Notes of a Citizen of Virginia

by James Jackson Kilpatrick

Part 1
The Sovereign States

1.The Beginnings
2.The State
3.The Articles of Confederation
4.“We the People”
5.The States in the Constitution
6.The Prophetic Mr. Henry
7.The States Ratify

The States within the limitations of their powers not granted, or, in the language of the Tenth Amendment, “reserved,” are as independent of the general government as the general government, within its sphere, is independent of the States.

Collector vs. Day (1871)

“THE TRUE DISTINCTION,” said Mr. Pendleton, with some irritation, “is that the two governments are established for different purposes, and act on different objects.”(1)

This was on the sunny afternoon of Thursday, June 13, 1788, in the New Academy on Shockoe Hill in Richmond. The Virginia Convention had been grappling for ten days with the new Constitution, and Edmund Pendleton, aging and crippled, had been sitting in dignified silence for as long as he could stand it. Patrick Henry, who was a hard man to live with at any time, was being especially difficult. Once before, on the 5th, Pendleton had attempted to sooth him, but Henry was not to be soothed.

The State and Federal governments would be at war with one another, Henry had predicted, and the State governments ultimately would be destroyed and consolidated into the general government. One by one their powers would be snatched from them. A rapacious Federal authority, ever seeking to expand its grasp, could not be confined by the States.

“Notwithstanding what the worthy gentleman said,” remarked Mr. Pendleton with some warmth, for there were times when he regarded Mr. Henry as neither worthy nor a gentleman. “I believe I am still correct, and insist that, if each power is confined within its proper bounds, and to its proper objects, an interference can never happen. Being for two different purposes, as long as they are limited to the different objects, they can no more clash than two parallel lines can meet. . . .”

They were big ifs that Edmund Pendleton, a judicious man, here used as qualifications. If the State and Federal governments were each confined within its proper bounds, he said, the clash could never come. But the Federal government could not be kept confined, even as Henry feared, and the clash did come. It continues to this day. Mr. Pendleton’s geometry was fine, but his powers of prophecy (for he believed that each government could be kept in check) were sadly in error.

To understand how the parallel lines of State and Federal powers have turned awry, it is necessary to look back at the period before these lines were drawn. The acts of ratification by Virginia and her neighbors were acts of sovereign States. At stake was their consent to a written constitution. How, it may be inquired, did they come to be “sovereign States”? What is this concept of State sovereignty?

It would be possible, in any such review, to go back to the great roots of Runnymede, but it will suffice to begin much later, in the turbulent summer of 1776. The startling commitments of Lexington and Concord were behind us then; the bitter trials of White Plains, Vincennes, Camden, and Yorktown still lay ahead. March and April and May had passed—a time of bringing forth, of newness, of fresh hope#151;and great human events had run their course. Now, in June, a resurgent people made the solemn decision to dissolve the political bands which had connected them with another. Thus Jefferson’s draft began, thus the Continental Congress adopted it at Philadelphia; from this moment Americans unborn were to date the years of their independence.

The eloquent beginning of the Declaration—the assertion of truths self-evident and rights beyond alienation—is well known: It is a towering irony that Jefferson, whose convictions were cemented in the inequality of man, should have his precise phrase corrupted by the levellers of a bulldozer society. The Declaration’s beginning is too much recited and too little read.

What counts, for our present purpose, is not the first paragraph, but the last. Let us inquire, What, precisely, was it that we declared ourselves to be that Fourth of July? Hitherto there had been colonies subject to the King. That form of government would now be abolished. We would now solemnly publish and declare to a candid world—what? That the people of the colonies had formed a free and independent nation? By no means. Or that they were henceforth a free and independent people? Still no.

This was the declaration: “That these United Colonies are, and of Right ought to be, FREE AND INDEPENDENT STATES.” Not one State, or one nation, but in the plural—States; and again, in the next breath, so this multiple birth could not be misunderstood, “that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”(2)

It had opened, this Declaration, as an enunciation of what often are termed the “human rights,” but it concluded, in the plainest terms, as a pronouncement of political powers—the political powers of newly created States. And these powers of war and peace, these powers of alliance and commerce, were published not as the powers of a national government, but as powers henceforth asserted by thirteen free and independent States.

To be sure, the States were united. Their representatives styled themselves representatives of the united States of America, in Congress assembled, but it was not the spokesmen of a nation who gathered in parliament. These were States in Congress. “One out of many,” it is said. In a sense, yes. But the many remained—separate States, individual entities, each possessed, from that moment, of sovereign rights and powers.

Certainly Jefferson so understood our creation. “The several States,” he was to write much later, “were, from their first establishment, separate and distinct societies, dependent on no other society of men whatever.”(3)

So Mr. Justice Samuel Chase comprehended it: He considered the Declaration of Independence, “as a declaration, not that the united colonies jointly, in a collective capacity, were independent States, etc., but that each of them was a sovereign and independent State, that is, that each of them had a right to govern itself by its own authority, and its own laws without any control from any other power on earth.” From the Fourth of July, said Chase, “the American States were de facto as well as de jure in the possession and actual exercise of all the rights of independent governments. . . . I have ever considered it as the established doctrine of the United States, that their independence originated from, and commenced with, the declaration of Congress, on the Fourth of July, 1776; and that no other period can be fixed on for its commencement; and that all laws made by the legislatures of the several States, after the Declaration of Independence, were the laws of sovereign and independent governments.”(4)

So, too, the sage and cool-minded Mr. Justice Cushing: “The several States which composed this Union . . . became entitled, from the time when they declared themselves independent, to all the rights and powers of sovereign States.”(5)

Even Marshall himself had no doubts: In the beginning, “we were divided into independent States, united for some purposes, but in most respects sovereign.”(6) The lines which separate the States, he later remarked, were too clear ever to be misunderstood.

And for a contemporary authority, it is necessary only to turn to Mr. Justice Frankfurter, who some years ago fell to discussing the dual powers of taxation preserved under the Constitution: “The States,” he said, “after they formed the Union”—not the people, but the States, “continued to have the same range of taxing power which they had before, barring only duties affecting exports, imports, and on tonnage.”(7) Regrettably, Mr. Justice Frankfurter appears in more recent times to have lost his concept of States forming a Union.

It is no matter. Evidence of the States’ individual sovereignty is abundantly available. Consider, for example, the powers asserted on the part of each State in the Declaration “to levy War, conclude Peace, and contract Alliances.” Surely these are sovereign powers. The States exercised them, as States, in the Revolutionary War. But it is of value to note that New York also very nearly exercised her war powers to enter into formal hostilities with the State of Vermont. Tensions reached so grave a point that Massachusetts, in 1784, felt compelled to adopt a formal resolution of neutrality, enjoining her citizens to give “no aid or assistance to either party,” and to send “no provisions, arms, or ammunition or other necessities to a fortress or garrison” besieged by either belligerent. When New York adopted a resolution avowing her readiness to “recur to force,” Vermont’s Governor Chittenden (whose son was to be heard from thirty years later in another row) observed that Vermont “does not wish to enter into a war with the State of New York.” But should this unhappy contingency result, Vermont “expects that Congress and the twelve States will observe a strict neutrality, and let the contending States settle their own controversy.”

They did settle it, of course. New York and Vermont concluded a peace. The point is that no one saw anything especially remarkable in two separate sovereignties arraying themselves against each other. Vermont was then an individual political entity, as remote at law as any France or Italy. And New York, though a member of the Confederation, and hence technically required to obtain the consent of Congress before waging war, had every right to maintain a standing army for her own defense.

