This brief history of the preamble,collected from the Journals of the Convention,will be sufficient to show that the author has allowed it an undue influence in his construction of the Constitution.It is not from such vague and uncertain promises,that conclusions,so important and controlling,can be wisely drawn.Judge Story,however,is perfectly consistent in the two characters in which he appears before us;the commentator takes no ground which the judge does not furnish.It is remarkable that although this question was directly presented in the case of Martin vs.Hunter's Lessees,and although the fact that the Constitution of the United States "was ordained and established,not by the States in their sovereign capacities,but emphatically by the people of the United States,"is made the foundation of the judgment of the Supreme Court in that case;yet,Judge Story,in delivering the opinion of the Court,rests that position upon the preamble alone,and offers no other argument whatever to support it.And this,too,although in his own opinion,upon the right decision of that case rested "some of the most solid principles which have hitherto been supposed to sustain and protect the Constitution of the United States."It is much to be regretted,that principles so important should be advanced as mere dogmas,either by our judges or by the instructors of our youth.
In this case,as in others,however,we ought not to be satisfied with simply proving that the author's conclusions are not warranted by the facts and arguments from which he derives them.Justice to the subject requires a much more full and detailed examination of this important and fundamental question.I have endeavored to show,in the preceding part of this review,that the people of the several States,while in a colonial condition,were not "one people"in any political sense of the terms;that they did not become so by the Declaration of Independence,but that each State became a complete and perfect sovereignty within its own limits;that the revolutionary government,prior to the establishment of the confederation,was,emphatically,a government of the States as such,through Congress,as their common agent and representative,and that by the Articles of Confederation,each State expressly reserved its entire sovereignty and independence.In no one of the various conditions,through which we have hitherto traced them,do we perceive any feature of consolidation;but their character as distinct and sovereign States is always carefully and jealously preserved.We are,then,to contemplate them as sovereign States,when the first movements towards the formation of the present Constitution were made.
Judge Story has given a correct history of the preparatory steps towards the call of a convention.It was one of those remarkable events,(of which the history of the world affords many examples),which have exerted the most important influence upon the destiny of mankind,and yet have sprang from causes which did not originally look to any such results.It is true,the defects of the confederation,and its total inadequacy to the purposes of an effective government,were generally acknowledged;but I am not aware that any decisive step was taken in any of the States,for the formation of a better system,prior to the year 1786.In that year the difficulties and embarrassments under which our trade suffered,in consequence of the conflicting and often hostile commercial regulations of the several States,suggested to the Legislature of Virginia the necessity of forming among all the States a general system,calculated to advance and protect the trade of all of them.They accordingly appointed commissioners,to meet at Annapolis,commissioners from such of the other States as should approve of the proceeding,for the purpose of preparing a uniform plan of commercial regulations,which was to be submitted to all the States,and,if by them ratified and adopted,to be executed by Congress.Such of the commissioners as met,however,soon discovered that the execution of the particular trust with which they were clothed,involved other subjects not within their commission,and which could not be properly adjusted without a great enlargement of their powers.They,therefore,simply reported this fact,and recommended to their respective legislatures to appoint delegates to meet in general convention in Philadelphia,for the purpose not merely of forming a uniform system of commercial regulations,but of reforming the government in any and every particular in which the interests of the States might require it.This report was also submitted to Congress,who approved of the recommendation it contained,and on the 21st of February,1787,resolved,"that in the opinion of Congress,it is expedient that,on the second Monday in May next,a convention of delegates,who shall have been appointed by the several States,be held at Philadelphia,for the sole and express 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 States,render the Federal Constitution adequate to the exigencies of government,and the preservation of the Union."'(1Elliott's Debates,185.)
Such was the origin of the Convention of 1787.It is apparent that the delegates to that body were to be appointed by the "several States,"and not by "the people of the United States";that they were to report their proceedings to "Congress and the several legislatures,"and not to "the people of the United States";and that their proceedings were to be part of the Constitution,only when "agreed to in Congress and confirmed by the States,"and not when confirmed by "the people of the United States."
Accordingly,delegates were,in point of fact,appointed by the States;
