Towards An Appropriate View of the Declaration of Independence

by Peter Daniel Haworth on July 4, 2012 · 35 comments <span>Print this article</span> Print this article

in Short

In the spirit of Independence Day, Porch readers will enjoy an insightful and accessible article by Lee Cheek and Sean Busick on the true significance of the Declaration of Independence. Much ink has been spilt in the task of persuading readers and government officials of both what this seminal document implies and  how it normatively directs Americans to develop their public policy. Sadly, much of this scholarship is highly questionable from a serious historical perspective. The Cheek and Busick article concisely point us toward an alternative contemporary, more faithful historical, and more essentially localist understanding of the Declaration, and perusing this is a worthwhile Fourth of July activity.

{ 35 comments… read them below or add one }

avatar peter lawler July 4, 2012 at 10:40 pm
avatar John Haas July 5, 2012 at 10:55 am

In this–”The Constitution of 1787 cannot be understood without first understanding the defense of local authority contained in the Articles”–they make a very good point: to understand the Constitution, frequent reference to and comparison with the Articles is usually necessary.

One wonders, however, if the authors have taken their own advice?

The second of the Articles, for example, says this: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.”

Now, look at how that is revised by the 10th amendment to the Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Note the deliberate and intentional jettisoning of any sovereignty, freedom, or independence as far as the states are concerned.

Note that only (non-delegated) powers are retained by the states (or the people in some cases). The very basis of “state’s rights” has in fact been erased by the Constitution–indeed, by the very 10th amendment that the misguided defenders of that notion mistakenly herald as its basis.

What happened to those rights, then? Oh, there they are, in the 9th amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

So there it is. Like the purloined letter, it’s been laying there all along, in nice clear black and white.

avatar Sean Busick July 5, 2012 at 1:14 pm

Thank you for taking the time to read and offer a thoughtful comment on our brief essay.
However, I note that even the most ardently nationalistic supporters of the Constitution most certainly did not envision it as one that would, as you put it, “jettison” or “erase” states’ rights. Below, I provide merely a small sample of comments on the subject by Hamilton and Madison:

“In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity.” Madison, Federalist #14

“When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations?” Hamilton, Federalist #28

“The State governments, by their original constitutions, are invested with complete sovereignty.” Hamilton, Federalist #31

“as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.” Hamilton, Federalist #32

“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. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution.” Madison, Federalist #39

“Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed.” Madison, Federalist #40

“We have seen that in the new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.” Madison, Federalist #40

“The State governments will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other.” Madison, Federalist #45

“The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former.” Madison, Federalist #45

“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.” Madison, Federalist #45

“it has, on another occasion, been shown that the federal legislature will not only be restrained by its dependence on its people, as other legislative bodies are, but that it will be, moreover, watched and controlled by the several collateral legislatures, which other legislative bodies are not.” Madison, Federalist #52

“It is certainly true that the State legislatures, by forbearing the appointment of senators, may destroy the national government.” Hamilton, Federalist #59

“In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.” Madison, Federalist #62

“The principles established in a former paper teach us that the States will retain all pre-existing authorities which may not be exclusively delegated to the federal head.” Hamilton, Federalist #82

“The plan of the convention declares that the power of Congress, or, in other words, of the national legislature, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.” Hamilton, Federalist #83

“The executive and legislative bodies of each State will be so many sentinels over the persons employed in every department of the national administration.” Hamilton, Federalist #84

avatar John Haas July 5, 2012 at 2:14 pm

Than you for the nice collection of quotes. Rather than dealing with them all, let’s take just consider two from Madison:

“Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed.” Madison, Federalist #40

“We have seen that in the new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.” Madison, Federalist #40

These statements are from the very same Madison who had proposed a federal veto over state laws, both in 1787, at Philadelphia, that is, before penning his Federalist essays, and afterwards, when proposing the first ten amendments.

How do we square that with the quotes above? For one thing, it needs to be recalled that the Federalist Papers were not an exercise in a philosopher’s seminar–they were politicial documents aimed to persuade the state of New York toaccept a Constitution many in the state were wary of. The essays therefore go right upto the line in an attempt to mollify those leaning towards the anti-federalists.

The first quote isn’t too difficult, then: the states come to act of establishing the Constitution as “distinct and independent sovereigns.” Do they remain such, once the Constitution has been established? Of course not, but, given his purposes, Madison can be forgiven for not elaborating upon that.

The key phrase in the second quote is “in all unenumerated cases.” Again, if he does not elaborate on that–or digress into an examination of the supremacy clause’s bearing on any “sovereign and independent jurisdiction”–the needs of the hour perhaps explain that.

As for “jettisoning” and “erasing,” if you can show me, in the Constitution, where it speaks of state sovereignty, or even state’s rights for that matter, I’ll gladly revise my contention.

avatar robert m. peters July 7, 2012 at 4:08 pm

Mr. Haas,

The states through their delegates drafted the compact; and, more importantly, the states in respective sovereign capacity of each, namely in convention, ratified and gave authority to the Constitution and to the general government, their agent, through it. The act of drafting and ratifying the compact and of creating a general government through the compact is an act of sovereigns, just like treaties are acts of sovereigns at a congress, like the Congress of Vienna. A sovereign does not have to spell out his sovereignty.

