Chapter II: The State Governments Form a Union of States

We have now lived with the American of an earlier generation through the days in which he ceased to be a subject of any government, and in which he established forever in America the basic law that no government can exercise or possess any ability to interfere with his individual freedom except by direct grant from its citizens. We have seen him, in each of the former colonies, create a nation, become one of its citizens and, with his fellow citizens of that nation, give to its government _some_ ability _of that kind_.

When we recall it to be the tribute of history that _these_ Americans were better acquainted with the science of government than any other people in the world, it is well to reflect for a moment upon the significant exhibition of that knowledge during the days through which we have just lived with them.

When the suggestion came from Philadelphia, in the summer of 1776, that the Americans in each former colony constitute a government for their own nation and give to it a limited ability to govern themselves in restraint of their individual freedom, it is recorded history that Americans generally knew that a gift _of that kind_ to government could never be validly made by governments. It “was felt and acknowledged by all” that only its own citizens ever could grant ability _of that kind_ to any government.

As the people of New England had been the most thoroughly trained in the actual experience of self government, we naturally find them acting upon and clearly stating the American legal principle that legislatures never can give ability _of that kind_ to government. The records of Concord, Massachusetts, for October 21, 1776, show how clearly this was understood by the Americans of that generation. After the Philadelphia suggestion had been made, the Massachusetts legislature framed a constitution and sent it to the Massachusetts townships for approval. On that October 21, 1776, the people of Concord refused to act upon it. Their reason was that government ability to interfere with human freedom could never come from legislatures but must always come _directly_ from the citizens themselves. Let the Americans of Concord, in their own words, impart some of their knowledge to the Americans of this generation.

“Resolved secondly, that the supreme Legislative, either in their proper capacity or in joint committee, are by no means a body proper to form and establish a Constitution or form of government for reasons following, viz.: First, because we conceive that Constitution in its proper idea intends a system of principles established to secure the subject in the possession of and enjoyment of their Rights and Privileges against any encroachment of the Governing Part. Secondly, because the same body that forms a Constitution have of consequence a power to alter it. Thirdly, because a Constitution alterable by the Supreme Legislative is no security at all to the subject against the encroachment of the Governing Part on any or on all their Rights and Privileges.”

(See _Constitutional Review_, April, 1918, p. 97.)

The people of Concord or New England were not alone in this knowledge. On this we have the later testimony of Marshall from the Bench of the Supreme Court. Speaking of that day, a few years after 1776, when the whole American people created _their_ nation and gave enumerated powers _of that kind_ to _its_ government, he said:

But when, “in order to form a more perfect Union,” it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers _directly_ from them, was felt and acknowledged by all. (M’Culloch v. Maryland, 4 _Wheat._ 316.)

Fixing this knowledge of that day firmly in our mind, let us go on with the remarkable Americans of that generation through the next period in which the relation of government to government and of nation to nation was changed, but in which the status of the citizen of each nation and his relation to all governments remained exactly what he and his fellow citizens of that nation had made it.

On November 15, 1777, there came from the Congress at Philadelphia another suggestion, this time a proposal to the thirteen nations that they, already allied in an existing war, should form a permanent union or federation of nations. With that proposal went a drafted set of constitutional Articles, having for their purpose the establishment of a government (to be called a Congress) for the proposed federation, some of which Articles would give to that government ability to govern the members of the union, the thirteen nations. The proposal and the constitutional Articles were sent, for ratification or rejection, to the legislature of each nation as its proper attorney in fact in creating a _federal_ union of nations and in giving _federal_ ability to govern, which _federal_ ability never directly interferes with individual freedom.

Let us reflect upon the accurate knowledge of the science of government again shown by the Americans of that generation in that proposal. Only a few short months earlier there had come, from the same men at Philadelphia, the proposal that _national_ government be established in each nation. These men at Philadelphia had been subjects of the British Government until July, 1776. All government ability to interfere with human freedom, then as now, under British law, had its source in a legislature, the Westminster Parliament. And yet these men at Philadelphia, in the summer of 1776, had accurately known that, under basic American law, _such_ government ability could only have one valid source, direct action by the citizens themselves assembled in conventions. Acting on this knowledge in the summer of 1776, the suggestion that government in each state be given _national_ power to govern, namely, ability directly to interfere with individual freedom, had come as a suggestion to the citizens of each nation for their own direct action. That suggestion had been followed, and thus had been exercised, for the first time since Americans ceased to be subjects, the inherent and inalienable and always existing ability of the citizens of a free nation to make any kind of constitutional Articles of government, including the _national_ kind which give government any power to interfere with individual freedom.

