result seemed doubtful. Delaware ratified it unanimously, December 7, 1787; Pennsylvania followed suit; in New Jersey and Georgia there was again unanimity, and only a slight minority in Connecticut. In Massachusetts there was more danger. The men who had been out with Shays" disliked the provisions against paper money, and there were some influential men, revolutionary leaders, whose attacks upon all government and whose apostrophes of liberty were well remembered. Chief among these were Samuel Adams and John Hancock, but when their influence was secured success seemed more possible. Even then the decision was doubtful until the method of ratification with suggested amendments was devised.1 This proved a happy expedient and was followed by six states. On June 21, 1788, New Hampshire, the ninth state, completed the number necessary for ratification; four days later Virginia and a month later New York gave their assent. North Carolina delayed until 1789 and Rhode Island until 1790. Federalist" The campaign for ratification produced much discussion and several pamphlets of great value. Chief among these is "The "The Federalist," a series of papers by Hamilton, Madison, and Jay, urging the adoption of the Constitution and explaining its merits. With great learning and keen analysis the authors disclosed the weakness of the old Confederation and emphasized the excellences of the new system. Not only were the features of efficient government set forth but an attempt was made to quiet the apprehensions of monarchy and tyranny. Although "The Federalist" was frankly a partisan campaign document it is the best contemporary exposition of the Constitution. national ratification As a result of the campaign for ratification political parties origin of were solidified. The friends of a strong and efficient govern- political ment acted together for the adoption of the Constitution. Those parties in who believed in reducing the powers of the national government contest to a minimum opposed the ratification. When the new system was put in operation these political divisions continued over the question of liberal or literal interpretation of the Constitution the strict or loose construction of its powers and formed the beginnings of the first two great political parties. 1 See S. B. Harding, The Contest over the Ratification of the Federal Constitution in Massachusetts. The Bill of Rights one The various state conventions had submitted over hundred amendments to the Constitution on which Congress was called to act. The most common criticism was that the instrument lacked a Bill of Rights. As has been seen, most of the state constitutions contained such articles, and the political philosophy of the time demanded such satisfaction. Consequently Congress yielded. And in spite of Hamilton's assurance that such declarations were unnecessary, as the Constitution was a document granting specific powers, Congress submitted twelve amendments to the states, ten of which were adopted. The first eight amendments deal with private rights, and will be later examined, while the Ninth and Tenth deal with the reservation of powers, preserving to the state or the people all powers not explicitly granted. Thus the doctrine is emphasized that the Constitution creates not a sovereign government but a government subordinate to the people, a government of delegated powers, sovereign, it is true, within its sphere, but subordinate not to the will of the state governments, as the Confederation had been, but to the people acting through the process of amendment. Thus the people, not the state governJ ments, have withdrawn powers by the Eleventh Amendment and granted new powers by the Fourteenth and Seventeenth and Eighteenth Amendments. But Congress on its own initiative cannot widen its field of action by the exercise of any power not granted to it. Unlike the sovereign Parliament of Great Britain, Congress is subordinate to the Constitution, and the people are sovereign. CHAPTER IV CONSTITUTIONAL PRINCIPLES THE CONSTITUTION OF THE UNITED STATES ONE OF mentary One of the most striking features of the Constitution of the United States, and one which distinguishes it most clearly from the constitution of Great Britain, is the sovereignty of the people. In England, Parliament is legally sovereign, or, to Parliabe more accurate, the king in Parliament, while the actual sovereignty sovereignty is exercised neither by the king nor Parliament but in England by the House of Commons and the Cabinet. The important thing to notice, however, is that Parliament possesses the legal sovereignty, actual and uncontrolled. It has the power not only to pass any and all legislation but also to alter and amend the very constitution under which it acts. Thus, in 1716, a Parliament, elected to sit for three years, prolonged its own existence by the passage of the Septennial Act; and in 1911 Parliament very greatly limited the power of the House of Lords. No act of Parliament can be unconstitutional since Parliament is sovereign, and for a like reason no act is beyond the competency of Parliament. Parliament is thus at once an uncontrolled legislative and constituent assembly. sovereignty Such power in the United States resides not in Congress, Popular nor in any department of the government, nor in the states, but in the people. The first sentence of the Constitution clearly States expresses the American theory in sharp contrast to the English theory: "We the people of the United States... do ordain and establish this Constitution for the United States of America." The Constitution was not the work of the old Congress nor of a committee of Congress but of an extra-legal body, a constituent assembly, whose work was without legal force until approved and ratified by some other body. Doubtless it was The Constitution adopted not by Congress or the state legislatures but by the people in conventions The Constitution the grant of the people The government limited gation of powers in the the intention of Congress that it should consider the work of the convention as it had debated the proposed amendments to the Articles of Confederation, but with extraordinary self-denial it submitted the Constitution directly to the states. Here again, in the ratification by the states, is seen the emphasis given to the sovereignty of the people. Not the ordinary state legislatures but specially summoned constituent conventions accepted the work of the Philadelphia convention. All that Congress or the various state legislatures did was to summon conventions to pass upon the proposed new frame of government. Nowhere in the framing or the adoption of the Constitution were the legislative departments of the governments primarily employed. The Constitution, then, not being made by Congress nor the state legislatures but containing limitations upon the powers of both Congress and states, becomes the supreme law of the land. The Constitution somewhat resembles the old colonial charters or the newly adopted state constitutions in that it is a grant of authority from some superior body. Instead of a grant from the crown, as were the old charters, the new Constitution, like the state constitutions, was the grant of the people themselves acting in their sovereign capacity through specially summoned conventions. The government of the United States is thus not sovereign, like Parliament, for both the governments of the states and the government of the nation depend upon their constitutions the grants of the people. Both Congress and the state legislatures are thus subordinate legislative bodies subject to the limitations of their constitutions and deriving their powers from the superior unlimited sovereign- the people. The fact that the Constitution is one of delegated powers by the dele- and does not grant unlimited sovereignty is emphasized by the Ninth and Tenth Amendments. When the Constitution came Constitution from the framers there were grants of powers to Congress and prohibitions upon both the states and Congress, but these did not seem sufficiently explicit to the people in the ratifying conventions. Six states proposed amendments dealing with the non-delegated powers. It might be argued, as did Hamilton, that since the government was one of delegated powers it could act only according to the delegation, but the people needed reassuring. Hence, from the various propositions offered by state conventions, Madison framed what became the Ninth and Tenth Amendments: IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States. respectively, or to the people. ment limited, but not by Fortu- explicit delegation Thus the fact was formally stated that the government was one of delegated powers and one in which all powers not delegated are reserved to the authorities granting the Constitution. Even this declaration was weaker than many wished it, for at The governone stage in the debates upon the amendments it was urged that it should read, "the powers not expressly delegated.... nately, however, this was dropped. As a result, while Congress or the officers of the government only exercise powers within the field of delegated authority, it is not necessary to show that the form of action is explicitly granted. This principle was clearly set forth by Chief Justice Marshall in McCulloch v. Maryland, where he said: This government is acknowledged by all to be one of enumerated Marshall powers. . . . But the question respecting the extent of the powers actually granted is perpetually arising and will probably continue to arise as long as our system shall exist. . . . But we think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consist with the letter and spirit of the Constitution, are constitutional. ... And again in the same opinion he said: ... But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. This the court disclaims all pretensions of doing.1 14 Wheat., 316, 405, 421, 423. on implied powers |