As to Hamilton and Madison, the former a monarchist and the latter a nationalist, the gentlemen had an agenda in their much overrated Federalist Papers. They, both being advocates of some form of unitary government, having been agitators for the convention in the first place and having there lost most of what they had wanted, nevertheless became through their disingenuous Federalist Papers “advocates” for the Constitution, i.e. for a limited general government, by attempting to define away the legitimate fears of the “anti-federalists,” seeing in the Constitution which contained little of what they had wanted nevertheless the seeds of a bush which could be pruned to their liking.

I strongly suggest that those on the Front Porch read the following articles:

http://www.aratorjournal.org/white.html

http://www.phillysoc.org/gutzman.htm

avatar John Haas July 7, 2012 at 9:00 pm

Mr. Peters,

Thank you for that helpful explanation. I see your point that sovereignty need not be explicitly claimed–it might be obvious, given the nature of the powers ascribed to a political entity, and especially if it is demonstrated that said entity is not subject to any other entity.

So, your point would be that even though, in the Articles of Confederation, “sovereignty” is ascribed to the states, the fact that it isn’t mentioned in the Constitution doesn’t absolutely preclude the states from retaining their sovereignty?

That makes sense, thus far. Nowhere, eg, does the Constitution proclaim “we, the people,” as “sovereign,” per se, though many people have argued that, given the powers ascribed to them in the Constitution, they clearly are the real sovereign, and that all powers held by any governments are delegated to the same by the sovereign people.

And one can certainly see that in the Articles of Confederation, the structure of the Congress accorded with sovereign states: The states controlled the manner by which their “delegates” were appointed, they could recall these same delegates at any time for any reason (thus controlling how they voted), and, most importantly perhaps, under the Articles, “In determining questions in the United States in Congress assembled, each State shall have one vote,” so it was, literally, the states that were represented.

That certainly takes us very far towards sovereignty, doesn’t it?

In addition, the Articles insist that, with regard to altering the Articles of Confederation, “nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.” That makes sense since a sovereign state cannot have its fundamental laws altered without consenting to said alteration, and still remain sovereign, can it?

So far, so good! Sovereignty is certainly retained by the states, and the Republic–such as it is–remains a happy one! Huzza!

Now, respecting the Constitution, I’m afraid we do find a few changes.

States suffer various impositions regarding how their “delgates” (if that’s what they now are) are apportioned, they can no longer recall them at will, and these “delegates” have individual votes, rather than being limited to voting en bloc.

(I think that means they’re not “delegates” any more. And actually, the Constitution nowhere describes them as such. But I can already see a response emerging, so perhaps we should move on?)

I suppose all that isn’t necessarily inconsistent with the “sovereignty” you claim the states have. Though perhaps it mitigates it a tad?

But now, what do you make of this? The Constitution–unlike the Articles–can be amended whenever said amendment is “ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof”; and those amendments (as well as laws passed pursuant to it, not to mention treaties) “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

I’m trying to see how that subjection of state laws, and even state constitutions, to laws and treaties and amendments to which they have not consented, squares with the usual concepts of “sovereignty”? This arrangement certainly doesn’t square wth state sovereignty in the straightforward, common-sensical way that, say, the Articles of Confederation do.

Is this some exotic variety of “sovereignty” that I, lacking proper education and experience, am sadly unacquainted with? Or, has the concept evolved over time, mutating into something resembling a flightless bird–unable to wing its way about the heavens like its more felicitously endowed cousins, tethered instead to the ground–but a bird it is, nonetheless, despite its evident humiliations?

Or, are we, perhaps, subscribing to the Humpty Dumpty School of Determining the Meaning of Words? If so, forgive my many puzzlements, which must be very tedious, and accept my admiration of your mastery over the realm of words.

avatar robert m. peters July 8, 2012 at 7:57 pm
avatar John Haas July 9, 2012 at 12:03 pm

OK. Let’s have a look.

Tom Woods (Look, he has his own app now! Who said America was losing its exceptionalism?!) writes a blog post to explain that when the founders explained the supremacy clause, they repeated several times that only laws “pursuant to the Constitution.” Which is what the supremacy clause says. Ergo, only Constitutional laws are Constitutional. Before reading Tom’s blog post, you probably thought only un-Constitutionallaws are Constitutional. Welcome to enlightenment. Send him a note, and thank him.

Next Kevin Gutzman reminds us that the 14th amendment changed a few things, and many Americans don’t like those changes.

And finally, a video from Tom Woods, declaring his dissatisfaction with everything.

Thank you, Mr. Peters! That was fun!

avatar John Haas July 9, 2012 at 6:18 pm

Well fellows, I have some good news and some bad news.

You’ve probably heard about Rick Perry’s letter to Sebelius, rejecting Obamacare as involving “brazen intrusions into the sovereignty of our state.”

The good news? Rick Perry agrees with you.

Tha bad news? Rick Perry agrees with you . . .

avatar robert m. peters July 9, 2012 at 7:27 pm

Mr. Haas,

I gracefully accept your thanks. I am heartened to come to know that you understand that treaties and federal law – which are not pursuant to the Constitution, i.e. not delegated to the general government by the sovereign states and not enumerated by them in the document which their delegates drafted and which they then, each in its sovereign capacity in convention, ratified, thereby giving the Constitution and the general government, their agent, created thereby it authority and its legitimacy – are, well, unconstitutional and null and void.

