We the People

By E. L. Core

A Common Misconception

Some folks say the U.S. federal government was created by the states. No less a luminary than the 40th president of the United States of America said so in his First Inaugural Address:

It is my intention to curb the size and influence of the Federal establishment and to demand recognition of the distinction between the powers granted to the Federal Government and those reserved to the States or to the people. All of us need to be reminded that the Federal Government did not create the States; the States created the Federal Government. (Ronald Reagan, January 20, 1981)

And Andrew P. Napolitano, a former New Jersey state judge and law professor, said so in a speech:

I believe that the States created the federal government and not the other way around. And that the power that the States gave to the Federal Government — they can take back. (August 1, 2009)

The idea seems to be common among conservative and libertarian activists. “The federal government was created by the states”, says Kemberlee Kaye (February 5, 2013); and Joe Wolverton (April 25, 2019) says, “Put simply, the states created the federal government, set the boundaries of its power, and reserved to themselves all other rights not specifically delegated to the new federal authority.”

But it is not true: the states did not create the federal government: the people of the United States of America created the federal government.

The Unfamiliar Truth

The state legislatures (excepting Rhode Island) had sent delegates to the Constitutional Convention in Philadelphia, in the summer of 1787, which produced the document that would become the U.S. Federal Constitution the following summer.

Thereupon, the people created the federal government through ratifying conventions held in each state over the next few months and years, by which the proposed federal constitution was approved and adopted. The delegates to the conventions had been elected by the people of their state; the delegates then acted in the name of the people of their state, deciding whether to approve or reject the proposed constitution. Eventually, the people of all thirteen original states approved the constitution in this manner.

(In thinking about the ratifying conventions, do not be misled by a common modern usage of the word “convention”. Nowadays, a convention may be a gathering of people with a common interest who get together to meet one another, exchange ideas and anecdotes, talk about the past and plan for the future, get news of the latest products and other developments, etc. Unlike those events, the ratifying conventions were one-off assemblies with a specific purpose and with the power to make legally binding decisions — much like national and state conventions held by American political parties, during which they adopt a platform, nominate candidates for office, etc.)

During the ratification process — from 1787 through 1790 — it was understood by everyone involved that the delegates to the conventions would be acting on behalf of, in the name of, and with the authority and power of, the people. The delegates were not representatives of the state legislatures, nor representatives of the chief executives of the states, nor were they chosen or appointed by the legislature or executive. The delegates were not acting on behalf of their state: they were acting on behalf of the people of their state.

Each state’s role — that is, the role of each state government — in the ratifying process was confined to two actions. Both actions in each state were essential for the ratification process to work, but they were not the ratification process: they provided the framework on which the ratification process would be constructed. The two actions were these:

to set the date(s) for the election of delegates to the ratifying convention, and
to set the date for the convention to convene.

After that, each convention was left to its own devices, to elect officers, to adopt rules for debate and voting, and to otherwise conduct its own proceedings.

This was, indeed, the procedure that had been recommended by the Philadelpha Convention the day the text of the proposed consitution was finalized (emphasis added):

Resolved, That the preceding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification; and that each Convention assenting to, and ratifying the Same, should give Notice thereof to the United States in Congress assembled. (Resolution, September 17, 1787.)

The “Congress” referred to in the resolution was the Congress of the Confederation, or the Confederation Congress, which was at the time often still referred to as the Continental Congress. That body loosely governed the United States with both legislative and executive authority: it operated under the Articles of Confederation and Perpetual Union, which had been adopted in 1781.

The Confederation Congress followed suit only eleven days later, adopting the following resolution (emphasis added):

Congress having received the report of the Convention lately assembled in Philadelphia

Resolved Unanimously that the said Report with the resolutions and letter accompanying the same be transmitted to the several legislatures in Order to be submitted to a convention of Delegates chosen in each state by the people thereof in conformity to the resolves of the Convention made and provided in that case. (Resolution, September 28, 1787.)

Thus, the fate of the proposed federal constitution was put into the hands of the people of the United States.

Quotations from Contemporary Documents

So, the federal constitution was ratified state by state, but it was not ratified by the states.

Here are quotations from primary source documents — the actual legal documents by which the federal constitution was adopted — showing explicitly that the federal government was created by the people. (Emphases are added in all of the following quotations.)

All of the quotations come from Volume I (beginning on page 319) of Elliot’s Debates, the classic standard source for documents concerning the formation, adoption, and implementation of the federal constitution, at the Library of Congress website. The states are listed in chronological order of adoption of the federal constitution.

