Constitutional Convention

The Philadelphia Convention of 1787

I’ve always been distressed when people, particularly politicians, declare that States have no right to contest edicts from Washington D.C. and that federal law ALWAYS trumps State law. This mistaken assertion is usually given the same credence as if it were Holy Scripture. Most recently there has been much nattering from mainstream media and liberal pundits over Iowa and Virginia passing legislation, and 36 other States considering legislation, to “defy” the federal government should it pass laws to make health insurance mandatory for everyone. Iowa and Virginia are just exercising the powers of sovereignty that they and the other 48 States possess. They’ve never officially yielded their sovereignty to the federal government. The 10th Amendment of the Bill of Rights was inserted into the Constitution before its initial ratification specifically to protect that freedom from the federal government that the Constitution formed. We have a strong history that supports this.

In 1777, Congress sent out to the states for their ratification the Articles of Confederation, America’s first federal Constitution. It began by saying, “Articles of Perpetual Union between the states of New Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.” Article I said, in full, “The Stile of this Confederacy shall be ‘The United States of America.’” Article II added, “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.”

This language is, under the circumstances, entirely unsurprising. It would have been surprising had it said anything else. The United States were states, and they had joined together. The fact that their union had no set end date, in part because the length of the War for Independence could not be foreseen, was denoted by calling it “perpetual.” (In those days treaties between European states often purported to be “perpetual.” This didn’t mean that neither side could bring a treaty agreement to an end, but that there was no built-in sunset provision.) The express reservation of those powers that each state hadn’t passed on to the Confederation was a hedge against arrogation of power by the Confederation. After all, the new Congress under the Articles was to have an army so it might well be tempted to intrude on the states’ prerogatives. It was for this reason that Article II noted that sovereignty ­­– indivisible final authority – remained to the states.

The Articles of Confederation went on to spell out what the Confederation was empowered to do for the benefit of the sovereign states in keeping with the federal (not national) nature of the government. The articles would not have made sense if the thirteen states had been one nation, or if their people had been one people. (Here again, we must recall that the word state in the 18th century connoted a sovereign entity on the order of Spain or France, not a province like Andalusia or Dauphine’.)

To anyone familiar with the form of the dispute between the colonists and England that led up to the Revolution, the various elements of the Articles of Confederation can’t be surprising. The colonists had insisted for years that their colonial legislatures alone, not the British Parliament, could tax them. When Parliament had declared that it alone was sovereign and that sovereignty was ultimate power, the colonies had responded by locating sovereignty in their colonial legislatures. The colonists saw themselves as defending their traditional English rights. They believed that to protect their traditional rights from an overweening British Parliament it was necessary for the colonies to declare themselves “free and independent states.” Now, to formalize the military alliance that was fighting the Revolution, they opted not to merge their thirteen societies into one, but to cooperate so much as seemed necessary to win the war.

The Declaration of Independence recognized the individuality of the colonies when it stated: “Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.” And also that the representatives of those colonies “do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, that these United Colonies are, and of Right ought to be Free and Independent States.” [Emphasis mine]

In the Treaty of Paris of 1782 that ended the Revolution, King George III recognized the independence not of a single American nation, but of thirteen “free Sovereign and Independent States” (18th-century language for “nations”).

Delegates to the Philadelphia Convention of 1787, where our current Constitution was debated and crafted, rejected attempts by monarchists and nationalists in the convention to create a national (rather than a federal) government.

There was zilch in the Articles of Confederation, in the Declaration of Independence, or in the Constitution’s ratification process to permit the creation of a national government. The States would have had to surrender their sovereignty to have made themselves into a nation. But they did not do this. To do so would have been contrary to everything for which they’d just been fighting.

The States each had their foundation for governing their affairs but, for the most part, recognized the benefits of a union, a contract, between them. For example, they could speak to and make treaties with foreign governments with one voice that was stronger than their individual voices. They could also defend themselves from those same foreign governments with one arm that was stronger than their individual arms.

Each State held its meetings, conventions, parlays and pow-wows to consider ratification of the Constitution and how accepting the pact would best benefit them. All of them found something to like and something to dislike. Some still had significant reservations because of erroneous talk of the Constitution making a “nation” and gave serious consideration to not joining the pact. Sensibility, reason, and self-interest influenced the decisions, and all 13 States ratified the Constitution.

Sovereignty was of paramount importance to them in the late 18th century, and it was an exercise of State sovereignty in the mid 19th century when 11 States disaffiliated themselves from the pact that was the United States of America to form another unification of States with common interests called the Confederate States of America. These State’s leaders met in 1861 to draft the Constitution of the Confederate States of America which closely mirrored the Constitution of the U.S.A. That exercise in State sovereignty led to the invasion of the Confederate States by the United States, four years of bloody war and the forced repatriation of the “rebel” States.

The United States of America was, and still is, a federation of independent States formed to handle certain specific functions for the common benefit of the member States. As more States rediscover that and make more use of their constitutionally protected sovereignty to check the federal government’s predilection for grabbing more and more unconstitutional authority to itself, I think we’ll see more cases where any or all of the States say “oh no you don’t” to the denizens of Foggy Bottom.