Two things about the 14th amendment. It is an illegitimate amendment in that it was never constitutionally ratified and much which has been done by judicial fiat in the name of the 14th amendment has been contrary to the letter of the amendment and to the intent of the drafters and ratifiers, well beyond the fact of its illegitimacy. It is the amendment used to give personhood to abstract corporations and it is the amendment, along with others, used to deny personhood and the protections associated with that status to the unborn.

I am also quite glad that you thought our encounter to be fun.

Perry – good news or bad news in that he agrees with us “fellows.” Well, there is a pantheon of men who are apologists for a consolidated and centralized Hobbesian state: Hobbes, Hamilton, Lincoln, Stalin, Mao, Castro, Hitler, Ulbricht, etc. There is some good and some bad in that as well.

avatar John Haas July 9, 2012 at 10:34 pm

“Lincoln, Stalin, Mao, Castro, Hitler . . .” Oh my!

But, no Obama?

avatar Joseph Stromberg July 10, 2012 at 9:48 am

Rather than imagine that a dozen or so paragraphs got up one day and started dictating to the states — ‘the Constitution forbids the states from X,’ etc. — let’s consider who could possibly have ratified such a grocery list. It would seem to be the states. Thus the states, however mistakenly, *agreed* to the various restrictions that nationalists would like us to believe Someone *imposed* on them. So far, it does not seem that anyone seized ‘sovereignty,’ or alienated it, or anything. All that came later.

Broadly speaking, the nationalist view of the union has not improved at all in 200 years.

avatar John Haas July 10, 2012 at 11:02 am

Were it not for “the nationalist view of the union” prevailing, we would have had the pleasant experience of several centuries of inter-state rivally, intrigues, alliances, foreign interference, arms races and wars. Each state would need to maintain its own military, taxes would be even more onerous, and civil liberties even less honored. Front and back porches alike would have been requisitioned long ago and used to build barricades . . .

avatar Joseph Stromberg July 10, 2012 at 12:06 pm

The nationalist view of the union — I mean the whole ideology — was a wonderful work of fiction combined with aspiration. Failure to accept it as historically accurate would not preclude the states, then or now, from devising some rational alliance for defense against actual outside threats. It would hardly require them to over-theorize the location of something called ‘sovereignty,’ especially with the implication that it had somehow (and necessarily) migrated ‘upwards.’ They could have called this defense arrangement a ‘union,’ for all I care. There all kinds and degrees of union — a point that nationalist writers generally manage to ignore. (*Pace* Prof. Harry Jaffa, the word ‘union’ does not explain itself.)

Actually, a modest, defensive union was what some people thought they had gotten by ratifying the famous parchment. Others thought otherwise. These others later ‘proved’ their case with shell and shot. This is said to have been an ‘argument.’ But, no, it was just shell and shot.

Anyway, a lot of our stuff has long since been requisitioned to build barricades, many of them thousands of miles away from actual American territory. Mr. Lincoln did not himself directly found the overseas American empire; he merely consolidated a continental one. This means, one supposes, that he organized the conditions of the future existence of an American empire, which is bad enough.

Excited arguments from the perils of national defense are already in the Federalist Papers. The more I read them, the less impressed I am.

Best

avatar robert m. peters July 10, 2012 at 1:37 pm

Mr. Haas,

Mr. Obama is merely the everyman of diversity and multiculturalism. He is the current facade of the beast. He is not in the league with Lincoln, Stalin,Hitler, Mao or Castro. Or as Screwtape said in the hellish feast, and I paraphrase, he (Obama) does not crunch like a Henry VIII.

avatar robert m. peters July 10, 2012 at 1:47 pm

Dr. Stromberg,

The empire has indeed requisitioned our porches through the three I’s: Income tax, Interest on debt and Inflation and has therewith impoverished us and built its “barricades” abroad, killing, maiming and destroying in the name of the fickle god “democracy,” the empire’s version of the Brezhnev Doctrine”

“When forces that are hostile to socialism try to turn the development of some socialist country towards capitalism, it becomes not only a problem of the country concerned, but a common problem and concern of all socialist countries.”

Substitute “democracy” for “socialism” and you have NATO, the UN, the WTO, the World Bank, etc., puppets and surrogates of the ideology and the pedestrian designs of the elites who control the American empire, harbored in the welfare clause, the supremacy clause and the “implied” powers of the Constitution; nurtured as embryo by Hamilton, Marshall, Story and Webster; and hatched by Lincoln and the Republican Party into the serpent which now consumes us as the Hobbesian Leviathan.

avatar John Haas July 10, 2012 at 9:27 pm

Down-side (of this particular) empire: It’s expensive, wasteful, often guilty of injustice, productive of blowback, etc., etc.

Up-side: Our wars are over there.

avatar robert m. peters July 11, 2012 at 7:54 am

Mr. Haas,

“Up-side: Our wars are over there.” Yes, the folks across the world in places where the empire is waging its wars are being killed, maimed and driven from their homes. Our price, here on the “home front,” is that we are losing or have already lost our souls.

avatar John Taylor July 11, 2012 at 8:00 pm

This controversy would seem to stem from what is sovereignty and where it rests in the US Federal system.
In the Pennsylvania State Convention, James Wilson, member of the Philadelphia Convention and advocate of ratification, in discussing “where the supreme and sovereign power resides,” said this: “Somewhere there is, and of necessity must be, a supreme, absolute, and uncontrollable authority. This, I believe, may justly be termed the sovereign power; … the truth is, that the supreme, absolute, and uncontrollable authority remains with the people… My position is, sir, that, in this country, the supreme, absolute, and uncontrollable power resides in the people at large.” (Elliott’s Debates, vol. II, pg. 455-8.)