Delaware: “We, the deputies of the people of the Delaware state, in Convention met… have approved, assented to, ratified, and confirmed, and by these presents do, in virtue of the power and authority to us given, for and in behalf of ourselves and our constituents, fully, freely, and entirely approve of, assent to, ratify, and confirm, the said Constitution.” (December 7, 1787)

Pennsyvlania: “Be it known unto all men, that we, the delegates of the people of the commonwealth of Pennsylvania, in General Convention assembled, have assented to and ratified, and by these presents do, in the name and by the authority of the same people, and for ourselves, assent to and ratify the foregoing Constitution for the United States of America.” (December 12, 1787)

New Jersey: “Now be it known, that we, the delegates of the state of New Jersey, chosen by the people thereof, for the purpose aforesaid, having maturely deliberated on and considered the aforesaid proposed Constitution, do hereby, for and on the behalf of the people of the said state of New Jersey, agree to, ratify, and confirm, the same and every part thereof.” (December 18, 1787)

Georgia: “Now know ye, that we, the delegates of the people of the state of Georgia, in Convention met, pursuant to the resolutions of the legislature aforesaid, having taken into our serious consideration the said Constitution, have assented to, ratified, and adopted, and by these presents do, in virtue of the powers and authority to us given by the people of the said state for that purpose, for and in behalf of ourselves and our constituents, fully and entirely assent to, ratify, and adopt, the said Constitution.” (December 31, 1787)

Connecticut: “We, the delegates of the people of said state, in general Convention assembled, pursuant to an act of the legislature in October last, have assented to, and ratified, and by these presents do assent to [the Constitution, reported by the Convention of Delegates in Philadelphia], on the 17th day of September, A. D. 1787, for the United States of America.” (January 9, 1788)

Massachusetts: “The Convention having impartially discussed, and fully considered, the Constitution for the United States of America… do, in the name and in behalf of the people of the commonwealth of Massachusetts, assent to and ratify the said Constitution for the United States of America.” (February 6, 1788)

Maryland: “We, the delegates of the people of the state of Maryland, having fully considered the Constitution of the United States of America… do, for ourselves, and in the name and on the behalf of the people of this state, assent to and ratify the said Constitution.” (April 28, 1788)

South Carolina: “The Convention, having maturely considered the Constitution…. Do, in the name and behalf of the people of this state, hereby assent to and ratify the said Constitution.” (May 23, 1788)

New Hampshire: “The Convention having impartially discussed and fully considered the Constitution for the United States of America…. Do, in the name and behalf of the people of the state of New Hampshire, assent to and ratify the said Constitution for the United States of America.” (June 21, 1788)

Virginia: “We, the said delegates, in the name and in behalf of the people of Virginia, do, by these presents, assent to and ratify the Constitution recommended, on the 17th day of September, 1787, by the Federal Convention, for the government of the United States, hereby announcing to all those whom it may concern, that the said Constitution is binding upon the said people, according to an authentic copy hereto annexed, in the words following.” (June 27, 1788)

New York: “We, the said delegates, in the name and in the behalf of the people of the state of New York, do, by these presents, assent to and ratify the said Constitution.” (July 26, 1788)

North Carolina: “Resolved, That this Convention, in behalf of the freemen, citizens and inhabitants of the state of North Carolina, do adopt and ratify the said Constitution and form of government.” (November 21, 1789)

Rhode Island: “We, the said delegates, in the name and in the behalf of the people of the state of Rhode Island and Providence Plantations, do, by these presents, assent to and ratify the said Constitution.” (May 29, 1790)

Clearly, the ratifying conventions were the means by which the language of the Preamble to the U.S. Constitution was effected (emphases added):

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.

Could it get any plainer than that?

Explications from the Early Days of the Republic

Again, the federal constitution was ratified state by state, but it was not ratified by the states.

James Madison examined the situation in The Federalist Papers, in 1788 (emphases added):

In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.

On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. (Federalist 39, January 18, 1788)

This reality — that the people, not the states, had created the federal government — was explained again in two Supreme Court decisions about three decades later.

First, Justice Joseph Story wrote as follows in Martin v. Hunter's Lessee, in 1816 (emphases added):

The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by “the people of the United States.” There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary, to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be that the people had a right to prohibit to the States the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact, to make the powers of the State governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. (Martin v. Hunter's Lessee, 14 U.S. [1 Wheat.] 304 [1816], March 20, 1816)

Second, Chief Justice John Marshall explained as follows in McCulloch v. Maryland, in 1819 (emphases added):

The convention which framed the Constitution was indeed elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation or pretensions to it. It was reported to the then existing Congress of the United States with a request that it might “be submitted to a convention of delegates, chosen in each State by the people thereof, under the recommendation of its legislature, for their assent and ratification.”

This mode of proceeding was adopted, and by the convention, by Congress, and by the State legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject — by assembling in convention. It is true, they assembled in their several States — and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments.

From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is “ordained and established” in the name of the people, and is declared to be ordained, “in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity.”

The assent of the States in their sovereign capacity is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. It required not the affirmance, and could not be negatived, by the State Governments. The Constitution, when thus adopted, was of complete obligation, and bound the State sovereignties….

To the formation of a league such as was the Confederation, the State sovereignties were certainly competent. 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. The Government of the Union then (whatever may be the influence of this fact on the case) is, emphatically and truly, a Government of the people. In form and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. (McCulloch v. Maryland, 17 U.S. [4 Wheat.] 316 [1819], February 1, 1819)

Why It Was Done That Way, and Had to be Done That Way

We would do well to expand upon the concluding paragraph of that last quotation from CJ John Marshall.

