The American States' Rights Tradition
Submitted by Cato the Younger on Thu, 2006-11-16 15:47
"The thought in the mind of the framers no doubt was that every colony was free and independent of the king. There was no need to say independent of each other; they had always been so, and the idea of erecting a common, central government out of all, was not yet suggested." –Judson A. Landon, The Constitutional History and Government of the United States. (Boston: Houghton, Mifflin and Company, 1905), p. 59.
“The foundation of states'-rights traditions are even older than those of the nationalist tradition—indeed, older than the Union itself. In the seventeenth century, British, North America began not as a single continent-wide juridicial entity but a series of different and distinct colonies, each founded at a different moment with a distinct character, a distinct history, a distinct immigration pattern, a distinct set of laws and legal institutions, and so on. In 1780s, ‘Virginia’ was, legally speaking, an obvious fiat accompli—its House of Burgesses had meetings since the 1620s—but America, as a legal entity, was still waiting to be born. During the fateful years between the end of the French and Indian War and the beginning of the Revolutionary one, colonial governments took the lead in protecting their citizens from perceived Parliamentary abuses. Colonial legislatures kept a close eye on the central government, sounded public alarms whenever they saw oppression in the works; and organized political, economic, and (ultimately) military opposition to perceived British evils. The rallying cry of the Revolution nicely illustrates how states’ rights and citizens’ rights were seen as complimentary rather than conflicting. No taxation without representation sounds in terms of both federalism and the rights of Englishmen.” –Akhil Amar, The Bill of Rights, (New Haven, CT: Yale Univ. Press, 1998), p. 5.
“The mere fact, then, that the colonies united in the Declaration of Independence, did not necessarily make them one people. But it may be said that this fact ought, at least, to be received as proof that they considered themselves as one people already. The argument is fair, and freely let it go for what it is worth. The opinion of the Congress of 1775, whatever it may have been, and however strongly expressed, could not possibly change the historical facts. It depended upon those facts, alone, whether the colonies were one people or not. They might by their agreement, expressed through their agents in Congress, make themselves one people through all time to come; but their power, as to this matter, could not extend to the time past. Indeed, it is contended, not only by Judge Story, but by others, that the colonies did, by and in that act, agree, to become 'one people' for the future. They suppose that such agreement is implied, if not expressed, in the following passages: 'We, therefore, the representatives of the United States of America,' '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.' Let us test the correctness of this opinion, by the history of the time, and by the rules of fair criticism. ¶The Congress of 1775, by which independence was declared, was appointed, as has been before shown, by the colonies in their separate and distinct capacity, each acting for itself, and not conjointly with any other. They were the representatives each of his own colony, and not of any other; each had authority to act in the name of his own colony, and not in that of any other; each colony gave its own vote by its own representatives, and not by those of any other colony. Of course, it was as separate and distinct colonies that they deliberated on the Declaration of Independence. When, therefore, they declare, in the adoption of that measure, that they act as 'the representatives of the United States of America,' and 'in the name and by the authority of the good people of these colonies,' they must of course be understood as speaking in the character in which they had all along acted; that is, as the representatives of separate and distinct colonies, and not as the joint representatives of any one people. A decisive proof of this is found in the fact that the colonies voted on the adoption of that measure in their separate character, each giving one vote by all its own representatives, who acted in strict obedience to specific instructions from their respective colonies, and the members signed the Declaration in that way. So, also, when they declared that 'these united colonies are, and of right ought to be, free and independent States,' they meant only that their respective communities, which until then had been dependent colonies, should thereafter be independent States, and that the same union, which existed between them as colonies, should be continued between them as States. The measure under consideration looked only to their relation to the mother country, and not to their relation to one another; and the sole question before them was, whether they should continue in a state of dependence on the British Crown or not. Having determined that they would not, they from that moment ceased to be colonies, and became States; united, precisely as before, for the common purpose of achieving their common liberty. The idea of forming a closer union, by the mere act of declaring themselves independent, could scarcely have occurred to any one of them. The necessity of such a measure must be apparent to all, and it had long before engaged their attention in a different form. Men, of their wisdom and forecast, meditating a measure so necessary to their common safety, would not have left it as a mere matter of inference from another measure in point of fact, it was already before them, in the form of a distinct proposition, and had been so ever since their first meeting in May, 1775, it is impossible to suppose, therefore, in common justice to the sagacity of Congress, that they meant anything more by the Declaration of Independence, than simply to sever the tie which had theretofore bound them to England, and to assert the rights of the separate and distinct colonies, as separate and independent States particularly as the language which they use is fairly susceptible of this construction. The instrument itself is entitled, 'The Unanimous Declaration of the Thirteen United States of America'; of States, separate and distinct bodies politic, and not of 'one people' or nation, composed of all of them together; 'united,' as independent States may be, by compact or agreement, and not amalgamated, as they would be, if they formed one nation or body politic. ¶Is it true, then, as Judge Story supposes, that 'the colonies did not severally act for themselves, and proclaim their own independence?' It is true that they acted together; but is it not equally true that each acted for itself alone, without pretending to any right or authority to bind any other? Their declaration was simply their joint expression of their separate wills; each expressing its own will, and not that of any other; each bound by its own act, and not responsible for the act of any other. If the colonies had severally declare their independence through their own legislatures, and had afterwards agreed to unite their forces together to make a common cause of their contest, and to submit their common interests to the management of a common council chosen by themselves, wherein would their situation have been different? And is it true that this Declaration of Independence 'was not an act done by the State governments then organized, nor by persons chosen