Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol I).djvu/359

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CH. III.]

NATURE OF THE CONSTITUTION.

319

On the contrary, the preamble emphatically speaks of it, as a solemn ordinance and establishment of government. The language is, "We, the people of the United States, do ordain and establish this constitution for the United States of America." The people do ordain and establish, not contract and stipulate with each other.^[1] The people of the United States, not the distinct people of a particular state with the people of the other states. The people ordain and establish a "constitution" not a "confederation." The distinction between a constitution and a confederation is well known and understood. The latter, or at least a pure confederation, is a mere treaty or league between independent states, and binds no longer, than during the good pleasure of each.^[2] It rests forever in articles of compact, where each is, or may be the supreme judge of its own rights and duties. The former is a permanent form of government, where the powers, once given, are irrevocable, and cannot be resumed or withdrawn at pleasure. Whether formed by a single people, or by different societies of people,

↑ The words "ordain and establish" are also found in the 3d article of the constitution. "The judicial power shall be vested in one supreme court, and in such inferior courts, as the congress may from time to time ordain and establish." How is this to be done by congress? Plainly by a law; and when ordained and established, is such a law a contract or compact between the legislature and the people, or the court, or the different departments of the government? No. It is neither more nor less than a law, made by competent authority, upon an assent or agreement of minds. Martin v. Hunter, (1 Wheat. R. 304, 324,) the Supreme Court said, "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.'" To the same effect is the reasoning of Mr. Chief Justice Marshall, in delivering the opinion of the court in M'Culloch v. Maryland, (4 Wheaton, 316, 402 to 405, already cited.)
↑ The Federalist, No. 9, 15, 17, 18, 33; Webster's Speeches, 1830; Dane's App. § 2, p. 11, § 14, p. 25, &c.; Id. § 10, p. 21; Mr. Martin's Letter, 3 Elliot, 53; 1 Tucker's Black. Comm. App. 146.

[1] The words "ordain and establish" are also found in the 3d article of the constitution. "The judicial power shall be vested in one supreme court, and in such inferior courts, as the congress may from time to time ordain and establish." How is this to be done by congress? Plainly by a law; and when ordained and established, is such a law a contract or compact between the legislature and the people, or the court, or the different departments of the government? No. It is neither more nor less than a law, made by competent authority, upon an assent or agreement of minds. Martin v. Hunter, (1 Wheat. R. 304, 324,) the Supreme Court said, "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.'" To the same effect is the reasoning of Mr. Chief Justice Marshall, in delivering the opinion of the court in M'Culloch v. Maryland, (4 Wheaton, 316, 402 to 405, already cited.)

[2] The Federalist, No. 9, 15, 17, 18, 33; Webster's Speeches, 1830; Dane's App. § 2, p. 11, § 14, p. 25, &c.; Id. § 10, p. 21; Mr. Martin's Letter, 3 Elliot, 53; 1 Tucker's Black. Comm. App. 146.

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