The status of the individual States as separate sovereign powers was recognized on higher authority than the proclamations of Vermont and Massachusetts. It is worth our while to keep in mind the first article of the treaty of September 3, 1783, by which the War of the Revolution came to an end:

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; that he treats with them as such.

More than five years earlier, a treaty of amity and commerce with France had established the same sovereign status of the contracting parties. Louis XVI treated with the thirteen American States, but he recognized each of them as a separate power. And it is interesting to note that Virginia, feeling some action desirable to complete the treaty, prior to action by Congress, on June 4, 1779, undertook solemnly to ratify this treaty with France on her own. By appropriate resolution, transmitted by Governor Jefferson to the French minister at Philadelphia, the sovereign Commonwealth of Virginia declared herself individually bound by the French treaty.(8) In terms of international law, Virginia was a nation; in terms of domestic law, she was a sovereign State.

TO REVIEW the process by which the colonies became States is not necessarily to answer the basic question, What is a State? It is a troublesome word. The standard definition is that a State is “a political body, or body politic; any body of people occupying a definite territory and politically organized under one government, especially one that is not subject to external control.” Chief Justice Chase, in Texas vs. White,(9) put it this way: “A State, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written Constitution, and established by the consent of the governed.” In the Cherokee case, John Marshall described a State as “a distinct political society, separated from others, capable of managing its own affairs and governing itself.”(10)

Thus, variously, a State is defined as a body, a community, and a distinct society. Plainly, mere boundary lines are not enough; a tract of waste and uninhabited land cannot constitute a State. Nor are people, as such, sufficient to constitute a State. James Brown Scott once offered this clear and succinct definition:

The State is an artificial person, representing and controlled by its members, but not synonymous or identical with them. Created for a political purpose, it is a body politic. It is a distinct body, an artificial person; it has a will distinct from its members, although its exercise is controlled by them; it has rights and duties distinct from its members, but subject to being changed by them; it may hold property distinct from its members, but in trust for them; it may act separately and distinctly from them and bind them by its acts, but only insofar as it is authorized by the law of its creation, and subject to being changed by the source of that power.(11)

Thus the State is seen as a continuing political being, controlled by its citizens and yet controlling them. The State can be bound in ways that its own people cannot be bound; it can exercise powers that no citizen or group of citizens may exercise for themselves. The State may buy, sell, hold, grant, convey; it may tax and spend; it may sue, and if it consent, be sued; it exists to create law and to execute law, to punish crime, administer justice, regulate commerce, enter into compacts with other States. Yet there is no State until a community of human beings create a State; and no State may exist without the will and the power of human beings to preserve it.

It is this combination of will and power which lies at the essence of the State in being. This is sovereignty. In the crisp phrase of John Taylor of Caroline, sovereignty is “the will to enact, the power to execute.”(12) Long books have been written on the nature of sovereignty, but they boil down to those necessities: The will to make, the power to unmake.(13)

It was this power, this will, that the people-as-States claimed for themselves in 1776. Henceforth, they said, we are sovereign: The State government is not sovereign, nor is any citizen by himself sovereign. By the “sovereign State” we mean we citizens, the State; we collectively, within our established boundaries; this community of people; we alone who are possessed of the power to create or to abandon.

God knows it was a great, a priceless, power these people-as-States claimed for themselves. True, not everyone saw it that way. Mr. Justice Story, for one, never grasped the concept of States. Nor did Jackson. Albert J. Beveridge, in his biography of Marshall, refers sneeringly to the States as “these pompous sovereignties,” but in a way, Beveridge’s is perhaps a high acknowledgment of the simple truth: These infant States were sovereignties, and the people within them were proudly jealous of the fact. They saw themselves, in Blackstone’s phrase, “a supreme, irresistible, absolute, uncontrolled authority.”(14) This, among other things, was the aim they had fought for. It cannot be imagined that they ever would have relinquished this high power of sovereignty except in the most explicit terms.

IN TIME, the Continental Congress gave way to the Articles of Confederation. The Articles merit examination with the utmost care; they are too little studied, and there is much to be learned from them.

First proposed in 1778, the Articles became binding upon all the States with Maryland’s ratification in 1781. Throughout this period, as the war ran on, each of the States was individually sovereign, each wholly autonomous. Mr. Justice Iredell was to observe, in 1795, that had the individual States decided not to unite together, each would have gone its own way, because each “possessed all the powers of sovereignty, internal and external . . . as completely as any of the ancient kingdoms or republics of the world, which never yet had formed, or thought of forming, any sort of Federal union whatever.”(15)

But they did form a Federal union—a “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.” They styled themselves, “The United States of America,” and in the very second article of their compact, they put this down so no one might miss it:

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.(16)

The third article is almost equally brief, and may be quoted in less space than would be required to summarize it:

The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.

There will be seen, in these opening paragraphs, the genesis of Constitutional provisions that were to follow in less than a decade. Here is the forerunner of the Tenth Amendment, with its reservation of undelegated powers to the States or to the people; here are the aims set forth of “common defense” and the “general welfare.”

The Fourth Article advanced other phrases that have come down to us: The free inhabitants of each State (“paupers, vagabonds and fugitives from justice excepted”) were to be entitled to “all the privileges and immunities of free citizens in the several States.” Here, too, one finds the provision, later to be inserted substantially verbatim in Article IV of the Constitution of 1787, providing for the extradition of fugitives. Here the States mutually agreed that “full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.”

The fifth Article provided for representation of the States in Congress. There were to be no less than two, no more than seven delegates from each State. They would assemble on the first Monday in November of every year. In this Congress, each State cast one vote; each State paid the salary and maintenance of its own delegates. These provisions, of course, were later abandoned; but we may note that the Fifth Article prohibited delegates to the Congress from “holding any office under the United States for which he or another for his benefit receives any salary, fees, or emolument of any kind,” and also provided that “freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress.” Both provisions were to turn up later in Article I, Section 6, of the Constitution.

The Sixth and Seventh Articles dealt generally with limitations upon the States in terms of foreign affairs and the waging of war. Again, many a familiar phrase leaps from this much maligned compact of Confederation. No State, nor the Congress, was to grant a title of nobility; no two or more States were to enter into any treaty, confederation or alliance without the consent of the other States in Congress assembled; no State was to keep vessels of war in time of peace (“except such number as shall be deemed necessary by the United States in Congress assembled”), nor was any State to engage in war without the consent of Congress “unless such State be actually invaded by enemies, or . . . the danger is so imminent as not to admit of a delay. . . .

The Eighth Article provided for defraying the expenses of war among the States “in proportion to the value of all land within each State,” and the Ninth Article dealt with the powers of Congress. Once more, the origin of a dozen specific phrases in our present Constitution is evident. Congress was given the “sole and exclusive right and power of determining on peace and war.” It was to enter into treaties and alliances, establish certain courts, fix standard weights and measures, and establish post offices.(17) But the Congress alone could do almost none of these things—it could exercise no important power—without the consent of nine of the member States.

The remaining four articles are of less interest and concern, though it may be noted that in three places, the framers of the Articles of Confederation provided that their union was a permanent union. The articles were to be inviolably observed by the States the delegates respectively represented, “and the Union shall be perpetual.”

OF COURSE, it wasn’t perpetual at all. Before six years had elapsed, the States came to recognize grave defects in the Articles of Confederation. And because they were sovereign States—because they had the will to enact and the power to execute, because they who had made could unmake—they set out to do the job again.

