In discussing the various clauses of the Constitution,Judge Story displays great research,and a thorough acquaintance with the history of that instrument.
It is not perceived,however,that he has presented any new views of it,or offered any new arguments in support of the constructions which it has heretofore received.As a compendium of what others have said and done upon the subject,his work is very valuable.It facilitates investigation,whilst,at the same time,it is so full of matter,as to render little farther investigation necessary.Even in this view of the subject,however,it would have been much more valuable if it had contained references to the authorities on which its various positions are founded,instead of merely extracting their substance.The reader who,with his book as his guide,undertakes to acquaint himself with the Constitution of the United States,must take the authority of the author as conclusive,in most cases;
or else he will often find himself perplexed to discover the sources from which he derives his information.This is a great defect in a work of this sort,and is the less excusable,because it might have been easily avoided.
A writer who undertakes to furnish a treatise upon a frame of government,in relation to which great and contested political questions have arisen,owes it alike to his reader and to himself,to name the sources whence he draws whatever information he ventures to impart,and the authorities upon which he founds whatever opinions he ventures to inculcate.The reader requires this for the satisfaction of his own judgement;and the writer ought to desire it as affording the best evidence of his own truth and candor.
In this division of the work,the author pursues the idea cautiously hinted in the first division,and more plainly announced in the second;
and he now carries it out boldly in its results.Having informed us that,as colonies,we were "for many purposes one people,"and that the Declaration of Independence made us "a nation de facto,"he now assumes the broad ground that this "one people,"or nation de facto,formed the Constitution under which we live.The consequences of this position are very apparent throughout the remainder of the work.The inferences fairly deduced from it impart to the Constitution its distinctive character,as the author understands it;and,of course,if this fundamental position be wrong,that instrument is not in many of its provisions,what he represents it to be.The reader,therefore,should settle this question for himself in the outset;because,if he differ from the author upon this point,he will be compelled to reject by far the most important part of the third and principal division of these commentaries.
The opinion,that the Constitution was formed by "the people of the United States,"as contradistinguished from the people of the several States,that is,as contradistinguished from the States as such,is founded exclusively on the particular terms of the preamble.The language is:"We,the people of the United States,do ordain and establish this Constitution for the United States of America.""The people do ordain and establish,not contract and stipulate with each other.""The people of the United States,not the distinct people of a particular State with the people of the other States."
In thus relying on the language of the preamble,Judge Story rejects the lights of history altogether.I will endeavor,in the first place,to meet him on his own ground.
It is an admitted rule,that the preamble of a statute may be resorted to in the construction of it;and it may,of course,be used to the same extent in the construction of a constitution,which is a supreme law.But the only purpose for which it can be used is to aid in the discovery of the true object and intention of the law,where these would otherwise be doubtful.The preamble can,in no case,be allowed to contradict the law,or to vary the meaning of its plain language.Still less can it be used to change the true character of the lawmaking power.If the preamble of the Constitution had declared that it was made by the people of France or England,it might,indeed,have been received as evidence of that fact,in the absence of all proof to the contrary;but surely it would not be so received against the plain testimony of the instrument itself,and the authentic history of the transaction.If the convention which formed the Constitution was not,in point of fact,a convention of the people of the United States,it had no right to give itself that title;nor had it any right to act in that character,if it was appointed by a different power.
And if the Constitution,when formed,was adopted by the several States,acting through their separate Conventions,it is,historically untrue that it was adopted by the aggregate people of the United States.The preamble,therefore,is of no sort of value in settling this question;and it is matter of just surprise that it should be so often referred to,and so pertinaciously relied on,for that purpose.History alone can settle all difficulties upon this subject.
