The Union: Who Made It?

John Taylor, of Caroline County Virginia, was the preeminent theorist of Jeffersonian Old Republicanism. He was a strong advocate of individual and states rights in the face of the growing power of the federal government (“tyranny”) and opposed increased tariffs and mercantilist economic policy. Taylor was largely responsible for guiding the Virginia Resolution, written by James Madison, through the Virginia legislature in 1798. 

The following is Chapter 4, excerpted from his 1820 book, Construction Construed and Constitutions Vindicated.

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SECTION 4. The Union

Who made it? “We, the people of the United States.” But who were they? The associated inhabitants of each state, or the unassociated inhabitants of all the states. This question is an exposition, either of the ignorance or the design of construction. If there is no difficulty in answering it, construction ought to be laughed at for playing the fool; but if it gives the wrong answer, as supposing it to furnish contrary inferences to the right one, it ought to be suspected of playing the knave. At least an attempt to construe away a fact, known to everybody, is a very fine specimen of its character when aiming at an accession of power. It has been imagined, that by considering the union as the act of the people, in their natural, and not in their political associated capacity, some aspect of consolidation might be shed over the country, and that the federal government might thereby acquire more power. But I cannot discern that the construction of the constitution will be affected in the smallest degree, by deducing it from either source, provided a sound authority is allowed to the source selected. Every stipulation, sentence, word and letter; and every donation, reservation, division and restriction, will be exactly the same, whichever is preferred. A man, having two titles, may distinguish himself by which he pleases, in making a contract; and whichever he uses, he remains himself. So the people having two titles or capacities, one arising from an existing association, the other from the natural right of self-government, may enter into a compact under either, but are themselves still; and their acts are equally obligatory, whichever they may select. Politicians may therefore indulge their taste in deducing the constitution of the union from either, but whichever they may fancy, no sound ground will thence result for their differing in the construction of it.

Nevertheless, to take away the pretext, however unsubstantial, for a different construction of the constitution, on account of the capacity or title under which the people acted in its establishment, it is material to ascertain the meaning of the phrase “we the people of the United States;” towards which, let us run over most of the state constitutions.

Without further quotations, let us demonstrate the force of these, extracted from a majority of the state constitutions, to fix the meaning of the term “state” according to the publick judgment, by substituting the word “government” for it. They would then read as follows.”

“The people of this government have the sole and exclusive right of governing themselves as a free,sovereign and independent government.“

“In the government of this government.“

“That the government may be equally represented.”

“The people of this government ought to have the sole and exclusive right of regulating the internal government thereof.“

“The legislature of this government.“

“I will be faithful and bear true allegiance to the government.“

“The several election districts in this government shall elect.”

“Members of the legislature shall swear to promote the good of the government and to make laws for the good of the government.“

“Citizens and inhabitants of this government.“

“The people have a right to exact from their legislators and magistrates the good government of thegovernment.“

“Commissions shall be in the name of the freemen of the government.“

It would be an incivility to the reader, to subjoin to these quotations, many arguments, to prove, that the term “state” is not in any one instance used in reference to all the people of the United States, either as composing a single state, or as being about to compose a single state. Used geographically, it refers to state territory; used politically, it refers to the inhabitants of this territory, united by mutual consent into a civil society. The sovereignty of this association, the allegiance due to it, and its right to internal government, are all positively asserted. The terms “state and government” far from being synonimous, are used to convey different ideas; and the latter is never recognised as possessing any species of sovereignty.

It next behooves us to consider whether the term “states” has changed its meaning, by being transplanted from its original nursery, into the constitution of the United States; and is there used to designate all the inhabitants of the United States, as constituting one great state; or whether it is recognised in the same sense in which it had been previously used by most or all of the state constitutions.

The plural “states” rejects the idea, that the people of all the states considered themselves as one state. The word “united” is an averment of pre-existing social compacts, called states; and these consisted of the people of each separate state. It admits the existence of political societies able to contract with each other, and who had previously contracted. And the words “more perfect union” far from implying that the old parties to the old union were superseded by new parties, evidently mean, that these same old parties were about to amend their old union.

