Page:The Green Bag (1889–1914), Volume 12.pdf/48

 Was the Confederate Soldier a Rebel?

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WAS THE CONFEDERATE SOLDIER A REBEL? II. BY BUSHKOD C. WASHINCTON. JAMES MADISON, also a " Nationalist" in the convention, and later called " The Father of the Constitution," being the recog nized expounder of its character and the scope of its powers, said (" Federalist," page i /6) : " In order to ascertain the real character of the government it may be considered in the relation of the foundation on which it is to be established; on the sources from which its ordinary powers are to be drawn; and the authority by which future changes in the government are to be introduced. On ex amining the first relation, it appears on the one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but on the other hand, that this assent and ratification is to be given by the people not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. The act, therefore, establishing the Constitution, will not be a national but a federal act." Did space allow, it could be shown that the same opinions were held by nearly all the statesmen of that day, including George Washington, the first presiding officer of the convention. It is next in order to advert to the internal evidence of the written document — the Con stitution as adopted and amended. I know of no fairer nor more thorough analysis of the Constitution than that pre sented by the late Hon. Alexander Stephens of Georgia, from whose works, " The War between the States," and " History of the United States," I have already made fre quent extracts. While Mr. Stephens adopted the cause of his State in the Civil War, and

was chosen vice-president of the Confederacy, there never was a more ardent lover of the Union, nor one who labored more earnestly to avert the " Great Catastrophe." He sepa rates the operations of the Constitution under two heads, — covenants between the States; — and delegations of specific powers by the States severally to the States jointly, that is, to the United States. To accept his classi fication will greatly facilitate our inquiry as to the nature and powers of the govern ment. By those who hold that the Constitution created a consolidated nation possessed of all paramount authority, much has always been made of the mere phraseology of the instrument without regard to the related facts. The preamble has been held by such, as of more value in construing the nature of the government than all the suc ceeding covenants, delegations and restric tions of powers. Great emphasis has been laid upon the words, " We the people," in the opening sentence which reads, " We the people of the United States, in order to form a more perfect Union, etc., do ordain and establish this Constitution for the United States of America." In view of the formative processes of the Constitution, set forth in the synopsis already presented, it is difficult to imagine how the preamble of the Constitution could ever be construed to mean that the people of the United States, in the aggregate had consorted together into a nation. The last words of the paragraph, " Do ordain and establish this Constitution for the United States," would seem to negative such a far-fetched assump tion. It is plain that " We the people etc. do ordain etc." could have no other signifi