THE ADOPTION OF THE CONSTITUTION.

Twelve states met in convention by their separate delegations, to digest, reduce to form, and submit to a congress of the states, a frame of government for such of the states, as should, in conventions of the state, ratify it as their act: the frame was made, it proposed the institution of a government between the states who should adopt it, nine of whom were declared competent. These separate conventions were not to be like the general convention, composed of members appointed by state legislatures, with power only to propose an act to them as their constituents, and through them to the people of the state. To the proposed act was prefaced a declaration, that it was to be the act of the people, and a constitution for a government, such as it delineated. So it was submitted to congress, and by them to each state legislature, who called conventions of delegates elected by the people of each state; nine of these conventions separately ratified the act, in the name of the people who had authorized it; and thus the proposed frame of government was established as a constitution for those nine states, who then composed "The United States of America;" and between themselves only.. The declaration, in its front, therefore, necessarily refers, not to the time when it was proposed, but when it was ordained and established, by "the ratification of the conventions of nine states," as this was done by the people of those states; so the act declares, "We, the people of the United States, (which have ratified) do ordain (by our separate ratifications) this constitution," for (the states, and between the states so ratifying the same, who are thereby) "The United States of America."

Here is simplicity of movement, and plainness in delineating, by whom, for whom the act was done, and what the act was when ordained. All history proves, and all opinions agree that it was in this way that the great work was accomplished in fact, and if so, there was no other way in which it could have been done; no reasoning can reverse the fact, or ingenuity make the act of nine distinct bodies of people the act of one, in whom all the power exerted, was previously vested.

How it may be in theory, is not material; but taking the constitution as the creation of a competent power, existing and acting practically, and not one ideal and imaginary, operating only by theory; I find in the fifth article, and the tenth and eleventh amendments, express provisions, which point to the true source of power from which it emanated.

Every part of the constitution may be amended save one, without invoking the power of the whole people, or all the states; the amending power is in "the legislatures of three-fourths of the states," or by conventions of three-fourths thereof, "as the one or other mode may be proposed by congress." It depends on the number of the states, when each acts by its legislative power; and the majority of the delegates of the people in convention of each state, when it acts by its people, not a majority of the people of all.

The tenth amendment excepts from the constitution, and reserves "to the states respectively, or the people," all powers not delegated or prohibited. The eleventh amendment annuls a jurisdiction expressly granted to the judicial power, by the third article of the constitution; by prohibiting its exercise, in suits against a state, by individuals, it operates on suits pending, and makes void the exercise of any judicial power in such cases, either past, present, or future. 3 Dallas, 382, 3; 6 Wh. 405 to 409, S. P.; 9 Wh. 206, 16, 858; 12 Wh. 438; 6 Pet. 310, 741.

When, then, it is undeniable that there is behind the constitution a power which can, by amendments, erect a new structure of government; revoke the grant of any of the powers of congress; remove the restrictions on the states; make exceptions to the grant, and reservations out of it, of what would be otherwise included in it; and annul the judicial power, in cases on which they were actually exercising an undoubted constitutional jurisdiction; it has seemed to me, that the judicial eye could easily see, and the judicial mind fully understand, what, and where was that power, which forbade this Court to move; and which it felt bound to obey, when the constitution authorized them to proceed to judgment, as the right and law of the case should appear.