But the parties, though recognised as being the same, were not strictly so. The authority of the people of each state is resorted to in the last union, in preference to that of the government of each state, by which the old confederation was formed. This circumstance by no means weakens the force of the last observation, because the recognition of existing political parties able to contract, remains the same. The states, in referring to the old union, only admit themselves to have been bound by their governments, as they possessed the right of making treaties. But as the state governments were the parties to the first confederation, and as such, had a mutual right to destroy that treaty, this danger suggests another reason for the style and principles of the new union. Among its improvements, that by which it is chiefly made “more perfect,” was the substitution of the authority of “the people of the United States” for that of the governments of the United States; not with an intention of excluding from the new union the idea of a compact between the states, but of placing that compact upon better ground, than that upon which it previously rested.

The term “union” has never been applied to describe a government, established by the consent of individuals; nor do any of our state constitutions use it in that sense. They speak indeed of individuals “uniting” to form a government, not to form a union; and I do not recollect that a single compact between individuals for the establishment of a government, has ever been called a union; though a multitude of cases exist, in which that name has been given to agreements between independent states. If therefore this term comprised the whole evidence, to prove that our union was the act of distinct bodies politick, composed of the people within different geographical boundaries, and not of a number of people, encircled by one line, without any such discrimination, it would be sufficient.

But the constitution itself furnishes the plainest correspondent evidence, in its origin, establishment and terms. The members of the convention which formed it, were chosen by states, and voted by states, without any regard to the number of people in each state. It was adopted by thirteen votes, without respecting the same principle. Now what was represented by these voters; the territory of each state, or the people of each state? The terms “United States” must refer to one or the other. If to the former, then the territories of each state entered into a compact “to form a more perfect union, establish justice, insure domestick tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.“ The posterity of territories.If to the latter, it was the people of each state, who by compact in their political capacity, by giving one vote each, formed the union.

The concords with this opinion present themselves at every step, throughout the compact.

The house of representatives are to be chosen by the people of the several states, not by the people comprised within the territories of all. The right of choice is confined to the electors of the most numerous branch of the state legislatures. Thus the right of suffrage is placed upon different grounds in different states. Had the constitution of the United States been the act of all the people inhabiting the territory of the United States, this right would have been made uniform; but being the act of the people of each state, in their existing political capacity, the right of suffrage of course remained as it had been settled by each in forming its society.

Each state may elect these representatives by a general ticket, as some have done; and however they may have districted themselves by their own act for their own reasons, the recognizance of state individuality by the constitution is as strong, as if they had not done so. The modes of choosing both the president and senate, coincide also with the opinion, that the constitution considered the union as the act of bodies politick called states; and not as the act of a consolidated nature; and it seems to have settled its own construction, by providing in the case of no election of a president by electors, that he shall be chosen by the house of representatives, “the votes to be taken by states, the representation from each state having one vote.“

As the great political departments of the federal government, legislative and executive, emanated from the societies called states, so they are made dependant upon them, in the mode prescribed for amending the constitution of the union; because the authors had the right of altering their own work. Had this constitution originated from, or been made by the people inhabiting the territories of the whole union, its amendment would have remained to them, as the amendment of the state constitutions belongs to the people of a state. But as such a body of associated people, did not exist, the amendment of the union is left in the hands of the existing bodies politick, to which, as its authors, it obviously belonged. No majority in congress can either call a convention, or amend the constitution; but the legislatures of two-thirds of the states may compel congress to call one, and those of three-fourths, may amend it. Thus a supremacy of the states, not only over congress, but over the whole constitution, is twice acknowledged; first, by their power over the legislative and executive departments instituted for executing the union; and secondly, by their power over the union itself. I cannot conceive that the constitution could have contained any thing more hostile to the doctrine “that the sovereignty or supremacy over the government of the union, rested in the people of the United States, not in their political, but natural capacity.” It clearly discloses an opinion, that there were no such people, politically speaking; nor can I discern a vestige of the people inhabiting the territories of the United States, having ever formed themselves, or attempted to form themselves, into any political society or civil government. By this new doctrine, however, the checks provided to control the powers of the government of the union are ingeniously evaded. It asserts, that the government of the union is responsible to the sovereignty of the people residing throughout the union, and not to the sovereignty of the people residing in each state. Now as an effective sovereignty of the people can only result from their having constituted themselves into a civil society, and the first people having never done so, an acknowledgment of a sovereignty which does not exist, only annuls that which does; and escapes altogether from any species of loyalty to this superior authority. It brings us back to the old ground of a tacit compact between governments and subjects. The people of each state invested their governments with limited powers. They have also established a government of the union with powers infinitely more limited, than those originally bestowed on the state governments. But if a tacit social compact between this last government, and the people individually of all the states, should be admitted, all these specifications would be abolished; because, as it is unwritten, the government of the union might construe it as was most convenient to itself, as all governments have done, which have condescended to acknowledge implied obligations only. The only difference between the Europeans and ourselves would be, that though some of their governments hardly allow of this silent social compact, none acknowledge the sovereignty of the people; whereas here this sovereignty would be denied, where it operatively exists, and acknowledged, where it does not exist at all; so that we should still possess over the government of the union, all the advantages generally reaped from “we are, gentlemen, your most obedient servants,” whilst the story of Saturn would be gradually reversed.

