON —
"Presidt and Deputy from Virginia.
John Langdon, Nicholas Gilman.
Nathaniel Gorham, Rufus King,
Winm. Saml. Johnson, Roger Sherman.
Will: Livingston, David Brearley,
Wm. Paterson, Jona. Dayton.
B. Franklin, Thomas Mifflin,
Robt. Morris, Geo: Clymer,
Fitzsimons, Jared Ingersoll,
James Wilson, Gouv: Morris.
Geo: Read, Gunning Bedford, Jun'r,
John Dickinson, Richard
James M'Henry, Dan: of St. Thos. Jenifer.
John Blair, James Madison, Jr.,
Wm. Blount, Rich'd Dobbs Spaight.
J. Rutledge, Charles Cotesworth Pinckney,
Charles Pinckney, Pierce
William Few, Abr. Baldwin.
Attest: WILLIAM JACKSON, Secretary"
We have thus gone through with the whole of the original Constitution,
as it, at first, came from the hands of the Convention; we have examined it
from the beginning to the end — from the Preamble to the signatures of the
Delegates. We see that the members of each Delegation signed it in behalf of
the State represented by them. The subsequent amendments, we may, hereafter,
The articles, sections, and clauses, as arranged by the Committee on
Style, have not been followed in this analysis. But every section, clause and
word, are set forth in it, as the original stands engrossed in the Archives of
State, at Washington.* The order of their arrangement only is changed. This
does not mar the sense, in the slightest particular, in a single instance, but
gives a clearer conception, it appears to me, of the whole instrument, taken
together; as all instruments, in writing, should be, to be thoroughly and
correctly understood. Now, after scanning the whole, taken together, what
section, clause, phrase or word, on the face of the Constitution itself, shows
any intention, on the part of the framers, to merge the separate Sovereignty of
all the States into one, under it; and, by its adoption, to establish a
National Government, instead of perfecting and continuing, under a new
organization, with enlarged powers, the Federal Union, then existing between
the States, and for the remedying of which, the Convention was called? It was
made, we see, by States. It was to be established, we see, not over, but
between, the States ratifying it.
* Edition of the Constitution by Hickey, p. 31.
Is not the leading idea, throughout the whole instrument, that the new
Government was to be a Compact between States, as the old one was? States
pervade the whole instrument. The Senators are to be elected by the
Legislatures of the several States. The House of Representatives is to be
composed of members, chosen by the people of the several States; and to
be chosen by electors, possessing such qualifications as each State, for
itself, may prescribe for the electors of the most numerous branch of its
own State Legislature. Thus providing that every member of the Legislative body
should be chosen, in the one branch, directly by the States, as such, and in
the other branch, by constituencies, to be formed and controlled absolutely by
the States, severally.
"Representatives and taxation shall be apportioned among the several
"Each State shall have, at least, one Representative." When
vacancies happen "in any State," etc.
The Congress shall have power to regulate commerce with foreign nations,
"and among the several States." "The migration and importation of such
persons as any of the States," etc.
No preference shall be given," etc., "to the ports of one State
over those of another," etc. "Nor shall vessels, bound to or from one
State, be obliged to enter, clear, or pay duties in another."
"No State shall enter into any treaty," etc.
"No State shall, without the consent of the Congress, lay
any imposts," etc.
"No State shall," without the like consent of the Congress, "lay
any duty of tonnage, keep troops or ships of war in time of peace, enter into
any agreement or compact with another State, or with a foreign Power, or
engage in war, unless actually invaded," etc.
Nothing appears more prominent in the whole instrument than
States. The very first Article in the Constitution declares that all
Legislative powers under it shall be vested in "a Congress of the United
States." The term "Congress of the United States" was familiar to all at
that day. It was well known to mean "The United States in Congress assembled."
Congress means a meeting or an assemblage. A Congress of States means a Meeting
or Assemblage of States. The title of Congress, under the Confederation, had
been "The United States of America in Congress assembled." The same title is
still retained. To this very day, the enacting clause of every law, passed by
"the Congress," under the Constitution, is in these words: —
"Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled."