What they made, this time, was the Constitution of the United States. So much has been written of the deliberations that summer of 1787 in Philadelphia—so many critics have examined every word of the great document which came forth—that probably no new light can be shed upon it here. Yet the Constitutions of most States command their citizens to recur frequently to fundamental principles, and the commandment is too valuable an admonition to be passed by. There is much of interest to be found if one examines the Constitution, the debates and the commentaries of the time, in terms of the relationship there established between the States and the new Federal government they formed.

It may be inquired, was sovereignty here surrendered in whole or in part? What powers were delegated, what powers retained? What were the functions to be performed by the States in the future? Was it ever intended that the States should be reduced to the weakling role thrust upon them in our own time? We must inquire whether this proud possession of State sovereignty, so eloquently proclaimed in 1776, so resolutely affirmed in the Articles of 1781, so clearly recognized in the events of the time, somehow vanished, died, turned to dust, totally ceased to exist in the period of the next six years.

Now, the argument here advanced is this—it is the argument of John Taylor of Caroline and John Randolph of Roanoke—that sovereignty, like chastity, cannot be surrendered “in part.” This was the argument also of Calhoun: “I maintain that sovereignty is in its nature indivisible. It is the supreme power in a State, and we might just as well speak of half a square, or half a triangle, as of half a sovereignty.”(18) This was the position, too, of the bellicose George Troup of Georgia, of Alexander H. Stephens, of Jefferson Davis. It is the position of plain common sense: Supreme and ultimate power must be precisely that. Finality knows no degrees. In law, as in mountain climbing, there comes a point at which the pinnacle is reached; nothing higher or greater remains. And so it is with the States of the American Union. In the last resort, it is their prerogative alone (not that of Congress, not that of the Supreme Court, not that of the “whole people”) to make or unmake our fundamental law. The argument here is that the States, in forming a new perpetual union to replace their old perpetual union, remained in essence what they had been before: Separate, free, and independent States. They surrendered nothing to the Federal government they created. Some of their powers they delegated; all of their sovereignty they retained.

It is keenly important that this distinction be understood. There is a difference between “sovereignty” and “sovereign power.” The power to coin money, or to levy taxes, is a sovereign power, but it is not sovereignty. Powers can be delegated, limited, expanded, or withdrawn, but it is through the exercise of sovereignty that these changes take place. Sovereignty is the moving river; sovereign powers the stone at the mill. Only while the river flows can the inanimate stone revolve. To be sure, sovereignty can be lost—it can be lost by conquest, as in war; the extent or character of sovereignty can be changed, as in the acquisition or relinquishment of territory or the annexation of new peoples; sovereignty can be divided, when two States are created of one. But properly viewed, sovereignty is cause; sovereign powers, the effect: The wind that blows; the branches that move. Sovereignty is the essence, the life spirit, the soul: And in this Republic, sovereignty remains today where it was vested in 1776, in the people. But in the people as a whole? No. In the people-as-States.

The delusion that sovereignty is vested in the whole people of the United States is one of the strangest misconceptions of our public life. This hallucination has been encouraged, if not directly espoused, by such eminent figures as Marshall, Story, and Andrew Jackson. It is still embraced by excessively literal and unthinking fellows who read “we the people” in the preamble to the Constitution, and cry triumphantly, “that means everybody!” It does not; it never did.

The preamble to the abandoned Articles of Confederation, it was noted, declared the articles “binding between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York,” and so forth. The preamble offered by the Convention of 1787, reads:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The opening few words were questioned repeatedly by Patrick Henry in the Virginia Convention of 1788. He kept asking, querulously, what was meant by “we the people,” but he got no very satisfactory answer for his pains.(19) Governor Randolph ducked the question,(20) and Pendleton missed the point. Pendleton asked, rhetorically, “who but the people have a right to form government?” and the answer, obviously, in America, is “no one.” Then Pendleton said this:

If the objection be, that the Union ought to be not of the people, but of the State governments, then I think the choice of the former very happy and proper. What have the State governments to do with it?(21)

Again, the obvious answer is, “the State governments have nothing to do with it,” but that was not the question Henry asked. There is a plain distinction between “we the States” and “we the State governments,” for States endure while governments fall. It was Madison who came closest to answering the insistent Henry. Who are the parties to the Constitution? The people, said Madison, to be sure, are the parties to it, but “not the people as composing one great body.” Rather, it is “the people as composing thirteen sovereignties.” And he added:

Were it . . . a consolidated government, the assent of a majority of the people would be sufficient for its establishment; and, as a majority have adopted it already, we remaining States would be bound by the act of the majority, even if they unanimously reprobated it. . . . But, sir, no State is bound by it, as it is, without its own consent.(22)

Colonel Henry Lee took the same point of view in responding to Patrick Henry. Light Horse Harry spoke as other proponents of the Constitution did, in irritation and perplexity. He could not comprehend why Henry’s question should even be asked. Obviously, the “we the people” mentioned in the preamble—the “we the people” there and then engaged in ratifying the Constitution—were we “the people of Virginia.” If the people of Virginia “do not adopt it, it will always be null and void as to us.”(23)

Here Lee touched and tossed aside what doubtless was so clear to others that they could not understand what Henry was quibbling about. Of course, “we the people” meant what Madison and Lee found so obvious: It meant “we the people of the States.” Why argue the point? “I take this,” said Randolph testily, “to be one of the least and most trivial objections that will be made to the Constitution.”(24)

The self-evident fact, as plain as the buttons on their coats, was that the whole people, the mass of people from Georgia to New Hampshire, obviously had nothing to do with the ratification of the Constitution. The basic charter of our Union never was submitted to popular referendum, taken simultaneously among the 3,000,000 inhabitants of the country on some Tuesday in 1788. Ratification was achieved by the people of the States, acting in their sovereign capacity not as “Americans,” for there is no “State of America,” but in their sovereign capacity as citizens of the States of Massachusetts, New York, Virginia, and Georgia.

This was the sovereign power that sired the new Union, breathed upon it, gave it life—the power of the people of the States, acting as States, binding themselves as States, seeking to form a more perfect union not of people but of States. And if it be inquired, as a matter of drafting, why the preamble of the Articles of Confederation spelled out thirteen States and the preamble of the Constitution referred only to “we the people,” a simple, uncomplicated explanation may be advanced: The framers of the Constitution, in the Summer of 1787, had no way of knowing how many States would assent to the compact.

Suppose they had begun the preamble, as they thought of doing, “We the people of New Hampshire, Massachusetts Bay, Rhode Island,” etc., and the State of Rhode Island had refused to ratify?

It very nearly did. It was not until May 29, 1790, by a vote of 34-32, that Rhode Island agreed to join a union that actually had been created with New Hampshire’s ratification nearly two full years before. Given a switch of two votes, Rhode Island might have remained, to this day, as foreign to the United States (in terms of international law) as any Luxembourg or Switzerland.

Some of these forebodings clearly passed through the minds of the delegates at Philadelphia. When the preamble first appears in the notes, on August 6, it reads: “We the people of the States of New Hampshire, Massachusetts,” etc., “do ordain, declare and establish the following Constitution.” In that form it was tentatively approved on August 7. But the preamble, in that form, never is mentioned again. When the document came back from the Committee on Style in early September, the preamble had been amended to eliminate the spelled-out names of States, and to make it read simply that “we the people” ordain and establish. The change was not haggled over. No significance was attached to it. Why arouse antagonism in New York or North Carolina (where there was opposition enough already) by presuming to speak, in the preamble, as if it were unnecessary for New York or North Carolina even to debate the matter? The tactful and prudent thing was to name no States. Only the people-as-States could create the Union; only the people in ratifying States would be bound, as States, by its provisions.

