Note 14 — LETTER VIII. To Jacob Sutherland, Esquire, New York.

The discussion which grew out of the law to protect American industry, affords a singular instance of the manner in which clever men can persuade themselves and others, into any notion, however extravagant. The uncouth doctrine of nullification turned on the construction that might be put on the intimacy of the relations created by the Union, and on the nature of the sovereignties of the states.

Because the constitution commences with a declaration, that it is formed and adopted by “we the people of the United States,” overlooking, not only all the facts of the case, but misconceiving the very meaning of the words they quote, one party virtually contended, that the instrument was formed by a consolidated nation. On this point their argument, certainly sustained in part by unanswerable truth, mainly depends.

The word “people” has notoriously several significations. It means a “population;” it means the “vulgar;” it means any particular portion of a population, as “rich people,” “poor people,” “mercantile people,” &c. &c. In a political sense, it has always been understood to mean that portion of the population of a country, which is possessed of political rights. On this sense, then, it means a constituency in a representative government, and so it has always been understood in England, and is understood to-day in France. When a question is referred to the “people” at an election in England, it is not referred to a tithe of the population, but to a particular portion of it. In South Carolina and Louisiana, in the popular sense of Mr. Webster, there is no “people” to refer to, a majority of the men of both states possessing no civil rights, and scarcely having a civil existence. Besides “people,” in its broad signification, includes men, women and children, and no one will contend, that the two latter had any thing to do with the formation of our constitution. It follows, then, that the term has been used in a limited sense, and we must look to incidental facts to discover its meaning.

The convention was chosen not by any common constituency, but by the constituencies of the several states, which, at that time, embraced every gradation between a democratical and an aristocratical polity. Thirteen states existed in 1787, and yet the constitution was to go into effect when it was adopted by any nine of them. It will not be pretended that this decision would be binding on the other four, and yet it is possible that these four dissenting states should contain more than half of all the population of the confederation. It would be very easy to put a proposition, in which it might be demonstrated arithmetically, that the constitution could have been adopted against a considerable majority of whole numbers. In the face of such a fact, it is folly to suppose the term “people” is used in any other than a conventional sense. It is well known, in addition to the mode of its adoption, that every provision of the constitution can be altered, with a single exception, by three-fourths of the states. Perhaps more than half of the entire population, (excluding the Territories and the District,) is in six of the largest states, at this moment. But whether this be so or not, such a combination could easily be made, as would demonstrate that less than a third of the population of the country, can at any time alter the constitution.

It is probable that the term “we the people,” was used in a sort of contra-distinction to the old implied right of the sovereignty of the king, just as we idly substituted the words “God save the people,” at the end of a proclamation, for “God save the king.” It was a form. But, if it is desirable to affix to them any more precise signification, it will not do to generalize, according to the argument of one party; but we are to take the words, in their limited and appropriate meaning, and with their accompanying facts. They can only allude to the constituencies, and these constituencies existed only through the states, and were as varied as their several systems. If the meaning of the term “we the people” was misconceived, it follows that the argument which was drawn from the error was worthless. The constitution of the United States was not formed by the people of the United States, but by such a portion of them as it suited the several states to invest with political powers, and under such combinations as gave the decision to any thing but a majority of the nation. In other words, the constitution was certainly formed by the states as political bodies, and without any necessary connection with any general or uniform system of polity.

Any theory based on the separate sovereignties of the states, has, on the other hand, a frail support. The question was not who formed the constitution, but what was formed. All the great powers of sovereignty, such as foreign relations, the right to treat, make war and peace, to control commerce, to coin money, &c. &c. are expressly ceded. But these are not, after all, the greatest blows that are given to the doctrine of reserved sovereignty. A power to alter the constitution, as has just been remarked, has been granted, by which even the dissenting states have become bound. The only right reserved, is that of the equal representation in the senate, and it would follow, perhaps, as a legitimate consequence, the preservation of the confederated polity; but South Carolina could, under the theory of the constitution, be stripped of her right to control nearly every social interest; every man, woman and child in the state dissenting. It is scarcely worth while to construct a sublimated theory, on the sovereignty of a community so situated by the legitimate theory of the government, under which it actually exists!

No means can be devised, that will always protect the weak from the aggressions of the strong, under the forms of law; and nature has pointed out the remedy, when the preponderance of good is against submission; but one cannot suppress his expression of astonishment, at finding any respectable portion of a reasoning community, losing sight of this simple and self evident truth, to uphold a doctrine as weak as that of nullification, viewed as a legal remedy.

If the American statesmen, (quasi and real,) would imitate, the good curate and the bachelor of Don Quixote, by burning all the political heresies, with which their libraries, not to say their brains, are now crammed, and set seriously about studying the terms, and the nature of the national compact, without reference to the notions of men who had no connection with the country, the public would be the gainers, and occasionally one of them might stand a chance of descending to posterity in some other light than that of the mere leader of a faction.