by them?' that 'it was emphatically the act of the whole people of the united colonies, by the instrumentality of their representatives chosen for that, among other purposes?' What representatives were those that were chosen by 'the people of the united colonies?' When and how were they chosen? Those who declared the colonies independent, were chosen more than a year before that event; they were chosen by the colonies separately, and, as has already been shown, through the instrumentality of their own 'governments then organized'; they were chosen, not for the 'purpose' of declaring the colonies independent, but of protecting them against oppression, and bringing about a reconciliation with the parent country, upon fair terms, if possible. (Jefferson's Notes, 1st ed., 128, 129.) If there were any other representatives than those concerned in the Declaration of Independence, if that act was performed by representatives chosen by the whole people of the colonies, for that or any other purpose, if any such representatives could possibly have been chosen by the colonies as then organized, no historical record, that has yet met my view, contains one syllable of the matter. ¶The author seems to attach but little importance to the fact, that several of the colonies had established separate governments for themselves, prior to the Declaration of Independence. He regards this as of little consequence; because he thinks that the colonies so acted only in pursuance of the recommendation of Congress, and would not have 'presumed' to do it, 'without consulting Congress upon the subject'; and because the governments so established were, for the most part, designed to be temporary, and to continue only during the contest with England. Such recommendation was given in express terms, to New Hampshire and South Carolina, in November, 1775, and to Virginia in December of that year; and on the 10th May, 1776, 'it was resolved to recommend to the respective, assemblies and conventions of the united colonies where no government sufficient to the exigencies of their affairs had been established, to adopt such a government as should, in the opinion of the representatives of the people, best conduce to the happiness and safety of their Constituents in particular, and of America in general.' The preamble to this resolution was not adopted till, the 15th May. (1 Elliott's Debates, 80, 83.) It is evident from the language here employed, that Congress had no power over the colonies as to this matter, and no right to influence or control them in the exercise of the important function of forming their own governments. It recommended only; and contemplating the colonies as separate and distinct, referred it to the assembly or convention of each, to establish any form of government which might be acceptable to its own people. Of what consequence was it whether the colonies noted upon the recommendation and advice of others, or merely upon their own will and counsels? With whatever motive the act was performed, it was one of supreme and sovereign power, and such as could not have been performed except by a sovereign people. And whether the government so established was intended to last forever, or only for a limited time, did not affect its character as an act of sovereign power. In point of fact, then, the colonies which established such governments did, by that very act, assert their sovereignty and independence. They had no power under their charters, to change their governments. They could do so only by setting their charters aside, and acting upon their inherent, sovereign right: and this was revolution. In effect, therefore, many of the colonies had declared their independence prior to the 4th July, 1776; they had commenced the revolution, and were considered by England as in a state of rebellion. Of Virginia this is emphatically true. Her declaration of rights was made on the 12th of June, 1776; and her Constitution was adopted on the 28th of the same month. This Constitution continued until 1829. Her subsequent declaration of independence, on the 4th of July, in common with the other colonies, was but a more public, though not a more solemn affirmation of what she had previously done; a pledge to the whole world, that what she had resolved on in her separate character, she would unite with the other colonies in performing. She could not declare herself free and independent more distinctly, in that form, than she had already done, by asserting her sovereign and irresponsible power, in throwing off her former government, and establishing a new one for herself.”
–Abel Parker Upshur, A Brief Enquiry into the True Nature and Character of the Federal Government, (New York, NY: Van Evrie, Horton, & Co., 1868), Chap. VIII.
“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.” –Articles of Confederation, Article II. Mar. 1, 1781
“His Britannic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, 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” [emphasis mine]. –Treaty of Paris, Art. I., 1783, in which the British Sovereign acknowledges the claims contended for in the Declaration of Independence.
“At the separation from the British Empire, the people of America preferred the establishment of themselves into thirteen separate sovereignties instead of incorporating themselves into one: to these they look up for the security of their lives, liberties and properties: to these they must look up. The federal government they formed, to defend the whole against foreign nations, in case of war, and to defend the lesser States against the ambition of the larger: they are afraid of granting powers unnecessarily, lest they should defeat the original end of the Union; lest the powers should prove dangerous to the sovereignties of the particular States which the Union was meant to support...” –Luther Martin, Madison’s Notes of Debate in the Federal Convention, June 20, 1787. Vol. I, p. 205.
The nature of State sovereignty under the 1787 Constitution
“The powers not delegated to the United States by this Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” –U.S. Constitution, Tenth Amendment, 1791. "A consolidation of the States would subvert the new Constitution, and against which this article is our best security. Too much provision cannot be made against consolidation. The State Governments represent the wishes and feelings, and local interests of the people. They are the safeguard and ornament of the Constitution; they will protract the period of our liberties; they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights." –Fisher Ames, Debate in Massachusetts Ratifying Convention
“We cannot abolish the States, and consolidate the whole into one Government—if we could consolidate, I should oppose our doing so. Let our Government be like that of the solar system—let the General Government be the Sun and States the Planets, repelled yet attracted, and the whole moving harmoniously in their several orbits.” –John Dickinson, Rufus Kings' Notes from the Philadelphia Convention, June 4, 1787.
“Can we, on this ground, form a national Government? I fancy not. Our commissions give a complexion to the business; and can we suppose that, when we exceed the bounds of our duty, the people will approve our proceedings? ¶We are met here as the deputies of thirteen independent, sovereign States, for federal purposes. Can we consolidate their sovereignty and form one nation, and annihilate the sovereignties of our States, who have sent us here for other purposes?” –William Paterson, Yates’ Notes of Debate in the Federal Convention, June 9, 1787.
