As regards the phrase "We, the People," it would seem that little light can be obtained from its use, except to fix the fact, which no one has attempted to deny, that the new government derived its right to be from the consent of the people who were to be controlled by it. But whether by "We, the People" was meant all the people of the ratifying States considered as one body politic, or whether it referred to the people as organized in several commonwealth communities, it is, so far as this language is concerned, impossible to say.
The framers of the Constitution of the Southern Confederacy avoided this ambiguity by declaring in the Preamble: "We, the People of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice ... do ordain and establish this Constitution for the Confederate States of •America."
Commenting upon this change in phraseology, Pomeroy says: "Thus have the opponents of our nationality by their most solemn and deliberate act conceded the correctness of the construction which has been placed [by the Northern States] upon this utterance of the sovereign people of the United States." 38 This is by no means a correct deduction. It was quite proper that the framers of the Confederate Constitution should, without conceding the correctness of the construction of their opponents, from an abundance of caution, use language which no one could misconstrue.
37 Commentaries, § 459.
In Martin v. Hunter's Lessee39 Justice Story says: "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. So far from saving that it is established by the governments of the several States, it does not even say that it is established by the people of the several States, but it pronounces that it is established by the people of the United States in the aggregate. . . . Words cannot be plainer than the words Med."
This last statement is certainly extreme. It is indeed made plain that the Constitution is not ratified by the Governments of the individual States, but it is not clearly indicated whether the ratifying parties are to be considered singly or as a composite whole. And in contradiction to the fact that a single political whole was meant is the fact that in ratifying the Constitution the people did vote by States.40
The only way by which the force of this fact is avoided is by the proposition that the ratifying state conventions acted ad hoc as agenta of a single united people. But this argument is greatly weakened, if not absolutely destroyed, by the fact that only those States were to be considered members of the new Union whose respective people, acting in convention, should ratify the Constitution.
33 Constitutional Law, § 95.
39 1 Wh. 304: 4 L. ed. 97.
40The fact that the States are not, as in the Articles of Confederation, mentioned, individually, by name, is of no significance for the reason that they could not be so mentioned because it could not be known in advance which of the States would ratify.
The use of the phrase "We, the People of the United States" as indicating the ordainers and establishes of the Union, is, however, of significance in determining the nature of the Union that was intended to be created when taken in connection with the provision of Article VII that the Constitution is to be ratified, not by the state legislatures, but in conventions, for it indicates that the Union was one that the state legislatures were not competent to create; that, in other words, it was to be not a mere league or confederacy, such as the existing state governments might enter into, but a fundamental Union resulting in the creation of a new National State which, according to the political philosophy of that date, only the people acting in their original sovereign capacity were able to create.