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Who approved the Constitution?
Trusting that the other instructors will, throughout this course, provide a comprehensive and insightful analysis of what the Constitution is and what it was intended to do, I will choose to focus on a more introductory topic that is very relevant, but often overlooked: who created it?
This may seem like a simple question, but unfortunately, it is not. Indeed, the two prevailing schools of thought diverge greatly in their implications based on who is considered to have created the document. One answer suggests that the American people, by ratifying and thus giving consent to the resulting instrument, caused it to take effect and are therefore parties to the Constitution. This point of view is supported, at least minimally, but the first seven words of the document itself: "We the people of the United States".
The other answer suggests that the states were parties to the Constitution, and therefore each individual state gave consent to this new contract, rather than an at-large vote by the American public as a whole. As you will soon learn, it is this latter argument that is correct and withstands historical scrutiny, unlike the former.
Consider first the method whereby the Constitution was created. Each state--a distinct, sovereign nation at the time--sent delegates to represent its people. As such, each state's delegates had different ideas, positions, perspective, and goals. Almost all were jealous to retain the powers enjoyed by their state's government. (This is, of course, a major cause that resulted in the Constitutional Convention; the Articles of Confederation were found to be lacking in their ability to maintain a functional government, primarily because each state refused to surrender its sovereignty in any substantial degree.)
Each state's independence was described thusly by Judge Abel P. Upshur in his 1840 work A Brief Enquiry into the True Nature and Character of Our Federal Government:
The people of one colony owed no allegiance to the government of any other colony, and were not bound by its laws. The colonies had no common legislature, no common treasury, no common military power, no common judicatory. The people of one colony were not liable to pay taxes to any other colony, nor to bear arms in its defence; they had no right to vote in its elections; no influence nor control in its municipal government, no interest in its municipal institutions. There was no prescribed form by which the colonies could act together, for any purpose whatever.1
This point merits emphasis. The several colonies (thereafter declared sovereign states) had no method by which to unite on anything, including and especially a vote to confederate. Their independent decisions to accede to the union created by the Constitution were done through ratifying conventions in each separate state, voted upon by delegates and the people within that state. No "at large" vote by the ambiguous "people" of the United States ever took place. The choice was left up to each individual state whether it would join the union or not. Most did so very soon after the Constitution was submitted for approval, while others chose not to affiliate with the newly-created federal government for some time. For example, Rhode Island did not ratify the Constitution, and thus become a state within the Union, until May 29, 1790--two years after the federal government had begun operations (once nine states had ratified).
From this and much other information on the subject, it can be seen that the adoption of the Constitution, and the affiliation with the federal government it created, was a decision made by each state. It is, therefore, not correct to assume that the entirety of the people within the country are parties to the contract, nor that they collectively gave their approval.
But what of the Preamble, then? I earlier included those first seven words, but let's look at the entire thing:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Those who adopt the opposing argument--that the American people are parties to the Constitution--claim that this proves that the United States was created and adopted by an aggregated body of Americans, rather than the people as citizens of their respective and distinct states. Interestingly, the Constitution originally had the text "We, the States"; the change from "States" to "People" was made by the Committee on Style--a group of delegates tasked with the job of rewriting the various resolutions and motions which had been passed by the body into a coherent and well-structured final document.
Historian Thomas Woods describes why this change likely took place:
The reason was that it was impossible to know in advance which states would choose to ratify the Constitution and which would not. Thus, anything in the form of "We, the People of the States of ..." or "We, the States of ..." would have been purely conjectural, and perhaps even insulting to state populations that would have been suspicious enough of the new Constitution without its Preamble seeming to take their approval for granted.2
Woods further notes the extreme unlikelihood that this subcommittee would have been permitted to make so substantive a change to the Constitution's text, dramatically altering the nature of the Union itself, without any debate.
Ultimately, does this change to "People" and the inclination some people have to take it at face value mean much, or are we nitpicking over semantics? I suggest to the reader that there are extremely important implications to the interpretation of this issue. If the people as a whole ratified the Constitution and affiliated with the federal government, then the states became mere middle management, retaining no identity of their own other than geographical demarcation. If, instead, the people of each individual state ratified the Constitution and affiliated with the federal government, then the states retained their individual identity, and were themselves the parties to the compact which created the federal government.
The lessons provided throughout the week will no doubt lead the reader to further realize how far we have strayed from the simple terms of the Constitution. For those who seek to jealously guard their liberties and the powers of the state in which they reside, this concept--that the several states, and not "the people", were parties to and ratified the Constitution--is one that should be further studied and widely circulated.
Prior to the adoption of the Constitution, each state looked negatively upon any power or entity that would lessen its sovereignty. If the states are to once again become defenders of the liberties of their citizens, they will first need to emphasize their place at the table which created and empowers the federal government, and with that standing, help restrain the creature to which they once gave life.
Connor Boyack is a web developer, political economist, and budding philanthropist trying to change the world one byte at a time. He serves as State Coordinator for the Tenth Amendment Center in Utah, and Communications Coordinator for the Campaign for Liberty in Utah County. Read his blog or send him an email.
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www.gwschool.net
(Not a student yet? Enroll for free at www.gwschool.net.)
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