“I ask, What are these principles? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed.” –James Madison, The Powers of the Convention to Form a Mixed Government Examined and Sustained, Federalist #40, Jan. 18, 1788.
“With respect to converting the confederation to a complete consolidation, I think no such consequence will follow from the Constitution.” –James Madison, Debate in Virginia Ratifying Convention, June 4, 1788. Elliot 3:11-14, 29-35, 64
“In June, 1776, the convention of Virginia formally declared that Virginia was a free, sovereign, and independent State, and on the 4th of July, 1776, following, the United States in Congress assembled declared [that] the thirteen United States in Congress assembled declared [that] the thirteen united colonies [were] free and independent States; and that as such they had full power to levy war, conclude peace, etc. I consider this a declaration, not that the United States 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 law, without any control from any other power on earth.” –Justice Samuel Chase, Ware v. Hylton, 3 Dallas 199 at 224 (U.S. 1798).
“…[A]ccording to my conception the whole sovereignty is in the several States, while the exercise of sovereign powers is divided — a part being exercised under compact, through this General Government, and the residue through the separate State governments.” –John Calhoun, Feb. 15, 1833, “Speech on the Force Bill,” H.L. Cheek, Jr., ed., John C. Calhoun: Selected Writings and Speeches, (Washington, DC: Regnery, 2003), p. 436.
“The jurisdiction of the States themselves – older and more sovereign societies, indestructible save by the hand of political murder from without – preserved and regulated by the whole social order; and the few functions which had been by them lent to the Federal Government, upon the fall of the latter, would not perish, but naturally revert to the States which had granted them. In the integrity of their powers therefore, was the civic life of the American people.” –Robert L. Dabney, Life and Campaigns of Lieut.-General Thomas Jonathan Jackson, (Boston, MA: Scrymeour, Whitcomb, Co., 1866), p. 128.
“…[I]n case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose, for arresting the progress of the evil and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them.” –Virginia Resolutions, adopted by the Virginia Legislature on Dec. 24, 1798, as a protest against the Alien and Sedition Acts passed by Congress. They were penned by James Madison.
“The whole form and structure of the Federal Government, the opinions of the framers of the Constitution, and the organization of the State Governments, demonstrate that though the States have surrendered certain specific powers, they have not surrendered their sovereignty.” –Robert Young Hayne, The Webster-Hayne Debate on the Nature of the Union, (Indianapolis, IN: Liberty Fund, 2000), p. 166. “A majority of the people in any State bound that State, but nine-tenths of all the people of the United States could not bind the people of Rhode Island, until Rhode Island, as a State, had consented to the compact.” –Robert Young Hayne, The Webster-Hayne Debate on the Nature of the Union, (Indianapolis, IN: Liberty Fund, 2000), p. 167.
“The constitution of our nature, which impel the rulers to oppress the ruled, unless prevented, would in like manner, and with equal force, impel the stronger to oppress the weaker interest. To vest the right of government in absolute majority, would be, in fact—BUT TO EMBODY THE WILL OF THE STRONGER INTEREST IN THE OPERATIONS OF THE GOVERNMENT AND NOT THE WILL OF THE WHOLE COMMUNITY—AND TO LEAVE THE OTHERS UNPROTECTED, A PREY TO ITS AMBITION AND CUPIDITY—just as would be the case between rulers and ruled, if the right to govern was vested exclusively in the hands of the former. They would both be, in reality, absolute and despotic governments: the one as much so as the other.” –John Calhoun, H.L. Cheek, Jr., ed., John C. Calhoun: Selected Writings and Speeches, (Washington, DC: Regnery, 2003), p. 397.
“The federal character of the government may be as effectually destroyed by encroaching on, and absorbing all the reserved powers, as by subjecting the governments of the several States themselves directly to its control. Either would make it, in fact, the sole and absolute power, and virtually, the government of the numerical majority. But of all the powers ever claimed for the government of the United States, that which invests Congress with the right to determine what objects belong to the general welfare — to use the money power in the form of laying duties and taxes, and to make appropriations for the purpose of promoting such as it may deem to be of this character, is the most encroaching and comprehensive. In civilized communities, money may be said to be the universal means, by which all the operations of governments are carried on. If, then, it be admitted, that the government of the United States has the right to decide, at its discretion, what is, and what is not for the common good of the country, and to lay duties and taxes, and to appropriate their proceeds to effect whatever it may determine to be for the common good, it would be difficult to assign any limits to its authority, or to prevent it from absorbing, finally, all the reserved powers, and thereby, destroying its federal character.” –John Calhoun, H.L. Cheek, Jr., ed., John C. Calhoun: Selected Writings and Speeches, (Washington, DC: Regnery, 2003), p. 210.
“The use of force against a State would be more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked, as a dissolution of all previous compacts; a union of States containing such an ingredient seemed to provide for its own destruction.” –James Madison, Philadelphia Constitutional Convention, May 31, 1787. “Any government formed on the supposed practicability of using force against the unconstitutional proceedings of the States, would prove as visionary and fallacious as the government of Congress.” –James Madison, Philadelphia Constitutional Convention, June 8, 1787
“When the sword is once drawn the passions of men observe no bounds of moderation. The suggestions of wounded pride, the instigations of resentment, would be apt to carry the States against which the arms of the Union were exerted, to any extreme to avenge the affront, or to avoid the disgrace of submission. The first war of this kind would probably terminate in a dissolution of the Union.” –Alexander Hamilton, The Union as a Safeguard Against Domestic Faction and Insurrection, Federalist #10, Nov. 23, 1787. “Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. The important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting VIOLENCE in place of LAW, or the destructive COERCION of the SWORD in place of the mild and salutary COERCION of the MAGISTRACY.” –Alexander Hamilton, The Insufficiency of the Present Confederation to Preserve the Union, Federalist #20, Nov. 23, 1787.
