CONSTITUTION OF THE UNITED STATES
The constitution of the United States is twofold, written and unwritten, the constitution of the people and the constitution of the government.
The written constitution is simply a law ordained by the nation or people instituting and organizing the government; the unwritten constitution is the real or actual constitution of the people as a state or sovereign community, and constituting them such or such a state.It is Providential, not made by the nation, but born with it.The written constitution is made and ordained by the sovereign power, and presupposes that power as already existing and constituted.
The unwritten or Providential constitution of the United States is peculiar, and difficult to understand, because incapable of being fully explained by analogies borrowed from any other state historically known, or described by political philosophers.It belongsto the Graeco-Roman family, and is republican asdistinguished from despotic constitutions, but it comes under the head of neither monarchical nor aristocratic, neither democratic nor mixed constitutions, and creates a state which is neither a centralized state nor a confederacy.The difficulty of understanding it is augmented by the peculiar use under it of the word state, which does not in the American system mean a sovereign community or political society complete in itself, like France, Spain, or Prussia, nor yet a political society subordinate to another political society and dependent on it.
The American States are all sovereign States united, but, disunited, are no States at all.The rights and powers of the States are not derived from the United States, nor the rights and powers of the United States derived from the States.
The simple fact is, that the political or sovereign people of the United States exists as united States, and only as united States.
The Union and the States are coeval, born together, and can exist only together.Separation is dissolution--the death of both.
The United States are a state, a single sovereign state; but this single sovereign state consists in the union and solidarity of States instead of individuals.The Union is in each of the States, and each of the States is in the Union.
It is necessary to distinguish in the outset between the United States and the government of the United States, or the so-called Federal government, which the convention refused, contrary to its first intention to call the national government.That government is not a supreme national government, representing all the powers of the United States, but a limited government, restricted by its constitution to certain specific relations and interests.The United States are anterior to that government, and the first question to be settled relates to their internal and inherent Providential constitution as one political people or sovereign state.The written constitution, in its preamble, professes to be ordained by "We, the people of the United States." Who are this people? How are they constituted, or what the mode and conditions of their political existence? Are they the people of the States severally? No; for they call themselves the people of the United States.Are they a national people, really existing outside and independently of their organization into distinct and mutually independent States? No; for they define themselves to be the people of the United States.If they had considered themselves existing as States only, they would have said "We, the States," and if independently of State organization, they would have said "We, the people," do ordain, &c.
The key to the mystery is precisely in this appellation United States, which is not the name of the country, for its distinctive name is America, but a name expressive of its political organization.In it there are no sovereign people without States, and no States without union, or that are not united States.The term united is not part of a proper name, but is simply an adjective qualifying States, and has its full and proper sense.Hence while the sovereignty is and must be in the States, it is in the States united, not in the States severally, precisely as we have found the sovereignty of the people is in the people collectively or as society, not in the people individually.The life is in the body, not in the members, though the body could not exist if it had no members; so the sovereignty is in the Union, not in the States severally; but there could be no sovereign union without the States, for there is no union where there is nothing united.
This is not a theory of the constitution, but the constitutional fact itself.It is the simple historical fact that precedes the law and constitutes the law-making power.The people of the United States are one people, as has already been proved: they were one people, as far as a people at all, prior to independence, because under the same Common Law and subject to the same sovereign, and have been so since, for as united States they gained their independence and took their place among sovereign nations, and as united States they have possessed and still possess the government.As their existence before independence in distinct colonies did not prevent their unity, so their existence since in distinct States does not hinder them from being one people.The States severally simply continue the colonial organizations, and united they hold the sovereignty that was originally in the mother country.But if one people, they are one people existing in distinct State organizations, as before independence they were one people existing in distinct colonial organizations.This is the original, the unwritten, and Providential constitution of the people of the United States.