It is no imaginary power that can arrest the judicial arm, or a subordinate power that can, by its own authority, avoid the exercise of that judicial power over itself, which has been granted by a paramount power. Nor can "the absolute sovereignty of the nation, which when the constitution was adopted," was "in the people of the nation," be controlled by the "residuary sovereignty" of threefourths of the states, in the people thereof, when the amendments were made. That sovereignty which can control all others, must be absolute: that which is controlled must be subordinate. If it is said that the constitution authorized this amendment, we should impute little of wisdom, foresight, or common prudence, to those who framed or adopted it, by ascribing its creation to a power so indifferent to its preservation; or to make three-fourths of the states competent to throw off the shackles on their laws, which all the states, and the whole people thereof, had imposed. There cannot, therefore, be, in my opinion, a proposition more hostile to the provisions of the fifth article, and these amendments as understood by this Court, than that the constitution was a creation of the whole people of the United States, in their aggregate collective capacity; as the one people, of one nation or state, acting by the plenary sovereignty, and in the unity of absolute political power. In thus viewing this amendment, as to "the feature" which it thus expunged, I use it as this Court does. "This feature is no longer found in the constitution; but it aids in the construction of those clauses with which it was originally connected." 6 Cr. 139. Independently of these considerations, there is another which arises from the relative condition of the states as to extent and population; to which we must refer for the discovery of the intention of those who have left us a work "designed for immortality." 6 Wh. 387.

"We cannot look back to the history of the times, when, (12 Wh. 354,) the general convention assembled, without the conviction that the framers of the constitution would naturally examine the state of things existing at the time; and their work sufficiently attests that they did so." 6 Wh. 416. By a reference to this work, and the practical effects of its operation to the present time, we can, I think, ascertain from whose hands it has come to us to be expounded, by its objects and intentions.

THE PRACTICAL EFFECT AND OPERATION OF THE CONSTITUTION.

The apportionment of representation among the states, which was made by the constitution, was with a reference to the congress of the revolution, 1 Journ. 153, of the whole number 65; the six largest states had 43; the remaining 7, only 22; and the constitution could be adopted by nine states, having thirty-three representatives. When in 1789, the government was organized, there were only 11 states with 59 representatives: of which, 4 states had 32, and the other 7, only 27; yet they could elect a President, and had a majority of votes in the Senate: so that a minority of the people of the United States, had the operative power of two branches of the government; and could make the third, in which the majority was represented, either subservient to their will, or incapable of acting in opposition to it.

The president and sixteen senators, representing eight states, and a population entitled only to twenty-five representatives, could exercise the treaty-making power; and the President and twelve Senators, from states entitled only to nineteen representatives, could appoint all the executive, military, and judicial officers of the government; overruling five states entitled to thirty-nine representatives: whereby all offices could be filled, and treaties made the supreme law of the land, in defiance of the will of a majority of the people, and their representatives, estimating the population of 1789 by that of 1790.

Under the first census of 1790, the free white population of the thirteen states, was 3,100,000: of which, Massachusetts had 469,000; New York 314,000; Pennsylvania 424,000; and Virginia (and Kentucky) 503,000; making 1,710,000; leaving 1,390,000 to the other nine states. These four states had 56 members in the House of Representatives, the other states 47; they had 8 votes in the Senate, the other states 18; they had 64 votes for President, the other states 65. Nine states, with a white population of 1,390,000, could dissolve the old confederation, establish the new constitution, and throw out of the union, four states, containing 1,700,000, or could control them if they became parties to it.

Was this a government of a majority of the people of the United States, as one people? Did the one people "ordain and establish❞ this "Constitution for the United States of America?"

At the census of 1800, there were 16 states: the whole white population of which was 4,247,000; these 4 states, exclusive of Ken

tucky, (taken from Virginia) contained 2,226,000, the other 12 contained 2,021,000; these 4 states had 74 votes in the House, 8 in the Senate, and 82 for President; the other 12 states had 67 votes in the House, 24 in the Senate, and 91 for President; the minority, in effect, controlling every branch of the government, and competent to amend the constitution. What became then of the government of the majority of the free white population, composing the people of the United States?

At the census of 1810, there were 17 states, with a white population of 5,765,000: of which, these states contained 2,948,000, the other 13 contained 2,717,000; these 4 states had 93 votes in the House, 8 in the Senate, and 101 for President; the other 13 states had. 88 votes in the House, 26 in the Senate, and 114 for President, the minority of the people still controlling.

At the census of 1820, there were 24 states, the white population 7,856,000; the 4 states, with Maine (taken from Massachusetts) and Kentucky, contained 4,199,000; the other 18 contained 3,657,000; the 6 states having 114 votes in the House, 12 in the Senate, and 126 for President; the other 18 states had 99 votes in the House, 36 in the Senate, and 135 for President-the minority still ascendant.

