The regular process of forming and admitting new States explains admirably the mutual relation of the Union and the several States.The people of a Territory belonging to the United States or included in the public domain not yet erected into a State and admitted into the Union, are subjects of the United States, without any political rights whatever, and, though a part of the population, are no part of the sovereign people of the United States.They become a part of that people, with political rights and franchises, only when they are erected into a State, and admitted into the Union as one of the United States.They may meet in convention, draw up and adopt a constitution declaring or assuming them to be a State, elect State officers, senators, and representatives in the State legislature, and representatives and senators in Congress, but they are not yet a State, and are, as before, under the Territorial government established by the General Government.It does not exist as a State till recognized by Congress and admitted into the Union.The existence of the State, and the rights and powers of the people within the State, depend on their being a State in the Union, or a State united.
Hence a State erected on the national domain, but itself outside of the Union, is not an independent foreign State, but simply no State at all, in any sense of the term.As there is no union outside of the States, so is there no State outside of the Union;and to be a citizen either of a State or of the United States, it is necessary to be a citizen of a State, and of a State in the Union.The inhabitants of Territories not yet erected into States are subjects, not citizens--that is, not citizens with political rights.The sovereign people are not the people outside of State organization, nor the people of the States severally, but the distinct people of the several States united, and therefore most appropriately called the people of the United States.
This is the peculiarity of the American constitution and is substantially the very peculiarity noted and dwelt upon by Mr.Madison in his masterly letter to Edward Everett, published in the "North American Review," October, .
"I In order to understand the true character of the constitution of the United States," says Mr.Madison, "the error, not uncommon, must be avoided of viewing it through the medium either of a consolidated government or of a confederated government, whilst it is neither the one nor the other, but a mixture of both.And having, in no model, the similitudes and analogies applicable to other systems of government, it must, more than any other, be its own interpreter, according to its text and the facts in the case.
"From these it will be seen that the characteristic peculiarities of the constitution are: .The mode of its formation..The division of the supreme powers of government between the States in their united capacity and the States in their individual capacities.
".It was formed not by the governments of the component States, as the Federal Government, for which it was substituted, was formed; nor was it formed by a majority of the people of the United States as a single community, in the manner of a consolidated government.It was formed by the States; that is, by the people in each of the States, acting in their highest sovereign capacity, and formed consequently by the same authority which formed the State constitution.
"Being thus derived from the same source as the constitutions of the States, it has within each State the same authority as the constitution of the State, and is as much a constitution in the strict sense of the term, within its prescribed sphere, as the constitutions of the States are within their respective spheres;but with this obvious and essential difference, that, being a compact among the States in their highest capacity, and constituting the people thereof one people for certain purposes, it cannot be altered or annulled at the will of the States individually, as the constitution of a State may be at its individual will.
".And that it divides the supreme powers of government between the government of the United States and the governments of the individual States, is stamped on the face of the instrument; the powers of war and of taxation, of commerce and treaties, and other enumerated powers vested in the government of the United States, are of high and sovereign a character as any of the powers reserved to the State governments."Mr.Jefferson, Mr.Webster, Chancellor Kent, Judge Story, and nearly all the old Republicans, and even the old Federalists, on the question as to what is the actual constitution of the United States, took substantially the same view; but they all, as well as Mr.Madison himself, speak of the written constitution, which on their theory has and can have only a conventional value.
Mr.Madison evidently recognizes no constitution of the people prior to the written constitution, from which the written constitution, or the constitution of the government, derives all its force and vitality.The organization of the American people, which he knew well--no man better,--and which he so justly characterizes, he supposes to have been deliberately formed by the people themselves, through the convention--not given them by Providence as their original and inherent constitution.But this was merely the effect of the general doctrine which he had adopted, in common with nearly all his contemporaries, of the origin of the state in compact, and may be eliminated from his view of what the constitution actually is, without affecting that view itself.
