A Bond of Union necessary after the Declaration of Independence.—Articles of Confederation.—The Constitution of the United States.—The Same Principle for obtaining Grants of Power in both.—The Constitution an Instrument enumerating the Powers delegated.—The Power of Amendment merely a Power to amend the Delegated Grants.—A Smaller Power was required for Amendment than for a Grant.—The Power of Amendment is confined to Grants of the Constitution.—Limitations on the Power of Amendment.

In July, 1776, the Congress of the thirteen united colonies declared that "these united colonies are, and of right ought to be, free and independent States." The denial of this asserted right and the attempted coercion made it manifest that a bond of union was necessary, for the common defense.

In November of the next year, viz., 1777, articles of confederation and perpetual union were entered into by the thirteen States under the style of "The United States of America." The government instituted was to be administered by a congress of delegates from the several States, and each State to have an equal voice in legislation. The Government so formed was to act through and by the States, and, having no power to enforce its requisitions upon the States, embarrassment was early realized in its efforts to provide for the exigencies of war. After the treaty of peace and recognition of the independence of the States, the difficulty of raising revenue and regulating commerce was so great as to lead to repeated efforts to obtain from the States additional grants of power. Under the Articles of Confederation no amendment of them could be made except by the unanimous consent of the States, and this it had not been found possible to obtain for the powers requisite to the efficient discharge of the functions intrusted to the Congress. Hence arose the proceedings for a convention to amend the articles of confederation. The result was the formation of a new plan of government, entitled "The Constitution of the United States of America."

This was submitted to the Congress, in order that, if approved by them, it might be referred to the States for adoption or rejection by the several conventions thereof, and, if adopted by nine of the States, it was to be the compact of union between the States so ratifying the same.

The new form of government differed in many essential particulars from the old one. The delegates, intent on the purpose to give greater efficiency to the government of the Union, proposed greatly to enlarge its powers, so much so that it was not deemed safe to confide them to a single body, and they were consequently distributed between three independent departments of government, which might be a check upon one another. The Constitution did not, like the Articles of Confederation, declare that the States had agreed to a perpetual union, but distinctly indicated the hope of its perpetuity by the expression in the preamble of the purpose to "secure the blessings of liberty to ourselves and our posterity." The circumstances under which the Union of the Constitution was formed justified the hope of its perpetuity, but the brief existence of the Confederation may have been a warning against the renewal of the assertion that the compact should be perpetual.

A remedy for the embarrassment which had been realized, under the Articles of Confederation, in obtaining amendments to correct any defects in grants of power, so as to render them effective for the purpose for which they were given, was provided by its fifth article. It is here to be specially noted that new grants of power, as asked for by the Convention, were under the Articles of Confederation only to be obtained from the unanimous assent of the States. Therefore it followed that two of the States which did not ratify the Constitution were, so long as they retained that attitude, free from its obligations. Thus it is seen that the same principle in regard to obtaining grants of additional power for the Federal Government formed the rule for the Union as it had done for the Confederation; that is, that the consent of each and every State was a prerequisite. The apprehension which justly existed that several of the States might reject the Constitution, and under the rule of unanimity defeat it, led to the seventh article of the Constitution, which, provided that the ratification by the conventions of nine States should be sufficient for the establishment of the Constitution between the States ratifying it, which of course contemplated leaving the others, more or less in number, separate and distinct from the nine States forming a new government. Thus was the Union to be a voluntary compact, and all the powers of its government to be derived from the assent of each of its members.

These powers as proposed by the Constitution were so extensive as to create alarm and opposition by some of the most influential men in many of the States. It is known that the objection of the patriot Samuel Adams was only overcome by an assurance that such an amendment as the tenth would be adopted. Like opposition was by like assurance elsewhere overcome. That article is in these words: "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."