The eleventh amendment prohibits a construction by which the rights retained by the people shall be denied or disparaged; and the twelfth “reserves to the states respectively or to the people the powers not delegated to the United States, nor prohibited to the states.“ The precision of these expressions is happily contrived to defeat a construction, by which the origin of the union, or the sovereignty of the states, could be rendered at all doubtful. “Powers are reserved to the people.“ “The people,” says Johnson, are “those who compose a community.” In a political instrument, the term exclusivelypossesses a collective, inclusive, and social sense, and is never used to describe a number of men in a state of nature. A people is a collective being. No people or community has ever been composed in the United States, except by the inhabitants of each state, associating distinctly from every other state, by their own separate consent. Thus a people in each state was constituted, and these separate communities confederated, first by the instrumentality of their separate governments, and secondly by the separate authority of the people composing each state. Common consent is necessary to constitute a people, and no such consent, expressly or impliedly, can be shown, by which all the inhabitants of the United States have ever constituted themselves into one people. This could not have been effected without destroying every people constituted within each state, as one political being called a people cannot exist within another.

The rights of a people are indivisible; and if a great people be compounded of several smaller nations, as it inherently possesses the right of self-government, it must absorb the same right of self-government in its component parts; just as the rights of individuals are absorbed by the communities into which they constitute themselves. Therefore had a people been constituted, by melting down the little nations into one great nation, those little nations must have lost the right of self-government, because they would no longer have been a people. As it was never imagined, that the individuals inhabiting all the states had constituted themselves into one people, so there has never appeared from this imaginary body politick, the least attempt towards claiming or exercising the right of self-government; nor is the government of the union subjected to its controul or modification. Not a single one of the United States would have consented to have dissolved its people, to have reunited them into one great people, and to have received state governments or unrestricted legislation from this great people, so ignorant of local circumstances, and so different in local habits. This reasoning would I think have been sufficient to ascertain the people by whom the constitution was made, had it contained no internal evidence of the sense in which it uses that term. But if the phrase “we the people of the United States” refers to the people of each state, the argument is superfluous, and the decision of the constitution itself, decisive.

The powers reserved are those “not delegated by the constitution.” They could only be reserved by those who possessed them. They were not powers possessed by a consolidated people of all the states, but by a distinct people of each state; and as those who reserved were those who delegated, it follows, either that the reservation was to a consolidated people of all the states, or that the delegation of powers flowed from the people of the separate states. Perhaps the interpolation of a grantor and reserver of powers into the constitution, who had nothing either to grant or to reserve, may have arisen from an erroneous construction of the word “or.” If the remark just made is correct, consistency decides its true meaning. “Are reserved to the states respectively or to the people.” This word is used either to couple synonymes, or to denote opposition. The words “states and people” had the same, and also a different meaning: The same, as an associated people constituted a state; and a different meaning, from the right of self-government attached to mankind. But another construction seems to me to be the true one. “Or” is used merely to conjoin two words considered as completely synonymous; and the latter is introduced as an expletive of the former, lest it should be interpreted to mean “governments.” The word “states” had been so often used in the constitution, that it was necessary to fix its meaning; and this amendment was intended to remove the suspicion of a tendency in the constitution towards consolidation, with which it had been charged previously to its adoption; by defining “states and people” as words synonymously used, effectually to defeat the pretence, that the term “people” meant the people of all the states, instead of the people, “respectively” of each state. A construction which supposes that all the inhabitants of all the states, and not the people of each state, were meant, would produce consequences which never could have been contemplated. The reservation would have been in favour of two incongruous objects, and therefore both could not reap its benefits. Being in the disjunctive, it might have been fulfilled by acknowledging the right of either, although the other should get nothing. By selecting the inhabitants of all the states in one mass, as the assignee of the reserved powers, the government of the union might extend their own powers; since there could be no loss, in conceding powers to those who could neither receive, exercise, nor preserve them.

