Part II: Chapter IV, 1

It is clear that people mean two distinct things by constitutions and governments; otherwise why use the terms separately? A constitution is not the act of a government, but of a people establishing a government. Government without a constitution is power without right.

All power exercised over a nation must have a beginning. It must either be delegated or assumed; there are no other sources. All delegated power is a trust; all assumed power is usurpation. Time alters the nature and character of neither.

When we consider this question, America and its circumstances present themselves as though at the beginning of a world. To inquire into the origins of government, we need only turn to events in our own day. We have no need to search the obscure reaches of antiquity for information or venture into conjecture. We can watch government begin as though we had lived at the beginning of time. Before us lies the true record, not of history but of facts, unmaimed by artifice or the errors of tradition.

I shall briefly describe how the American constitutions came into being; the difference between constitutions and governments will then be clear enough.

It may be worth reminding the reader that the United States of America consists of thirteen separate states, each of which established its own government after the declaration of independence on the 4th of July, 1776. Each state acted independently of the others in forming its government, but one general principle pervades them all. After the several state governments had been formed, they went on to establish the federal government. It acts for them all in matters affecting the interest of the whole, or relations among the states or with foreign nations. I shall begin with an example from one state government, Pennsylvania's, and then turn to the federal government.

Although Pennsylvania was then nearly as extensive as England, it was divided into only twelve counties. Each county had elected a committee when the dispute with the English government began. The city of Philadelphia also had a committee; being the most convenient center for receiving information, it became the hub of communication among the county committees. When the time came to form a government, the Philadelphia committee proposed a meeting of all the committees in that city; they met in the latter part of July, 1776.

Though the people had duly elected these committees, they had not elected them expressly to draw up a constitution or granted them authority to do so. Consistent with the American understanding of rights, the committees could not assume such a power. They could only discuss the matter and set a process in motion. Those who met therefore did no more than state the case and recommend that each county elect six representatives. These representatives were to meet in convention at Philadelphia, empowered to draw up a constitution and submit it for public consideration.

The convention, with Benjamin Franklin as its president, met, deliberated, and agreed on a constitution. It then ordered the text published, not as something already established, but for all the people to consider, approve, or reject; and it adjourned until a set date. When that date came the convention assembled again. By then it knew that the people generally approved, and so the constitution was signed, sealed, and proclaimed on their authority, and the original document was deposited in the public record. The convention then set a day for a general election of the representatives who would make up the government, and a date for that government to begin. Having done so, its members dissolved the convention and returned to their homes and occupations.

This constitution set out, first, a declaration of rights; then the form the government would take and the powers it would have—the authority of courts and juries—the manner of conducting elections and the ratio of representatives to voters—the length of each successive assembly, which was one year—the means of raising and accounting for the expenditure of public money—the appointment of public officers, etc., etc., etc.

The government that followed could not alter or infringe any article of this constitution at its own discretion. The constitution was a law binding that government. Yet it would have been unwise to rule out the benefits of experience. To keep any errors from accumulating and government always in harmony with the state's circumstances, the constitution provided that every seven years a convention would be elected expressly to review it and make alterations, additions, or abolitions if any proved necessary.

Here we see an orderly process: a government arising from a constitution formed by the people in their original capacity, and that constitution serving both as the government's authority and as the law that limits it. It was the political bible of the state. Hardly a family was without one. Every member of the government had a copy; when debate arose over the principle of a bill or the reach of some authority, it was commonplace for members to pull the printed constitution from their pockets and read the passage bearing on the question.

Having given this example from one state, I will show how the federal constitution of the United States arose and was formed.

At its first two meetings, in September 1774 and May 1775, Congress was no more than a delegation from the legislatures of the several provinces, later states. Its only authority came from common consent and the necessity of acting as a public body. In matters concerning America's internal affairs, Congress went no further than making recommendations to the provincial assemblies, which were free to adopt or reject them. Nothing Congress did was compulsory; yet under those circumstances it was obeyed more faithfully and affectionately than any government in Europe. This example, like that of the National Assembly in France, shows clearly that government's strength lies not in some power of its own, but in a nation's attachment to it and in the people's interest in upholding it. Once that attachment is lost, government has no more power than a child; and though it may, like the old government in France, harass individuals for a time, it merely hastens its own fall.

After the declaration of independence, the principle on which representative government rests required that Congress's authority be defined and established. Whether that authority would be greater or less than the power Congress was then exercising at its discretion was not the question. The point was simply to do what was right.

For this purpose an instrument called the act of confederation—a kind of imperfect federal constitution—was proposed and, after long deliberation, completed in the year 1781. It was not an act of Congress, since it is contrary to the principles of representative government for a body to grant itself power. Congress first informed the several states what powers it thought must be vested in the union to enable it to discharge its duties and perform the services required of it. The states then agreed among themselves to place those powers in Congress.