“To coerce a State would be one of the maddest projects ever devised. No State would ever suffer itself to be used as the instrument of coercing another. This being the case, can we suppose it wise to hazard a civil war? Suppose Massachusetts, or any large state, should refuse, and Congress should attempt to compel them, would they not have influence to procure assistance, especially from those states which are in the same situation as themselves? What picture does this idea present to our view? A complying state at war with a non-complying state; Congress marching the troops of one state into the bosom of another; this state collecting auxiliaries, and forming, perhaps, a majority against its federal head. Here is a nation at war with itself. Can any reasonable man be well disposed towards a government which makes war and carnage the only means of supporting itself — a government that can exist only by the sword? Every such war must involve the innocent with the guilty. This single consideration should be sufficient to dispose every peaceable citizen against such a government. “ –Alexander Hamilton, Debate in New York Ratifying Convention, June 20, 1788.
“The question fairly stated is, Has the Constitution delegated to Congress the power to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy? If answered in the affirmative, it must be on the principle that the power has been conferred upon Congress to declare and to make war against a State. After much serious reflection I have arrived at the conclusion that no such power has been delegated to Congress or to any other department of the Federal Government. It is manifest upon an inspection of the Constitution that this is not among the specific and enumerated powers granted to Congress, and it is equally apparent that its exercise is not “ necessary and proper for carrying into execution “ any one of these powers. So far from this power having been delegated to Congress, it was expressly refused by the Convention which framed the Constitution. ¶It appears from the proceedings of that body that on the 31st May, 1787, the clause authorizing an exertion of the force of the whole against a delinquent State came up for consideration. Mr. Madison opposed it in a brief but powerful speech, from which I shall extract but a single sentence. He observed: 'The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.' Upon his motion the clause was unanimously postponed, and was never, I believe, again presented. Soon afterwards, on the 8th June, 1787, when incidentally adverting to the subject, he said: ‘Any government for the United States formed on the supposed practicability of using force against the unconstitutional proceedings of the States would prove as visionary and fallacious as the government of Congress,’ evidently meaning the then existing Congress of the old Confederation. ¶Without descending to particulars, it may be safely asserted that the power to make war against a State is at variance with the whole spirit and intent of the Constitution. Suppose such a war should result in the conquest of a State; how are we to govern it afterwards? ¶Shall we hold it as a province and govern it by despotic power? In the nature of things, we could not by physical force control the will of the people and compel them to elect Senators and Representatives to Congress and to perform all the other duties depending upon their own volition and required from the free citizens of a free State as a constituent member of the Confederacy. But if we possessed this power, would it be wise to exercise it under existing circumstances? The object would doubtless be to preserve the Union. War would not only present the most effectual means of destroying it, but would vanish all hope of its peaceable reconstruction. Besides, in the fraternal conflict a vast amount of blood and treasure would be expended, rendering future reconciliation between the States impossible. In the meantime, who can foretell what would be the sufferings and privations of the people during its existence? The fact is that our Union rests upon public opinion, and can never be cemented by the blood of its citizens shed in civil war. If it can not live in the affections of the people, it must one day perish. Congress possesses many means of preserving it by conciliation, but the sword was not placed in their hand to preserve it by force.” –James Buchanan, Presidential Address Before Congress, December 1860.
State Sovereignty and Reserved Rights
The nature of State sovereignty from the impetus of the Union
“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 levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent states may of right do.” –The Declaration of Independence, July 4, 1776."The thought in the mind of the framers no doubt was that every colony was free and independent of the king. There was no need to say independent of each other; they had always been so, and the idea of erecting a common, central government out of all, was not yet suggested." –Judson A. Landon, The Constitutional History and Government of the United States. (Boston: Houghton, Mifflin and Company, 1905), p. 59.
“The foundation of states'-rights traditions are even older than those of the nationalist tradition—indeed, older than the Union itself. In the seventeenth century, British, North America began not as a single continent-wide juridicial entity but a series of different and distinct colonies, each founded at a different moment with a distinct character, a distinct history, a distinct immigration pattern, a distinct set of laws and legal institutions, and so on. In 1780s, ‘Virginia’ was, legally speaking, an obvious fiat accompli—its House of Burgesses had meetings since the 1620s—but America, as a legal entity, was still waiting to be born. During the fateful years between the end of the French and Indian War and the beginning of the Revolutionary one, colonial governments took the lead in protecting their citizens from perceived Parliamentary abuses. Colonial legislatures kept a close eye on the central government, sounded public alarms whenever they saw oppression in the works; and organized political, economic, and (ultimately) military opposition to perceived British evils. The rallying cry of the Revolution nicely illustrates how states’ rights and citizens’ rights were seen as complimentary rather than conflicting. No taxation without representation sounds in terms of both federalism and the rights of Englishmen.” –Akhil Amar, The Bill of Rights, (New Haven, CT: Yale Univ. Press, 1998), p. 5.
