February 08, 2005

A few weeks ago, I came across an interesting discussion on a radio talk show. The topic of debate was the federal government's rapidly expanding intrusion into every aspect of American life. A caller, who supported the continuation and growth of federal social programs, claimed this expansion is constitutional because the federal government is the people's government and that government was granted vast powers under the Constitution. He concluded his remarks by stating that the purpose of the Constitution was to establish a government of the people, by the people, and for the people. As proof, he offered the preamble to the Constitution for the United States to support his assertions. The preamble states:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, 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.

The preamble has been the source of debate for many years. During the proceedings in the Virginia State Ratifying Convention of 1788, which was contemplating ratification of the proposed constitution, Patrick Henry asked:

Who authorized them [delegates to the Constitutional Convention] to speak the language of, We, the people, instead of We, the States? States are characteristics and the soul of a confederation. If the states be not agents of this compact, it must be one, great consolidated government, of the people of all the states.

Henry raised an interesting question. If the Constitution was a continuation of the confederation between the several States, then why did the opening provision make reference to "we the people" instead of "we the States?"

In order to answer this question, it is first necessary to put the words "United States" in proper constitutional context. These words, as they appear in the preamble and body of the Constitution do not refer to a geographical territory or a single nation. The phrase "United States" was the name of the Union that was established between the several States when they adopted the Articles of Confederation. When the Framers drafted the present Constitution, they retained the term because the document was a continuation and expansion of the old constitution. Thus, the words "United States" specifically refer to the several States in their united or collective capacity. [Note: the easiest way to understand the meaning of the phrase "United States," as it appears in the Constitution, is to reverse it--"States United"]

In his classic work of 1868, "The Federal Government, Its True Nature and Character," Abel Upshur provided the following analysis of the preamble:

The phrase is, we, the people of the united states, not the people of America. The very phrase shows the Federal Union to be a government of states, and not the act of the people of all America, as a consolidated body… The people of the United States in the preamble of the Constitution, has the same meaning as 'the people of the several States.' The qualifying adjective 'united' is annexed to the word States, and not to the word 'people.' It is precisely the same meaning as the phrase 'Lex Etas Unis' in the French language, i.e., the States united.

The Founders believed that in a free society, all power flows from the people. But under the federal system of government established by the Constitution, that power does not flow from the whole people as comprising one nation. James Madison reiterated this principle in the Virginia Convention debating ratification of the proposed constitution:

Who are the parties to it? The people--but not the people as composing one great body; but the people as composing thirteen sovereignties.

As stated by Madison, the powers of government flow from the people to their individual State and from the States to the federal government. In other words, the individual States are the people's government and the federal government is the States' government.

John C. Calhoun, Vice President of the United States from 1825 to 1832 expressed this principle very succinctly in his writings on the Constitution:

Ours is a system of governments, compounded of the separate governments of the several States composing the Union, and of one common government of all its members, called the Government of the United States. The former proceeded the latter, which was created by their agency.

Since the federal government is the States' government, and the Constitution is a compact or contract between the several States, the words "Government of the United States" are interchangable with the words "Government of the States United under the Constitution." This puts the phrase in proper constitutional context and makes it easy to understand.

Calhoun went on to state:

[The federal government] is the government of States united in a political union, in contradistinction to a government of individuals, that is, by what is usually called, a social compact. To express it more concisely, it is federal and not national because it is the government of a community of States, and not the government of a single State or Nation.

Much of the confusion concerning the nature of the system of government established by the Constitution can be traced, in the author's opinion, directly to the wording of the preamble. Other than the preamble, the word "people" only appears once in the body of the Constitution concerning the election of members to the House of Representatives. [See: Article 1, Section 2] Yet the words State or States, referring to the several States, appears approximately 70 times.

On August 6, 1787, the Committee of Detail delivered a report to the members of the Federal [Constitutional] Convention. The report contained a draft of the proposed constitution. The preamble read as follows:

We the people of the States of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.

The Convention debated the proposed constitution throughout the summer. On September 8^th, a committee was appointed to revise the stile and arrange the articles agreed to by the Convention.

We, the people of the united states, in order to form a more perfect union, to establish justice, insure domestic tranquility, provide for the common defense, 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.