In South Carolina, Charles Pinckney, member of the Philadelphia Convention and advocate of ratification said this: “In every government there necessarily exists a power from which there is no appeal, and which, for that reason, may be formed absolute and uncontrollable. The person or assembly in whom this power resides is called the sovereign or supreme power of the state. With us, the sovereignty of the Union is in the people.”

This issue became important when the Founders were debating how to go about ratifying the proposed Constitution, since some of the then-standing state legislatures had taken an oath to the existing Articles of Confederation. The solution was to send the proposed Constitution directly to the sovereigns, the peoples of the states, in state conventions. No one believed that the sovereigns, the peoples of the states, could be defied, because they were sovereign. “The people were in fact, the fountain of all power, and by resorting to them,” Madison said, “all difficulties were got over.”

The people of the entire United States in the aggregate was not intended, however, since they had no way to ACT in the aggregate, so they sent the Constitution to the peoples in their corporate capacities as peoples of states, each state deciding for itself whether to join the union or not. This is what led to the wording of Article VII: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” Once nine states had ratified, non-ratifiers were out of the Union and there was nothing those states IN the Union could do about it. And since every state had the absolute uncontrollable power to refuse to ratify the Constitution, the peoples of the states were sovereign. QED.

avatar John Haas July 12, 2012 at 6:09 pm

Good points Mr. Taylor.

The question would then be, with regard to sovereignty, were the states that had ratified it the same once the Constitution came into effect, as they had been at the moment of ratification?

Of course the Constitution treats the states as the sovereign entities they were under the Articles, because the Articles were still the law of the land. Once the Constitution came into effect, and the Articles no longer in effect, we find the states much altered.

Aside from all the powers they once had, but which were now assumed by the federal government, we find this alteration best explained by a simple comparison of the 2d of the Articles of Confederation, and the 10th amendment to the Constitution (ironically, part of the accommodation made to the Constitution’s skeptical opponents).

avatar John Taylor July 12, 2012 at 7:56 pm

Mr. Haas, you seem to be at risk of conflating the peoples of the states and the state governments.
Second, I believe that the Founders distinguished between delegating powers (including powers normally exercised by sovereigns such as the power to enter into treaties or send and receive ambassadors) and the sovereign(s) itself/themselves.
Third, the general government exercises the powers of sovereignty not because it possesses them of right, but as the gift of the sovereigns. In other words, there would have been no general government had the sovereigns not breathed life into it and given it certain powers.

As for what the Founders said about sovereignty after ratification, a few examples of what they said might be illustrative. I will post these in separate posts, segregated by state. I am afraid I must do this in extenso, not wishing to throw up a mere list of quotes, but hoping to show by repetition how remarkably uniform the advocates of ratification were on this point.

avatar John Taylor July 12, 2012 at 7:58 pm

Virginia

In the Virginia Convention, Madison (in a debate about the militia and a standing army) called the proposed system “a government of a federal nature, consisting of many coëqual sovereignties.”

Mr. Pendleton (supporter) said, “The impossibility of calling a sovereign state before the jurisdiction of another sovereign state, shows the propriety and necessity of vesting this tribunal with the decision of controversies to which a state shall be a party.”

John Marshall (of all people) said this: “With respect to disputes between a state and the citizens of another state, its jurisdiction has been decried with unusual vehemence. I hope that no gentleman will think that a state will be called at the bar of the federal court. Is there no such case at present? Are there not many cases in which the legislature of Virginia is a party, and yet the state is not sued? It is not rational to suppose that the sovereign power should be dragged before a court.” In other words, Marshall (!) believed the states would still be sovereign after ratification and therefore could not be brought before a court.

avatar John Taylor July 12, 2012 at 8:00 pm

North Carolina

Mr. Davie (supporter) declared; “The senators represent the sovereignty of the states; they are directly chosen by the state legislatures, and no legislative act can be done without their concurrence.”

Mr. Davie (supporter) said, “By the Confederation, Congress had power to make treaties. It was one of those original rights of sovereignty which were vested in them; and it was not the deficiency of constitutional authority in Congress to make treaties that produced the necessity of a law to declare their validity; but it was owing to the entire imbecility of the Confederation.”

Davie again said, “As the Senate represents the sovereignty of the states, whatever might affect the states in their political capacity ought to be left to them.”

Mr. Iredell (supporter of ratification) said “It will be found to have been necessary … to vest this [treaty making] power in some body composed of representatives of states, where their voices should be equal; for in this case the sovereignty of the states is particularly concerned, and the great caution of giving the states an equality of suffrage in making treaties, was for the express purpose of taking care of that sovereignty, and attending to their interests, as political bodies, in foreign negotiations.”

Iredell again said “it was necessary … to vest the [treaty making] power in the Senate, or in some other body representing equally the sovereignty of the states, and that the power, as given in the Constitution, is not likely to be attended with the evils which some gentlemen apprehend. The only real security of liberty, in any country, is the jealousy and circumspection of the people themselves. Let them be watchful over their rulers. Should they find a combination against their liberties, and all other methods appear insufficient to preserve them, they have, thank God, an ultimate remedy. That power which created the government can destroy it.”