“The mere fact, then, that the colonies united in the Declaration of Independence, did not necessarily make them one people. But it may be said that this fact ought, at least, to be received as proof that they considered themselves as one people already. The argument is fair, and freely let it go for what it is worth. The opinion of the Congress of 1775, whatever it may have been, and however strongly expressed, could not possibly change the historical facts. It depended upon those facts, alone, whether the colonies were one people or not. They might by their agreement, expressed through their agents in Congress, make themselves one people through all time to come; but their power, as to this matter, could not extend to the time past. Indeed, it is contended, not only by Judge Story, but by others, that the colonies did, by and in that act, agree, to become 'one people' for the future. They suppose that such agreement is implied, if not expressed, in the following passages: 'We, therefore, the representatives of the United States of America,' '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.' Let us test the correctness of this opinion, by the history of the time, and by the rules of fair criticism. ¶The Congress of 1775, by which independence was declared, was appointed, as has been before shown, by the colonies in their separate and distinct capacity, each acting for itself, and not conjointly with any other. They were the representatives each of his own colony, and not of any other; each had authority to act in the name of his own colony, and not in that of any other; each colony gave its own vote by its own representatives, and not by those of any other colony. Of course, it was as separate and distinct colonies that they deliberated on the Declaration of Independence. When, therefore, they declare, in the adoption of that measure, that they act as 'the representatives of the United States of America,' and 'in the name and by the authority of the good people of these colonies,' they must of course be understood as speaking in the character in which they had all along acted; that is, as the representatives of separate and distinct colonies, and not as the joint representatives of any one people. A decisive proof of this is found in the fact that the colonies voted on the adoption of that measure in their separate character, each giving one vote by all its own representatives, who acted in strict obedience to specific instructions from their respective colonies, and the members signed the Declaration in that way. So, also, when they declared that 'these united colonies are, and of right ought to be, free and independent States,' they meant only that their respective communities, which until then had been dependent colonies, should thereafter be independent States, and that the same union, which existed between them as colonies, should be continued between them as States. The measure under consideration looked only to their relation to the mother country, and not to their relation to one another; and the sole question before them was, whether they should continue in a state of dependence on the British Crown or not. Having determined that they would not, they from that moment ceased to be colonies, and became States; united, precisely as before, for the common purpose of achieving their common liberty. The idea of forming a closer union, by the mere act of declaring themselves independent, could scarcely have occurred to any one of them. The necessity of such a measure must be apparent to all, and it had long before engaged their attention in a different form. Men, of their wisdom and forecast, meditating a measure so necessary to their common safety, would not have left it as a mere matter of inference from another measure in point of fact, it was already before them, in the form of a distinct proposition, and had been so ever since their first meeting in May, 1775, it is impossible to suppose, therefore, in common justice to the sagacity of Congress, that they meant anything more by the Declaration of Independence, than simply to sever the tie which had theretofore bound them to England, and to assert the rights of the separate and distinct colonies, as separate and independent States particularly as the language which they use is fairly susceptible of this construction. The instrument itself is entitled, 'The Unanimous Declaration of the Thirteen United States of America'; of States, separate and distinct bodies politic, and not of 'one people' or nation, composed of all of them together; 'united,' as independent States may be, by compact or agreement, and not amalgamated, as they would be, if they formed one nation or body politic. ¶Is it true, then, as Judge Story supposes, that 'the colonies did not severally act for themselves, and proclaim their own independence?' It is true that they acted together; but is it not equally true that each acted for itself alone, without pretending to any right or authority to bind any other? Their declaration was simply their joint expression of their separate wills; each expressing its own will, and not that of any other; each bound by its own act, and not responsible for the act of any other. If the colonies had severally declare their independence through their own legislatures, and had afterwards agreed to unite their forces together to make a common cause of their contest, and to submit their common interests to the management of a common council chosen by themselves, wherein would their situation have been different? And is it true that this Declaration of Independence 'was not an act done by the State governments then organized, nor by persons chosen by them?' that 'it was emphatically the act of the whole people of the united colonies, by the instrumentality of their representatives chosen for that, among other purposes?' What representatives were those that were chosen by 'the people of the united colonies?' When and how were they chosen? Those who declared the colonies independent, were chosen more than a year before that event; they were chosen by the colonies separately, and, as has already been shown, through the instrumentality of their own 'governments then organized'; they were chosen, not for the 'purpose' of declaring the colonies independent, but of protecting them against oppression, and bringing about a reconciliation with the parent country, upon fair terms, if possible. (Jefferson's Notes, 1st ed., 128, 129.) If there were any other representatives than those concerned in the Declaration of Independence, if that act was performed by representatives chosen by the whole people of the colonies, for that or any other purpose, if any such representatives could possibly have been chosen by the colonies as then organized, no historical record, that has yet met my view, contains one syllable of the matter. ¶The author seems to attach but little importance to the fact, that several of the colonies had established separate governments for themselves, prior to the Declaration of Independence. He regards this as of little consequence; because he thinks that the colonies so acted only in pursuance of the recommendation of Congress, and would not have 'presumed' to do it, 'without consulting Congress upon the subject'; and because the governments so established were, for the most part, designed to be temporary, and to continue only during the contest with England. Such recommendation was given in express terms, to New Hampshire and South Carolina, in November, 1775, and to Virginia in December of that year; and on the 10th May, 1776, 'it was resolved to recommend to the respective, assemblies and conventions of the united colonies where no government sufficient to the exigencies of their affairs had been established, to adopt such a government as should, in the opinion of the representatives of the people, best conduce to the happiness and safety of their Constituents in particular, and of America in general.' The preamble to this resolution was not adopted till, the 15th May. (1 Elliott's Debates, 80, 83.) It is evident from the language here employed, that Congress had no power over the colonies as to this matter, and no right to influence or control them in the exercise of the important function of forming their own governments. It recommended only; and contemplating the colonies as separate and distinct, referred it to the assembly or convention of each, to establish any form of government which might be acceptable to its own people. Of what consequence was it whether the colonies noted upon the recommendation and advice of others, or merely upon their own will and counsels? With whatever motive the act was performed, it was one of supreme and sovereign power, and such as could not have been performed except by a sovereign people. And whether the government so established was intended to last forever, or only for a limited time, did not affect its character as an act of sovereign power. In point of fact, then, the colonies which established such governments did, by that very act, assert their sovereignty and independence. They had no power under their charters, to change their governments. They could do so only by setting their charters aside, and acting upon their inherent, sovereign right: and this was revolution. In effect, therefore, many of the colonies had declared their independence prior to the 4th July, 1776; they had commenced the revolution, and were considered by England as in a state of rebellion. Of Virginia this is emphatically true. Her declaration of rights was made on the 12th of June, 1776; and her Constitution was adopted on the 28th of the same month. This Constitution continued until 1829. Her subsequent declaration of independence, on the 4th of July, in common with the other colonies, was but a more public, though not a more solemn affirmation of what she had previously done; a pledge to the whole world, that what she had resolved on in her separate character, she would unite with the other colonies in performing. She could not declare herself free and independent more distinctly, in that form, than she had already done, by asserting her sovereign and irresponsible power, in throwing off her former government, and establishing a new one for herself.”
