State Sovereignty in the United States
Due to the debate on the states that recently proposed sovereignty resolutions, I wrote the following:
Spoiler Alert, click show to read:
State Sovereignty in the United States
Recently twenty states have introduced resolutions intended to reclaim their sovereignty, and a couple threaten dissolution of the Union should the Federal government violate a provision of the resolution. One has already passed the lower chamber of Oklahoma, and State Senate leaders say that it will probably pass their chamber. Do they have a point? Could they just be sore losers? They do indeed have a point: The states created the Federal government, and they did so for their purposes. The Federal government is, de jure, a voluntary union of sovereign who have delegated certain authorities to the Federal authority. De facto, we are a unitary state that keeps the states in line through various forms of coercion. This is neither the Constitutional or the moral thing to do.
Many opponents of state sovereignty say that the Union has been existence since the Articles of Association in 1774, and is one continuously evolving sovereign since the Declaration of Independence. This is simply not true. Prior to the Constitution, there are several legal documents that support the idea that the states were sovereign. Those are the Treaty of Paris, Articles of Confederation, and the Declaration of Independence itself. The Treaty of Paris states in Article one:
His Brittanic 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, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.
Why go to the trouble of naming every state of the Union, and define them in the plural afterward, if you really mean that you recognize the sovereign government of the whole nation? His Britannic Majesty acknowledged all of the states separately as sovereign and independent, and so did all of his heirs. The British never had the occasion to change their form of recognition post-Constitution, so theoretically this still holds true for the current heir to the crown, Elizabeth II.
The Articles of Confederation are quite clear on the matter of sovereignty, Article two states:
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.
It doesn’t get much clearer than that. Many opponents of state sovereignty use the word “perpetual” in the preamble to justify opposition to secession. This is a flawed argument in that, one, perpetual can mean that something goes on until an unforeseeable point in future time, and two, the Union under the Articles of Confederation didn’t last but a few years. Some may say that it immediately transitioned into the new government under the Constitution of 1787, but this is simply not true because two states enjoyed independent status because they had not ratified the Constitution: Rhode Island and North Carolina (Hawes, 44)*. The Articles clearly were built around the idea that states were sovereign and could withdraw their consent if they so desired.
The Declaration of Independence states in its operative clause states:
We, therefore, the representatives of the United States of America, in General Congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these united colonies are, and of right ought to be free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved; and that as free and independent states, they have full power to levey war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.
It clearly states “free and independent states” and that “they have full power to levey war, conclude peace…” The states declared their independence from Great Britain, and declared that they each had their own independence. There wasn’t even any union at all up until this point, though it was assumed by many that the new states would confederate. They ultimately did.
Later on the adoption of the Constitution significantly altered the form which the Federal government took its form, and made it into a whole new Union as a result. There are several indications at state sovereignty in the Constitution, and around zero indication that the new government took away the right to secession. First of all, lets look at the word used to describe the legislative body of the new government (and of the old ones): Congress. Congress, as defined in the most popular dictionary of the time (A Dictionary of the English language), is:
1. A meeting ; a mock ; a confiift.
Here Pal'as urges on, and Laufus there j
Their congreft in the ftVld great Jove withftands,
Both doora'd to fall, but fall by grca:.T hands.
Drjden'i JEnc'id.
From tliefe laws may be deduced the rules of
the ang'tffes and reflections of two bodies.
Cbeyae'i Pbibfetticjl Princiflcs.
2. An appointed meeting for fcttlement
of affairs between different nations : as,
the congrefs of Cambray.
I recommend going to the dictionary itself on page 454, bottom third of the first column.
Either the Congress is simply a meeting for the purposes of pretty much anything, or it is the meeting of separate nations. The second is quite clearly the political meaning of the word at the time of the Constitution. Either Congress is a meeting of different sovereignties, or the framers were attempting to redefine words.
In the tenth amendment, the term “delegated” is used to describe the powers given to the Federal government, according to the same dictionary the term means (p. 561, bottom first column-top second):
t'o DE'LEGATE. v. a.
\_Jelego, Latin.]
I. To fend an ay.
z. To fend upon an embafly.
3. To entrult; to commit to another's
power and jurifdiaion.
As God hath imprinted K; authority in feveral
pirts upon feveral eftnes of men, a , princes, parent,,
fphitual ,.,: ; ,.. h al|() Jfl
*
d
SL5ST part f"' h " ^ * r' J <'~
As God i, the umvcrftl m^rrh, f, v.,
all the !.,
"" .v.fubjrdt, to him ; an j Pr
f
tend " iliclion ove. each
Other, than what he has defeated to ..
n nil, her
willing lamp with Lcmio
Commanding her, with deltgatut i,
fo br.ut.fy ;uc wo,i<i, uri bleu the oigtit ?
4. To appoint judges to hear and determine
a particular caufe.
The word in the context would mean to entrust to another’s jurisdiction. That does not mean you have sent it away forever. When a person delegates authority, they still have the ultimate responsibility of what they are delegating. If you are the director of a project, and you delegate authority instead of micromanage everything, you can still take away the authority from the person the authority was delegated to. Furthermore, if the person who you delegated the authority to is doing a bad job at it, it is not only your right, but your duty to strip them of their authority.
Another phrase used in the Constitution, in Article 7, is that the Constitution was instituted “between” the states. If something is between two things, how can it be above them? How can an authority instituted between two authorities ultimately have the authority to coerce those states into doing anything that the do not consent to? It just doesn’t make much sense.
One way the opposition to state sovereignty responds is that the “supremacy” clause makes certain that the Federal government and its laws are supreme. However, this clause only applies to the Constitution and laws “made in Pursuance thereof.” Furthermore it only applies to states within the Union. Well, it only follows that it is indeed the case that the laws of the Federal government are supreme in areas that they are delegated authority. There would be absolutely no point in instituting a Federal government otherwise. Just because the laws made by an entity who has delegated authorities are “supreme” if they are within those delegated authorities does not mean that the parties can never withdraw their consent.
States are sovereign and have the full rights of a sovereign member of a compact. The states currently demanding their sovereignty have the full right to do so, and are taking the proper course if they feel that the Federal government has overstepped its Constitutional bounds. The Federal government being the sole judge of its powers is truly a dangerous concept. It is large enough and powerful enough to enforce laws a state could never enforced, and it enforces them on more people. The founders intended for a union of sovereign states that kept checks and balances on each other, and eventually there is the ultimate check of secession for a minority whose rights have been oppressed.
* Hawes, Jr., Robert F.. One Nation, Indivisible?. Fultus Books, 2006.
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Originally Posted by Eric