Every law that has been passed, from the beginning, under this
Constitution, as under the Articles of Confederation, derives its sole
authority, as its face shows, from States in Congress assembled!
The whole operation of the Government, from its first starting, depended
upon the action of the States. The election of President and Vice President,
from the first to the last, depended entirely upon the States, as States, and,
also, the election of Senators. Nor can there be a House of Representatives in
the Congress without the co-operation of the States! The General Government,
created by the instrument, has no authority, as appears from its face, to enter
any State, or take jurisdiction over a foot of her soil, even for the erection
of forts and arsenals, etc., except by her consent, first had and obtained by
contract or purchase. This shows that the Right of Eminent Domain, the
indisputable attribute and accompaniment of Sovereignty, remained with the
States, severally, even over such places as might thus pass, in fee, from them,
or their citizens, to the United States, as in like purchases, in all cases
What is there, then, in this whole instrument, that looks towards such a
consolidation of the whole people of this country into one community or Nation,
as Mr. Motley contends, and as you maintain?
JUDGE BYNUM. Does not what is said about Treason look that way?
MR. STEPHENS. Not at all; if it be true that the Constitution was a
Compact between Sovereign States. That is the point in issue. All such
inferences, as you refer to, depend upon this primary and essential fact,
touching the nature and character of the Government. Nothing is clearer than
that Sovereign States may agree, by Compact, between themselves, that certain
acts of the citizens of each, against all jointly, shall be deemed and held to
be criminal against them jointly, and punished by their joint authority. Such
is the case, in this Constitution, as to counterfeiting the current coin and
securities of the United States, and divers other offences. The granting of
power to punish such offences against the joint authority of all, while the
Compact lasts, does not, in the least, in itself, compromise the Sovereignty of
each, or change the allegiance of her citizens; which, independently of the
Compact, must, by acknowledgment, be admitted to be due to her Paramount
authority. The Articles of Confederation delegated the power to punish
So, it is perfectly consistent with the reserved Sovereignty of each
party to such a Compact, to agree among themselves that levying war upon all of
them, or adhering to their enemies, giving them aid and comfort, by the
citizens of any one of them, shall be considered Treason against all; inasmuch
as such an act would, unquestionably, be Treason against the State, of which
such persons are citizens, in the breach, which it would necessarily involve,
of their allegiance, due to the Paramount authority of the State, in entering
into such a Compact, which, by its very nature, is to be binding upon each
State, and all her citizens, as the Supreme law, so long as it may last.
It is perfectly competent for Sovereign States to make such an
agreement, or compact, as this, without compromising their Sovereignty, or
changing, in the least degree, the ultimate, absolute allegiance of all their
citizens, which, by the laws of Nations, is due to their Paramount authority.
This is just what the Constitution did on that subject, if it be a Compact
between Sovereign States, and that is the point of our inquiry.
In further illustration of the view I was presenting, to show that it is
such a Compact, and that no such inference, as you would draw from the words
about treason, is at all maintainable, I call your special attention to the
fact that there is, in the Constitution, no Covenant, or Delegation of power to
the Congress, to define, or punish treason, generally, as all Sovereigns,
without doubt, have power to do. That is left with the States, severally, and a
solemn Compact entered into, that all persons, charged with treason against any
one of the States, fleeing into another State, shall, upon demand, etc., be
given up, etc. This shows, clearly, that the general allegiance of the citizens
of the several States was not intended to be transferred, by this clause of the
Constitution, to the United States. Indeed, there is not a word about
allegiance in the whole of it.
Moreover, all that is said upon the subject, in this clause, is only an
enlargement in one sense, and a restriction in another, of powers under the
Articles of Confederation. There is no change of principle in the nature of the
Government, in this particular, in the new Constitution, from the old.