IN THE end, that was the way the compact read. It bound States—“The ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution between”—between whom?—“between the States so ratifying the same.” Not among people; it was “between States.” And this proposal was put forward “by the unanimous consent,” not of delegates assembled or of people gathered, but by “the unanimous consent of the States present the 17th day of September in the year of our Lord 1787. . . .

On the plain evidence of the instrument itself, it is therefore clear: States consented to the drafting of the Constitution; States undertook to bind themselves by its provisions. If nine States ratified, the Constitution would bind those nine; if ten, those ten. Rhode Island had not even attended the convention; “poor, despised Rhode Island,” as Patrick Henry later was to describe her, could stay aloof if she chose. There was no thought here of people in the mass. There was thought only of people-as-States, and while the new Constitution would of course act directly upon people—that was to be its revolutionary change—it would reach those people only because they first were people-of-States.

The one essential prerequisite was for the State, as a State, to ratify; then the people of the State would become themselves subject to the Constitution. No individual human being, in his own capacity, possibly could assent to the new compact or bind himself to its provisions. Only as a citizen of Virginia or Georgia or Massachusetts could he become a citizen also of the United States.

Madison recognized this. He acknowledged in his famed Federalist 39 that ratification of the Constitution must come from the people “not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong.” Each State, he said, in ratifying the Constitution, “is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.” This fact lay at the essence of the Federal union being formed. The States, and within them their local governments, were to be “no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere.” The jurisdiction of the Federal government was to extend “to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”(25) Even the most casual reading of the Constitution, it may be submitted, abundantly supports Madison’s comment here.

But the Constitution ought not to be read casually. Viewed from the standpoint of State and Federal relations, what does the Constitution say and do? The rubrics do not demand, before an ordinary mortal may explore the question, that he be ordained a Constitutional lawyer or put on the chasuble of the bench. Our Constitution is not the property of a juridical clergy only. The laity may read it too, and with equal acuity and understanding. The terms are not ambiguous.

The first thing to note, perhaps, is that the words “State” or “States” appear no fewer than ninety-four times, either as proper nouns or pronominals, in the brief six thousand words of the original seven articles. The one theme that runs steadily through the whole of the instrument is the knitting together of States: It is a union that is being formed, and while the people are concerned for themselves and their posterity, the Constitution is to be established binding States.

Legislative powers, to begin at the beginning, are vested not in one national parliament of the people, but in a Congress of the United States. The word Congress was chosen with precision; it repeated and confirmed the political relationship of the preceding eleven years, when there had been first a Continental Congress and then a Congress under the Articles of Confederation.

This Congress is to consist of two houses. The first is the House of Representatives, whose members are to be chosen “by the people of the several States.” And here, in the very second paragraph, the framers encountered an opportunity to choose between a “national” and a “federal” characteristic: They might have established uniform national qualifications for the franchise, but they did not. Electors qualified to vote for candidates for the House of Representatives are to have “the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”

Representatives and direct taxes are to be apportioned—how? “Among the several States which may be included within this Union, according to their respective Numbers.” How is this enumeration to be determined? The provision should be noted with care, for it is the first of four clauses that speaks eloquently of the plural nature of our Union: “The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.” (Emphasis supplied.) Now, the antecedent of they is not “Congress,” but “United States.” Nowhere in the whole of the Constitution or in any of the subsequent amendments is the United States an “it.” The singular never appears.

What else sheds light in the second section of Article I? We find that “each State shall have at Least one Representative,” whereupon follows a roll call of the States themselves: “Until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight,” and so forth. And when vacancies happen “in the Representation from any State,” the Governor thereof is to issue a writ of election.

The dignity and sovereignty of States are made still more evident in the composition of the Senate. It is to be composed “of two Senators from each State,” and whereas Representatives are required to be inhabitants of the States “in which” they shall be chosen, Senators must be inhabitants of the States “for which” they shall be chosen.(26)

It is in section four that the first grant of authority to the Federal government appears: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but”—and here the qualified concession—“the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

The delegations of power to a Federal government appear most fully, of course, in Section 8, but it is worth noting that not all the powers delegated to Congress are exclusive and unqualified powers. Thus, the Congress may raise and support armies, “but no Appropriation of Money to that Use shall be for a longer Term than two Years.” Thus, the Congress may provide for organizing, arming, and disciplining the militia, and for governing such part of the militia as may be employed in the service of the United States, but there is reserved “to the States respectively” the appointment of officers and the authority to train their militia according to regulations established by Congress. Thus, too, Congress may exercise Federal authority over Federally-owned property within the States, but how is such property to be acquired? The authority of the Congress extends only to those places “purchased by the Consent of the Legislature of the State in which the Same shall be,” and this applies not only to military and naval installations but also to “other needful Buildings.”

Several provisions in Section 9 merit attention. As a concession to the slave trade—one of the essential compromises without which the Constitution never would have come into being at all—it was provided that “the Migration or Importation of such Persons as any of the States now existing shall think proper to admit,” shall not be prohibited prior to 1808. Then follow seven paragraphs of specific restrictions upon the powers of Congress. The privilege of the writ of habeas corpus shall not be suspended; no bill of attainder or ex post facto law shall be passed; no direct tax shall be levied except according to the census of the people as a whole; no tax or duty shall be laid on articles exported “from any State”; and—again emphasizing the separateness of the member States forming the union—“No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.”

In Section 10, the States undertook to restrict themselves. No State shall enter into any treaty, alliance, or confederation; no State shall coin money or make anything but gold and silver legal tender; no State shall make any law impairing the obligation of contracts. Yet even here, the prohibitions are not without qualification. Thus, the States reserved to themselves the right to levy tariffs on imports or exports sufficient to execute their inspection laws; and though the fact is often forgotten, the States even reserved to themselves the solemn power they had claimed under the Articles of Confederation, to “engage in war,” as States, if “actually invaded, or in such imminent Danger as will not admit of delay.”

In the second Article of the Constitution, dealing with the Presidency, the framers again had an opportunity to choose between national and federal characteristics. At least twice during the convention of 1787, on July 17 and again on August 24, it was proposed that the President be chosen by popular, national election, but each time the proposal was overwhelmingly rejected. Instead, the framers agreed upon the plan of presidential electors which exists to this day: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” These electors are to meet “in their respective States.” If any person fail to obtain a majority of the electoral vote, the House of Representatives is to elect a President, but how is this to be done? “In chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote.” Other protective clauses follow, still further emphasizing the role and the importance of the States: “A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice.”

Article III, defining the judicial power of the United States, contains several provisions of interest in this review. We may note, for example, two further uses of the plural: First, the judicial power is to extend “to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority.” Second, treason against the United States is to consist “only in levying War against them, or in adhering to their Enemies.” Because the authority of the Court will be considered at length in a later chapter, it will suffice here merely to point out that nowhere in Article III is the Court given jurisdiction over controversies between a State and the United States. That proposal was specifically advanced during the convention, and specifically rejected.

