The amended Constitution was confirmed by the different States in the following order : Delaware, Pennsylvania, on the 7th of Dec. 1787 | South-Carolina, on the 23d of May, 1788 12th of Dec. 1787 New-Hampshire, 21st of June, 1788 " 18th of Dec. 1787 Virginia, 66 26th of June, 1788 Georgia, 66 2d of Jan. 1788 | New-York, Massachusetts, Maryland, Rhode-Island, By the Confederation between the thirteen States, we have seen that no alteration could be made without the consent of them all. But, by the last clause in the new Constitution, it was agreed, that "The ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution between the States to ratify the same." Art. 7. Sec. 1. New-Hampshire made the ninth State. The ratification of that State was received by Congress on the 2d of July, 1788, and on that day Congress proceeded to consider the ratification of the Constitution, and an act to put it into operation. On a motion to refer it to a committee, we are surprised to find Virginia and New-York States, which had not yet confirmed the Constitution, voting-Virginia in favour of the measure, and New-York equally divided. North-Carolina was not present, and Rhode-Island was excused from voting. On the 14th of July, the committee reported an act for putting the Constitution into operation, which was debated until the 13th of September, when a resolution was passed for appointing a time for elections; and on the 4th of March, 1789, proceedings commenced under the Constitution. (Jour. Conv. p. 451.) It was not until the 11th of January following, that the ratification by North-Carolina was communicated to Congress, and on the 16th of June, that of Rhode-Island. It may well excite some surprise that the new Government should have gone into operation without requiring the assent of every State, according to the provisions of the former Confederation. The consent of every State was, in truth, soon obtained, and removed the unpleasant difficulties that might have ensued. The first clause of the fifth article of the amended Constitution, provides that-"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 Con vention 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." Now, let us suppose, for instance, that, at present, any attempt were made to alter this Constitution, by any other means than those proposed in this clause, and that without the consent of two thirds of the States, the majority should agree to an alteration of the Constitution, or that the equality of votes in the Senate should be taken from any State, without its consent, or that the first and fourth clauses in the ninth section of the first article had been altered before the year one thousand eight hundred and eight, and that the importation of slaves had been prohibited, or that a capitation or other direct tax had been laid, not in proportion to the census, &c., what would have been thought of such an alteration? No doubt that it was a gross violation of the Constitution, and void. Could any Court, or even a Legislative body have held otherwise? Was not the obligation of the Constitution of 1778 as sacred as that of 1787? No lawyer or statesman would dare risk his reputation by denying the exact similitude of the cases, and the unquestionable inference, that such an alteration, in violation of the Constitution, was equally void in both instances; and nothing could have saved us from this sad dilemma, which must have arisen sooner or later, if the thirteen States of the old Confederation, had not, all of them on the 16th of Juue, 1790, or rather on the 29th of May, 1790, the date of the ratification of Rhode-Island, agreed to the amendment. It is unnecessary now to consider the validity of the elections, and of the acts passed previously to that time: and whether by the doctrine of relation they were not rendered valid ab initio, by the subsequent assent of the States which legalized the Constitution, and thereby the prior acts of the Government de facto.* In new governments this experiment may pass over without mischief, but if attempted under a government which has been any length of time in operation, with its principles well understood, the disastrous consequences could * We do not know whether this ground was taken in the debates of Congress, in relation to the ratification of the Constitution. Those debates have never been published, as we know of, which is much to be regretted. not be foretold. Certainly if such an attempt were now made, despite of the last clause we have cited from the present Constitution, it would produce an immediate revolution, and perhaps a total dissolution of the Union. So much for the value of experience. If there was any force in the argument of Mr. Everett against the constitutionality of altering the Constitution itself in any of its fundamental principles, even in the manner prescribed for alteration, how much more must there be in this alteration of the Constitution, contrary to the manner prescribed by that Constitution. In short, we think that in ratifying the amended Constitution, the same language used upon confirming the old Constitution, might have been appended by Congress as a codicil. "Whereas it hath pleased the great Governor of the World to incline the hearts of the Legislatures we respectively represent in Congress to approve of and to authorise us to ratify the said articles of Confederation and perpetual Union: Now know ye, that we, the undersigned delegates, by virtue of the power and authority to us given for that purpose, do, by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify the said articles of Confederation and perpetual Union, &c." It will be observed, as we have said before, that in the Resolution of the old Congress, proposing a Convention of States to alter the Constitution, that the terms "Confederation" and "the Federal Constitution" are used as synonimous terms. The word "Union" was used then as now; so of the words "United States." It will likewise