Iredell again said, “There ought to be some power given to the Senate to counteract the influence of the people by their biennial representation in the other house, in order to preserve completely the sovereignty of the states.”

Mr. Maclaine (supporter) said, “The powers to be given the general government are proposed to be withdrawn from the authority of the state governments, in order to protect and secure the Union at large. This proposal is made to the people. No man will deny their authority to delegate powers and recall them, in all free countries.”

Mr. Iredell said, “In America, our governments have been clearly created by the people themselves. The same authority that created can destroy; and the people may undoubtedly change the government, not because it is ill exercised, but because they conceive another form will be more conducive to their welfare. … It is suggested, indeed, that, though ten states have adopted this new Constitution, yet, as they had no right to dissolve the old Articles of Confederation, these still subsist, and the old Union remains, of which we are a part. The truth of that suggestion may well be doubted, on this ground: when the principles of a constitution are violated, the constitution itself is dissolved, or may be dissolved at the pleasure of the parties to it.”

avatar John Taylor July 12, 2012 at 8:02 pm

Pennsylvania

James Wilson said, “It is discovered to be a dread, that the boasted state sovereignties will, under this system, be disrobed of part of their power. Before I go into the examination of this point, let me ask one important question. Upon what principle is it contended that the sovereign power resides in the state governments? … Sovereignty resides in the people; they have not parted with it; they have only dispensed such PORTIONS OF POWER as were conceived necessary for the public welfare. … We have heard much about a consolidated government. … I believe it has been said, that a consolidated government is such as will absorb and destroy the governments of the several states. If it is taken in this view, the plan before us is not a consolidated government … On the other hand, if it is meant that the general government will take from the state governments their power in some particulars, it is confessed, and evident, that this will be its operation and effect.
When the principle is once settled that the people are the source of authority, the consequence is, that they may take from the subordinate governments powers with which they have hitherto trusted them, and place those powers in the general government, if it is thought that there they will be productive of more good. They can distribute one portion of power to the more contracted circle, called state governments; they can also furnish another proportion to the government of the United States.”

Wilson, in examining and countering Anti-Federalist objections to the Constitution said, “‘The power over elections, and of judging of elections, gives absolute sovereignty.’ This power is given to every state legislature; yet I see no necessity that the power of absolute sovereignty should accompany it. My general position is, that the absolute sovereignty never goes from the people.” (Elliott’s Debates, vol. II, pg. 465.)

Wilson reacted to the doctrine that “the states alone ought to be represented in the federal government; these must possess sovereign authority, forsooth, and the people be forgot. No. Let us reascend to first principles. That expression is not strong enough to do my ideas justice. Let us retain first principles. The people of the United States are now in the possession and exercise of their original rights; and while this doctrine is known, and operates, we shall have a cure for every disease. ” (Elliott’s Debates, vol. II, pg. 479.)

Wilson, addressed the arguments of the Anti-Federalists: “We hear it every time the gentlemen are up, ‘Shall we violate the Confederation, which directs every alteration that is thought necessary to be established by the state legislatures only!’ Sir, those gentlemen must ascend to a higher source: the people fetter themselves by no contract. If your state legislatures have cramped themselves by compact, it was done without the authority of the people, who alone possess the supreme power.” (Elliott’s Debates, vol. II, pg. 499.)

Wilson, again, said, “the supreme power resides in the people. If they choose to indulge a part of their sovereign power to be exercised by the state governments, they may. If they have done it, the states were right in exercising it; but if they think it no longer safe or convenient, they will resume it, or make a new distribution, more likely to be productive of that good which ought to be our constant aim.” (Elliott’s Debates, vol. II, pg. 502.)

James Wilson addressed the objections of Mr. Smilie, an opponent of ratification, who defined a consolidated government as “one that will transfer the sovereignty from the state governments to the general government.” Wilson responded, “Under this system, the sovereignty is not in the possession of the governments, therefore it cannot be transferred from them to the general government; so that in no point of view of this definition can we discover that it applies to the present system.” (Elliott’s Debates, vol. II, pg. 503-4.)

avatar John Taylor July 12, 2012 at 8:04 pm

Massachusetts

Fisher Ames, a supporter of ratification, said, “the people are gainers by the election of representatives. They may destroy, but they cannot exercise, the powers of government in person, but by their servants they govern: they do not renounce their power; they do not sacrifice their rights; they become the true sovereigns of the country when they delegate that power, which they cannot use themselves, to their trustees.”

Ames, continued, “The senators will represent the sovereignty of the states.”

Christopher Gore (pro-constitution) echoed the idea: “The Senate represents the sovereignty of the states.”

Rufus King, a supporter of the Constitution, said, “when under the British government, the duties of the representatives were merely local, the great duties of sovereignty being vested in their king, so, since the revolution, their duties have continued local, many of the authorities of sovereignty being vested in Congress. It is now proposed to increase the powers of Congress.”

G. Cabot of Beverly, supporter of ratification, described the US Senate as “a representation of the sovereignty of the individual states, and its members delegated by the several state legislatures.”

Theophilus Parsons, supporter of ratification, said that “the sovereignty of the states is represented in the Senate.”

Dr. Charles Jarvis (pro) said that “he considered the Constitution as an elective democracy, in which the sovereignty still rested in the people.”

