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so, they may, no doubt, come together in convention, and, if able, reconstitute civil society, reorganize the state, under any form they please, not repugnant to the law of nature; not, however, in consequence of any inherent sovereignty vesting in them, not because they are the normal origin of all civil power, but from the necessity of the case, the necessity of having civil government, and there being for them no other way of getting it. But rights founded in necessity cease with the necessity itself. The necessity ceases the moment the civil society or the state is reconstituted; consequently, from that moment ceases the right or sovereignty of the unconstituted people, or people back of civil society, under the simple law of nature.
We cannot, therefore, accept the theory which places the convention assembled in pursuance of a constitutional provision on the same footing with the convention of the people prior to civil society, under the law of nature,-a theory which supposes the people antecedently to civil society inherently sovereign, and the source of all the legitimate powers of the state. This theory of popular sovereignty we eschew, because it is repugnant to the fundamental idea of government. Civility and sovereignty are identical, or, at worst, inseparable, and one cannot be without the other. Suppose sovereignty, you suppose the state; suppose the state, you suppose sovereignty. Suppose the people sovereign anterior to civil society, yon suppose civil society anterior to civil society; that is, that the same thing can botlı be and not be at the same time! The people are sovereign, wc grant; but as civil society, that is, as constituted, made a political person or individuality,—not the people as mere population, back of civil society and out of it, in which sense they never have a normal existence, and, where there is civil society, no existence at all.
The notion, therefore, that the clause anthorizing a convention to amend the constitution is simply designed to establish an orderly or regular method of appealing to a power back of the constitution which originally made it, and therefore competent to unmake it, must be regarded as unsound; for no such power exists, or can be conceived. We cannot suppose such power to survive the constitution of civil society without denying civil society itself, by converting it into a mere voluntary association, and making law a mere voluntary agreement. No statesman, if at all worthy of the name, will for a moment confound the state with å voluntary association. The state—what we mean by civil society -is something established (status), fixed, immovable; but nothing is established, fixed, immovable, that depends on volition. A voluntary association has no coercive power, and voluntary agreements in the absence of law may or may not be observed, at the option of the parties. Government cannot be founded in compact. If the people back of the constitution, that is, back of the civil society, are the source of power, they have the power to change the constitution at will,—to alter, enlarge, contract, or revoke the powers they delegate to civil society, as seems to them good." Grant that they have agreed that they will do it only according to certain formalities, these formalities they impose upon themselves, and nothing hinders them from throwing them off at will. They are responsible for their observance only to themselves, and if they choose to dispense themselves, who is wronged, who has å right to complain? If the people back of civil society are the origin of the state, the real, persisting sovereign, and if the state derives from them, Dorrism is true, and the late decision of the supreme court of the United States, condemnning it, is indefensible. But Dorrism is subversive of all political order, for it asserts the constant presence in the community of a power competent to disre. gard the existing authorities, to annul the constitution, and substitute another in its place at will.
The error lies in supposing that the powers of civil so. ciety are derived. The powers of civil society are inherent in it as civil society, and civil society itself is derived from po human source whatever; for its office is not to obey men, but to rule them, both individually and collectively. Nothing can be more absurd than to suppose it derives from the very multitude it is to govern. Government dependent on the governed is no government at all. Civil society derives from God, the source of all power (non est enim potestas nisi a Deo), who immediately, as in the case of the Jews, mediately, by the operations of his providence, in other cases,-constitutes it, commissions it, defines its powers, and commands us to obey it for his sake. They are as miserable statesmen as Christians who preach political atheism, and suppose the state is conceivable with only a human basis. The nations, as well as the individuals, whio forget God, shall be turned into hell. Neither the state nor the individual can withdraw from dependence on God, and live, “for in him we live, and inove, and have our being."
The true doctrine is, that, though the people are indeed sovereign, they are so only as civil society, in which the sovereignty, under God, inheres ; that is, the sovereignty vests in the civility, not in the popularity, and popularity must be civility, before the people are sovereign. "Consequently the convention assembled in pursuance of a constitutional provision is not an appeal to a power or sovereignty back of the state, or civil society, but a body under the state, and subject to it. Then it has no power over the state. Then, since the state is in the constitution, begins and ends with it, it cannot alter or touch the essential character of the constitution, and the power to amend is necessarily restricted to amendments in the proper and legal sense of the term, as we have defined in the beginning. What we mean is, that a constitution once established is fixed in right for ever; and there is, under God, no power in the state or outside of it, that can alter it fundamentally, or change its essential principles. Our constitution is essentially republican, and federal republican, and can never be legally changed into a monarchy or into a consolidated republic. "If in the written constitution there is a clause which appears to authorize such a change, it is nugatory, because repugnant to the organic constitution of the state.
