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According to the Story-Webster-Lincoln myth of how the Union was founded, the people as a whole, acting as "one people," ratified the Constitution. This was Webster's key basis for denying the right of secession. But this version of ratification is fiction.

In 1838 the U.S. Senate voted on a resolution that declared the Constitution was adopted by the states, that in doing so the states acted as “free, independent, and sovereign States,” and that each state voluntarily gave its own assent. The resolution read as follows:

"I. Resolved, That in the adoption of the Federal Constitution, the States adopting the same acted severally, as free, independent, and sovereign States; and that each, for itself, by its own voluntary assent, entered the Union with the view to its increased security against all dangers, domestic as well as foreign, and the more perfect and secure enjoyment of its advantages, natural, political, and social.”

The Senate approved this resolution by a majority of more than two to one, by a vote of 32-13, on January 3, 1838. When we consider the vote on a state-by-state basis, the margin is even more impressive. Of the twenty-six states then in the Union, eighteen voted for the resolution, only six against, one was divided, and one did not vote—thus, more than two-thirds of the states voted for it. The breakdown of the votes was as follows-—and note that eight of the eighteen Aye/Yes states were Northern states:

Ayes: Alabama, Arkansas, Connecticut, Georgia, Illinois, Kentucky, Louisiana, Mississippi, Missouri, Michigan, Maine, North Carolina, New Hampshire, New
York, South Carolina, Pennsylvania, Tennessee, Virginia.

Nays: Delaware, Indiana, Massachusetts, New Jersey, Rhode Island, Vermont.

Divided: Ohio. Not Voting: Maryland.

Somewhat surprisingly, even Henry Clay voted for the resolution.

So at least in 1838 most members of the U.S. Senate were willing to acknowledge that the Constitution was adopted by the states (not by the people acting as a whole) and that the states were “free, independent, and sovereign” when they did so.

Even in his 1833 letter to Daniel Webster, James Madison did not waver from acknowledging that the Constitution was not formed by the people acting as a whole but as citizens of their respective states:

“It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as embodied into the several States, who were parties to it; and therefore made by the States in their highest authoritative capacity.” (James Madison to Daniel Webster, March 15, 1833)

So the Constitution was "made by the people,” yes, “BUT AS EMBODIED INTO THE SEVERAL STATES." The several states, said Madison, "were parties to it," and therefore it, the Constitution, was "made by the states in their highest authoritative capacity."

Let's consider what else Madison said on this subject. As mentioned, Madison never wavered on this point. In his defense of the Virginia Resolutions, Madison said,

"The constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and, consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition." (The Madison Report of 1799, adopted by the Virginia Assembly in 1800)

When Patrick Henry expressed concern about the use of the phrase "We the people" in the Preamble, Madison replied:

"Who are the parties to the government? The people; but then not the people as composing one great body, but the people as composing thirteen sovereignties." (Forrest McDonald, STATES' RIGHTS AND THE UNION, p. 22; Abel Upshur, AN INQUIRY INTO THE TRUE NATURE AND CHARACTER OF OUR FEDERAL GOVERNMENT, Note 17)

In Federalist Paper Number 39, Madison explained this matter in the plainest possible terms--he went out of his way to refute the notion that the Constitution
would be ratified by the people acting in the aggregate (as a whole):

"That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act." (Federalist No. 39)

The Constitution itself specifies that the federal Union would be formed when only nine states had voted to ratify (Article 7). Needless to say, only those
states that ratified would be states in the Union, since the Constitution would only take effect "between the states so ratifying the same" (Article 7). States that did not ratify would be completely independent. That's why NC and RI were treated as foreign nations until they ratified.

How can anyone entertain the notion that the Constitution was ratified by the people as a whole, when only nine of the thirteen states were needed to form the Union, when the Constitution was binding only on states that ratified it, when states were perfectly free not to even call a ratification convention in the first place, and when states were also perfectly free to decline ratification and to remain as totally independent sovereigns if they chose to do so?

If ratification had been a national act by the people acting as a single unit, all states would have been bound by the Constitution as soon as a majority of the people voted in convention to ratify it.

Mike Griffith
Civil War website