Under the Articles of Confederation, the States, in Congress assembled,
had power, as we have seen, to make "Rules for the Government of the land and
naval forces," etc. By virtue of this clause they had power not only to punish,
but to define what acts should constitute treason against the joint authority
of all the States, when committed by any one in the land or naval forces. It
was under this clause, doubtless, or under the Rules and Articles of War,
established by virtue of it, that Arnold would have been executed, if he had
not made his escape. But no one thought that, because Arnold, a citizen of the
State of Connecticut, was held and deemed to be guilty of treason against the
United States, that, therefore, his allegiance, and the allegiance of all the
people of Connecticut, and the allegiance of all the people of all the States,
was necessarily, thereby, under the Confederation, transferred from the States,
severally, to the United States. We have seen that the Supreme Court of the
United States has decided the very reverse, or, that the allegiance of the
citizens of the States, severally, during the Confederation, was due to their
States respectively.* Hence it follows that it was perfectly consistent, with a
full reservation of power to the States, severally, over the allegiance of
their citizens, to enter into just such a Compact, as I maintain this to be.
This part of the Constitution, as I have said, is but an enlargement. in one
sense, and a restriction, in another, of powers delegated under the Articles of
Confederation. It is enlarged, so as to embrace all citizens of the States,
respectively, whether in the land or naval forces or not; and restricted in
this, that the offence, defined in the Constitution to be Treason against the
United States, shall consist, only, in levying war against them, or in adhering
to their enemies, giving them aid and comfort, with a limitation as to the
extent of the punishment. A farther restriction is that a person charged with
treason, now, cannot be tried by Military Courts. The trial, in all cases, must
be by the Civil Courts. The crime can only exist, when the act is committed by
the citizens of any State, not only against her, but against all the other
States with which she stands united by a solemn Compact.
* Ante, p. 76.
The Paramount Sovereignty of each State to command the allegiance of her
citizens, in case she should exercise it — in severing, as in making, the
Compact — cannot be transferred by inference or implication. This, an we
have seen, can pass, only, by express terms of surrender.* There is no such
express surrender in the Constitution, nor can any intention to make such be
inferred, even upon taking the whole Constitution together. None. at least,
from this clause of the Constitution. Is there any other that even looks that
* Ante, p. 83.
PROFESSOR NORTON. If it were not for what you said, in the beginning,
about the clause which declares 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, etc., I should certainly say that that does look that
way. But, from what you have said, I suppose you hold that it does not.
MR STEPHENS. Most assuredly I do; and for the reasons before given. This
clause contains no delegation of power, — makes no acknowledgment of a
surrender of any. It simply declares a fact, or truth, which results from the
nature of the Compact. The same fact, here declared, was admitted to exist
under the Articles of the Confederation. They were equally the supreme law of
the land, while they lasted, as the Constitution now is.* They were just as
obligatory, upon the States, as the Constitution is. So said Mr. Hamilton and
Mr. Madison, and so held Mr. Justice Chase, on the Supreme Court Bench, as we
have seen.† This clause, as Mr. Hamilton said, is only a limitation
inserted out of abundant caution. That limitation was to rebut the very
inference that you would draw. It was inserted to make it clear that not only
was the allegiance of the citizens of the several States not
transferred, by virtue of any thing in the Constitution, to the United States,
but that even obedience to their laws, etc., could be enjoined, only so
far as these laws were made in pursuance of the Constitution!
* Ante, pp. 45-48
The great difference between this clause, offered in substance by Luther
Martin, and the one offered by the Nationals, and for which Martin's was
substituted, was, that theirs gave to the United States the power or right to
judge as between them and the States severally upon
Constitutional infractions, while his refused to delegate this power, leaving
it, therefore, with the States, where it was before.
PROF. NORTON. If this be so, please, then, explain, if you can, why the
next clause was added, which requires the members of the several State
Legislatures, and all Executive and Judicial officers of the States, to take an
oath to support the Constitution?