We must always distinguish between the written constitution and the constitution of civil society,—what we call the organic constitution. This precedes the convention, and is its law. The written constitution presupposes it, but does not create it, or even modify it. All it does is to provide for the wise and just administration of government under it and in accordance with it. Our politicians err not in assuming a power back of the written instrument, but in assuming that power to be the people back of civil society, and therefore concluding that the convention is competent to alter the fundamental constitution of the state. So far as the written instrument marks or declares the civil constitution, it is unalterable; but so far as it merely provides for the administration of government in accordance with it, it is alterable, in the way and manner authorized by law.
Now it is clear to every man who has studied the subject at all, that the fundamental constitution of the American state, whether we speak of the Union, or of the several states, is not pure, simple democracy; and therefore any direct or indirect attempts to render it purely democratic
are unconstitutional, and forbidden by the supreme law of the land, in like manner as would be any direct or indirect attempts to render it a pure aristocracy, oligarchy, or monarchy. The original and fundamental idea of our institutions is sacred, in violable, obligatory, for our whole people, both collectively and individually, whether in convention or ont of it. This idea is not simple, but complex, and is, no doubt, far from being at all acceptable to political theorists of one school or of another; but this, perhaps, is a merit. We cannot understand to what good use political theorists can be put, or under what obligation any statesman is to consult their pleasure. Speculators on government, next to speculators on religion, are the greatest public nuisance we are acquainted with. Thank God! the early settlers of this country were, for the most part, plain, practical men, of strong good sense, and no political speculators. They were ardent lovers of liberty, no doubt, as are all true men, but without any conception of what in these days of infidel raving and flimsy sentimentalism passes under that sacred name. They were Englishmen, and they brought with them the institutions of their mother country, as far as these could be adapted to the circumstances in which they were to be placed in this new world. Their political system was fundamentally the English system. When the colonies attained to majority and set up for themselves, they retained the system, simply modified, again, to meet their new circumstances. It is in this system we are to seek the type of our constitution, not in modern democratic theories. Our constitution is fundamentally the British constitution, without the hereditary house of lords and the hereditary monarchy. These are excluded, for the king and lords were not here; and the essential difference of our constitution from the British lies precisely in excluding these, and in the contrivances adopted to supply their absence.
The democratic doctrine of the sovereignty of the people back of civil society finds no place in the British system. The commons are powerful; but they are an estate, not the entire civil body; and they derive their power in the adininistration from the civil constitution, not from the law of nature, and hold it as a franchise, not as a natural right. The state knows nothing of the "rights of man," in the sense of the notorious intidel and charlatar., Thomas Paine, the great political teacher, mediately or immediateiy, of a large proportion of the American youth; it knows only the rights of Englishmen. Liberty with it is British liberty, and anthority British authority. The same principle holds with us.
The American people, politically considered, are the English commons transported here; and their rights derive, not from the law of nature, as dream our political theorists, but from civil society, which grants and guaranties them. Let no American believe in Thomas Paine, tha Thetford weaver. Let no man believe any more in Mr. Bancroft's History of the Colonization of the United States, a brilliant work, nay, an able work, but whose anthor, ake Gibbon, possesses the art of falsifying history without misstating facts, and who has written, not for the sake of giving the history of his country, but of promulgating his humanitarian theories of government and religion. Our liberty is not natural liberty, but American liberty; we possess our rights, not because we are men, but because we are American citizens. The right of suffrage is not a natural, but a civil right, and in its nature is a civil trust; the right of the majority in ordinary cases to rule, so important a feature in our system, derives from civil society, not from nature; for under the natural law all men are equal, and each man is independent of all others.
The declaration of independence left a gap in our system, a serious defect, because the people representing the commous were not the entire civil body. This defect the conventions and congresses of the time undertook to supply, and to supply out of such elements as American society afforded. But they, at first, did it only imperfectly; they left too large a margin to the commons,-ample space to develop into a pure democracy, which would have been fatal to the American state. To prevent this result, and to provide more effectual checks against the democratic tendency, which soon became excessive, the convention of 1787 was asseinbled to amend the constitution. In this sense they could amend it, for amendments which supply defects and tend to preserve the essential idea of the constitution, secure the more perfect realization of its original type, are lawful, as we have conceded. That the convention was assembled for the purpose of more effectually supplying this defect which our separation from Great Britain left in our constitution, and to provide stronger checks against the democratic tendency, is undeniable. Mr. Madison's reports of the debates in the convention fully establish it. “The evils we experience,” said Mr. Gerry, “flow from excessive