Every section—indeed, every paragraph—of Article IV touches upon the federal nature of the Union. Full faith and credit are to be given “in each State” to the acts and judicial proceedings “of every other State.” If this were not a federal union, the provision would be nonsense. Beyond this, “the Citizens of each State” shall be entitled to all privileges and immunities of citizens “in the several States.” A person charged “in any State” with crime, who shall flee from justice “and be found in another State,” shall be delivered up on demand “to be removed to the State having Jurisdiction of the Crime.”

Then comes the provision that Northern States were to flout over a period of thirty years: “No Person held to Service or Labour in one State, under the laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”

Finally, we may note in Article IV the provision for admitting new States “into this Union” (not this Nation, but this Union): “No new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”

Article V had best be quoted in full. It has not been changed by so much as an apostrophe in the years since it came from Philadelphia in September of 1787. It still fixes and defines the sovereign power:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of it’s equal Suffrage in the Senate. [Emphasis supplied.]

Pause for a moment over this article of the Constitution. We are dealing here with Taylor’s “will to enact” and “power to execute” we are dealing with Marshall’s “power to make and unmake.” It was plainly envisioned by the framers that their work would require amendment through the years. “That useful alterations will be suggested by experience, could not but be foreseen,” Madison was to write.(27) There was a double aim in the provision, even a triple aim. Article V, Madison tells us, was intended, first, to guard equally against too-easy amendment on the one hand and too-difficult amendment on the other. It was drafted, secondly, to permit amendments to originate both with the Federal and with the State governments. But it was intended, finally, to leave the ultimate decision upon changing the Constitution to the sovereign States themselves—not to the people as a mass, nor even to a bare majority of the States as such. It was recognized that the great, overriding principle of protection for minorities should apply here as bindingly as it was to apply elsewhere. If one-fourth-of-the-States-plus-one should object to a change in the Constitution—even if that change were desired by three-fourths-minus-one (and even if this larger fraction should include the great bulk of the total population)—the change could not be engrafted to the Constitution.

Article VI is brief. Its first provision covers debts and engagements entered into under the Articles of Confederation and continues these obligations under the proposed new Constitution; its third provision prohibits any religious test as a qualification for public office and requires an oath to support the Constitution of all public officers, both State and Federal.

It is the second provision that merits brief attention in this summary review:

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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Let us go back: What is to be supreme? Three things. First, “this Constitution.” Secondly, “laws of the United States which shall be made in pursuance thereof.” Third, treaties made “under the authority of the United States.” That is all. Not executive orders of the President. Not even judgments of the Supreme Court. The Constitution, the laws made in pursuance thereof, the treaties.

In passing, note the phrase “law of the land.” It stems originally from the Magna Charta; but as it appears in the Constitution, “law of the land” was merely a substitution, proposed by the committee on style, for “law of the several States and their citizens and inhabitants.” The object was to extend this new supreme law to territories as well as to the States.(28) And this phrase, “law of the land,” is as close as the Constitution ever comes to suggesting a “nation.” Actually the word “nation” or the word “national” never appears in the Constitution.(29)

The aim, we will recall, was to form “a more perfect Union.” Representatives and taxes were to be apportioned among the several States which may be included “within this Union.” The militia may be called forth to execute “the Laws of the Union.” The President is to provide Congress with information on the “State of the Union.” New States are to be admitted “into this Union.” The guarantee of a republican form of government goes “to every State in this Union.” But never, at any point, are the United States described, in the Constitution, as comprising a “nation.”

This is not to contend, of course, that ours is not a nation, or that the Federal government does not operate “nationally.” It is only to suggest that the deliberate terms of the Constitution speak for themselves, and should be heeded: Our country is, first and foremost, originally and still, a union of States. And when we speak of the “law of the land,” it should be kept steadily in mind that “the land” is a federal union, in which each of the States stands co-equal with every other State. The Constitution is supreme not only in its authority over each State, but also in its protection over each State. And each State, each respective State, is entitled to rely upon the Constitution as embodying supreme law that all other States must adhere to with equal fidelity, like it or not, until the Constitution be changed by the States themselves.

Note, too, the careful qualification that defines laws enacted by the Congress. Just any laws of the United States are not enough: Laws, to be binding, must be laws made in pursuance of the Constitution. Any attempted statutes that invade the residuary authority of the States, Hamilton tells us,(30) “will be merely acts of usurpation, and will deserve to be treated as such.” And he adds, at another point, that:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.(31)

Surely, it may be urged that precisely the same standard must be applied to other branches of the Federal government—the executive and judicial no less than the legislative. By extension, thus, judgments of the Court, to be supreme law of the land, must be made pursuant to the Constitution. A judgment of the Court, so violative of the clear terms and understandings of the Constitution as to invade the residuary authority of the States, must also be regarded as a usurpation, and should deserve to be treated as such. The argument will be pursued at greater length hereafter.

Finally, this brief examination of the Constitution from the standpoint of the States may be concluded with a second look at Article VII. It should be read carefully, for this is the clause that binds: “The Ratification of the Conventions of nine States”—not, again, the approval of a majority of the people in a popular referendum, but the ratification of nine States—“shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

Thus, on September 17, the Convention concluded its work. George Washington, as president of the Convention, transmitted the document to the Congress. A prophetic sentence appeared in his letter, as he mentioned the compromises necessary for the surrender of sovereign powers: “It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved.” The States had done the best they could through their delegates. Eager to consolidate their Union, each State had been disposed “to be less rigid on points of inferior magnitude than might have been otherwise expected.” They launched the ship.

“Well, Doctor,” said the lady to Mr. Franklin, “what have we got, a republic or a monarchy?”

“A republic,” replied the doctor, “if you can keep it.”

FOR THE States’ understanding of what the Constitution was to mean to them, as States, we can look not only to the internal evidence of the Constitution itself, but to the debates in the ratifying conventions and to some of the contemporary criticism, notably in the Federalist papers. We can look, also, to some of the pronouncements of the Supreme Court from time to time, and to the writings of scholars of our own day.

The evidence is overwhelming. By written compact, solemnly ratified, the States agreed mutually to delegate certain of their sovereign powers to a federal government. They enumerated these powers. All other powers they reserved to themselves, and these reserved powers did not need to be enumerated: The reserved powers constituted all inherent powers of sovereign States, not specifically abridged.

So plain was this understanding that the feeling most frequently encountered, in reading comments of the period, is one of incredulity that anyone should doubt it.

“The proposed Constitution,” said Hamilton, “so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power.”(32)

So, too, said Madison:

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 other objects which can be separately provided for, will retain their due authority and activity.(33)

Neither Hamilton nor Madison could quite imagine the Federal government ever seriously encroaching upon the States.

“Allowing the utmost latitude to the love of power which any reasonable man can require,” said Hamilton, “I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository.”(34)

Then he added, with a singular absence of prophecy:

The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the Federal councils to usurp the powers with which they are connected. . . .

It will always be far more easy for the State governments to encroach upon the national authorities, than for the national government to encroach upon the State authorities.

Madison, also, imagined that the Federal government would “be disinclined to invade the rights of the individual States, or the prerogatives of their governments.”(35) For his part, Hamilton thought it more probable that the States would encroach upon the Federal government, and he imagined that in such contests the State governments, because they “will commonly possess most influence” over the people, would dominate Federal agencies “to the disadvantage of the Union.” However, all such conjectures Hamilton viewed as “extremely vague and fallible.”(36) He preferred to assume that the people “will always take care to preserve the constitutional equilibrium between the general and the State governments.”

