I wrote this series of Frequently Asked Questions roughly 20 years ago. However, following Brexit, as Britons took up a discussion of whether to transform their current union into a federal union remarkably similar to our own — at least, how our Founders intended it to be — this series of questions and answers took on greater significance.
Almost a quarter millennium ago, the Founding Fathers, after achieving their independence from Britain, conceived a constitutional system that not only preserved the sovereignty of the states but also established a central government as a common agent to secure a lasting and durable bond among these states.
Today, a remarkably similar train of events has been debated in our former Mother Country: The United Kingdom of Great Britain and Northern Ireland. After Britons voted to secure their country’s independence from Europe, pro-federalist Britons, partly with the intent of staving off a threatened secession by one constituent nation, Scotland, worked to achieve a similar union of sovereign states.
Meeting during a sultry a hot Philadelphia summer in 1787, our Founders not only conceived but also secured what our pro-federal Britons earnestly seek today: a federal union of sovereign states. Indeed, a federal British union, as proposed by the bipartisan Constitution Reform Group (CRG), would function in a remarkably similar way as the American Union, with the four nations — England, Northern Ireland, Wales and Scotland — pooling national responsibilities, including, joint defense, national economic policy and central banking, and human rights, to a central government headquartered in London.
The successful implementation of federalism in Britain may prompt a renewed discussion of federalism — that is to say, the desirability of true federalism — in the United States. This is the purpose for this short series of frequently asked questions, which I hope to update as time permits.
What do you mean when you say that states are sovereign and that the United States was originally conceived as a union of sovereign states?
The states that ultimately formed the United States of American were sovereign states, meaning that they possessed supreme and ultimate power over themselves but chose to delegate certain of their inherent powers in a general (federal government), while reserving the bulk of powers to themselves. State powers were first delegated to a confederacy styled the United States of America under the terms of the Articles of Confederation, ratified in 1781, and later in a stronger confederation established by the Constitution of the United States, which was ratified seven years later in 1788.
This assertion that states are sovereign and formed the U.S. government as their common agent forms the basis of states right theory. States rights theory rests on the premise that during the American Revolution, paramount sovereignty passed from the Crown to the individual states, or, more specifically, to the people of the states. This theory of sovereignty is clearly reflected in the Declaration of Independence, which characterizes governments as institutions “deriving their power from the consent of the governed.”
In effect, when the states jointly declared their independence from the Crown in 1776, they became full-fledged members of the family of nations with the right to exercise all of the rights of sovereignty commonly associated with nationhood, except for those powers they chose to delegate to their common agent, the federal government.
How did ultimate authority end up with the states?
Americans began as an aggregation of former colonies, each of which answered to the Crown in its own prescribed way.
Looking back, it is easy to understand why the people of the former colonies chose to retain state governments as the immediate safeguards of their liberties and why all internal police powers were reserved to the states. Americans in the 18th Century passionately believed liberty was best secured in small territories populated by relatively homogeneous peoples.
As the late University of Alabama history professor Forrest McDonald noted, colonial Americans believed only small republics could maintain the attachment of the people so essential for safeguarding liberty.
How does the states rights interpretation differ from its nationalist school counterpart?
Essentially in its view of the nature of states.
Some nationalists claim the states never were sovereign and independent in any sense of the word. Others claim that while states were, for all intents and purposes “sovereign and independent” under the old Articles of Confederation and retain some residual sovereignty under the Constitution of 1787, the most important attributes of sovereignty were permanently and irrevocably granted to the national government. Moreover, by requiring the Constitution to be approved by conventions of the people rather than by the state legislatures, the ratification process amounted to the people of the states being forged into one American people under a strong national government.
Were the states ever independent? Weren’t they always subordinate to a higher authority, first as dependencies of the British Crown, then as members of what Justice Joseph Story once described as a “revolutionary government,” which empowered with both “de facto and de jure sovereign authority?”
The notion that the American Revolution established one nation and one people is clearly refuted by three principal documents of that period: the Declaration of Independence, the Articles of Confederation and the treaty of peace with Great Britain.
