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Madison, who was asked by Hamilton for his opinion upon this proposal, wrote: “My opinion is that a reservation of a right to withdraw, if amendment be not decided on, under the form of the constitution, within a certain time, is a conditional ratification; that it does not make New York a member of the new Union, and, consequently, that she could not be received on that plan. The constitution requires an adoption in toto and forever. It has been so adopted by the other states. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short, any condition whatever must vitiate the ratification. The idea of reserving a right to withdraw was started at Richmond, and considered as a conditional ratification, which was itself abandoned as worse than a rejection.” This letter, which expressed in an authoritative way the views of the father of the constitution upon the legal nature of the federal compact, is of the highest importance in view of the war fought for five and seventy years over this fundamental question, - a war the final history of which was written in blood. The letter gave the day to the friends of the constitution. On July 25, the ratification convention, by a majority of five votes, decided for an unconditional ratification. After this, it was unanimously voted to request the legislatures to call a new convention in order to pass upon the amendments proposed. March 4, 1789, the new federal powers came into existence, although North Carolina and Rhode Island had not yet adopted the constitution. The legal position which these two states occupied in regard to the Union was not sharply insisted upon, because their delay could not be of any especial importance, and no one doubted that they would soon overcome their scruples. North Carolina speedily ratified (November 21, 1789). Little Rhode Island waited until May 29, 1790, and then decided upon acquiescence only by a majority of three votes.
John Quincy Adams said in a speech at the fiftieth jubilee of the constitution that it was wrung from the people through '“ grinding necessity.” This was true. Hamilton had written in the Federalist: “The establishment of a constitution, in time of profound peace, by the voluntary consent of a whole people, is a prodigy, to the completion of which I look forward with trembling anxiety.” If this miracle now happened, it was due to the fact that the hard lessons of daily experience had finally given wide circles of the “reluctant people” a glimmering knowledge of the great truth that, as he had hitherto said: “A nation without a national government is, in my view, an awful spectacle.” Gouverneur Morris had explained, in Philadelphia, his approval of the constitution by saying that the question was simply: “Shall there be a national government or a general anarchy?” In the same way Washington had written, December 14, 1787, that the choice lay only between the adoption of the constitution and anarchy, for, he had added, if another convention is tried, its members will be more at odds than in the first; they will agree upon no common plan; either this constitution must be adopted or the Union dissolved. Only the conviction that further experimenting had become impossible, and that a trial must be made of this constitution if the nation was to be rescued from the wretched stagnation of all interests under the articles of confederation, wrung the adoption of the constitution from political doctrinairism and from particularist selfishness. Moreover, it had been adopted by all of the states without the application of any outside force. This was the decisive fact for the future, and not the particular arguments which here and there had carried the day. No state could rightly deduce from the history of its development the right to cut loose from it. If the duties and the limits of self-government were found to be a heavy chain, yet each state had, by a full and free expression of its own will, fastened this fetter upon itself; had placed itself under the control of this fundamental law; and had done so in the most formal way. The Philadelphia convention had not submitted its work to the legislatures for ratification, but had demanded that the legislatures should leave the decision to conventions called for this particular purpose. In accordance with the recommendations of congress, this demand had been carried out in all the states. The states were not bound to the constitution through the state governments, but the people, the sole source of all political power in a republican government, had ratified the constitution through their representatives, chosen ad hoc. The United States had therefore ceased to be a confederation, and had become in truth a Union. The instrument under which they had decided henceforth to live, not only was no longer called articles of confederation, but it was no longer a confederation compact. It was a union compact. It was, in the full sense of the word, a constitution, a fundamental law of the state, a law which could be changed only in the manner provided by itself, could be done away with only by general and free consent, and could be overthrown only by revolution, but could never, and under no circumstances, be nullified by one or more states.'
$ 5. THE FIFTEEN AMENDMENTS. The friends of the constitution had believed that they must stand firm in their demand for its unconditional adoption, but they had not thereby committed themselves to the view that the work of the Philadelphia convention could not be improved. As soon as the constitution had come into effect, this question began to be discussed. It was brought to an issue in the manner provided by the constitution. The friends of the constitution would, of course, have been slow to consent to material changes as long as its provisions had not been subjected to the only sufficient proof, that of experience. Criticism, however, was not at first directed against what it provided, but against what it either did not provide, or, in the opinion of the opposition, left doubtful. They proposed for the most part not changes but additions, and the victors consented to this the more willingly, since from the beginning they had sought to weaken the opposition by the assertion that . everything which they wished to see expressly set forth was implied in the silence of the constitution on the questions at issue. Ten amendments were proposed by the first congress and adopted by the necessary number of legislatures. The first eight additional articles take certain things out of the legislative control of congress, and guarantee to individuals certain rights and the maintenance of certain forms of law, thought to be sure safeguards against abuse of power and injustice. The ninth declares that the enumeration of certain rights is not to be construed to deprive the people of others not enumerated, “retained by” the people. The tenth provides that “the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” On account of the fundamental idea from which these ten additional articles sprang, they were and are often called the American Bill of Rights. This phrase, borrowed from well-known events in the history of England during the seventeenth century, and the contents of the
1 Texas vs. White, Wallace, VII., 726.
first eight articles, clearly show how much the political thought of this generation found its point of departure in the internal struggles of the mother-land, and how far it was still removed from fully recognizing the essential differences in the actual conditions of the two countries. However, no one in the United States will to-day deny that experience has justified those who were not content with the legal results to be deduced from the silence of the constitution upon the questions at issue, but wished express provisions which should give the least possible occasion for a controversy.
The eleventh article, which was recommended by the third congress at its second session (1794) to the legislatures, bears quite a different character. It declares that no state can be brought before the federal courts by citizens of another state, or by subjects of a foreign state. This provision, which has given rise to much complaint, and has very recently been again vigorously discussed, was partly a new manifestation of the spirit which before the adoption of the constitution had been the dominant one, but was especially due to the feeling that it was derogatory to the dignity of a state to let itself be dragged into court by individuals as a party with the same standing before the court as themselves.
The twelfth article provided a new method of electing the president and vice-president. It was proposed at the first session of the eighth congress (1803) as a result of the discomforts and dangers which in the fourth presidential election had resulted from the original provisions.
The thirteenth, fourteenth and fifteenth amendments, passed respectively at the second session of the thirtyeighth congress, the first of the thirty-ninth, and the third of the fortieth, were caused by the civil war, and relate
1 See my Constitutional History of the United States, I, 168–176.