In Number 45, Madison treated at considerable length the widespread apprehension that the States would be obliterated. Some of his comments have been outdated; what he has to say about the election of Senators, for example, unhappily has been superseded by the misfortune of the Seventeenth Amendment. Some of his other observations, dealing with functions of what was to become the Bureau of Internal Revenue, may occasion some wry reflection on the lengths by which even a Madison could miss his guess. But as contemporary evidence of the role guaranteed to the States, Number 45 justifies quotation at some length:

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.

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. Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the State legislatures. Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them. On the other side, the component parts of the State governments will in no instance be indebted for their appointment to the direct agency of the federal government, and very little, if at all, to the local influence of its members.

The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States. There will consequently be less of personal influence on the side of the former than of the latter. The members of the legislative, executive, and judiciary departments of thirteen and more States, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town officers, for three millions and more of people, intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system. Compare the members of the three great departments of the thirteen States, excluding from the judiciary department the justices of peace, with the members of the corresponding departments of the single government of the Union; compare the militia officers of three millions of people with the military and marine officers of any establishment which is within the compass of probability, or, I may add, of possibility, and in this view alone, we may pronounce the advantage of the States to be decisive.

If the federal government is to have collectors of revenue, the State governments will have theirs also. And as those of the former will be principally on the seacoast, and not very numerous, whilst those of the latter will be spread over the face of the country, and will be very numerous, the advantage in this view also lies on the same side. It is true, that the Confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the States; but it is probable that this power will not be resorted to, except for supplemental purposes of revenue; that an option will then be given to the States to supply their quotas by previous collections of their own; and that the eventual collection, under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States. . . .

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. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defence, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.

If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them. . . .

Even John Marshall, who did more than any man in our history to aggrandize the Federal government and to weaken the States, never doubted the basic structure of divided powers. Consider, briefly, his comment in the famed case of McCulloch vs. Maryland.(37) The case arose when Congress established the Bank of the United States, and Maryland undertook to levy a tax upon the bank’s Baltimore branch; James McCulloch, the cashier, refused to pay the tax, and Maryland sued.

The legal questions were two: Did Congress have power to incorporate the bank, and secondly, did Maryland have power to tax it? Marshall answered the first one yes, the second, no. With the bulk of his reasoning, strict constructionists and apostles of States’ rights will disagree: Marshall’s sophisticated mind did not boggle at stretching “necessary” to mean “convenient.” In considering the actual act of ratification by which the Union was formed, Marshall was not much impressed by the fact, which he could not escape, that the people met in State conventions. “Where else should they have assembled?” he asked. But even here, a couple of sentences merit quotation as evidence from the States’ greatest detractor:

It is true, [the people] assembled in their several States—and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States.

Marshall went on in his opinion to confuse “States” and “State governments,” thus setting up a convenient straw man to batter down. No one ever had contended that the Constitution was ratified by State governments, but Marshall, with a glittering display of intellectual swordsmanship, neatly skewered the non-existent objection. Then he went on to say:

This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist.

True enough, the question of “the extent of powers” does continue to arise to this day, though the doctrines of Marshall have so pervaded public thinking that it often is forgotten that the Federal government has any limitations whatever.(38) But the separateness of the States and the nature of their delegated powers were clearly recognized when the Constitution was created. The prophets who foresaw the trend toward consolidation—notably Patrick Henry and George Mason—were told they were old women, seeing ghosts.

Consider, if you will, the debate on ratification in Virginia. The transcript offers some absorbing reading. If the clash of a Henry and a Mason with a Pendleton and a Madison does not prompt reflection upon subsequent corruption of the Constitution, at the very least their battle must lead to regrets at the decline in the quality of today’s legislative debates. There were giants in those days. This was, to paraphrase Marshall, a Constitution they were debating.(39) What was said of the relationship of the States and the Federal government?

Go back in time. This was a sultry summer in Richmond. At least twice the brief convention was interrupted by thunder storms so severe the delegates were forced to recess. Tempers flared sharply: At one point Edmund Randolph, infuriated with Patrick Henry, was prepared to let their friendship “fall like Lucifer, never to rise again.” They began on Monday, June 2; they adjourned sine die on Friday, June 27. Into those four weeks, the Virginians of 1788 packed a world of profound reflection upon the meaning and intention of the Constitution.

Edmund Pendleton served as president of the Virginia Convention. He was a remarkable man: lawyer, scholar, statesman, thinker. In advocating ratification, Pendleton was joined by James Madison, John Marshall, Edmund Randolph, and Light Horse Harry Lee. They carried the day against Patrick Henry and George Mason, as leading opponents of the proposition.

The convention scarcely had begun before Henry established the broad spread of argument. He did not propose to abide by any parliamentary decision to debate one clause at a time. Before the convention in Philadelphia the previous summer, said Henry, a general peace and a universal tranquility had prevailed. Now he was “extremely uneasy at the proposed change of government.” He swept the room with a cold eye: “Be extremely cautious, watchful, jealous of your liberty. Instead of securing your rights, you may lose them forever.”(40)

George Mason came to his side. He charged that the new Constitution would create “a national government, and no longer a Confederation.” He especially denounced the authority proposed in the general government to levy direct taxes. This power, being at the discretion of Congress and unconfined, “and without any kind of control, must carry everything before it.” The idea of a consolidated government, he said, “is totally subversive of every principle which has hitherto governed us. This power is calculated to annihilate totally the State governments. . . . These two concurrent powers cannot exist long together; the one will destroy the other; the general government, being paramount to and in every respect more powerful than the State governments, the latter must give way to the former.”(41)

Then Mason voiced the argument that is as applicable in the mid-twentieth century as it was toward the end of the eighteenth:

Is it to be supposed that one national government will suit so extensive a country, embracing so many climates, and containing inhabitants so very different in manners, habits, and customs? It is ascertained, by history, that there never was a government over a very extensive country without destroying the liberties of the people. . . . Popular governments can only exist in small territories.(42)

On Thursday, June 5, Pendleton undertook to respond to Henry and to Mason. Was the proposed government, he inquired, truly a consolidated government? Of course not. “If this be such a government, I will confess, with my worthy friend, that it is inadmissable. . . .” The proposed Federal government, he said, “extends to the general purposes of the Union. It does not intermeddle with the local, particular affairs of the States. . . . It is the interest of the Federal to preserve the State governments; upon the latter the existence of the former depends. . . . I wonder how any gentleman, reflecting on the subject, could have conceived an idea of the possibility of the latter. . . .(43)

Henry conceived it. He conceived it very clearly. The proposed Constitution, he felt, was “extremely pernicious, impolitic and dangerous.” He saw no jeopardy to the people in the Articles of Confederation; he saw great jeopardy in this new Constitution. And he had this to say:

We are descended from a people whose government was founded on liberty: Our glorious forefathers of Great Britain made liberty the foundation of every thing. That country is become a great, mighty and splendid nation; not because their government is strong and energetic, but, sir, because liberty is its direct end and foundation. We drew the spirit of liberty from our British ancestors: By that spirit we have triumphed over every difficulty. But now, sir, the American spirit, assisted by the ropes and chains of consolidation, is about to convert this country into a powerful and mighty empire. If you make the citizens of this country agree to become the subjects of one great consolidated empire of America, your government will not have sufficient energy to keep them together. Such a government is incompatible with the genius of Republicanism.(44)

And note this prophetic observation:

There will be no checks, no real balances, in this government. What can avail your specious, imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances?