The Declaration of Independence was a joint expression of sovereignty and independence carried out on behalf the individual states. The Congress that drafted and approved the Declaration was a congress of states, reflected by the fact that all of the delegates who signed the document signed under the names of their states. Indeed, the final paragraph of the declaration stated that the colonies were “absolved from all allegiance to the British Crown …and that, as FREE AND INDEPENDENT STATES, they have the full power to levy war, conduct peace…etc.”
The assertion of state sovereignty was continued under the Articles of Confederation. Article II of the document stated that “Each State retains its Sovereignty, freedom, independence, and every Power, Jurisdiction and right, which is not, by this Confederacy, expressly granted to the United States in Congress assembled.”
Finally, the very first article of the treaty of peace with Great Britain states:
His Britannic Majesty acknowledges the said United States, viz.: New Hampshire, Massachusetts-Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia to be free, Sovereign and Independent States…
The states may have remained independent prior to 1787, but aren’t there several clauses in the Constitution that clearly refute the notion that the states retained the same degree of sovereignty they enjoyed immediately after independence and throughout the Confederation period?
Proponents of the national school often cite the Preamble to the U.S. Constitution, which began with the memorable words “We, the People of the United States…,” as clear proof the Constitution represented a break with the old federal system in which the central government merely acted as a common agent of thirteen sovereign states.
In fact, the preamble to the first draft of the Constitution submitted by the Committee of Detail began with these words: “We, the People of the States of New Hampshire, Massachusetts, Rhode Island…etc,”, clearly implying that the Constitution was to continue as a compact among 13 distinct political societies. However, when the document was submitted to the Committee on Style for final editing, the phrase was changed to : “We, the People of the United States…” Apparently, the committee members feared that listing all of the states would be potentially embarrassing if some of the states refused to ratify the new constitution. Further evidence of the confederative nature of the United States can be found in the Article Seven of the Constitution, which states:
The ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution between the states so ratifying the same.
The so-called “necessary and proper” clause is also frequently cited as proof the Constitution established a national, as opposed to a strictly federal, government. Yet, as Alexander Hamilton asserted in Federalist #31, the phrase merely stated a truism:
that all governments must have powers commensurate with their delegated authority; that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose, which is itself incapable of limitation
Nowhere, for example, does the Constitution state that Congress has the power to construct dry docks for the navy, even though the construction of dry docks is a necessary and proper means for providing a navy. Yet, without the “necessary and proper clause,” Congress would have no authority to construct such facilities, since the power was not expressly granted by the Constitution. (See Abel F. Upshur’s _The Constitution: It’s True Nature and Character.)
The necessary and proper clause was passed unanimously by the states represented at the Convention, and only three delegates, Eldridge Gerry, John Randolph and George Mason, raised any objections to it. Most of the controversy surrounding the clause arose after the Convention during the ratification debates in the thirteen states.
Opponents of the clause characterized it as a “sweeping clause” granting unlimited power to the central government. However, fears were allayed considerably after passage of the Tenth Amendment reserving powers to the states. With the passage of this amendment, states rights advocates thereafter tended to interpret “necessary” to mean indispensable and absolutely required.
Perhaps the clause most often cited by critics of states rights as proof the Constitution established a national union is the so-called Supremacy Clause:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
The clause merely amounted to a restatement of the same truism expressed by the “necessary and proper clause:” for any government to operate effectively, it must be able to undertake measures commensurate with its powers. It must be remembered that in the United States, the exercise of supreme power is by delegation only; in other words, there is no inherent sovereignty in the central government, because all governmental authority is derived from the consent of the governed. As Alexander Stephens argued so forcefully in “A Constitutional View of the Late War Between the States,” the central government, the common agent of the people of the states, is legitimate only so long as it exercises its delegated powers within the bounds established by the people through the Constitution.
To quote Hamilton (Federalist #33):
But it is said that the laws of the Union are to be the supreme law of the land. But what inference can be drawn from this or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A Law by the very meaning of the term includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government; which is only another word for political power and supremacy.