–Abel Parker Upshur, A Brief Enquiry into the True Nature and Character of the Federal Government, (New York, NY: Van Evrie, Horton, & Co., 1868), Chap. VIII.
“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.” –Articles of Confederation, Article II. Mar. 1, 1781
“His Britannic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, 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” [emphasis mine]. –Treaty of Paris, Art. I., 1783, in which the British Sovereign acknowledges the claims contended for in the Declaration of Independence.
“At the separation from the British Empire, the people of America preferred the establishment of themselves into thirteen separate sovereignties instead of incorporating themselves into one: to these they look up for the security of their lives, liberties and properties: to these they must look up. The federal government they formed, to defend the whole against foreign nations, in case of war, and to defend the lesser States against the ambition of the larger: they are afraid of granting powers unnecessarily, lest they should defeat the original end of the Union; lest the powers should prove dangerous to the sovereignties of the particular States which the Union was meant to support...” –Luther Martin, Madison’s Notes of Debate in the Federal Convention, June 20, 1787. Vol. I, p. 205.
The nature of State sovereignty under the 1787 Constitution
“The powers not delegated to the United States by this Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” –U.S. Constitution, Tenth Amendment, 1791. "A consolidation of the States would subvert the new Constitution, and against which this article is our best security. Too much provision cannot be made against consolidation. The State Governments represent the wishes and feelings, and local interests of the people. They are the safeguard and ornament of the Constitution; they will protract the period of our liberties; they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights." –Fisher Ames, Debate in Massachusetts Ratifying Convention
“We cannot abolish the States, and consolidate the whole into one Government—if we could consolidate, I should oppose our doing so. Let our Government be like that of the solar system—let the General Government be the Sun and States the Planets, repelled yet attracted, and the whole moving harmoniously in their several orbits.” –John Dickinson, Rufus Kings' Notes from the Philadelphia Convention, June 4, 1787.
“Can we, on this ground, form a national Government? I fancy not. Our commissions give a complexion to the business; and can we suppose that, when we exceed the bounds of our duty, the people will approve our proceedings? ¶We are met here as the deputies of thirteen independent, sovereign States, for federal purposes. Can we consolidate their sovereignty and form one nation, and annihilate the sovereignties of our States, who have sent us here for other purposes?” –William Paterson, Yates’ Notes of Debate in the Federal Convention, June 9, 1787.
“I ask, What are these principles? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed.” –James Madison, The Powers of the Convention to Form a Mixed Government Examined and Sustained, Federalist #40, Jan. 18, 1788.
“With respect to converting the confederation to a complete consolidation, I think no such consequence will follow from the Constitution.” –James Madison, Debate in Virginia Ratifying Convention, June 4, 1788. Elliot 3:11-14, 29-35, 64
“In June, 1776, the convention of Virginia formally declared that Virginia was a free, sovereign, and independent State, and on the 4th of July, 1776, following, the United States in Congress assembled declared [that] the thirteen United States in Congress assembled declared [that] the thirteen united colonies [were] free and independent States; and that as such they had full power to levy war, conclude peace, etc. I consider this a declaration, not that the United States 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 law, without any control from any other power on earth.” –Justice Samuel Chase, Ware v. Hylton, 3 Dallas 199 at 224 (U.S. 1798).
[Samuel Chase of Maryland was a signer of the Declaration of Independence and later a Justice on the Supreme Court. This case involved the Treaty of Paris, which established peace in 1783. A Virginian owed a debt to a British subject. A Virginia law provided for the confiscation of such debts owed to British subjects. The British subject sued in a federal court to recover on the bond, on the grounds that Treaty of Paris ensured the collection of such debts. The opinion is significant because it affirms the sovereignty of the States.]“But it must not be forgotten, that the State of Connecticut is a FREE SOVEREIGN and INDEPENDENT State; that the United States are a confederacy of States; that we are a confederated and not a consolidated Republic. The Governor of this State is under a high and solemn obligation, 'to maintain the lawful rights and privileges thereof, as a sovereign, free and independent State,' as he is 'to support the Constitution of the United States,' and the obligation to support the latter imposes an additional obligation to support the former. The building cannot stand, if the pillars upon which it rests, are impaired or destroyed.” –Connecticut Resolution on Federalization of the Militia, August 25, 1812
“…[A]ccording to my conception the whole sovereignty is in the several States, while the exercise of sovereign powers is divided — a part being exercised under compact, through this General Government, and the residue through the separate State governments.” –John Calhoun, Feb. 15, 1833, “Speech on the Force Bill,” H.L. Cheek, Jr., ed., John C. Calhoun: Selected Writings and Speeches, (Washington, DC: Regnery, 2003), p. 436.
