The States and the Constitution

The Constitution of the United States is preceded by a famous preamble, which begins with the more-famous phrase, “We the People.” The phrase signifies nothing more than sheer presumption on the part of the signatories to the Constitution. They were not “the people”; they were delegates from 12 of the 13 States who took it upon themselves to draft a new constitution rather than propose amendments to the Articles of Confederation.

Among the myths surrounding the Constitution is one that goes like this: The Constitution became a document of “the people” when it was ratified by delegates to ratification conventions that were held in the various States. I have elsewhere exposed the emptiness of this claim:

1. The Constitution was a contract, but not a contract between “the people.” It was a contract drawn by a small fraction of the populace of twelve States, and put into effect by a small fraction of the populace of nine States. Its purpose, in good part, was to promote the interests of many of the Framers, who cloaked those interests in the glowing rhetoric of the Preamble (“We the People,” etc.). The other four of the original thirteen States could have remained beyond the reach of the Constitution, and would have done so but for the ratifying acts of small fractions of their populations. (With the exception of Texas, formerly a sovereign republic, States later admitted weren’t independent entities, but were carved out of territory controlled by the government of the United States. Figuratively, they were admitted to the union at the point of a gun.)

2. Despite their status as “representatives of the people,” the various fractions of the populace that drafted and ratified the Constitution had no moral authority to bind all of their peers, and certainly no moral authority to bind future generations….

In the same post I counsel a cynical view of the Constitution:

4. The Constitution contains provisions that can be and sometimes have been applied to advance liberty. But such applications have depended on the aims and whims of those then in positions of power.

5. It is convenient to appeal to the Constitution in the cause of liberty, as Spooner did, but that doesn’t change the fact that the Constitution was not and never will be a law enacted by “the people” of the United States or any State thereof.

6. Any person and any government in the United States may therefore, in principle, reject the statutes, executive orders, and judicial holdings of the United States government (or any government) as non-binding….

The Constitution may be a legal fiction, but — as I’ve said — it’s a useful fiction when its promises of liberty can be redeemed.

Nevertheless, it irritates me when I read claims that the Constitution is somehow a creature of “the people” at the time of its adoption. If the Constitution had any legal standing at the time of its adoption, it stood as a contract among the governments of the ratifying States. As I say here:

The Constitution of the United States was born as a contract among nine States. Each of the nine States was authorized to join the new union by a convention of “the people” of their State.

In joining the new union, [the governments and some of] the people of nine States voluntarily created the central government and, at the same time, voluntarily granted certain, limited powers to it…. State subsequently admitted to the union has entered into the same contract with the central government.

Here, for example, is Timothy Sandefur, waxing romantic:

These sources [the writings of several Framers of the original Constiution] reveal how well understood was the central fact that the Constitution was a government of the whole people of the United States, not a league or treaty of states in their corporate capacities, as the compact theory would have it.

That passage is lifted from a paper to which Sandefur refers in this post. Ironically, in the same post Sandefur defers to Lysander Spooner, who disdained the idea that the Constitution was a creature of the “whole people.” In fact, Spooner explicitly characterized the Constitution as a compact (i.e., contract), but one that could bind only those who subscribed to it at the time of its adoption. Spooner saw the Constitution as a useful legal instrument to be wielded against slavery. It was Spooner’s cynicism that inspired my own view of the Constitution as a convenient tool for the advancement of liberty.

Now, to scratch the irritating itch: the claim that the Constitution is something more than a compact between the States.

How could it be anything more, when Article VII of the Constitution leads with this?

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

James Madison, in a letter to Daniel Webster dated March 15, 1833, addresses

the question whether the Constitution of the U.S. was formed by the people or by the States, now under a theoretic discussion by animated partizans.

Madison continues:

It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as imbodied into the several states, who were parties to it and therefore made by the States in their highest authoritative capacity…. [emphasis added]

Moving closer in time to the ratification of the Constitution, this is from Madison’s report on the Virginia Resolutions of 1798, a report that was adopted by the General Assembly of Virginia in January 1800:

The third resolution is in the words following:–

“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact–as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose, for arresting the progress of the evil and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them.”…

The resolution declares, first, that “it views the powers of the federal government as resulting from the compact to which the states are parties;” in other words, that the federal powers are derived from the Constitution; and that the Constitution is a compact to which the states are parties….

The other position involved in this branch of the resolution, namely, “that the states are parties to the Constitution,” or compact, is, in the judgment of the committee, equally free from objection…. [I]n that sense the Constitution was submitted to the “states;” in that sense the “states” ratified it; and in that sense of the term “states,” they are consequently parties to the compact from which the powers of the federal government result….

… The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity…. [emphasis added]

Finally, in The Federalist No. 39, which informed the debates in the various States about ratification, Madison says that

the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves….

That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act…. [emphasis added]

Given the foregoing, I conclude that as a matter of law:

The Constitution is a contract between the States.

Through the Constitution, the federal government is the creature of the States.

The States may, in accordance with the provisions of the Constitution, modify and withdraw from the federal government any powers granted to it, and any powers that it has arrogated to itself despite the limitations of the Constitution.

A key provision is found in Article V:

…[O]n the Application of the Legislatures of two thirds of the several States, [Congress] shall call a Convention for proposing Amendments, which … 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….

Senator Tom Coburn (R-Oklahoma), who will soon retire, plans to push hard for an Article V convention: “Coburn has been in contact with Michael Farris, the chancellor of Patrick Henry College, and Mark Meckler, the president of Citizens for Self Governance, who are leading a push for a convention of the States.” For more information about the effort, visit the website of Citizens for Self Governance, sign up for e-mail updates, and donate to the cause if you can.

An Article V convention isn’t the only possible way to rein in our lawless federal government. I discuss several options here.

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Related reading:
Thomas H. Neale, The Article V Convention to Propose Amendments to the Constitution: Contemporary Issues for Congress, Congressional Research Service, April 11, 2014
Robert Berry, “Article V Movement Gathers Steam, Critics Seethe,” American Thinker, April 27, 2014
Donald W. Livingston, “Lincoln’s Inversion of the American Union,” The Imaginative Conservative, August 12, 2014
Tenth Amendment Center, The State of the Nullification Movement, 2014

POLITICS & PROSPERITY

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The States and the Constitution

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