Amendment, however, of the delegated powers was made more easy than it had been under the Confederation. Ratification by three fourths of the States was sufficient under the Constitution for the adoption of an amendment to it. As this power of amendment threatens to be the Aaron's rod which will swallow up the rest, I propose to give it special examination. What is the Constitution of the United States? The whole body of the instrument, the history of its formation and adoption, as well as the tenth amendment, added in an abundance of caution, clearly show it to be an instrument enumerating the powers delegated by the States to the Federal Government, their common agent. It is specifically declared that all which was not so delegated was reserved. On this mass of reserved powers, those which the States declined to grant, the Federal Government was expressly forbidden to intrude. Of what value would this prohibition have been, if three fourths of the States could, without the assent of a particular State, invade the domain which that State had reserved for its own exclusive use and control?

It has heretofore, I hope, been satisfactorily demonstrated that the States were sovereigns before they formed the Union, and that they have never surrendered their sovereignty, but have only intrusted by their common agent certain functions of sovereignty to be used for their common welfare.

Among the powers delegated was one to amend the Constitution, which, it is submitted, was merely the power to amend the delegated grants, and these were obtained by the separate and independent action of each State acceding to the Union. When we consider how carefully each clause was discussed in the General Convention, and how closely each was scrutinized in the conventions of the several States, the conclusion can not be avoided that all was specified which it was intended to bestow, and not a few of the wisest in that day held that too much power had been conferred.

Aware of the imperfection of everything devised by man, it was foreseen that, in the exercise of the functions intrusted to the General Government, experience might reveal the necessity of modification—i.e., amendment—and power was therefore given to amend, in a certain manner, the delegated trusts so as to make them efficient for the purposes designed, or to prevent their misconstruction or abuse to the injury or oppression of any of the people. In support of this view I refer to the historical fact that the first ten amendments of the Constitution, nearly coeval with it, all refer either to the powers delegated, or are directed to the greater security of the rights which were guarded by express limitations.

The distinction in the mind of the framers of the Constitution between amendment and delegation of power seems to me clearly drawn by the fact that the Constitution itself, which was a proposition to the States to grant enumerated powers, was only to have effect between the ratifying States; but the fifth article provided that amendments to the Constitution might be adopted by three fourths of the States, and thereby be valid as part of the Constitution. It thus appears that a smaller power was required for an amendment than for a grant, and the natural if not necessary conclusion is, that it was because an amendment must belong to, and grow out of, a grant previously made. If a so-called amendment could have been the means of obtaining a new power, is it to be supposed that those watchful guardians of community independence, for which the war of the Revolution had been fought, would have been reconciled to the adoption of the Constitution, by the declaration that the powers not delegated are reserved to the States? Unless the power of amendment be confined to the grants of the Constitution, there can be no security to the reserved rights of a minority less than a fourth of the States. I submit that the word "amendment" necessarily implies an improvement upon something which is possessed, and can have no proper application to that which did not previously exist.

The apprehension that was felt of this power of amendment by the framers of the Constitution is shown by the restrictions placed upon the exercise of several of the delegated powers. For example: power was given to admit new States, but no new State should be erected within the jurisdiction of any other State, nor be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of those States; and the power to regulate commerce was limited by the prohibition of an amendment affecting, for a certain time, the migration or importation of persons whom any of the existing States should think proper to admit; and by the very important provision for the protection of the smaller States and the preservation of their equality in the Union, that the compact in regard to the membership of the two Houses of Congress should not be so amended that any "State, without its consent, shall be deprived of its equal suffrage in the Senate." These limitations and prohibitions on the power of amendment all refer to clauses of the Constitution, to things which existed as part of the General Government; they were not needed, and therefore not to be found in relation to the reserved powers of the States, on which the General Government was forbidden to intrude by the ninth article of the amendments.

In view of the small territory of the New England States, comparatively to that of the Middle and Southern States, and the probability of the creation of new States in the large Territory of some of these latter, it might well have been anticipated that in the course of time the New England States would become less than one fourth of the members of the Union. Nothing is less likely than that the watchful patriots of that region would have consented to a form of government which should give to a majority of three fourths of the States the power to deprive them of their dearest rights and privileges. Yet to this extremity the new-born theory of the power of amendment would go. Against this insidious assault, this wooden horse which it is threatened to introduce into the citadel of our liberties, I have sought to warn the inheritors of our free institutions, and earnestly do invoke the resistance of all true patriots.