What indeed? What have these ideal checks and balances availed the States in the twentieth century? Henry saw the empty prospect: “This Constitution is said to have beautiful features; but when I come to examine these features, sir, they appear to me horribly frightful. Among other deformities, it has an awful squinting; it squints toward monarchy; and does not this raise indignation in the breast of every true American?”

It was monarchy, per se, that Henry foresaw. And it was despotism at the hands of a general government that he feared.

“What are your checks in this government?” he kept asking.

No one ever answered him accurately, though half a dozen members of the convention undertook to refute Henry and to allay his apprehensions. Randolph, replying to the objection that the country soon would be too large for effective government from the capital, commented that “no extent on earth seems to me too great,” but he added, “provided the laws be wisely made and executed.” It has proved to be a large qualification.

Madison also responded to Henry’s general objection that the liberty of the people was in danger: “Since the general civilization of mankind,” he said, “I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power, than by violent and sudden usurpations.”(45)

Follow closely what Madison had to say next. He is expounding the relationship of the State and Federal governments as he, above all men, understood it:

Give me leave to say something of the nature of the government. . . . There are a number of opinions; but the principal question is, whether it be a federal or consolidated government. In order to judge properly of the question before us, we must consider it minutely in its principal parts. I conceive myself that it is of a mixed nature; it is in a manner unprecedented; we cannot find one express example in the experience of the world. It stands by itself. In some respects it is a government of a federal nature; in others it is of a consolidated nature. . . . Who are parties to it?

Note this, especially; it was quoted earlier but it bears repetition:

The people—but not the people as composing one great body; but the people as composing thirteen sovereignties.(46)

Francis Corbin, one of the ablest political students of his time, then joined Madison in soothing the growing fear that the Federal government might one day absorb the State governments. “The powers of the general government,” he said, “are only of a general nature, and their object is to protect, defend, and strengthen the United States; but the internal administration of government is left to the State legislatures, who exclusively retain such powers as will give the States the advantages of small republics, without the danger commonly attendant on the weakness of such governments.”(47)

Henry, undaunted, straightened his red wig and returned to the debate. “That government is no more than a choice among evils,” he remarked, “is acknowledged by the most intelligent among mankind, and has been a standing maxim for ages.” He could not accept the idea that this new government would be “a mighty benefit to us.”

Sir, I am made of so incredulous materials, that assertions and declarations do not satisfy me. I must be convinced, sir. I shall retain my infidelity on that subject till I see our liberties secured in a manner perfectly satisfactory to my understanding.(48)

This exchange occurred on Friday, June 16. The following Monday, Henry renewed his assault:

A number of characters, of the greatest eminence in this country, object to this government for its consolidating tendency. This is not imaginary. It is a formidable reality. If consolidation proves to be as mischievous to this country as it has been to other countries, what will the poor inhabitants of this country do? This government will operate like an ambuscade. It will destroy the State governments, and swallow the liberties of the people, without giving previous notice.(49)

Madison came back with fresh replies and new remonstrances. The States were safely protected, he assured the Virginia convention. And renewing the arguments he had advanced in the Federalist, “There will be an irresistible bias toward the State governments.” It was utterly improbable—almost impossible—that the Federal government ever would encroach upon the States.

The means of influence consist in having the disposal of gifts and emoluments, and in the number of persons employed by and dependent upon a government. Will any gentleman compare the number of persons which will be employed in the general government with the number of those which will be in the State governments? The number of dependents upon the State governments will be infinitely greater than those on the general government. I may say, with truth, that there never was a more economical government in any age or country, nor which will require fewer hands, or give less influence.(50)

Pendleton again gained the floor to tackle Henry’s objection. We are told, he said,

that there will be a war between the two bodies equally our representatives, and that the State government will be destroyed, and consolidated into the general government. I stated before, that this could not be so. The two governments act in different manners, and for different purposes—the general government in great national concerns, in which we are interested in common with other members of the Union; the State legislature in our mere local concerns. . . . Our dearest rights—life, liberty and property—as Virginians, are still in the hands of our State legislature. . . .(51)

Patrick Henry remained unconvinced. His opinion and Madison’s were “diametrically opposite.” The mild-mannered Madison said the States would prevail. Henry, a dramatic and eloquent speaker, feared the Federal government would prevail. Bring forth the Federal allurements, he cried,

and compare them with the poor, contemptible things that the State Legislatures can bring forth. . . . There are rich, fat, Federal emoluments. Your rich, smug, fine, fat, Federal officers—the number of collectors of taxes and excises—will outnumber anything from the States. Who can cope with the excise man and the taxmen?(52)

Henry did not imagine that the dual governments could be kept each within its proper orbit. “I assert that there is danger of interference,” he remarked, “because no line is drawn between the powers of the two governments, in many instances; and where there is a line, there is no check to prevent the one from encroaching upon the powers of the other. I therefore contend that they must interfere, and that this interference must subvert the State government as being less powerful. Unless your government have checks, it must inevitably terminate in the destruction of your privileges.”

William Grayson, burly veteran of the Revolution, was another member of the Virginia convention who clearly perceived the absence of effective checks and balances. “Power ought to have such checks and limitations,” he said, “as to prevent bad men from abusing it. It ought to be granted on a supposition that men will be bad; for it may be eventually so.”(53)

Grayson was here discussing his apprehensions toward the powers vested by Article III in the Supreme Court of the United States. “This court,” he protested, “has more power than any court under heaven.” The court’s appellate jurisdiction, especially, aroused his alarm: “What has it in view, unless to subvert the State governments?”

But Grayson was not alone in foreseeing the possibilities of judicial corruption of the Constitution. Even so stout an advocate of ratification as Governor Randolph admitted strong doubts and reservations. The court’s jurisdiction was to extend to “all cases in law and equity . . . arising under the Constitution.” What did the phrase relate to?

I conceive this to be very ambiguous. If my interpretation be right, the word “arising” will be carried so far that it will be made use of to aid and extend the Federal jurisdiction.

Grayson agreed: “The jurisdiction of all cases arising under the Constitution and the laws of the Union is of stupendous magnitude. It is impossible for human nature to trace its extent. It is so vaguely and indefinitely expressed that its latitude cannot be ascertained.”(54)

True, said Mason: The court’s jurisdiction “may be said to be unlimited.” He was profoundly disturbed by the prospect. The greater part of the powers given to the court, he felt, “are unnecessary, and dangerous, as tending to impair, and ultimately destroy the State judiciaries, and, by the same principle, the legislation of the State governments.” Indeed, the court was “so constructed as to destroy the dearest rights of the community.” Nothing would be left to the State courts: “Will any gentleman be pleased, candidly, fairly, and without sophistry, to show us what remains?”

He continued his criticism of the court’s jurisdiction:

There is no limitation. It goes to everything. . . . All the laws of the United States are paramount to the laws and Constitution of any single State. “The judicial power shall extend to all cases in law and equity arising under this Constitution.” What objects will not this expression extend to? . . . When we consider the nature of these courts, we must conclude that their effect and operation will be utterly to destroy the State governments; for they will be the judges how far their laws will operate. . . . To what disgraceful and dangerous length does the principle of this go! . . . The principle itself goes to the destruction of the legislation of the States, whether or not it was intended. . . . I think it will destroy the State governments. . . . There are many gentlemen in the United States who think it right that we should have one great, national, consolidated government, and that it was better to bring it about slowly and imperceptibly rather than all at once. This is no reflection on any man, for I mean none. To those who think that one national, consolidated government is best for America, this extensive judicial authority will be agreeable; but I hope there are many in this convention of a different opinion, and who see their political happiness resting on their State governments.(55)

It was John Marshall, who fifteen years later would do so much to justify Mason’s apprehensions, who undertook to allay his fears now. The Federal government, he insisted, certainly would not have the power “to make laws on every subject.” Could members of the Congress make laws affecting the transfer of property, or contracts, or claims, between citizens of the same State?