Fisher Ames again said, “The senators represent the sovereignty of the states. … [If US Senators were elected directly,] what would become of the state governments, and on whom would devolve the duty of defending them against the encroachments of the federal government? A consolidation of the states would ensue, which, it is conceded, would subvert the new Constitution, and against which this very article, so much condemned, is our best security. Too much provision cannot be made against a consolidation. The state governments represent the wishes, and feelings, and local interests, of the people. They are the safeguard and ornament of the Constitution; they will protract the period of our liberties; they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights.”

Mr. Pierce on 23 January 1788 said, “I think I cannot conceive of a sovereignty of power existing within a sovereign power, nor do I wish any thing in this Constitution to prevent Congress being sovereign in matters belonging to their jurisdiction; for I have seen the necessity of their powers in almost all the instances that have been mentioned in this Convention.”

Mr. Parsons described the Senate as the place “where the sovereignty of the states is represented.” Parson went on and said, “All the rights Congress can control we have surrendered to our own legislature; and the only question is, whether the people shall take from their own legislatures a certain portion of the several sovereignties, and unite them in one head, for the more effectual securing of the national prosperity and happiness.”

General Heath said, “If we ratify the Constitution, shall we do any thing by our act to hold the blacks in slavery? or shall we become the partakers of other men’s sins? I think, neither of them. Each state is sovereign and independent to a certain degree, and the states have a right, and they will regulate their own internal affairs as to themselves appears proper; and shall we refuse to eat, or to drink, or to be united, with those who do not think, or act, just as we do? Surely not. We are not, in this case, partakers of other men’s sins; for in nothing do we voluntarily encourage the slavery of our fellow-men.”

James Bowdoin (pro) of Dorchester said this of sovereignty: “without a confederacy, the several states, being distinct sovereignties, would be in a state of nature, with respect to each other; and the law of nature, which is the right of the strongest, would determine the disputes that might arise. To prevent the operation of so unjust a title; to afford protection to the weakest state against the strongest; to secure the rights of all against the encroachments of any of the states; to balance the powers of all the states, by each giving up a portion of its sovereignty, and thereby better to secure the remainder of it, are amongst the main objects of a confederacy.”

John Adams, in response to a proposed amendments, said this: “Your excellency’s first proposition is, “that it be explicitly declared, that all powers not expressly delegated to Congress are reserved to the several states, to be by them exercised.” This appears, to my mind, to be a summary of a bill of rights, which gentlemen are anxious to obtain. It removes a doubt which many have entertained respecting the matter, and gives assurance that, if any law made by the federal government shall be extended beyond the power granted by the proposed Constitution, and inconsistent with the constitution of this state, it will be an error, and adjudged by the courts of law to be void. It is consonant with the second article in the present Confederation, that each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not, by this Confederation, expressly delegated to the United States in Congress assembled. I have long considered the watchfulness of the people over the conduct of their rulers the strongest guard against the encroachments of power; and I hope the people of this country will always be thus watchful.”

Major Samuel Nason, an opponent of ratification, opposed the Constitution on these grounds: “have sworn that Massachusetts is a sovereign and independent state. How, then, can we vote for this Constitution, that destroys that sovereignty?”

Reverend Thomas Thacher, advocate of ratification, on 4 February 1788, cited the “impossibility of preserving a perfect sovereignty in the states, after necessary powers were ceded to a supreme council of the whole.” He then said: “The Senate are elected by the legislatures of the different states, and represent their sovereignty.”

avatar John Taylor July 12, 2012 at 8:05 pm

New York
Mr. Lansing (anti), said this: “It has been observed, that, as the people must, of necessity, delegate essential powers either to the individual or general sovereignties, it is perfectly immaterial where they are lodged; but, as the state governments will always possess a better representation of the feelings and interests of the people at large, it is obvious that those powers can be deposited with much greater safety with the state than the general government.”

Mr. Lansing (anti) said, “I believe it was undoubtedly the intention of the framers of this Constitution to make the lower house the proper, peculiar representative of the interests of the people; the Senate, of the sovereignty of the states.”

Mr. Lansing, again, said, “If it be the object of the senators to protect the sovereignty of their several states, and if, at any time, it be the design of the other states to make encroachments on the sovereignty of any one state, will it be for their interest to compel the members from this state to attend, in order to oppose and check them?”

Mr. Lansing, again, said, “I am perfectly convinced that, in many emergencies, mutual concessions are necessary and proper; and that, in some instances, the smaller interests of the states should be sacrificed to great national objects. But when a delegate makes such sacrifices as tend to political destruction, or to reduce sovereignty to subordination, his state ought to have the power of defeating his design, and reverting to the people.”

Mr. Lansing, again: “I wish gentlemen would uniformly adhere to the distinction between the grand design of the House of Representatives and that of the Senate. Does not one represent the individuals, the people of a state, and the other its collective sovereignty?”

avatar John Haas July 12, 2012 at 9:38 pm

Mr. Taylor, I’ll have to get to your quotes later, but as to conflating, yes, guilty as charged, I suppose, as the destination of the Constitution, once sent from Philadelphia, was a complicared one. As you said above (with some emphasis of my own),

“. . . so they sent the Constitution to the peoples in their corporate capacities as peoples of states, each _state_ deciding for itself whether to join the union or not.”

Now, on that, I’m not sure how literally you meant it, and I’m not trying to be pendantic, but that’s not exactly how it went. The Philadelphia convention sent the Constitution to (the Articles’) Congress in New York, which then resolved to transmit it to the state legislatures with a recommendation that it be submitted to the people. If the people were to see it, they had to find it in the newspapers, or it was ordered printed up by some state conventions (sometimes only after they’d ratified it!)

