Guest Essayist: Joerg Knipprath

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A persistent controversy during the Founding Period was the nature of the union and its relationship to the states. The issue had its antecedents during the colonial period in Benjamin Franklin’s proposed Albany Plan of Union in 1754. That unsuccessful proposal for–mostly–a defensive alliance among the colonies sought to produce a federation, “by virtue of which one general government may be formed in America…within and under which government each colony may retain its present constitution, except in the particulars wherein a change may be directed by the said act.” Franklin’s proposal bore a striking resemblance to more far-reaching subsequent attempts at union, such as the unsuccessful plan by Joseph Galloway in the First Continental Congress and the even more ambitious Articles of Confederation in the Second Continental Congress.

Common to all of these constitutional efforts was the confederal nature of the structure, with power emanating from the constituent colonies (or states) and granted to the federal “head.” Thus, the colonial assemblies or state legislatures selected the members of the union’s policy-making body, the powers of that body were limited to enumerated objectives that affected the union as a whole, and all other powers were expressly reserved to the constituent colonies or states. The Articles of Confederation–the most important effort until then, in that they created a more sophisticated and consummated plan of government–struck a delicate balance between federal power and ultimate state sovereignty. While the Congress had fairly significant powers that could be exercised either by a majority of the assembled states or, sometimes, by nine out of thirteen in the potentially delicate areas of taxation, commerce, and military mobilization, the Congress acted on the constituent states, not on the residents directly. As well, while states were authorized by the Articles to send multiple delegates to represent them in Congress, each state could cast only one vote. Finally, each state was described as having acted in its corporate capacity to create the union, and, to be part of the union, each had to approve the Articles, thereby clearly anchoring the locus of sovereignty in the independent founding states.

Debate over the Constitution of 1787 in the Philadelphia drafting convention and in the subsequent state ratifying conventions also focused significantly on the nature of the union and the relationship of the state and federal sovereignties. Opponents of the Constitution claimed that the states’ sovereignty had been destroyed. They warned, loudly, frequently, and widely, that the states’ republican essence was threatened by this new “consolidated” government, a freely-hurled epithet that threw the Constitution’s proponents on the rhetorical and political defensive.

As evidence for alarm, the Constitution’s opponents pointed to the broad new powers through which Congress acted on individuals directly and by-passed the states; the supporters pointed out that those powers were few in number. The opponents raised the availability of further implied powers, especially as embodied in the “necessary and proper” clause; the supporters (eventually) agreed in the Tenth Amendment that the states retained all powers not given to the general government; the opponents charged that this assurance fell far short of the Articles which had declared that the states retained all powers not expressly conferred on the Congress. Opponents claimed that the Constitution shunted aside the state sovereignty by declaring that the “People of the United States” had established the Constitution; supporters responded that the original draft had been that the “People of the States of [named 13 states]” had established it, but that there was no assurance that all thirteen states would eventually approve it, so the language was changed as a matter of form, not substance. Opponents pointed out that state conventions, not legislatures as constituent part of the state sovereignties, would approve the Constitution, and that only nine were necessary to do so; supporters rejoined that this reflected the ultimate sovereignty of the people and that, in any event, each state that wanted to be part of this new arrangement had to approve the Constitution.

James Madison in Federalist 39 made an earnest, though not always convincing, effort to minimize the changes from the Articles, by explaining how some of the Constitution’s characteristics indeed were national but that in many fundamental ways the new system retained its federal essence. Both sides were deeply at odds in their perceptions about the nature of the new constitutional structure. The position of Madison and other supporters of the Constitution was that there existed a dual sovereignty in this new federalism undergirded by the ultimate sovereignty of the people acting in and through the several states. Their critics dismissed this as nonsensical. Ultimately, practical sovereignty had to lie either with the state governments acting on the people or with the national government doing so. To the critics, the answer was clear, that the national government would expand its reach and destroy the state governments, consolidating all power within itself. The republic would end, and tyranny would rule.

Once the Constitution was adopted, the struggle turned to the issue of how, as a practical matter, to preserve state sovereignty and self-government within this novus ordo seclorum. One tool lay in the structure of the government itself. The Senate not only was a political counterweight for the small states against the larger states’ general influence in the economic and political direction of the union and their numerical power in the House of Representatives. That argument had been the tool to broker the great compromise in the early summer of 1787 that prevented the looming break-up of the convention. As well, the Senate, with its equal votes for each state, and a selection process that tied the membership directly to the legislatures of their state governments, represented what remained of the constitutional idea of a federalism resting on the constituent states. At least until the fundamental constitutional change wrought by the 17th Amendment, the state governments’ control of the Senate would negate or, at least, blunt efforts by the “popular” branch, the House of Representatives, to accrete power in the federal government at the expense of the states.

The extent to which the Framers’ envisioned role for the Senate was realized is unclear. The emergence of organized programmatic political parties introduced a variable that might redirect the loyalty of a senator from his state to a party and its national policies. On the other hand, senators were remarkably able in matters of great national controversy to focus on their home state governments’ political preferences and oppose their same-party fellows from other states who entertained contrary political positions. Senators’ votes on great national issues in the first half of the 19th century on war policy, tariffs, slavery, and, indeed, the nature of the union itself typically reflected whatever benefitted those Senators’ states, even at the risk of tearing apart the parties with which they were affiliated. The respective positions of Senators Daniel Webster of Massachusetts and John C. Calhoun of South Carolina on these matters are examples, even as they switched positions as their states’ interests required.

Calhoun, especially, recognized the increasingly tenuous hold of Southern states on the Senate and sought to develop a systematic constitutional theory to protect particular state institutions from national control. His specific concerns were, initially, the matter of protective tariffs sought by Northern manufacturing interests and opposed by Southerners as economically ruinous and, subsequently, preservation of the “peculiar institution” of slavery. As a more fundamental objective, he sought to bolster the ability of states generally to resist the consolidation of government in an increasingly self-regarding and confident American “nation.”

The constitutional case for vigorous state sovereignty to counter the dangers from a consolidated general government had been made frequently by the Constitution’s critics during the ratification debates. Their claim rested on the principle that the union was a compact of States. They pointed to the fact that the Constitution’s legitimacy rested on approval by the states; that the Constitution’s proponents frequently had asserted that the plan was not a revolutionary new system but an improvement of the extant one, as expressed in the Preamble’s objective to “form a more perfect Union;” and that failure to adopt the new plan would not mean the creation of 13 fully independent entities, but, rather, continuation of the earlier plan that had established a “perpetual union.” The shift from approval by the state legislatures under the Articles of Confederation to approval by state conventions under the proposed document merely reflected a more refined understanding of republican theory that fundamental alterations must reflect as clearly as practicable the consent of the governed.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you Professor Knipprath for another excellent essay. Even thought I’m a student of history there is always something new to learn.

    1. Franklin’s Albany plan. If I had read it previously, I didn’t remember it.
    2. I didn’t know there was proposed “union” during the 1st Continental Congress.

    My personal belief is that part of the wealth sunk to pay for 250 years of unrequited toil is a severe reduction or loss of States rights.

    PSD

    Reply

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