“The jurisdiction of the States themselves – older and more sovereign societies, indestructible save by the hand of political murder from without – preserved and regulated by the whole social order; and the few functions which had been by them lent to the Federal Government, upon the fall of the latter, would not perish, but naturally revert to the States which had granted them. In the integrity of their powers therefore, was the civic life of the American people.” –Robert L. Dabney, Life and Campaigns of Lieut.-General Thomas Jonathan Jackson, (Boston, MA: Scrymeour, Whitcomb, Co., 1866), p. 128.
The Kentucky and Virginia Resolutions
“…[T]hat whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.” –Kentucky Resolutions of 1798, adopted by the Kentucky Legislature on Nov. 10, 1798, as a protest against the Alien and Sedition Acts passed by Congress. They were penned by Thomas Jefferson, but he did not make public the fact until years later.“…[I]n case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose, for arresting the progress of the evil and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them.” –Virginia Resolutions, adopted by the Virginia Legislature on Dec. 24, 1798, as a protest against the Alien and Sedition Acts passed by Congress. They were penned by James Madison.
The accession of the States to the Union was voluntary
“A State cannot be forced into the Union. She must come in by her own free assent, given in her highest sovereign capacity through a convention of the people of the State. Such is the constitutional provision; and those who make the objection must overlook both the constitution and the elementary principles of our Government, their own government, and to determine their political condition. This is the more doctrine on which our fathers acted in our glorious Revolution, which has done more for the cause of liberty throughout the world than any even within the records of history, —and on which the Government has acted from the first, as regards all that portion of our extensive territory that lies beyond the limits of the original States.” –John Calhoun, “Second Speech on the Admission of Michigan,” H.L. Cheek, Jr. ed. John C. Calhoun: Selected Writings and Speeches, p. 519.The States’ relation to the Union
“The state governments not only retain every power, jurisdiction, and right not delegated to the United States, by the constitution, nor prohibited by it to the states, but they are constituent and necessary parts of the federal government; and without their agency in their political character, there could be neither a senate, nor president of the United States, the choice of the latter depending immediately, and on the former, immediately, upon the legislatures of the several states in the union.” –St. George Tucker, Views on the Constitution, p. 92.“The whole form and structure of the Federal Government, the opinions of the framers of the Constitution, and the organization of the State Governments, demonstrate that though the States have surrendered certain specific powers, they have not surrendered their sovereignty.” –Robert Young Hayne, The Webster-Hayne Debate on the Nature of the Union, (Indianapolis, IN: Liberty Fund, 2000), p. 166. “A majority of the people in any State bound that State, but nine-tenths of all the people of the United States could not bind the people of Rhode Island, until Rhode Island, as a State, had consented to the compact.” –Robert Young Hayne, The Webster-Hayne Debate on the Nature of the Union, (Indianapolis, IN: Liberty Fund, 2000), p. 167.
“The constitution of our nature, which impel the rulers to oppress the ruled, unless prevented, would in like manner, and with equal force, impel the stronger to oppress the weaker interest. To vest the right of government in absolute majority, would be, in fact—BUT TO EMBODY THE WILL OF THE STRONGER INTEREST IN THE OPERATIONS OF THE GOVERNMENT AND NOT THE WILL OF THE WHOLE COMMUNITY—AND TO LEAVE THE OTHERS UNPROTECTED, A PREY TO ITS AMBITION AND CUPIDITY—just as would be the case between rulers and ruled, if the right to govern was vested exclusively in the hands of the former. They would both be, in reality, absolute and despotic governments: the one as much so as the other.” –John Calhoun, H.L. Cheek, Jr., ed., John C. Calhoun: Selected Writings and Speeches, (Washington, DC: Regnery, 2003), p. 397.
“The federal character of the government may be as effectually destroyed by encroaching on, and absorbing all the reserved powers, as by subjecting the governments of the several States themselves directly to its control. Either would make it, in fact, the sole and absolute power, and virtually, the government of the numerical majority. But of all the powers ever claimed for the government of the United States, that which invests Congress with the right to determine what objects belong to the general welfare — to use the money power in the form of laying duties and taxes, and to make appropriations for the purpose of promoting such as it may deem to be of this character, is the most encroaching and comprehensive. In civilized communities, money may be said to be the universal means, by which all the operations of governments are carried on. If, then, it be admitted, that the government of the United States has the right to decide, at its discretion, what is, and what is not for the common good of the country, and to lay duties and taxes, and to appropriate their proceeds to effect whatever it may determine to be for the common good, it would be difficult to assign any limits to its authority, or to prevent it from absorbing, finally, all the reserved powers, and thereby, destroying its federal character.” –John Calhoun, H.L. Cheek, Jr., ed., John C. Calhoun: Selected Writings and Speeches, (Washington, DC: Regnery, 2003), p. 210.