Can they go beyond the delegated powers? If they were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void.(56)

Marshall saw no danger to the States from decrees of the Supreme Court: “I hope that no gentleman will think that a State will be called at the bar of the Federal court. . . . It is not rational to suppose that the sovereign power should be dragged before a court.”(57)

Madison, Monroe, and others joined Marshall in defending the Third Article. Their debate was long and detailed. Much of it was concerned with questions of pleading and practice. But after several days, they went on to other aspects of the Constitution: The prospect of judicial despotism was recognized by the few, and denied by the many.

IN THE END, Virginia ratified. It was a close vote. A motion to postpone ratification until amendments, in the nature of a bill of rights, could be considered by “the other States in the American confederacy,” failed by 88 to 80. Then the main question was put, and this was what Virginia agreed to. It merits careful reading:

We, the delegates of the people of Virginia, . . . having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared, as well as the most mature deliberation hath enabled us, to decide thereon, Do, in the name and in behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power, not granted thereby, remains with them, and at their will; that, therefore, no right, of any denomination, can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate or House of Representatives, acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and that, among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States. . . .

The vote on that main question was 89 to 79, but even that narrow margin of approval was predicated upon a gentlemen’s agreement that the Virginia Convention would recommend a number of amendments, in the form of a Bill of Rights, to be presented to the first Congress. And the first of these recommended amendments reads: “That each State in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the Federal government.”

By the time Virginia completed ratification, of course, her decision no longer carried compelling importance. The Virginia convention had opened on June 2, not quite two weeks after South Carolina, on May 23, had become the eighth State to ratify. But while the Virginians were debating the issue, New Hampshire, on June 21, had become Number Nine: The new Union had been formed, and the Constitution had become binding upon the nine States “ratifying the same.” It has ever been Virginia’s fate to make the right decisions, but to put off making them as long as possible.

In this consideration of State and Federal relationships, there is something to be learned from the other resolutions of ratification. The easy ones came first: Delaware came first, on December 7, 1787, “fully, freely and entirely” approving and assenting to the Constitution; and then, in quick succession, Pennsylvania on December 12, after a bitter fight; New Jersey on December 18, and Georgia—Georgians had not even read the Constitution—on January 2, 1788.(58) Connecticut followed a week later, with a comfortable vote of 128 to 40.

Then a month’s hiatus set in. Massachusetts did not become Number Six until February 7, and her approval of this “explicit and solemn Compact” was not unqualified:

It is the opinion of this convention that certain amendments and alterations in the said Constitution would remove the fears and quiet the apprehensions of many of the good people of this Commonwealth, and more effectually guard against an undue administration of the Federal government.(59)

It will come as no surprise that the very first amendment recommended by Massachusetts was “that it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised.”

Two months later, on April 28, Maryland ratified. Then there was another lapse of nearly a month before South Carolina, on May 23, became Number Eight. South Carolina accompanied her resolution of ratification with a pointed statement that she considered it essential “to the preservation of the rights reserved to the several States” and for the freedom of the people, that the State’s right to prescribe the manner, time, and places of Congressional elections “be forever inseparably annexed to the sovereignty of the several States.” Then South Carolina added:

This Convention doth also declare that no Section or paragraph of the said Constitution warrants a Construction that the States do not retain every power not expressly relinquished by them and vested in the General Government of the Union.(60)

New Hampshire, in voting its approval on June 21, closely paralleled the action of Massachusetts, but New Hampshire’s declaration as to reserved powers was even more explicit. The people of New Hampshire wanted it understood that all powers not “expressly and particularly delegated” were reserved.

So, too, with New York, which became Number Eleven on July 26. The convention at Poughkeepsie wished to make it known:

That every Power, Jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.(61)

Interestingly enough, New York’s convention also wanted certain things made known about the Supreme Court of the United States, to wit,

That the Jurisdiction of the Supreme Court of the United States, or of any other Court to be instituted by the Congress, is not in any case to be encreased enlarged or extended by any Fiction Collusion or mere suggestion;—And That no Treaty is to be construed as to alter the Constitution of any State.(62)

With New York’s ratification, a quite extended period of inaction began. It was not until November 21, 1789, nearly a year and a half later, that North Carolina became Number Twelve in the Union. And North Carolina, for her part, inserted a declaration:

That each State in the Union shall, respectively, retain every power, jurisdiction and right, which is not by this Constitution delegated to the Congress of the United States or to the departments of the Federal government.(63)

Finally, after another lapse of half a year, Rhode Island completed the chain of member States. On May 29,1790, Rhode Island, with great caution and reluctance, joined the Union. The margin of ratification, we have noted, was a bare 34 to 32. Clearly, the necessary votes would not have been obtained if the resolution of approval had not included eighteen detailed paragraphs of understandings, plus no fewer than twenty-one proposed amendments. The third of these “impressions” declared:

That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness:—That the rights of the States respectively, to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several States, or their respective State governments to whom they may have granted the same. . . .(64)

And the very first of Rhode Island’s recommended amendments proposed that:

The United States shall guarantee to each State its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this Constitution expressly delegated to the United States.(65)

All these various recommendations as to Constitutional amendment were grouped together by the First Congress in a resolution on March 4, 1789, submitting what is now the Bill of Rights to the member States. Twelve proposals in all were offered. Numbers One and Two failed of ratification; the first would have fixed representation in the House according to a precise guarantee by population; the second would have provided that no law changing the salaries of Congressmen could take effect “until an election of Representatives shall have intervened.” The remaining ten amendments won a sufficient number of States; and the tenth of these, as it is now embedded in our Constitution, forever proclaims that:

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.

In recent years, the Supreme Court of the United States has undertaken to repeal the Tenth Amendment by treating it as a meaningless appendage to the Constitution—mere surplusage, a tautological expression of self-evident facts. The Tenth Amendment “added nothing to the instrument as originally ratified,” said the Supreme Court in 1931.(66) The Amendment “states but a truism,” added Chief Justice Stone ten years later.(67) But the overwhelming preponderance of evidence proves that when the Tenth Amendment was nailed into the Constitution, the ratifying States regarded this statement of reserved powers as a vital, indeed an absolutely necessary addition to the Constitution.

The Supreme Court, it may be suggested, has no authority to repeal any provision of the Constitution. Mr. Justice Frankfurter, no less, is a recent authority on the point: “Nothing new can be put into the Constitution except through the amendatory process,” he said recently for the court. “Nothing old can be taken out without the same process.”(68) And so long as the Tenth Amendment remains a part of the Constitution, it is elementary that it must be given full meaning—that the intention of its framers must be acknowledged and respected. Plainly, the intention of the Tenth Amendment was to restrict the Federal government—to hold it within the strict boundaries of the delegated powers. To be sure, John Marshall, not long after the Union was formed, was to seize upon the fact that the restriction went only to the “powers not delegated,” and not to the “powers not expressly delegated,” as if this made some large difference. But by that time Marshall was at the helm, and the powers of the States already were being eaten away by slow judicial erosion. The process continues, at an accelerated pace, to this day.