When, therefore, these same men at Philadelphia made their proposal of November, 1777, that other constitutional Articles of government be made in America, the proposed Articles of Union between nations, it might have been natural that this proposal also should have suggested ratification of _these_ Articles by the people themselves. It would have seemed all the more natural, when we remember that one of the leaders at Philadelphia in that time was Jefferson, the historic champion of human individual freedom against all governments. But the Americans of that generation and their leaders were not as the leaders of our own time. They knew very accurately the difference between a _national_ Article of government, which gave ability to interfere with human freedom, and a _federal_ Article, which gave no ability _of that kind_ but only ability to govern nations or states, as political entities. With this accurate knowledge of the vital distinction between a _national_ and a _federal_ Article, they naturally knew that either the people themselves or the legislative attorney in fact of the nation, which makes all agreements for the nation with other nations, may validly make a _federal_ Article. Therefore, they sent the proposed Articles of Confederation between nations (not one of which gave _national_ power to the proposed _federal_ government) to the legislatures of the respective nations for ratification or rejection on behalf of the nations. As Marshall later summed up the knowledge which prompted that sending of those _federal_ articles to the legislatures:

To the formation of a league, such as was the Confederation, the State sovereignties were certainly competent. (M’Culloch v. Maryland, 4 _Wheat._ 316.)

Each state legislature acted favorably upon the proposed articles and ratified them. By July 9, 1778, the legislatures of ten states had ratified. The legislatures of New Jersey and Delaware followed before the end of February, 1779. The legislature of Maryland did not ratify until March 1, 1781.

It is well for the average American of the present generation, at this point, to fix firmly in his mind that this _legislative_ ratification of these _federal_ Articles was the important exercise of an existing and recognized ability of state legislatures to make all constitutional articles of a _federal_ nature, which never confer any government ability directly to interfere with human freedom. It is well for the same American also to fix firmly in his mind that it was the exercise of an ability to make constitutional articles entirely distinct from the other existing ability to make them, which had been exercised, in each nation, directly by the citizens themselves, in “conventions,” in the preceding year of 1776. In that year, there had been exercised the inherent and inalienable and always existing ability of citizens of a nation, assembled in conventions of deputies chosen for that express purpose, to make _any_ kind of constitutional article, whether it confers _federal_ or _national_ power on government. In the years 1777 to 1781, there had been exercised the recognized and existing _but limited_ ability of state legislatures to make _federal_ articles, an ability clearly then known not to include the ability to confer upon government _national_ power to interfere with individual freedom.

Living with those Americans through their great days, we have now reached the day in 1781 when they were all citizens of _some_ nation but were not all citizens of the same nation. The great Republic, America, had not yet been born. The legal status of the American as an individual, and his relation to all governments was exactly the same as it had been since 1776. Each American was the citizen of some nation. His individual freedom could be directly interfered with only by some law of the legislature of that single nation under a valid grant, from him and his fellow citizens, of power to enact that law on that subject. Neither the legislature of any other nation in America, nor the legislatures of all other nations in America, nor the government of nations which those legislatures had created and endowed with _federal_ powers, the Congress of the Federation, could singly or collectively issue a single command to him, interfering in any manner with his human freedom, or could give to any government or governments a power to issue such a command.

There were existing and recognized by all in America two distinct and different abilities--one limited and the other unlimited--to make constitutional articles. One was the limited ability of state legislatures. They could give _federal_ power to a government, but they could not give any _national_ power or power directly to interfere with human freedom. The other was the unlimited ability of the citizens of any nation. They could give _any_ kind of power, federal or national, to their own government. Each ability, at a different time, had been evoked to exercise by a distinct proposal from the same Americans at Philadelphia, the Second Continental Congress, which had under its direction the conduct of the Revolutionary War.

Dormant for the time being, but existing over all other ability in America, was the supreme will of the collective people of America, who had not yet created their own great Republic or become its citizens or given to its government its enumerated powers to interfere with their individual freedom.

This was the legal status of the American, and his relation to all governments, and the relation of governments in America to one another, when the Treaty of Peace was concluded with England on September 3, 1783, and was later ratified by the Federal Congress on January 14, 1784.