It is worth observing that in both instances—Pennsylvania and the United States—there is no notion of a compact between the people on one side and government on the other. The compact was made by the people with one another to bring a government into being and establish it. To suppose a government could enter into a compact with the whole people is to suppose it existed before it could have had a right to exist. The only compact possible between the people and those who carry out the work of government is an agreement that the people will pay them for as long as they choose to employ them.

Government is not a trade that any person or group has the right to establish and practice for private gain. It is wholly a trust belonging by right to those who delegate it, and who may always reclaim it. In itself it has no rights at all; it has only duties.

Having described these two original acts of constitution-making, I shall show how both constitutions have since been changed.

Experience showed that the powers the state constitutions vested in their several governments were too great, while those the act of confederation vested in the federal government were too small. The defect lay not in the principle but in the distribution of power.

Numerous writings in pamphlets and newspapers argued that remodeling the federal government was proper and necessary. After some time of public discussion in print and conversation, Virginia, having encountered difficulties concerning commerce, proposed a continental conference. As a result, delegates from five or six state assemblies met at Annapolis, in Maryland, in 1786. Not believing themselves sufficiently authorized to undertake the work of reform, they simply stated their general view that it was needed and recommended that a convention of all the states meet the following year.

The convention met at Philadelphia in May, 1787, and elected General Washington its president. At that time he held no position in any state government or in Congress. He had surrendered his commission at the end of the war and had lived since then as a private citizen.

The convention examined every subject thoroughly. After extensive debate and investigation, its members agreed among themselves on the several parts of a federal constitution. The next question was how to give it authority and put it into effect.

For this purpose they did not, like a cabal of courtiers, summon a Dutch Stadtholder or a German Elector. They referred the whole matter to the judgment and interests of the country.

First they directed that the proposed constitution be published. Second, each state was to elect a convention expressly to consider it and ratify or reject it. As soon as any nine states had approved and ratified it, those states were to elect their shares of the members of the new federal government; that government would then begin to operate, and the former federal government would cease.

The several states duly elected their conventions. Some ratified the constitution by very large majorities, and two or three did so unanimously. In others there was much debate and division of opinion. At the Massachusetts convention in Boston, the majority was no more than nineteen or twenty out of about three hundred members; but it is the nature of representative government to settle all questions peacefully by majority vote. After the Massachusetts debate ended and the vote was taken, those who had opposed the constitution stood and declared, “Though we argued and voted against it, because certain parts appeared to us in a different light than they did to other members, now that the vote has decided in favor of the proposed constitution, we shall give it the same practical support as if we had voted for it.”

People clearly mean different things when they speak of constitutions and governments. Otherwise, why would they use two different words? A constitution is made not by a government but by a people who establish a government. A government without a constitution has power but no right to exercise it.

Every power exercised over a nation must have a beginning. It must either have been delegated or simply taken. There is no other source. Delegated power is a trust; power simply taken is usurpation. Time does not change the nature of either one.

America lets us examine this subject as though we were present at the beginning of a world. We can shorten our search for the origin of government by looking at events that have happened in our own time. We need not search for evidence in the obscure ancient past or risk relying on guesses. We can watch a government begin as though we had lived at the beginning of time. The actual record of events, rather than a history shaped by tricks or mistakes passed down over generations, lies open and complete before us.

I will give a brief account of how the American constitutions began. It will make the difference between constitutions and governments clear.

The reader may need a reminder that the United States of America consist of thirteen separate states. Each established its own government after the declaration of independence on the 4th of July, 1776. Each state acted independently of the others in forming its government, but the same general principle runs through all of them. Once the separate state governments existed, the states formed a federal government. That government handles matters concerning them all, including dealings among the states and with other nations. I will start with the government of one state, Pennsylvania, and then turn to the federal government.

At the time, Pennsylvania covered almost as much territory as England but had only twelve counties. Each county had elected a committee when the dispute with the English government began. Philadelphia had a committee too. Because the city was the most convenient place to receive information, it became the center for communications among the county committees. When it became necessary to form a government, Philadelphia's committee proposed a meeting of all the committees in the city. They met in the latter end of July, 1776.

The people had properly elected these committees. But they had not elected them specifically to make a constitution or given them that authority. Under the American understanding of rights, the committees could not simply claim such power. They could only discuss the matter and start the process. So the people at the meeting stated the situation and recommended that each county elect six representatives. Those representatives would meet at a convention in Philadelphia with authority to make a constitution and present it for the public to consider.