The coercion of a State is averse to principles of state sovereignty
“But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity.” –James Madison, The Influence of the State and Federal Governments Compared, Federalist #46, Jan. 29, 1788.“The use of force against a State would be more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked, as a dissolution of all previous compacts; a union of States containing such an ingredient seemed to provide for its own destruction.” –James Madison, Philadelphia Constitutional Convention, May 31, 1787. “Any government formed on the supposed practicability of using force against the unconstitutional proceedings of the States, would prove as visionary and fallacious as the government of Congress.” –James Madison, Philadelphia Constitutional Convention, June 8, 1787
“When the sword is once drawn the passions of men observe no bounds of moderation. The suggestions of wounded pride, the instigations of resentment, would be apt to carry the States against which the arms of the Union were exerted, to any extreme to avenge the affront, or to avoid the disgrace of submission. The first war of this kind would probably terminate in a dissolution of the Union.” –Alexander Hamilton, The Union as a Safeguard Against Domestic Faction and Insurrection, Federalist #10, Nov. 23, 1787. “Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. The important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting VIOLENCE in place of LAW, or the destructive COERCION of the SWORD in place of the mild and salutary COERCION of the MAGISTRACY.” –Alexander Hamilton, The Insufficiency of the Present Confederation to Preserve the Union, Federalist #20, Nov. 23, 1787.
“To coerce a State would be one of the maddest projects ever devised. No State would ever suffer itself to be used as the instrument of coercing another. This being the case, can we suppose it wise to hazard a civil war? Suppose Massachusetts, or any large state, should refuse, and Congress should attempt to compel them, would they not have influence to procure assistance, especially from those states which are in the same situation as themselves? What picture does this idea present to our view? A complying state at war with a non-complying state; Congress marching the troops of one state into the bosom of another; this state collecting auxiliaries, and forming, perhaps, a majority against its federal head. Here is a nation at war with itself. Can any reasonable man be well disposed towards a government which makes war and carnage the only means of supporting itself — a government that can exist only by the sword? Every such war must involve the innocent with the guilty. This single consideration should be sufficient to dispose every peaceable citizen against such a government. “ –Alexander Hamilton, Debate in New York Ratifying Convention, June 20, 1788.
“The question fairly stated is, Has the Constitution delegated to Congress the power to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy? If answered in the affirmative, it must be on the principle that the power has been conferred upon Congress to declare and to make war against a State. After much serious reflection I have arrived at the conclusion that no such power has been delegated to Congress or to any other department of the Federal Government. It is manifest upon an inspection of the Constitution that this is not among the specific and enumerated powers granted to Congress, and it is equally apparent that its exercise is not “ necessary and proper for carrying into execution “ any one of these powers. So far from this power having been delegated to Congress, it was expressly refused by the Convention which framed the Constitution. ¶It appears from the proceedings of that body that on the 31st May, 1787, the clause authorizing an exertion of the force of the whole against a delinquent State came up for consideration. Mr. Madison opposed it in a brief but powerful speech, from which I shall extract but a single sentence. He observed: 'The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.' Upon his motion the clause was unanimously postponed, and was never, I believe, again presented. Soon afterwards, on the 8th June, 1787, when incidentally adverting to the subject, he said: ‘Any government for the United States formed on the supposed practicability of using force against the unconstitutional proceedings of the States would prove as visionary and fallacious as the government of Congress,’ evidently meaning the then existing Congress of the old Confederation. ¶Without descending to particulars, it may be safely asserted that the power to make war against a State is at variance with the whole spirit and intent of the Constitution. Suppose such a war should result in the conquest of a State; how are we to govern it afterwards? ¶Shall we hold it as a province and govern it by despotic power? In the nature of things, we could not by physical force control the will of the people and compel them to elect Senators and Representatives to Congress and to perform all the other duties depending upon their own volition and required from the free citizens of a free State as a constituent member of the Confederacy. But if we possessed this power, would it be wise to exercise it under existing circumstances? The object would doubtless be to preserve the Union. War would not only present the most effectual means of destroying it, but would vanish all hope of its peaceable reconstruction. Besides, in the fraternal conflict a vast amount of blood and treasure would be expended, rendering future reconciliation between the States impossible. In the meantime, who can foretell what would be the sufferings and privations of the people during its existence? The fact is that our Union rests upon public opinion, and can never be cemented by the blood of its citizens shed in civil war. If it can not live in the affections of the people, it must one day perish. Congress possesses many means of preserving it by conciliation, but the sword was not placed in their hand to preserve it by force.” –James Buchanan, Presidential Address Before Congress, December 1860.
[Herein, President Buchanan flatly denied that the Federal Congress or the President was possessed of any constitutional authority to compel a state to stay within the Union or to forcibly suppress their secession.]“It is asked what guarantee the Union would have against the secession of its members for trivial causes, or mere caprice? The answer is: It would have as guarantee the force of public opinion, habits, and affections; and above all, the fact that in every capricious secession the larger share of the inconveniences would fall upon the seceding member. If the Federal Government were equitable and beneficent, this safeguard would be always omnipotent. ¶Akin to this is the objection, that if the union may not forcibly prevent the secession of a State, then it has no rightful mode of self-protection against any wrongful acts which the departing member commit in her exit, such as appropriating the common property, or against any detrimental or even destructive use which she may make of her independence afterwards. But this is not this State, the moment she resumes separate independence, bound by the comity of nations to her former partners, as any other nation is? Just as any other independent neighbor may be required so to exercise its sovereignty as not to infringe the sovereignty of others, in the same may she be, even by force of arms. But then the coercion must be applied only to compel her to act as a just equal and neighbor; not only to enforce by violence a union which, in its very nature, can only be voluntary.” –Robert L. Dabney, Life and Campaigns of Lieut.-General Thomas Jonathan Jackson, (Boston, MA: Scrymgeour, Whitcomb, Co., 1866), p. 135.
