Constitutional history -- United States -- Sources; Constitutional law -- United States
comparison and fair construction of these several modes of expression,
is to be deduced the authority under which the convention acted. They
were to frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF
GOVERNMENT, and OF THE UNION; and to reduce the articles of
Confederation into such form as to accomplish these purposes.
There are two rules of construction, dictated by plain reason, as well
as founded on legal axioms. The one is, that every part of the
expression ought, if possible, to be allowed some meaning, and be made
to conspire to some common end. The other is, that where the several
parts cannot be made to coincide, the less important should give way to
the more important part; the means should be sacrificed to the end,
rather than the end to the means. Suppose, then, that the expressions
defining the authority of the convention were irreconcilably at
variance with each other; that a NATIONAL and ADEQUATE GOVERNMENT could
not possibly, in the judgment of the convention, be affected by
ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION; which part
of the definition ought to have been embraced, and which rejected?
Which was the more important, which the less important part? Which the
end; which the means? Let the most scrupulous expositors of delegated
powers; let the most inveterate objectors against those exercised by
the convention, answer these questions. Let them declare, whether it
was of most importance to the happiness of the people of America, that
the articles of Confederation should be disregarded, and an adequate
government be provided, and the Union preserved; or that an adequate
government should be omitted, and the articles of Confederation
preserved. Let them declare, whether the preservation of these articles
was the end, for securing which a reform of the government was to be
introduced as the means; or whether the establishment of a government,
adequate to the national happiness, was the end at which these articles
themselves originally aimed, and to which they ought, as insufficient
means, to have been sacrificed. But is it necessary to suppose that
these expressions are absolutely irreconcilable to each other; that no
ALTERATIONS or PROVISIONS in THE ARTICLES OF THE CONFEDERATION could
possibly mould them into a national and adequate government; into such
a government as has been proposed by the convention? No stress, it is
presumed, will, in this case, be laid on the TITLE; a change of that
could never be deemed an exercise of ungranted power. ALTERATIONS in
the body of the instrument are expressly authorized. NEW PROVISIONS
therein are also expressly authorized. Here then is a power to change
the title; to insert new articles; to alter old ones. Must it of
necessity be admitted that this power is infringed, so long as a part
of the old articles remain? Those who maintain the affirmative ought at
least to mark the boundary between authorized and usurped innovations;
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