“This is what led to the wording of Article VII: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” Once nine _states_ had ratified, non-ratifiers were out of the Union and there was nothing those states IN the Union could do about it. And since every _state_ had the absolute uncontrollable power to refuse to ratify the Constitution, the peoples of the states were sovereign.”

I agree (of course) that once the Constitution was ratified, the sovereign became “we, the people,” and all powers of the states and the federalgovernment became–or were recognized as–delegated.

But that raitifying process–as you note–could not and did not bypass the states in their sovereign capacity as recognized by the Articles. It called upon them rather to call conventions–approved by the state legislatures–to deliberate over and vote upon the proposed Constitution.

I suppose we could say that that moment–the calling of the conventions by the state legislatures–began the process of acknowledging the sovereignty of the people.

avatar John Taylor July 13, 2012 at 8:15 am

Mr. Haas, Points well taken. The ratification process was, of course, exactly as you described. My point was simply that some of the state legislatures had taken an oath to support the AoC and one of the Philadelphia delegates (Luther Martin, I believe) had said that this was an obstacle to ratification. This led to the ratification by conventions, because, as Madison said, by resorting directly to the people in this way, “all difficulties were got over.”

As for the quotes, I was merely attempting to show the remarkable unanimity on the part of advocates of ratification across state lines, on the question of sovereignty of the states after ratification. People as diverse as Madison, Marshall, Davie, Iredell, James Wilson, Fisher Ames, Christopher Gore, Pierce, Parsons, Gen. Heath and James Bowdoin, Thomas Thacher and John Lansing all made reference to the sovereignty after ratification remaining in some form in the states.

Most of those who mentioned that they thought that the Constitution would eliminate the sovereignty of the states opposed ratification on those grounds.

avatar Joseph Stromberg July 13, 2012 at 10:21 am

Madison ‘got over all the difficulties’ by deliberately blurring several possible meanings of ‘the people.’

There is no irony in the wording of the 10th amendment as compared with Article II of the previous agreement. No irony, just Madison again, who oversaw the process and weakened the amendments he didn’t like. If the amendment was meant to recapitulate how the constitution came about and what the states retained as members of the union (we leave to one side the question of whether they *have to* remain in any union), we might have been better off without it, since the facts on the ground supported the states-rights position and Mr. Madison’s innovative language merely sowed confusion. (Same thing with “unreasonable searches” in the 4th Amendment — the point was the dang-ole warrant, but Jemmy’s language licensed the courts to meditate forever on reasonableness.)

Mr. Taylor: Conflating the states with the state governments was a standard nationalist ploy, helping to get the idea of any peoples in the states off stage.

avatar robert m. peters July 13, 2012 at 11:15 pm

Dr. Stromberg,

“Conflating the states with the state governments was a standard nationalist ploy, helping to get the idea of any peoples in the states off stage.”

Indeed, the monarchists, the nationalists, the unitary government folks, the Hobbesians would have us forget that the polity of a state (commonwealth or republic), was itself a creature of that state, commonwealth or republic which was in its essence made up of and the expression of its peculiar people with their unique traditions, customs and habits.

avatar John Taylor July 14, 2012 at 8:11 am

Joe, I believe that the Founders would describe the situation as the Federal government exercising sovereign powers over its sphere (i.e. the enumerated powers) and the state governments exercising sovereign powers over their sphere (all the unenumerated powers less those things the sovereign people had denied to their state governments, i.e. Art. I, Sec. 10, and whatever powers each state constitution had denied to the state government.)

As you have noted elsewhere,at some point, one comes to the conclusion that the concept of sovereignty is fraught with difficulties.

avatar robert m. peters July 14, 2012 at 9:59 am

Mr. Taylor,

The concept of sovereignty is indeed fraught with difficulties. It emerges across Western languages, beginning in the 14th century, at a time when the order of being, with its pillars of hierarchy and subsidiarity accepted and lived out in varying degrees and forms by the West both in its pagan Antiquity and in medieval Christendom was slipping away. The ultimate locus of authority had been with the gods or God; man was replacing God with himself – I am, not because I was created, but because I think.

Until Henry VIII, at least in the British idiom, the understanding in the medieval perception had been, that authority came from God, through the Pope to emperors and to kings. Henry, driven from the Catholic perspective by lust, used the emerging heresies of Protestantism to claim divine right for himself, eliminating the authority of the Pope. Authority flows from God to the king.

Politically, the notion of sovereignty is anchored in the Treaty of Westphalia. If after the long struggle of the Thirty Years War, it no longer rests with the Pope or with the Emperor, then it rests on the kings and the territories over which they rule.

By the time we get to the Enlightenment with its breezy notions, God recedes into the background; and authority and commensurate rights seem to hover in the cloud of “natural rights,” accessible, it would seem to anyone without the mediating authority of Church or to Crown: hence, the Promethean notion that sovereignty rests with the individual or some aggregate of individuals.

Jefferson’s paraphrasing of Locke, although I have read that Jefferson has denied Locke’s influence, in the Preamble to the Declaration of Independence suggests that our “Creator” has endowed” us with certainly inalienable right and, one must assume, sovereignty to guard those rights. Not that what Jefferson wrote is necessarily true; but it is what he wrote.

