第60章

The convention ordains that the powers not conceded to the General government or prohibited to the particular governments, "are reserved to the States respectively, or to the people." But the powers reserved to the States severally are reserved by order of the United States, and the powers not so reserved are reserved to the people.What people? The first thought is that they are the people of the States severally; for the constitution understands by people the state as distinguished from the state government; but if this had been its meaning in this place, it would have said, "are reserved to the States respectively, or to the people" thereof.As it does not say so, and does not define the people it means, it is necessary to understand by them the people called in the preamble "the people of the United States."This is con-

firmed by the authority reserved to amend the constitution, which certainly is not reserved to the States severally, but necessarily to the power that ordains the constitution--"We, the people of the United States." No power except that which ordains is or can be competent to amend a constitution of government.The particular mode prescribed by the convention in which the constitution of the government may be amended has no bearing on the present argument, because it is prescribed by the States united, not severally, and the power to amend is evidently reserved, not indeed to the General government, but to the United States; for the ratification by any State or Territory not in the Union counts for nothing.The States united, can, in the way prescribed, give more or less power to the General government, and reserve more or less power to the States individually.The so-called reserved powers are really reserved to the people of the United States, who can make such disposition of them as seems to them good.

The conclusion, then, that the General government holds from the States united, not from the States severally, is not invalidated by the fact that its constitution was completed only by the ratification of the States in their individual capacity.The ratification was made necessary by the will of the people in convention assembled; but the convention was competent to complete it and put it in force without that ratification, had it so willed.The general practice under the American system is for the convention to submit the constitution it has agreed on to the people, to be accepted or rejected by a plebiscitum; but such submission, though it may be wise and prudent, is not necessary.

The convention is held to be the convention of the people, and to be clothed with the full authority of the sovereign people, and it is in this that it differs from the congress or the legislature.It is not a congress of delegates or ministers who are obliged to act under instructions, to report their acts to their respective sovereigns for approval or rejection; it is itself sovereign, and may do whatever the people themselves can do.There is no necessity for it to appeal to a plebiscitum to complete its acts.That the convention, on the score of prudence, is wise in doing so, nobody questions; but the convention is always competent, if it chooses, to ordain the constitution without appeal.The power competent to ordain the constitution is always competent to change, modify, or amend it.

That amend-

ments to the constitution of the government can be adopted only by being proposed by a convention of all the States in the Union, or by being proposed, by a two-thirds vote of both houses of Congress, and ratified by three-fourths of the States, is simply a conventional ordinance, which the convention can change at its pleasure.It proves nothing as it stands but the will of the convention.

The term ratification itself, because the term commonly used in reference to treaties between sovereign powers, has been seized on, since sometimes used by the convention, to prove that the constitution emanates from the States severally, and is a treaty or compact between sovereign states, not an organic or fundamental law ordained by a single sovereign will; but this argument is inadmissible, because, as we have just seen, the convention is competent to ordain the constitution without submitting it for ratification, and because the convention uses sometimes the word adopt instead of the word ratify.That the framers of the constitution held it to be a treaty, compact, or agreement among sovereigns, there is no doubt, for they so held in regard to all constitution of government; and there is just as little doubt that they intended to constitute, and firmly believed that they were constituting a real government.