The convention met, with Benjamin Franklin as its president. After discussing the issues and agreeing on a constitution, its members ordered the text published. They did not announce it as a constitution already in force. They offered it to all the people to consider, approve, or reject. Then they put off further action until a set date. When they met again, they knew the people generally approved of it. They signed, sealed, and proclaimed the constitution on the people's authority and placed the original document in the public records. Next, they set a day for a general election of the representatives who would form the government, and a date for the government to begin. Having done that, they ended the convention and went home to their regular work.

The constitution began with a declaration of rights. It then set out the government's structure and powers, the authority of the courts and juries, the way elections would be held, and the number of representatives in relation to the number of voters. It said how long each assembly would serve—one year. It explained how public money would be raised and accounted for, how public officials would be appointed, etc., etc., etc.

The new government could not change or violate any article of this constitution as it pleased. The constitution was a law binding on it. But it would have been unwise to shut out what people could learn from experience. They also needed a way to keep errors from piling up and to keep the government suited to the state's changing circumstances. So the constitution required a convention to be elected every seven years specifically to review it. That convention could change it, add to it, or remove parts if necessary.

Here we see an orderly process. The government arose from a constitution made by the people acting in their own right. The constitution gave the government authority and also set legal limits on it. It was the state's political bible. Almost every family had a copy. Every member of the government had one. If a dispute arose about the principle of a proposed law or the extent of some power, members would commonly pull the printed constitution from their pockets and read the relevant passage.

Now that I have described how one state acted, I will show how the United States created its federal constitution.

At its first two meetings, in September 1774 and May 1775, Congress was simply a group of delegates from the legislatures of the various provinces, which later became states. Its only authority came from general consent and the need for it to act as a public body. In American domestic affairs, Congress did no more than make recommendations to the provincial assemblies. Each assembly could decide whether to adopt them. Congress could not force anyone to comply. Yet people obeyed it more loyally and willingly than they obeyed any government in Europe. This example, like that of the National Assembly in France, shows that government's strength does not lie in the government itself. It lies in the people's attachment to it and their desire to support it. When that attachment disappears, a government has no more strength than a child. It may harass individuals for a while, as France's old government did, but that only helps bring about its own fall.

After the declaration of independence, the principle of representative government called for Congress's authority to be defined and established. The question was not whether Congress should have more or less power than it was already exercising at its own discretion. The point was to do what was right.

To that end, an act called the act of confederation—a kind of incomplete federal constitution—was proposed. After long discussion, it was completed in the year 1781. Congress did not enact it itself. A body cannot give itself power without violating the principles of representative government. Congress first told each state what powers it thought the union needed to do the work required of it. The states then agreed with one another and gave those powers to Congress.

Notice that in both cases—Pennsylvania and the United States—there was no agreement between the people on one side and the government on the other. The people made an agreement among themselves to create and establish a government. To imagine that a government could make an agreement with the whole people is to imagine that it already exists before it has acquired the right to exist. The only agreement the people can make with those who carry out government is to pay them for as long as the people choose to employ them.

Government is not a business that any person or group has the right to set up and run for personal profit. It is entirely a trust, held by right of the people who give it and who can always take it back. Government has no rights of its own. It has duties.

Having described two original constitutions, I will explain how both have changed since they were first established.

Experience showed that the state constitutions gave their governments too much power, while the act of confederation gave the federal government too little. The principle was sound; the division of power was not.

Many pamphlets and newspaper articles argued that the federal government needed to be reorganized. The public discussed the question for some time, both in print and in conversation. Then Virginia, having run into some problems with trade, proposed a meeting of delegates from across the country. As a result, delegates from five or six state assemblies met in Annapolis, Maryland, in 1786. They did not think they had enough authority to carry out reforms. So they only stated their general view that reform was appropriate and recommended a convention of all the states the following year.

The convention met in Philadelphia in May, 1787, and elected General Washington president. At that time he held no position in a state government or in Congress. He had given up his military commission when the war ended and had since lived as a private citizen.

The convention examined every subject closely. After much debate and investigation, its members agreed on the different parts of a federal constitution. They then had to decide how it would receive authority and go into effect.

They did not act like a group of scheming courtiers and summon a Dutch Stadtholder or a German Elector. Instead, they let the people of the country judge what served their interests.

First, they directed that the proposed constitution be published. Second, they asked each state to elect a convention specifically to consider it and either ratify or reject it. Once any nine states approved and ratified it, those states would elect their shares of members to the new federal government. The new government would then begin work, and the former federal government would end.

The states elected their conventions accordingly. Some conventions ratified the constitution by very large majorities; two or three did so unanimously. Others had much debate and disagreement. At the Massachusetts convention in Boston, the majority was only nineteen or twenty out of about three hundred members. But representative government can settle questions peacefully by majority vote. After the Massachusetts debate ended and the vote was taken, members who had opposed ratification stood and said, "Although we argued and voted against it because we saw some parts differently from other members, the vote has approved the constitution as proposed. We will support it in practice just as we would if we had voted for it."