MR. STEPHENS. This can be easily done, and in no more pertinent
language, perhaps, than Mr. Madison used in answering the same question, when
asked, while the Constitution was before the people for their consideration. In
the forty-third number of the Federalist, he says:‡
‡ Dawson's Edition, p. 317.
"It has been asked why it was thought necessary that the State
magistracy should be bound to support the Federal Constitution, and unnecessary
that a like oath should be imposed on the officers of the United States in
favor of the State Constitutions. Several reasons might be assigned for the
distinction. I content myself with one which is obvious and conclusive. The
members of the Federal Government will have no agency in carrying the State
Constitutions into effect. The members of the State Governments, on the
contrary, will have an essential agency in giving effect to the Federal
Constitution. The election of the President and Senate will depend, in all
cases, on the Legislatures of the several States." etc.
This is the reason Mr. Madison assigned for it. Whether it was a
conclusive reason for the propriety of putting this clause in or not, yet his
giving it, when he did, and as he did, is conclusive proof that no inference
can be drawn from the clause, as it stands in the Constitution, that it was
intended, by virtue of it, any more than by virtue of the other clause just
before it, to transfer the allegiance of the citizens of the several States to
the United States; and, thereby, form a National Government instead of a
Federal one. Mr. Madison, recollect, was one of the extremest in the Convention
for a National Government, and not a Federal one; but here, in speaking of the
nature of the Government which was finally agreed upon, he calls it "the
Federal Government," and the Constitution he styles "the Federal
This oath was opposed by Mr. Wilson, one of the leading, Nationals in
the Convention. "He said he was not fond of oaths. He considered them a
left-handed security. A good Government did not need them, and a bad one could
not or ought not to be supported."* He, certainly, did not regard it as you
* Madison Papers, Elliot's Debates, vol. v, p. 352.
But, as also quite pertinent in further answer to your question, I refer
to what Mr. Madison said, in the next number of the Federalist, upon the
general nature of the powers delegated under the Constitution, from which it
clearly appears that he did not consider the nature of the new Government
essentially changed, in any particular, from what it was under
"If the new Constitution," says he, "be examined with accuracy and
candor, it will be found that the change which it proposes consists much less
in the addition of NEW POWERS to the Union, than in the invigoration of its
ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but
that seems to be an addition which few oppose, and from which no apprehensions
are entertained. The powers relating to war and peace, armies and fleets,
treaties and finances, with the other more considerable powers, are all
vested in the existing Congress by the Articles of Confederation. The proposed
change does not enlarge these powers; it only substitutes a more effectual mode
of administering them. The change relating to taxation may be regarded as the
most important; and yet the present Congress have as complete authority to
REQUIRE of the States indefinite supplies of money for the common defence and
general welfare, as the future Congress will have to require them of individual
citizens; and the latter will be no more bound than the States themselves have
been, to pay the quotas respectively taxed on them."*
From both these extracts from the Federalist, it clearly appears that
Mr. Madison, who is styled the father of the Constitution, did not consider
that the Federative nature and character of the previously existing Union
between the States was essentially changed in any particular by the new
Constitution, framed with the view of perfecting that Union.
* Mr. Madison, Federalist, No. 44, p. 324, Dawson's
"The change," says he, "consists much less in the addition of new
powers to the Union than in the invigoration of its original powers!" Words
of what import are these, coming from the source they did? And how true we
shall find them to be upon examining closely the analysis of the various
provisions of the two instruments, the Articles of Confederation and the
Constitution which we have made? What are the new powers delegated in the
These, upon examining the analysis in each case and comparing them, will
be found to be
1st. The power to raise revenue by duties upon imposts and taxes
directly upon the people without resort to requisitions upon the States.
2d. The power to make the rules for aliens to be admitted to citizenship
in the several States, uniform in all the States, and like uniform rules
3d. The power to promote the progress of science and useful arts by
securing, for limited times, to authors and inventors, the exclusive right to
their writings and discoveries.