In one other view, highly gratifying, these two amendments correspond with the construction I contend for. Several previous amendments had stipulated for personal or individual rights, as the government of the union was invested with a limited power of acting upon persons; these stipulate for political conventional rights. But different modes are pursued. By the first, certain specified aggressions are forbidden; by the second, all the rights and powers not delegated are reserved. The first mode is imperfect, as the specified aggressions may be avoided, and yet oppression might be practised in other forms. By the second, specification is transferred to the government of the union; and the states, instead of being the grantees of limited rights, which might have been an acknowledgment of subordination, are the grantors of limited powers; and retain a supremacy which might otherwise have been tacitly conceded, as has been often done by the acceptance of franchises from monarchs or other sovereigns. Thus the powers reserved are only exposed to specified deductions, whilst those delegated are limited, with an injunction that the enumeration of certain rights shall not be construed to disparage those retained though not specified, by not having been parted with. The states, instead of receiving, bestowed powers; and in confirmation of their authority, reserved every right they had not conceded, whether it is particularly enumerated, or tacitly retained. Among the former, are certain modes by which they can amend the constitution; among the latter, is the original right by which they created it.

When we have discovered who made a treaty, we have also discovered where the right of construction resides. Mr. Jefferson, Mr. Pinkney, Mr. Marshall, and Mr. Gerry, in their negotiations with revolutionary France, have furnished us with an admirable treatise, both to fix the residence of the right, and to display the wantonness of construction, assumed without right. Presidents Washington and Adams, all the successive members of the cabinet and congress itself, concurred in the principles advanced by these gentlemen. They prove, that an exclusive right of construction in one party, is a degradation of the other to a state of inferiority and dependance. Their arguments might be applied with great force in many views to our subject. If the states made the union, they demonstrate, that the same consent, necessary to create, is necessary to construe. Where-ever the creating consent resided, there we are directed to look for the construing consent.

It would be a much grosser violation of their principles, for no party to a treaty to usurp an exclusive right of construing it, than for one party to do so. As neither the executive, legislative nor judicial departments of the state or federal governments have ever consented to the union, no one of these departments can have an exclusive right of construing it. But if they did consent, and by that consent are parties, still the right is mutual. And if they are all to be considered as the co-ordinate departments or creatures of “the people of the United States,” they derive a mutual right of construction, from the mutual right possessed by the states which they represent. Suppose our legislative and judicial departments had fixed their own rights by a treaty between themselves, in the words of the general or state constitutions; would not each have possessed an unsubservient right of construction? If this right would be mutual in the case supposed, what hinders it from being also mutual, if these departments are created by an authority superior to both, and invested with distinct and limited agencies. Each trustee is subject to the supervision of his employer, and neither liable to a usurpation of another, any more than several co-ordinate ambassadors, would be to a claim of one to prescribe the duties of the rest, and regulate their consciences. It is easiest for an exclusive power of construction, where the limits of respective territories are hardest to define, to make conquests which will destroy balances, and break down restrictions; and therefore its interdiction in such cases is more necessary, than in others.

I conclude this section with a quotation from the Federalist. “The assent and ratification of the people, not as individuals composing one entire nation, but as composing the distinct and independent states to which they belong, are the sources of the constitution. It is therefore not a national, but a federal compact.”

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