In the next segment, Hamilton clearly implies that the Supremacy Clause was not intended as a broad grant of power but merely as a means of safeguarding the powers delegated to the general government, reflecting what Stephens described as “abundant caution” by the Framers.
But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers but which are invasions of residuary authorities of the smaller societies will be the supreme law of the land. These will be merely acts of usurpation and will deserve to be treated as such. Hence, we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a Foederal Government. It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the Convention; since that limitation would have been to be understood though it had not been expressed.
This is all interesting trivia, but didn’t the very first resolutions introduced at the convention by Governor Randolph of Virginia call for a strong central government?
Quite true. On May 30, 1787, Governor Randolph, seconded by Gouverneur Morris, moved that a “union of states merely federal will not accomplish the objects proposed by the articles of confederation, namely, common defense, security of liberty, and general welfare.”
Later that day, Pierce Butler, a delegate from South Carolina, introduced a resolution calling for the establishment of a national government, consisting of a supreme Legislative, Executive and Judiciary. While Governor Randolph’s resolution was postponed, Mr. Butler’s resolution passed by a resounding six to one margin, with only the Connecticut delegation opposed and the New York delegation divided.
These resolutions were based on a series of fifteen resolutions, known collectively as the Virginia Plan, which, among other things even proposed granting Congress the power to “negative all laws passed by the several States contravening, in the opinion of the National Legislature, the Articles of Union or any treaty subsisting under the authority of the Union.”
Yet, this element of the plan was opposed even by Morris, a staunch nationalist from Pennsylvania, who feared including such a measure would undermine any prospect of the Constitution being approved by the state legislature or by ratifying conventions. The issue of a congressional veto of state laws was raised twice during the convention and was voted down — resoundingly in both cases.
Interestingly, the supporters of the stridently nationalist Virginia Plan held the upper hand only during the first three weeks of the Convention when many of the delegates from the smaller states hadn’t yet arrived. By June 20, Oliver Ellsworth, a delegate from Connecticut, introduced a resolution stating “that the government of the United States out to consist of a supreme legislative, executive and judicial government.”
This resolution, which was approved unanimously by the Convention, represented a significant turning point during the convention because it struck out every allusion to “national” that had appeared in the Virginia Plan. Indeed, there is not one clause in the U.S. Constitution characterizing the general government as being “national” in nature.
Although some of the delegates returned to their states claiming to have drafted an entirely new national system, in the strictest procedural sense, the Constitution of the United States merely represented a revision of the Articles of Confederation. The fact that the Convention passed Ellsworth’s resolution unanimously isn’t surprising considering that most of the delegates were strictly limited by their state legislatures merely to amending the Articles of Confederation, and the credentials they submitted to the Convention attested to that fact. Keep in mind that the Virginia plan was concerned not so much with diluting the power of the states as it was with securing proportional representation for the large states and with establishing a strong central government with an adequate source of funding and of a means to protect itself from encroachments by the state governments.
Even though the Plan was submitted by John Randolph, it essentially was the brainchild of James Madison, who seemed to have little interest in reducing the states to mere administrative regions operating at the behest of the central government. Like most delegates to the Convention, he understood that the states would retain all but the limited “general” powers consigned to the central government. This was reflected in one of his essays tracing the steps that led to the formation of the Constitution of 1787. Madison began with a discussion of earlier confederative republics which inspired the changes in the American confederative system in 1787.
It remained for the British Colonies, now United States of North America, to add to these examples, one of a more interesting character than any of them; which led to a system without an example ancient or modern. A system founded on popular rights, and so combining a federal form with the forms of individual republics, as may enable each to supply the effects of the other and obtain that advantage of both.
Madison’s observation bears a close resemblance to those of Thomas Jefferson who described the Constitution as “a compact” in which the states agreed to “unite in a single government as to their relations with each other and with foreign nations, and as to other articles particularly specified…..(but) retained at the same time, each to itself, the other rights of independent government comprehending mainly their domestic interests.”
But even Madison, writing in the Federalist Papers described the new system as partly federal and partly national in character.
