Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol I).djvu/337

 CH. III.] never assented thereto, and may by those very laws be disabled from such an act. Even our most solemn instruments of government, framed and adopted as the constitutions of our state governments, are not only not founded upon the assent of all the people within the territorial jurisdiction; but that assent is expressly excluded by the very manner, in which the ratification is required to be made. That ratification is restricted to those, who are qualified voters; and who are, or shall be qualified voters, is decided by the majority in the convention or other body, which submits the constitution to the people. All of the American constitutions have been formed in this manner. The assent of minors, of women, and of unqualified voters has never been asked or allowed; yet these embrace a majority of the whole population in every organized society, and are governed by its existing institutions. Nay more; a majority only of the qualified voters is deemed sufficient to change the fundamental institutions of the state, upon the general principle, that the majority has at all times a right to govern the minority, and to bind the latter to obedience to the will of the former. And if more than a plurality is, in any case, required, to amend or change the actual constitution of the society, it is a matter of political choice with the majority for the time being, and not of right on the part of the minority.

§ 328. It is a matter of fact, therefore, in the history of our own forms of government, that they have been formed without the consent, express or implied, of the whole people; and that, although firmly established, they owe their existence and authority to the simple will of the majority of the qualified voters. There is not probably a single state in the Union, whose constitution has not been adopted against the opinions and wishes of 38