The reader has perceived that the question concerning state powers, is condensed in the word sovereignty, and therefore any new ideas upon the subject, if to be found, would not be unedifying. A will to enact, and a power to execute, constitute its essence. Take away either, and it expires. The state governments and the federal government, are the monuments by which state sovereignty, attended with these attributes, is demonstrated. But as the consolidating school will not see it, I will endeavour further to establish its existence, in order to prevent these beautiful examples of political science from falling into ruin.
The constitution, like the declaration of independence, was framed by deputies from the “states of New-Hampshire,” &c. and at the threshold of the transaction, we discern a positive admission of the existence of separate states invested with separate sovereignties. This admission expounds the phrase “We, the “people of the United States,” which co-operates with the separate powers given to their deputies in the convention, and is distinctly repeated by the words “do ordain and establish this “constitution for the United States of America.” Had the sovereignty of each state been wholly abandoned, and the people of all been considered as constituting one nation, the idea would have been expressed in different language. Suppose that Fredonia had been assumed as an appellation comprising the territories of all the states, and that a consolidated nation had been contemplated by the convention, would it have framed, ordained, and established, a constitution by states for states, or by the Fredonians for Fredonia. The appellation adopted by the declaration of independence, was, “The United States of America.” The first confederation declares, that the style of this confederacy shall be, “The United States of America.” And the union of 1787, ordains and establishes the constitution for “The Unit”ed States of America.” The three instruments, by adhering to the same style, co-extensively affirmed the separate sovereign-ties of these states. It was a style proper to describe a confederacy of independent states, and improper for describing a consolidated nation. If neither the declaration of independence nor the confederation of 1777, created an American nation, or a concentrated sovereignty, by this style, the conclusion is inevitable, that the constitution was not intended to produce such consequences by the same style. The word America is used to designate the quarter of the globe in which the recited states were established, and not to designate a nation of Americans. A league or union of the kingdoms of Europe for limited objects, distinctly reciting the name of each kingdom, would not have created a consolidated nation of Europeans. Suppose in such a union, the phrase, “We, the people of the united kingdoms of “Europe,” had been used, would it have destroyed the several sovereignties uniting for special purposes, and have consolidated them into one kingdom? Had these kingdoms conferred upon their federal representatives limited powers, and reserved all the powers not conferred, would they have had no remedy, had their federal representatives assumed the supreme power of abridging the powers reserved, and extending those conferred? If the word state does not intrinsically imply sovereign power, there was no word which we could use better calculated for that purpose. Will the words empire or kingdom be considered as of higher authority, because they may exclude a people as a political association, which the word state may comprise?
This construction bestows the same meaning upon the same words in our three constituent or elemental instruments, and exhibits the reason why the whole language of the constitution is affianced to the idea of a league between sovereign states, and hostile to that of a consolidated nation. There are many states in America, but no state of America, nor any people of an American state. A constitution for America or Americans, would therefore have been similar to a constitution for Utopia or Utopians.
Hence the constitution is declared to be made for the ” United “States of America,” that is, for certain states enumerated by their names, established upon that portion of the earth’s surface, called America. Though no people or nation of America existed, considering these words as defining a political association, states did exist in America, each constituted by a people. By these political individual entities, called states, the constitution was framed; by these individual entities it was ratified; and by these entities in can only be altered. It was made by them and for them, and not by or for a nation of Americans. The people of each state, or each state as constituted by a people, conveyed to a federal authority, organized by states, a portion of state sovereign powers, and retained another portion. In this division, all the details of the constitution are comprised, one dividend consisting of the special powers conferred upon a federal government, and the other, of the powers reserved by the states which conferred these special powers. The deputation and reservation are both bottomed upon the sovereignty of the states, and must both fall or both stand with that principle. If each state, or the people of each state, did not possess a separate sovereignty, they had no right to convey or retain powers. If they had a right both to convey and to retain powers, it could only be in virtue of state sovereignty. Admitting the utmost which can be asked, and more than ought to be conceded, by supposing that these sovereignties, in conveying limited powers to the federal government, conveyed also a portion of sovereignty, it must also be allowed, that by retaining powers, they retained also a portion of sovereignty. If sovereignty was attached to the ceded powers, it was also attached to the powers not ceded, because all or none of the powers of the states must have proceeded from this principle. In this observation, no use is made of the power reserved to the states to amend the federal form of government, by which a positive sovereignty is retained to the states over that government, subversive of the doctrine, that the constitution bestows a sovereignty upon it over the states. But a delegation of limited powers, being an act of sovereignty, could not be a renunciation of the sovereignty attached to the powers not delegated. A power to resume the limited delegation, was the strongest expression of sovereignty, and rejects the idea, that the delegated authority may positively or constructively subject the sovereign power to its own will; that no sovereignty may destroy an actual sovereignty. By this power of amendment, the states may re-establish the confederation of 1777, and thus unquestionably revive their separate sovereignties said to be extinct; because they are positively asserted by that confederation. If it is not absurd, it is yet a new idea, that a dead sovereignty contains an inherent power to revive itself whenever it pleases.