One of history’s most noted states rights theorists, John Taylor of Caroline, once speculated that what nationalists usually lost in head-on confrontations with their opponents often was gained through other, more insidious means.
What occurred after the adjournment of the Constitutional Convention of 1787 is a good example. As Madison’s Journal of the Constitutional Convention clearly reflects, every attempt on the part of the nationalists to introduce a national government was defeated — resoundingly in many cases.
What emerged after those four sultry months of deliberation in Philadelphia was a vastly improved federal system which provided the central government with adequate means of taxation and a means to defend itself against encroachment by the states. Nevertheless, nationalists managed to put their “spin” on the deliberations. The most notable example is the Federalist Papers in which James Madison depicts the new system as being partly national and partly federal in character, even though the Constitution breathed new vitality into federalism, representing a resounding victory for that camp.
The Federalist Papers disingenuous? Explain.
Madison’s and Hamilton’s essays in the Federalist often reflect a concerted effort to portray the federal system established by the 1787 Constitution as possessing certain nationalists attributes, even though Madison’s own Journal of the Constitution proves otherwise.
For example, in Federalist # 39, Madison stated that “it appears on one hand that the Constitution is to be founded on the assent and ratification of the people of America,” though not “…as individuals composing one entire nation; but as composing the distinct and independent states to which they respectively belong.”
In that same respect, Madison asserted that the House of Representatives would reflect the national attributes of the United States. Since this branch of Congress would derive its powers from “the people of America,” the new system would be national in character. On the other hand the Senate, whose members are appointed by the legislatures of the states, would reflect the federal nature of the Union.
Furthermore, Madison believed that in its operation, the government would be national, since its powers would extend to the “people of America” in their individual capacities.
Throughout the Federalist, Madison and Hamilton depicted the Union under the Constitution as a something entirely new under the sun, as a compound republic reflecting both national and federal attributes, rather than as a strictly confederative system in which the general government merely functioned as an agent of the states.
What Taylor found most confusing about Federalist #39 is Madison’s notion that the Constitution would be founded on the consent of the “people of America,” even though the new plan of government required ratification of thirteen separate state conventions.
Taylor then proceeded to identify the fatal flaws in Madison’s argument. To form a national government, the states would have voted to dissolve themselves so that the people of the states would have been free to form one nation. Of course, nothing of the sort was done.
To go into effect, the proposed Constitution first required the sanction of state legislatures before it could even be submitted to state ratification conventions. Even Madison concedes this in Federalist #39 when he describes each state ratification convention “as a sovereign body, independent of all others, and only to be bound by its own voluntary act.”
The state ratification conventions were more than just a convenient means of canvassing the sentiments of the “people of America.” As Taylor asserted: “…the Constitution was to result from the unanimous assent of the several states that are parties to it, expressed not by the legislative authority, but by the people themselves.” Indeed, the framers chose to submit the Constitution to state ratification conventions rather than to state legislatures merely because of the “disinclination which the state legislatures might feel to part with power.”
Taylor also argued that Framers viewed the assent of the legislature and of state ratification conventions as essentially one in the same. As proof, Taylor cited the fact that the Constitution could be altered by the consent of the state legislatures, “because they represent the state nations who assented to it.” On the other hand, had the Constitution been approved by the “people of America,” the state legislatures would not have been entitled to approve amendments.
Taylor also pointed out Madison’s repeated attempts to distinguish between the people of America and the states. In truth, the people and the states were one in the same, a fact repeated throughout the Constitution.
“Can a political character be acquired without powers, or political powers without a source?” Taylor asked.
In truth, Taylor argued, the Constitution vested all legislative powers in a Congress of the states — a fact clearly reflected in several key phrases in the Constitution: “Each state shall have one representative;” (Each state) “shall choose a specified number of representatives.” (Each state) “shall elect representatives in the manner prescribed by its legislature;” (The representation of each state shall have one) “vote in choosing the president.”
As he observed: “No language could be more explicit for expressing the fact, that the house of representatives was a representation from each state, and not of an American nation.”