be seen by reference to the various commissions granted by the Legislatures to their delegates in the Convention, that the words "States" and "State Legislatures" were also used indiscriminately. (See Jour. Conv. passing from p. 5 to 58.) It will not be denied that the old Congress represented the State Legislatures. It is so expressly stated in the last clause of the Constitution of 1778, and indeed throughout the thirteenth article, as well as in the resolution of Congress of the 21st of February, 1787, proposing the Convention, wherein the words "Legislatures" and "States" are likewise used synonimously, (Jour. Conv. p. 19) as in the 13th article of the Confederation. The Constitution of 1778, required that amendments should also be agreed to in Congress as well as in the State Legislatures. To avoid the trouble, and for the purpose of obtaining the aid of many who could not appear on the floor of Congress, * Speech on Mr. M'Duffie's resolutions for altering the Constitution as to the mode of electing a President. that body itself proposed the substitution of a Convention to do its work, and afterwards to receive its report, subject to their approval or rejection. The State Legislatures did nothing more when they sent down the proposed Constitution to be discussed in Conventions. They might have refused the intervention of such bodies, but to obtain the greater surety of its popularity, they ordered it to be considered by Conventions of delegates, to be elected for that express purpose. Qui facit per alium facit per se. After all, what difference, we will not say essential, but what practical distinction of any importance can arise from the mode in which the Constitution was finally ratified. The delegates to the Federal Convention were, as we have seen, appointed by the Legislatures of the separate States. The Constitution was submitted by the same bodies to the Conventions, by which it was finally ratified. Let us for a moment suppose that the Legislature of any State had refused to refer the Constitution to a Conventionwhat would have been the result? If a majority of the people acquiesced in the decision of the Legislature, the rejection by the Legislature would have been final. If a majority had differed from the Legislature, what would have been their course? To call of themselves a Convention? Certainly not, there was no existing authority to take that step, and to make the preliminary arrangements. The people would have changed their Legislature at the next election, and that renovated body would then have called a Convention. It was through their Legislatures that the people would have acted. Let us suppose further, that the Legislatures of any States, after receiving the Constitution, instead of referring it to a Convention had proceeded to ratify the instrument, or had referred it to a succeeding Legislature after a new election-would the ratification then have been less valid-the sanction and obligation less binding? The reference to a Convention was not even made a part of the Constitution, it was merely a recommendation of the general Convention, to give, as they perhaps supposed, more popularity-more solemnity to the measure. It was adopted out of respect to the body who recommended it; but, after all, it was a form merely, not a substantial part of the compact, and of this no other proof is necessary than that the Legislatures now possess the power without any reference to Conventions to amend, alter, derange and destroy this very instrument whenever a certain number shall consider it expedient to do so. Need we go further to prove that this mode of ratification was a mere form, a reference by certain individuals of a grave ques tion from themselves to themselves. For it will surprise no one to be informed that the Conventions, when summoned, were composed in a great measure of the very persons, who as members of the Legislature, issued the summons. Some of the Judges, in each State, who could not hold seats in the Legislature were introduced into the Convention. A few venerable old men who had retired from active life, were again brought forward, and, in a few instances, some clergymen took a part in the proceedings-but the great majority, three-fourths, perhaps nine-tenths of each Convention, was composed of the very individuals who acted as legislators in the State Governments. The public will, if the question had been referred to a subsequent Legislature, would have been as distinctly and as authoritatively expressed as by a Convention. The Legislatures, therefore, by referring the Constitution Conventions, gave their affirmance to it; by refusing that reference they might and would have placed their negative upon it. But further, by the first clause of the fifth article of the present Constitution, provision is made for amendments whenever they may be proposed, either by Congress or by two-thirds of the "Legislatures of the several States," and such amendments are required "to be 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." In the second clause of the first section of the second article, as to the election of President, it provides that "each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors," &c. In the third clause of the same section and article, it provides, in case the election comes before the House of Representatives, that "in choosing the President, the votes shall be taken by States, the representation from each State having one vote. By the first clause of the fourth section of the first article, "the times, places, and manner of holding elections for senators and representatives, shall be prescribed in each State by the Legislatures thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to places of choosing senators." By the first clause of the third section of the first article, "the Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof," &c. and, by the second clause, if a vacancy occurs during the recess VOL. II-NO. 4. 57 |