4th. The power to regulate commerce with Foreign Nations, among the
several States, and with the Indian Tribes.
This, Mr. Madison puts amongst the new powers. Though, in fact, it was
but an enlargement of a previously existing power in the Congress. By the
Articles of the Confederation, the Congress had power to regulate trade with
the Indian Tribes. This power in the Constitution was only enlarged by
extending it to Foreign Nations and among the several States as well as the
Indian Tribes. It is in principle not a new power, but an old one, extended and
Besides these four there is hardly a new power delegated in the new
Constitution of sufficient importance to need special notice.
The Covenants between the States, imposing restraints and assuming
obligations, run almost in the same language throughout both instruments.
Amongst the new restraints the most important are
1st. That no State shall emit bills of credit or make any thing but gold
and silver a legal tender in the payment of debts; pass any bill of attainder;
or ex post facto law, or law impairing the obligation of contracts, or
grant any title of nobility.
2d. No State shall, without the consent of Congress, lay any imposts or
duty upon imports, exports, etc. The prohibitions against any of the States
forming alliances, etc., making war, etc., are nearly the same in both.
One striking feature in the new Constitution is that the States under it
have entire control over their militia.
The Congress, under the Constitution, has no power over them, except to
provide by law for organizing, arming, disciplining them; and for calling them
out for specific purposes and governing them when in the service of the United
States. But the States have retained to themselves severally the power of
training and officering and sending them forth upon any call made for them.
By the Articles of Confederation the Congress had the appointment of all
the officers of the militia when in service, from the regimental
officers up. By the Constitution the power is reserved to the States to appoint
all the officers of the militia, whether in service or not, from the
lowest to the highest.
Great stress, by many, has been put upon the Judicial Department in the
new system. This, however, is no new feature. Under the Articles of
Confederation there was a Judiciary provided. It is enlarged in the new
Constitution, that is all. There is no change in principle in this
Of all the new obligations assumed by the States, the most important,
and one without which, it was universally admitted, the Constitution could not
be formed, is that which provides for the rendition of fugitives from service
from one State to another. We shall have much to say of this hereafter. It was,
however, only an enlargement of the principle in the Articles of Confederation
on which fugitives from justice were to be delivered up. And Mr. Madison truly
said, after his enumeration, that all the other more considerable powers
under the Constitution were vested in the Congress under the Articles of
Confederation. If the States then, under the Confederation, retained their
Sovereignty severally, why do they not under this Constitution?
Did their people, by adopting this Constitution, understand that,
thereby, they were surrendering the separate Sovereignty of the States? That,
for which the war of the Revolution had been fought, and for the maintenance of
which the Confederation had been formed? Did they understand that, thereafter,
there were to be no more States United by a Compact of Union between them, but
that all the people of the whole land, by the ratification of this
Constitution, were to be merged into one body politic, into one Community, one
Nation under a social Compact? Does the Constitution, on its face, taken
altogether or in any part, admit any such construction? Does not the clause
next to the last, which provides for future changes or amendments in it,
utterly refute and negative forever every such idea or supposition; or rather
every such gross heresy?
In this it is expressly stipulated, that upon A11 future changes, or
amendments, the States, as States, shall act, and that it shall require the
concurrence of three fourths of all the States, in their State organization,
and by their State Governments, to make any alteration or amendment. It is
especially stipulated, that no amendment shall ever be made, which shall
deprive the States of their equal suffrage in the Senate! Does not this clearly
show where ultimate Sovereign power rests under this system? That is, that it
remains with the States severally, now, just as it did under the
Can this clause of the Constitution admit of any other version or
reading without the grossest violation of the plainest import of language? Was
not that the understanding of it by its authors and framers? If not, what
mockery is there in the last of the mutual Covenants in our classification?
That is in these words:
"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."
