Constitutional history -- United States -- Sources; Constitutional law -- United States
should be left in possession of their sovereignty and independence? We
have seen that in the new government, as in the old, the general powers
are limited; and that the States, in all unenumerated cases, are left
in the enjoyment of their sovereign and independent jurisdiction. The
truth is, that the great principles of the Constitution proposed by the
convention may be considered less as absolutely new, than as the
expansion of principles which are found in the articles of
Confederation. The misfortune under the latter system has been, that
these principles are so feeble and confined as to justify all the
charges of inefficiency which have been urged against it, and to
require a degree of enlargement which gives to the new system the
aspect of an entire transformation of the old. In one particular it is
admitted that the convention have departed from the tenor of their
commission. Instead of reporting a plan requiring the confirmation OF
THE LEGISLATURES OF ALL THE STATES, they have reported a plan which is
to be confirmed by the PEOPLE, and may be carried into effect by NINE
STATES ONLY. It is worthy of remark that this objection, though the
most plausible, has been the least urged in the publications which have
swarmed against the convention. The forbearance can only have proceeded
from an irresistible conviction of the absurdity of subjecting the fate
of twelve States to the perverseness or corruption of a thirteenth;
from the example of inflexible opposition given by a MAJORITY of one
sixtieth of the people of America to a measure approved and called for
by the voice of twelve States, comprising fifty-nine sixtieths of the
people an example still fresh in the memory and indignation of every
citizen who has felt for the wounded honor and prosperity of his
country. As this objection, therefore, has been in a manner waived by
those who have criticised the powers of the convention, I dismiss it
without further observation. The THIRD point to be inquired into is,
how far considerations of duty arising out of the case itself could
have supplied any defect of regular authority. In the preceding
inquiries the powers of the convention have been analyzed and tried
with the same rigor, and by the same rules, as if they had been real
and final powers for the establishment of a Constitution for the United
States. We have seen in what manner they have borne the trial even on
that supposition. It is time now to recollect that the powers were
merely advisory and recommendatory; that they were so meant by the
States, and so understood by the convention; and that the latter have
accordingly planned and proposed a Constitution which is to be of no
more consequence than the paper on which it is written, unless it be
stamped with the approbation of those to whom it is addressed. This
reflection places the subject in a point of view altogether different,
and will enable us to judge with propriety of the course taken by the
convention.
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