The change in the phraseology was made by a sub-committee on style, not by the Convention... Why was it made? For an obvious reason. It was not known which States would ratify it. Hence it was exceedingly inappropriate to set forth in advance the States by name. By the terms of the Constitution, Article VII, it was to go into operation between such of the States as might ratify it, if as many as nine or more should do so. The committee on style readily perceived that it would be exceedingly out of place, to have, in the preamble to the organic law, terms embracing a people, or States, who might not put themselves under it. For instance, Rhode-Island and North Carolina did not ratify the Constitution for some time. During this period they were entirely out of the Union. They might have remained out until now. How oddly would this preamble to the Constitution have read: 'We the people of New Hampshire, Rhode-Island, North Carolina,' etc., when the people of Rhode-Island and North Carolina had done no such thing. To preserve symmetry in their work, and retain the same idea was what the Committee did in their change of phraseology. As they put it, it would embrace the people of such States only as should adopt it. They would then be the people of the States, respectively, which would thereby be United. States United and United States mean the same thing.

The most striking difference in phraseology between the two, is that which sets forth the object in forming 'a more perfect Union,' etc., to be, to 'ordain and establish this Constitution,' not for the people in any sense, but for States as political societies.

The change, in this particular, is very important, and the very preamble, which is so often alluded to, for a directly opposite purpose, conclusively shows that the government was intended to be, and is a Government of States, for States. In the change of phraseology the introduction of the word Union has a wonderful significance of itself. The new Constitution was proposed 'in order to form a more perfect Union,' that is, it was to make more perfect 'the Union' then existing. That, as we have seen, was a Union of States under the Articles of Confederation. It was to revise these Articles, to enlarge the powers under them, or, in other words, to perfect that Union, that the Convention was called; and that was the object aimed at in all their labors to the conclusion of their work as set forth in this Preamble.

Omitting the States by name served another purpose. Article IV, Section 3, Clause 1 allows for the addition of new states into the Union of States. If the States were listed in the preamble by name, then the Constitution would have to be re-written each time a new State was admitted into the Union.

If the Constitution were an agreement between the American people, as comprising one nation, then the document would have been submitted to that same people for ratification. In Federalist essay No. 39, Madison discussed the nature of the general government that would be established by the Constitution and the mode of ratification:

That it will be a federal and not a national act...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...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... Neither of these rules has 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. In this relation, then, the new Constitution will, if established, be a federal, not a national constitution.

Madison stated that the parties to the proposed constitution would be the several States, not the whole people as comprising one nation. This fact is confirmed in Article VII of the Constitution:

Article VII. 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...In Witness whereof We have hereunto subscribed our Names…

The words "between the States" were added by a special motion in the Convention "to confine the operation of the government to those States ratifying it." The delegates signed the Constitution not as representatives of the American people, as comprising one nation, but as representatives of their individual State.

If the Constitution is an agreement between "we the people," then why was it established "between the States?" And if the Constitution established a government of the people, by the people, and for the people, then why did the document require the "Consent of the States" before it could go into effect?

If the preamble is put in proper context, it proves conclusively that the Constitution established a government of the States, by the States, and for the States. Unfortunately for the American people, the States have stood by idly and allowed their government to transform itself into "we the federal government." If the States do not re-gain control over their government and re-establish the system of government established by the Constitution, the debate over "we the people" or "we the States" will be meaningless because the federal government will have total control over both.

If you are interested in finding out more about the Constitution, take a look at this book. I use it in many of my articles and it is the best book I've found on this subject. Bob

The Federal Government: Its True Nature and Character: Being a Review of Judge Story's Commentaries on the Constitution of the United States.

Reprint of the 1868 edition. ''Perhaps the ablest analysis of the nature and character of the federal government that has ever been published. It has remained unanswered.'' This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to challenge the soundness of its reasoning. The great vise of Judge Story and the Federalists consisted in desiring the clothe the federal government with almost monarchical power, whereas the States had carefully and resolutely reserved the great mass of political power for themselves. The powers which they delegated to the federal government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no state imagined it was surrendering when it adopted the consitution. Mr Madison dwelt with great force upon the fact that ''a delegated is not a surrendered power.'' The states surrendered no powers to the federal government -- they only delegated them. 160 pages.

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