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It happened because this decision made possible the establishment of the Union in a way in which it could live. So far as this was concerned, the weightiest point was that now, for the first time, a real law-making power had been created. Congress was no longer obliged, upon the address of the states, to pass resolutions in the shape of laws, but it could now pass laws for the people of the United States, and could intrust the execution of federal la ws affecting single citizens to the proper federal powers. The Union had obtained such an independent lawmaking power that it could no longer be deprived of its own permanent courts. The emancipation of the Union from the state governments depended directly upon its emancipation from the state courts, for it would have been absurd to give it a wider sphere of jurisdiction of its own, and yet to deny it the organs needed for existence within that sphere. The union of an independent law-making power, of an independent executive and administration and of independent courts was, however, a national government in the full sense of the word. So far as principles were concerned, Washington's wish had come to fulfillment. The convention had decided upon the adoption of a radical cure. It was not simply that the powers of the single federal authority (the old congress) were now shared between three co-ordinate factors, but these were actual national powers which together formed a national government, because they were endowed not only with rights, but with the power to enforce those rights. So far as everything within the domain of the national authority was concerned, the political will of the commonwealth, expressed in a constitutional way, was placed high above the political will of the constituent members of that commonwealth and of their political organs. The subordination of the latter was brought about by the use of those fixed forms in which the life of a modern constitutional and lawful state can pursue its steady and orderly course. ✓ Opinions were sharply opposed, not only about the ground-plan of the constitution, but also about the details by which this plan was to be filled. The holders of all of these views were forced, now one and now another, to remember not to let the better become the enemy of the good, and not to fear the worst possible consequences, because in this or that state of affairs something either undesirable or utterly repugnant might happen. The convention could not possibly draw a constitution which, in the forum of theory, would appear as a blameless and perfectly harmonious work. But such a constitution would have been of scant use to the United States, for the real conditions could not be compressed into rigidly logical form. The convention, which brought its work to a close September 17, characterized it in its address to congress as the result of a spirit of amity and of mutual deference and concession.” Since its task had not been to draw a model constitution, this was the best recommendation of its work, for, as it said, manysided concession was "rendered indispensable” by the “peculiarity of our political situation,” and in the nature of things that could not happen which the welfare of all demanded unless all made sacrifices to that end. It laid claim to the highest grade of perfection for its work, gave it the highest praise possible, when it expressed the conviction that the constitution was “liable to as few exceptions as could reasonably have been expected.” Whether this self-criticism was well founded only the actual trial of the constitution could show. And whether that actual trial would be had was still by no means certain. It was only too sure that the draft, as it is called
in the address to congress, would not command universal acquiescence. Since the convention was convinced that the fate of the Union depended upon the adoption or rejection of the constitution, it had taken care not to leave the weal and woe of the commonwealth wholly in the hands of a lessening minority. Although the articles of confederation required the consent of all the states for the least change in the constitution, and the convention had only been authorized to consider a revision of these articles, it had yet ventured in its proposal for a radical reorganization of the Union to adopt the provision that the new constitution should come into force as soon as it had been adopted by nine states. This did not involve any tyranny by a majority, because it was expressly provided that the ratification was to be good only for the ratifying states. In case four states or less than four did not ratify, they thus ipso facto cut themselves out of the Union until they thought good to re-enter it, or the other states, perhaps by force of irresistible necessity, compelled them to do so. But such compulsion certainly could bave been tried with success only against the smaller states, and in that case, as we shall later see more closely, the whole fundamental law of the new federal power would have been shattered and racked in a terrible way. This provision was therefore a two-edged sword. On the one hand it was made very difficult for political blindness and the lack of national feeling to hinder the reorganization
1 Cooley, The General Principles of Constitutional Law, page 16, rightly says: “It was a revolutionary proceeding."
2 Since Schlief, Die Verfassung der Nordamerikanischen Union, is often cited by German authors, I think it my duty to show by example how little trustworthy a guide he is. He says, p. 8: “The fundamental law, according to article 7, was to come into force for all the states represented in the convention at Philadelphia, when nine of them approved it."
of the Union, but on the other hand this might easily bring about such an explosion of these forces that the damage done could be repaired, if at all, only by doing violence to the fundamental principles of the Union. There was another scarcely less significant possibility. It might be that nine or even ten states would adopt the constitution, and yet, as a result of the opposition of one or two states, the Union, in its new organization, backed by force of law, and with a constitution containing within 'itself all the conditions of life and development, would yet be from the very beginning a torso, incapable of life. For an instant it seemed as if this mischance would happen.
June 21, 1788, New Hampshire ratified the constitution. She was the ninth state to do so. Among those which had not ratified it were Virginia and New York. The first had taken such a position in the Union since the days of the continental congress, that the nation, without Virginia, would have been like Hamlet without the role of Hamlet. Public opinion was so evenly divided in Virginia, that a very little would have sufficed to turn the balance in the wrong direction. From the beginning of the debates in the ratification convention it was easy to see that the simple rejection of the constitution was not to be feared, but up to the last instant it seemed not impossible that the ratification would be merely a conditional one. Many not only shared Patrick Henry's belief that Virginia was in a position to dictate her own conditions to the other states, but they also agreed with him in his wish to do so in such a way that her ratification should be made dependent upon the adoption of certain amendments by the other states. In the vote upon this main proposition, the opposition came within eight votes of a majority, and the simple ratification was then carried by eighty-nine to seventy-nine. In New York, the condition of affairs was somewhat different. New York was then far removed from being what she is now, the Empire State, but it could not be denied that she had a great future, and her geographical position from the ocean to Lake Erie made her an absolute necessity. If she did not come into the Union, it was torn asunder into two halves which could not possibly remain bound together; for the geographical continuity of the national territory was a condition precedent of that free exchange of opinions, customs and interests, the difference in which bad been stigmatized by the Philadelphia convention in the address to congress as the main source of the difficulties with which it had had to fight. While in New York, Alexander Hamilton, with the aid of John Jay, and especially. of Madison, wrote in the eighty-five numbers of the Federalist the classic argument against the articles of confederation, and in favor of the new constitution, yet here also the opposition was the most passionate and stubborn. Yates and Lansing, who, with Hamilton, represented the state in Philadelphia, bad been sustained by public opinion when they withdrew from the convention, because it over-passed its powers. Now the opposition, led by Governor Clinton, was so obstinate that even Hamilton doubted for an instant whether it would not compel concessions to it. If Madison and his friends had not carried the day in Virginia, the friends of the constitution in New York would unquestionably have lost the victory. But even the example of Virginia weakened the opposition in the ratification convention at Poughkeepsie only so far that they were willing to agree to ratification if the state reserved the right of re-calling it in case the other states did not approve the amendments demanded by New York.