Is not this the language of Confederation? The language of Compact? The
language of Alliance between Sovereign States? Alliance for mutual safety and
protection against foes without, as well as foes within? Do not all the States
United, under this Compact, by this clause, guarantee its own Institutions to
each State in the Alliance thus formed? Not that the clause confers any power
on the States jointly to interfere in any manner or form, or in any
contingency, in changing, modelling, moulding, or shaping the Institutions of
any State according to their joint will or pleasure! No more palpable, or gross
a perversion of the meaning of words could be made, than such a construction as
that. But does it not clearly set forth a solemn obligation on the part of her
Confederates to maintain, sustain and secure, by their joint authority and
means, to each State, such Republican Institutions as each State, for itself,
in its own Sovereign will, may adopt?
My dear Sirs, what is a State? Did not the framers of this instrument
understand the meaning of the words they used? Is it not a body-politic —
a Community organized with all the functions and powers of Government within
Vattel says: "Nations, or States, are bodies-politic. Societies of men,
united together for the purpose of their mutual safety and advantage by the
efforts of their combined strength. Such society has her affairs and her
interests; she deliberates and takes resolutions in common, thus becoming a
moral person, who possesses an understanding and a will peculiar to herself and
is susceptible of obligations and rights."*
* Preliminaries to Treatise on the Laws of Nations, p. 49.
Were not the States for which this Constitution was framed, and by which
it was adopted as a bond of Union, such bodies politic? Such "several Sovereign
and independent States," as, according to the same author previously quoted,
"may unite themselves together by a perpetual Confederacy, without ceasing to
be, each, a perfect State," and without any impairment, as he says, of "the
Sovereignty of each?"†
† Ante, p. 169.
Were they not just such States as, Montesquieu says, may form "a
Confederate Republic," in which cast "the Confederacy may be dissolved, and the
Confederates preserve their Sovereignty?" Were they not such States as, Cicero
says, ought to possess within themselves principles of indestructibility? "A
State," says he,* "should "be so constituted as to live forever! For a
Commonwealth there is no natural dissolution, as there is for a man to whom
death not only becomes necessary, but often desirable." When "a State,"
however, "is put an end to, it is destroyed, extinguished," annihilated!
* Cicero on the Commonwealth.
There is nothing, says this profound philosopher, in another place, "in
which human virtue can more closely resemble the Divine Powers, than in
establishing new States, or in preserving those already established!"
Were States ever more Providentially, yea, Divinely, established, than
these had been? Under their whole superstructure, in their Declaration of
Independence, lie the great truths, announced by political bodies for the first
time in the history of the world, of the capacity and right of man to
self-government. That all Governments "derive their just powers from the
consent of the governed," and that, "whenever any Government be. comes
destructive of the ends" for which it is established, "it is the right of the
people to alter or abolish it, and to institute a new Government, laying its
foundation on such principles, and organizing its powers in such forms, as to
them may seem most likely to effect their safety and happiness." This is
asserted to be the inalienable right of all Peoples and all States! On these
immutable principles, the Governments of these States had been established,
separately, and severally. Were States ever established that so well deserved
to live forever?
Was there ever a grander exhibition of this highest of all bare human
virtues, according to Cicero, than was presented by the Patriot Fathers of
1787, in forming this Constitution? Was not their main, chief, and leading
object throughout, and the object of the Union under it, to preserve,
and to perpetuate, as far as possible by human agency, these separate
and several States so established? Is not this apparent from the whole work? Is
it not apparent from the face of the instrument, from its Alpha to its Omega?
In other words, is not the Constitution, upon its face, as made, without
looking into the subsequent amendments, Federal in its every
feature, from beginning to end?
What say you?
PROF. NORTON. I will postpone what I have to say until you get
MR. STEPHENS. Well, then, the next step with me, after this examination
of the Constitution itself, will be to look into the action of the several
States upon it, and see whether they considered it as uniting and consolidating
the whole people of the country, over which it was to extend, into one Nation,
or whether they considered it, as Washington did, a consolidation of the Union
of States, joined together by it, into one Great Confederated Republic.
Next | Previous | Contents | Text