The honor of the government, and of the
people who have sustained it, is then deeply compromised.
What then is the fact? Are the United States politically one
people, nation, state, or republic, or are they simply
independent sovereign states united in close and intimate
alliance, league, or federation, by a mutual pact or agreement?
Were the people of the United States who ordained and established
the written constitution one people, or were they not? If they
were not before ordaining and establishing the government, they
are not now; for the adoption of the constitution did not and
could not make them one. Whether they are one or many is then
simply a question of fact, to be decided by the facts in the
case, not by the theories of American statesmen, the opinion of
jurists, or even by constitutional law itself. The old Articles
of Conferation and the later Constitution can serve here only as
historical documents. Constitutions and laws presuppose the
existence of a national sovereign from which they emanate, and
that ordains them, for they are the formal expression of a
sovereign will. The nation must exist as an historical fact,
prior to the possession or exercise of sovereign power, prior to
the existence of written Constitutions and laws of any kind, and
its existence must be established before they can be recognized
as having any legal force or vitality.
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