The mode of making amendments to the constitution, expresses its true construction, and rejects the doctrine, that an American people created a federal government. Their ratification is to be the act of states. It is the same with that of the confederation, which asserted the sovereignties of the states, in concomitancy with this mode of ratification, with only two differences. By the first confederation, the ratification was to be the act of state legislatures, and unanimous; by the constitution, the ratification of alterations is to be the act of “state conven”tions, or legislatures by three-fourths.” The last difference extended the power of the states, by removing the obstacle of unanimity, and was not intended to diminish it. State legislatures and conventions are united, as equivalent state organs. Thus the constitution construes the phrase, “We, the people of “the United States,” and refutes the doctrine of an American people, as the source of federal powers; because, had these powers been derived from that source, it would have referred to the same source for their modification, and not to state legislatures. It declares that both state legislatures and state conventions, are representations of state sovereignties, equally competent to express their will. The same opinion is expressed by declaring that “the ratification of the conventions of nine states, “shall be sufficient for its establishment between the ratifying “states.” Of the two equivalent modes of ratification, it selects one for that special occasion, not because it substantially differed from the other, and was not an expression of state will, but because it was apprehended that a considerable transfer of powers from the state governments to a federal government, might produce an opposition from men in the exercise of these powers, although when experience should have ascertained the benefits of the innovation, and time should have cured the wounds of individual ambition, a further adherence to one equivalent mode in preference to the other, might be unnecessary and inconvenient to the states. The equivalency of the modes is obvious, as state legislatures are empowered to revoke the act of state conventions, by which the residence of state sovereignties in these legislatures is considered as the same as its residence in state conventions, upon no other ground, than that both constituted a representation of the state, and not a representation of an unassociated people.
An adherence to our original principle of state sovereignty is demonstrated both by the confederation and constitution. Unanimity was necessary to put the first, and a concurrence of nine states to put the second, into operation. The operation of the first, when ratified, was to extend to all the states, and the operation of the second, ” to the states ratifying only.” Both consequences are deduced from state sovereignty, by which one state could defeat a union predicated upon unanimity, and four states might have refused to unite with nine. The latter circumstance displays the peculiar propriety of ordaining and establishing the constitution “for the United States of America.” The refusing states, though states of America, did not constitute a portion of an American nation; and their right of refusal resulted from their acknowledged sovereignty and independence. “The United States of America” would have consisted of nine states only, had four refused to accede to the union; and therefore thirteen states could not have been contemplated by the constitution, as having been consolidated into one people. Hence it adheres to the idea of a league, by a style able to describe “the United States of America,” had they consisted but of nine, and avoids a style applicable only to one nation or people consisting of thirteen states. By acknowledging the sovereignty of the refusing, it admits the sovereignty of the concurring states. Assent or dissent, was equally an evidence of it. The limitation of federal powers by assent, establishes the principle from which the assent flowed. There could be no sound assent, nor any sound limitation, unless one was given, and the other imposed, by a competent authority; and no authority is competent to the establishment of a government, except it is sovereign. The same authority could only possess the right of rejecting the constitution. Had it been the act of an American nation or people, a state would have possessed no such right. The judicial sages have allowed the federal to be a limited government, but how can it be limited if the state sovereignties by which it was limited, do not exist, and if the state powers reserved, which define the limitation, are subject to its control?
Having proved that state sovereignties were established by the declaration of independence; that their existence was asserted by the confederation of 1777; that they are recognised by the constitution of 1787, in the modes of its formation, ratification, and amendment; that this constitution employs the same words to describe the United States, used by the two preceding instruments; that the word state implies a sovereign community; that each state contained an associated people; that an American people never existed; that the constitution was ordained and established, for such states situated in America, as might accede to a union; that its limited powers was a partial and voluntary endowment of state sovereignties, to be exercised by a Congress of the states which should unite; that the word Congress implies a deputation from sovereignties, and was so expounded by the confederation; and that a reservation of sovereign powers cannot be executed without sovereignty; the reader will consider, whether all these principles, essential for the preservation both of the federal and state governments, were intended to be destroyed by the details of the constitution. The attempt to lose twenty-four states, in order to find a consolidated nation, or a judicial sovereignty, reverses the mode of reasoning hitherto admitted to be correct, by deducing principles from effects, and not effects from principles. But in construing the constitution, we shall never come at truth, if we suffer its details, intended to be subservient to established political principles, to deny their allegiance, and rebel against their sovereigns. A will to act, and a power to execute, constitutes sovereignty. The state governments, says the Federalist, are no more dependent on the federal government, in the exercise of their reserved powers, than the federal government is on them, in the exercise of its delegated powers.
The treaty between his Britannick majesty and the United States of America, 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; as such he treats with them, and relinquishes “all claim to their government and territorial rights.” This king acknowledges, individually, the sovereignty of the states; he relinquishes to them, individually, his territorial rights; three eminent envoys demanded this acknowledgment and relinquishment, as appertaining, individually, to the states; a Congress of the United States ratified the act and the doctrine; the treaty was then unanimously hailed, and is still generally considered, as a consummation of right, justice, and liberty; but now it is said that the states are corporations, subordinate bodies politick, and not sovereign. By the admirers of royal sovereignty, the treaty ought to be considered as valid; by those who confide in authority, it ought to be considered as authentick; by such as respect our revolutionary patriots, it ought to be venerated; and by honest expositors of the constitution, it will be allowed to afford conclusive proof, that the phrase “United States of America,” used both in the treaty and the constitution, implied the existence, and not the abrogation, of state sovereignty. Consolidators, suprematists, and conquerors, however, will all equally disregard any instrument, however solemn and explicit, by which ambition and avarice will be restrained, and the happiness of mankind improved.