In 1830, the entire white population was 10,846,000, of which, these 6 states contained 5,535,000; the other 18 states, including the territories, 5,311,000; the 6 states have 124 votes in the House, 12 in the Senate, and 136 for President; the other 18 states, have 117 votes in the House, 36 in the Senate, and 153 for President.

It thus appears, that from the year 1790, till this time, the four states of Massachusetts, New York, Pennsylvania and Virginia, have contained within their original boundaries, a majority of the whole people of the United States: yet such is the structure of the government, that there is no one act which could be effected by such majority.

Adding to the free white population of these states, according to the last census, and their present boundaries, that of Ohio and Tennessee, the 6 states contain 6,090,000; the other 18 states 4,646,000, leaving a majority in the 6 states of 1,444,000; which may be found to be perfectly passive for all purposes, except representation, in the House of Representatives. There are 9 states, which contain in all, only 1,345,000 free inhabitants, which can defeat a treaty, impeachment, proposition to amend the constitution, or the passage of a law, without the approbation of the President, against the will of fifteen states, containing a majority of 8,146,000 of the people of the United States, in the aggregate. Thirteen states, with a population of 2,504,300, can elect a President in the last resort, in opposition to eleven states, with 8,232,000. Congress is bound to call a convention to amend the constitution, on the application of the legislatures of two-thirds of states, whose population is only 3,546,000, less than one-third of the aggregate of all the states: and amendments may be adopted by eighteen states, in opposition to an aggregate majority of 1,444,000; one of which amendments might give the smallest state,

an equality of suffrage in the House of Representatives, and in voting for a President by electors. Seven states, with a white population of only 812,000, may defeat any constitutional amendment; though it might be called for by the residue of the people of the Union, amounting to 9,924,000: so that a minority may force on a majority a new government; and less than one-thirteenth of the people of the United States in the aggregate, may continue the present without any change whatever, though the reasons which call for an alteration, may be most imperative for the good of the whole. There are but two means of changing these results from the present organization of the government, one is the division of the large, or the junction of small states into new ones; and the other, by giving them a representation in the senate, in proportion to their numbers. But the constitution has placed both beyond the power of any majority of the people, however preponderating; unless by a majority of the states in the one, and by all in the second case.

"New states may be admitted by the congress into this Union; but no new state shall be formed or erected, within the jurisdiction of any other state, nor any state be formed by the junction of two or more states or parts of states, without the consent of the legislature of the states concerned, as well as of the congress." 4 art. sec. 3, clause 1.

The senators of any thirteen states can prevent the admission of any new states, or the junction of old ones; this can be remedied only by an amendment, which seven states can prevent.

The fifth article, providing for amending the constitution, contains this proviso: "and that no state without its consent shall be deprived of its equal suffrage in the senate." Thus the irrevocable, irrepealable supreme law of the land, has made Delaware, with an aggregate population of 77,000, the peer of New York in the senate, with her 2,000,000: and she may hold her rights in defiance of the constitutional power of twenty-three states, with an aggregate population of 12,789,000; equal to 166 to 1; in federal numbers, 165 to 1; and in free population, 147 to 1.

How contemptible are mere numbers, or majorities of the people, in comparison with the rights of states, by the standard of the constitution!!

The basis of representation, composed of people and property, mixed into the constituent body of federal members, leads irresistibly to the character of the government. The inevitable effect of making five slaves equal to three freemen, is, to take power from a majority of the people: so long as this apportionment of representation among the states continues; a minority of the people of the United States in the aggregate, may elect a majority of the members of the House of Representatives; and the conventions or legislatures of seven of the slave-holding states, can perpetuate this state of things.

The general result of the last census, including the District of Columbia and the territories, is: aggregate population, 12,856,000; slaves, 2,010,000; federal numbers, 12,052,000; free people, 10,846,000;