This is part 2 of a 2-part series examining the evolution of American political thought as it relates to sovereignty in the political system. You can read part 1 HERE.
In the years leading up to the Revolutionary War, and continuing through the post-war era, Americans conceived and developed a revolutionary political idea. They came to reject the British conception of sovereignty in government, and recognized the people hold the ultimate power and authority within a political society. This new conception of political power served as the foundation for the constitutional system the United States would eventually adopt.
But a question still remains. In the American system, how do the people exercise their sovereign power?
In the nationalist conception most prominent today, sovereignty rests in the “whole people” of the United States. Under this theory, “one American people” ratified the Constitution and formed the Union. As a result, the United States possesses a singular “will” and cannot ever be divided. The Pledge of Allegiance encapsulates this view – “One nation…indivisible.”
Joseph Story popularized the nationalist conception in his Commentaries on the Constitution of the United States published in 1833. Story was an ardent member of the Federalist Party and favored expansive federal power. In order to justify this, it was imperative he smash the “compact theory.” This doctrine asserts sovereign states make up parties to a compact – the Constitution – and retain all powers not delegated to the general government. Story denied this, writing, “It is an act of the people, and not of the states in their political capacities.”
But in fact, the American people never coalesced into a singular political society. They never operated as “one people.” From the colonial period through the ratification of the Constitution, Americans exercised their political sovereignty through their states.
Judge Able P. Ushur was a Virginia politician and jurist who also served as U.S. Secretary of State and War. He wrote a brilliant response to Story’s Commentaries aimed at refuting the “one people, one nation” assumption.
Many of the powers which have been claimed for the Federal Government, by the political party to which he (Story) belongs, depend upon a denial of that separate existence, and separate sovereignty and independence, which the opposing party has uniformly claimed for the States. It is therefore highly important to the correct settlement of this controversy, that we should ascertain the precise political condition of the several colonies prior to the Revolution.”
He went on to write:
The great effort of Judge Story, throughout the entire work, is to establish the doctrine that the Constitution of the United States is a government of “the people of the United States,” as contradistinguished from the people of the several States; or, in other words, that it is a consolidated and not a federative system. His construction of every contested federal power depends mainly upon this distinction; and hence the necessity of establishing oneness among the people of the several colonies, prior to the Revolution.”
But from the earliest formation of the colonies, they all operated as separate political societies, as Upshur shows.
These colonial governments were clothed with the sovereign power of making laws, and of enforcing obedience to them, from their own people. The people of one colony owed no allegiance to the government of any other colony, and were not bound by its laws.
“They were separate and distinct in their creation; separate and distinct in the changes and modifications of their governments, which were made from time to time; separate and distinct in political functions, in political rights, and in political duties.”
So, at what point did this change? At what point did the people making up these separate and distinct sovereign political societies become “one American people?”
It wasn’t during the Revolution. Americans voted on and declared independence from England as individual states, operating through a Continental Congress created by those states, with representatives chosen by those states. Would a colony not signing on to the Declaration of Independence have been obligated to go to war with Great Britain? Clearly not.
At the conclusion of the war, England recognized the 13 sovereign states in the Treaty of Paris, naming them each individually.
When the colonies formalized their union, the Articles of Confederation expressly maintained state sovereignty.
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.”
And finally, the Constitution itself was ratified through state conventions, by delegates elected by the people of each individual state. The Constitution created “A more perfect Union.” This implies the new Union was fundamentally like the old Union under the Articles.
A state was not bound to the Constitution until it ratified. Rhode Island was the last of the original colonies to approve the Constitution, and it did not send representatives to Congress until after ratification. Clearly, by that point, a vast majority of the American population was represented by ratifying states, yet that fact did not bind the people of Rhode Island to the Union. An act representing the majority of Americans did not operate on the small minority of Rhode Islanders, as would be the case if the Constitution was the act of “one American people.”
Madison explained the nature of the federal government in the Federalist #36, asserting it is not part of a “national” system.
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.”
At no point during the founding did the political societies of the United States coalesce into “one people.” The people acted through their states at every single step, and the states remain the sovereign entities in the American political system today.
When we talk about state sovereignty, we don’t mean the state government is sovereign. We don’t mean the geographical area possesses some kind of mystical power. When we talk about “state’s rights” we really mean the people of the states. James Madison explained this distinction the Virginia Report of 1800.
The Report served as an in-depth defense of the Virginia Resolutions of 1798. In the resolutions, Madison asserted that “in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact [Constitution], the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”
In the report, Madison explained exactly what the term “states” means in relation to sovereignty in the American system.
The other position involved in this branch of the resolution, namely, ‘that the states are parties to the Constitution or compact,’ is in the judgment of the committee, equally free from objection. It is indeed true that the term ‘States,’ is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments, established by those societies; sometimes those societies as organized into those particular governments; and lastly, it means the people composing those political societies, in their highest sovereign capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconveniency is produced by it, where the true sense can be collected with certainty from the different applications. In the present instance whatever different constructions of the term ‘States,’ in the resolution may have been entertained, all will at least concur in that last mentioned; because in that sense, the Constitution was submitted to the “States”: In that sense the ‘States’ ratified it; and in that sense of the term ‘States,’ they are consequently parties to the compact from which the powers of the Federal Government result.” [Emphasis added]
The “one people, one nation” narrative simply doesn’t hold up under an examination of the historical evidence. The people of the states clearly stand as the sovereign in the American political system.
Federal supremacists will continue to perpetuate this myth in order to justify all of the overreaching power exercised by the federal government. They will dress it up in red, white and blue bunting and call it “patriotism.” But lust for power drives them – not a genuine love of America’s founding principles. Those they casually toss into the dustbin of history.