The states, as mentioned above, had already joined themselves together in the Articles of Confederation and Perpetual Union. This had been, indeed, action by the states as states; that is, each state government, through its legislature, had ratified the Articles.

One of the most significant aspects of the Articles was the requirement for unanimity to amend the document: all thirteen states had to vote affirmatively to make any changes to the compact. This effectively gave each state a veto over any amendments. Though several changes were widely held to be necessary for more effective, long-term functioning of the national government, none were ever enacted: all failed because one or two states refused to approve the amendments. So, the states found themselves legally bound together in an agreement of “perpetual union” that they were effectively incapable of changing.

Moreover, the national government envisioned by the proposed federal constitution would have a great deal more power and authority than the Continental Congress had, especially the power to operate directly on the people of the United States: the new general government (as it was often called) would have the power, for instance, to tax individuals and to otherwise make laws restricting, and punishing, the behavior of individuals — and such power was possessed only by the states in the existing scheme of government. The states, as states, had no authority to grant such power — the power to act directly on the people — to the proposed federal government.

Thus, to have legitimacy as a new scheme of national (general) government with more power, and powers of a different nature, it “was felt and acknowledged by all” that the new government would have to be established by the people.

And it was.

Appendix: Timeline

This timeline of events, state by state, has been culled from the appendix “Chronology of Events, 1774-1804” in either volume of The Debate on the Constitution in the Library of America series. The states are listed in chronological order of adoption of the federal constitution.

Delaware: The legislature voted November 10, 1787: an election would be held November 26, 1787, to choose delegates to a convention that would meet December 3, 1787. The convention voted unanimously, 30-0, to ratify the constitution, December 7, 1787.

Pennsyvlania: The legislature voted September 29, 1787: an election would be held November 6, 1787, to choose delegates to a convention that would meet November 20, 1787. The convention voted 46-23 to ratify the constitution, December 12, 1787.

New Jersey: The legislature voted November 1, 1787: an election would be held November 27 to December 1, 1787, to choose delegates to a convention that would meet December 11, 1787. The convention voted unanimously, 38-0, to ratify the constitution, December 18, 1787.

Georgia: The legislature voted October 26, 1787: an election would be held December 4-5, 1787, to choose delegates to a convention that would meet December 25, 1787. The convention voted unanimously, 26-0, to ratify the constitution, December 31, 1787.

Connecticut: The legislature voted October 17, 1787: an election would be held November 12, 1787, to choose delegates to a convention that would meet January 3, 1788. The convention voted 128-40 to ratify the constitution, January 9, 1788.

Massachusetts: The legislature voted October 25, 1787: an election would be held November 19, 1787, to January 7, 1788, to choose delegates to a convention that would meet January 9, 1788. The convention voted 187-168 to ratify the constitution, February 6, 1788, but also proposed nine amendments.

Maryland: The legislature voted December 6, 1787: an election would be held April 7, 1788, to choose delegates to a convention that would meet April 21, 1788. The convention voted 63-11 to ratify the constitution, April 28, 1788.

South Carolina: The legislature voted January 19, 1788: an election would be held April 11-12, 1788, to choose delegates to a convention that would meet May 12, 1788. The convention voted 149-73 to ratify the constitution, May 23, 1788, but also proposed four amendments.

New Hampshire: The legislature voted December 14, 1787: an election would be held December 31, 1787, to February 12, 1788, to choose delegates to a convention that would meet February 13, 1788. The convention adjourned on February 22 until June 18, then voted 149-73 to ratify the constitution, June 21, 1788, but also proposed twelve amendments.

Virginia: The legislature voted October 31, 1787: an election would be held March 3-27, 1788, to choose delegates to a convention that would meet June 2, 1788. The convention voted 89-79 to ratify the constitution, June 27, 1788, but also proposed a bill of rights and 40 other amendments.

New York: The legislature voted February 1, 1788: an election would be held April 29 to May 3, 1788, to choose delegates to a convention that would meet June 17, 1788. The convention voted 30-27 to ratify the constitution, July 26, 1788, but also issued a declaration of rights, and proposed 33 amendments.

North Carolina: The legislature voted December 6, 1787: elections would be held March 28-29, 1788, to choose delegates to a convention that would meet July 21, 1788. The convention adjourned August 4, neither ratifying nor rejecting the federal constitution. The legislature then voted November 30, 1788, for a second convention to meet November 16, 1789. That convention voted 194-77 to ratify the constitution, November 21, 1789, but also issued a declaration of rights, and proposed 26 amendments.

Rhode Island: The legislature voted March 1, 1788: a referendum would be held March 24, 1788. The referendum rejected the constitution, 2,711-239. The legislature then voted January 17, 1790, to hold a ratifying convention, and the convention voted 34-32 to ratify the constitution, May 29, 1790, but also issued a declaration of rights, and proposed 21 amendments.

ELC 10/22/2019 — 01/20/2020

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