What seems to have emerged in the colonial republics of America and in the states which emerged from them, particularly in those of the South, was on the one hand, a retention of the classical and medieval understanding of commonwealth and subsidiarity, which suggests hierarchy; but on the other hand and embracing of the notion of sovereignty, which with the elimination of the Pope, the emperor and the king from which the colonial republics had seceded and emancipated themselves, rested with them, a peculiar people on a discrete territory with unique traditions, customs, habits, taboos and histories.

Over against this hybrid of subsidiarity and sovereignty, had emerged since the mind of Hobbes spawned it, a notion of sovereignty which seems to be totally emancipated from the remnant of classical and medieval notions. Sovereignty rests in his theory with autonomous individuals outfitted with abstract rights with no peculiarities, discrete territories or uniquenesses. To protect these sovereigns with their abstract rights from one another, he postulates the ultimate sovereign: the Leviathan which is an abstract corporation with a monopoly on coercion and with the ability to define the limits of its own power.

This abstract state gives inform to the aggregate of autonomous individuals, i.e. creates social order and the contours of society. It keeps their competing sovereignty in check while expanding that sovereignty by eliminating the last vestiges of the old classical and medieval hierarchy which lays claim on them: God, family, church, associations and unique communities or commonwealths of people (states in the sense of the colonial republics).

In the end, the claim of commonwealths, republics, city-states and unique communities of people to sovereignty will not stand against the claim of an abstract corporation with a monopoly on coercion and with the ability to define the limits of its own power, animated by ideologues and bureaucrats and allied with the false but appealing notion that it, the Hobbesian state, is the expression of the will of the aggregate of sovereign individuals, that state and those individuals having a vested interest in eliminating the competition.

Ironically, the protection and the flourishing of peculiar and unique things likely rests with a return to the classical Christian tradition and the abandonment of the false notion of sovereignty. Who, however, knows the way back if there is one?

The 18th century American experiment has failed. It began to fail even as the ink dried on the Constitution. The states, having emancipated themselves from the Crown, thought they could create a general government as their agent and could hold onto at the same time the fickle goddess of sovereignty, not willing to accept that she usually serves that which can amass the power.

Lincoln destroyed in 1865 two unions of constitutionally federated republics: that of the United States and that of the Confederate States. Without God and the hierarchy which flows through the created order, sovereignty ultimately rests not which the entity which has the authority, for the authority certainly rested with the states, but with the entity which has the power, and that came to rest over time with the general government which morphed into the Hobbesian state and now the empire.

The Confederate Constitution is fortunate. It rest as an artifact in libraries along with the cultural ashes of the Confederacy. The U.S. Constitution is not so lucky. She, the handmaiden of the states, did not die when her union died, finding repose in some archive. She has been made a whore of the Hobbesian state which destroyed the two unions. She is often presented to us as a goddess to whom we must genuflect even as the ideologues, corporatists and bureaucrats plot their nefarious schemes under her skirts.

avatar Sean Busick July 14, 2012 at 1:39 pm

Excellent points, Messrs. Peters, Taylor, and Stromberg!

avatar robert m. peters July 14, 2012 at 6:15 pm

Mr. Busick,

Dr. Stromberg and Mr. Taylor are the big dogs on this hunt. I am a mere puppy who, nevertheless, enjoys the hunt. I can howl with the best of them; but my intellectual legs lack the skill and the experience that they have. I am usually yet negotiating the last log while they have bayed the prey.

Mr. Taylor’s cache of quotes from the drafting and ratification processes constitute a withering fire against the nationalist fiction. I am familiar with many of them; yet, even with the aid of the Internet, I could not have marshaled them as he has supra, and marshaled them in the meaningful context which he has done.

Dr. Stromberg is with his skill and knowledge absolute incisive. With a minimum of words, he can place his point directly on the table and simultaneously wipe the table clean of the opposing position.

I am, however, grateful that the points which I made were meaningful.

avatar John Haas July 15, 2012 at 10:47 pm

Mr. Taylor,

There are several problems with any simple use of your quotations to define the status of the states.

The first is the fact that these are largely drawn from debates, and all the questions of intent, care in speaking, and transcription obtain. That’s why we recur to more formal documents for the “fianl word.”

As John Marshall later wrote, eg, concerning David Robertson’s publication of his own speeches (from shorthand and then transcribed) in his proceedings of the Virginia convention, “if my name had not been prefixed to the speaches I never should have recognized them.”

Moreover, to the degree these quotes are accurate, it’s unclear what their meaning often is, at least as far as their bearing on our discussion. When many say that the Senate will represent the “sovereignty of the states,” what is that sovereignty if it is overwhelmed by the Senate’s passing what becomes the law of the land over a given state’s objections?

That is the question we’ve been inquiring into.

At least one participant, Mr. Lansing of New York, understood this: “But when a delegate makes such sacrifices as tend to political destruction, or to reduce sovereignty to subordination, his state ought to have the power of defeating his design, and reverting to the people.”

But this it does not have. Ergo, not sovereign.

We are left, in the end, with the Constitution.

I note that in your quotes, you include none from Mr. Henry’s contributions at Virginia.

That’s a shame. Henry understood that the proposed new government must derive its powers, not from the people, but from the states, or all his pet concerns would be lost.

As they were.

As I’m sure you know, the Confederate States of America understood this also, and hence made clear, “We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government . . .”

But again, that’s just more confirmation that the US Constitution is very different than what the partisans of state sovereignty would have preferred..

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