[First draft written 1995--this draft finished Feb. 13, 2003]
CHAPTER ONE--THE ULTIMATE SOURCE OF SOVEREIGNTY IN THE AMERICAN FEDERAL SYSTEM
To understand the nature of sovereignty in the federal system, we must examine its first principles. The most famous nationalist
arguments (i.e., arguments for the location of sovereignty in a single American nation rather than in the States) go back
to the issue of sovereignty during and before the Revolution. They all contend that the United States as a sovereign power
predated the States, and that the division of power between the States and the federal government reflects the collective
sovereign will of a single American people.
Although others, like Justices John Marshall and Joseph Story, and Senator Webster, produced weightier arguments, Abraham
Lincoln's statement of the doctrine is by far the most notable--by reason both of his his own stature, and of the scope and
audacity of his claims. He stated it in brief form in his First Inaugural Address:
The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured
and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States
expressly plighted and engaged that it should be perpetuated, by the Articles of Confederation in 1778. And, finally, in 1787
one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union." [Complete
Works of Abraham Lincoln VI: 174-175]
And he stated it at length in his Independence Day Address to Congress that same year:
Our States have neither more nor less power than that reserved to them in the Union by the Constitution--no one of them
ever having been a State out of the Union. The original ones passed into the Union even before they cast off their British
colonial dependence; and the new ones each came into the Union directly from a condition of dependence.... The new ones only
took the designation of States on coming into the Union, while that name was first adopted for the old ones in and by the
Declaration of Independence. Therein the "United Colonies" were declared to be "free and independent States"; but even then
the object plainly was not to declare their independence of one another or of the Union, but directly the contrary, as their
mutual pledge and their mutual action before, at the time, and afterward, abundantly show. The express plighting of faith
by each and all of the original thirteen in the Articles of Confederation, two years later, that the Union shall be perpetual,
is most conclusive. Having never been States either in substance, or in name outside of the Union, whence this magical omnipotence
of "State Rights," asserting a claim of power to lawfully destroy the Union itself...? The States have their status in the
Union, and they have no other legal status. If they break from this, they can only do so against law and by revolution. The
Union, and not themselves separately, procured their independence and their liberty. By conquest or purchase the Union gave
each of them whatever of independence or liberty it has. The Union is older than any of the States, and, in fact, it created
them as States. [Ibid. VI: 314-316]
As Lincoln's quote attests, the nationalist arguments begin with the issue of sovereignty before and during the Revolution,
follow our history through independence and the Articles of Confederation, and climax in the Constitution's ratification.
To understand the nature of sovereignty properly, we must begin where Lincoln did, before the Revolution; and we must examine
each of the nationalist argumens in the light of history. By investigating the actual nature of the colonies' ties to each
other and to Great Britain, and the process by which they gained independence and ultimately established a federal union,
we can determine whether the nationalist arguments have any basis in historical fact.
Nationalist arguments concerning the revolutionary period fall into two main groups. The first group asserts that the Continental
Congress became the agent of a single sovereign nation when it began to exercise sovereign powers. This group in turn can
be divided into two subgroups: first, those who contend that the Congress exercised sovereign power in 1774, or (more commonly)
1775, when it began to carry out diplomatic or military functions; and second, those who contend that the States became jointly,
not severally independent in 1776. Both these subgroups agree that at some point the sovereign power of the Crown (or the
Crown-in-Parliament) devolved upon the Continental Congress as the legislature of a single, sovereign nation. The second group
of nationalist arguments asserts that the Constitution was ratified by the people of the United States as an aggregate, not
by the peoples of the several States, and that therefore the States as bodies politic are not parties to the Constitution,
and are not sovereign except insofar as the people of the United States have seen fit to apportion a certain amount of sovereign
power to them. We will now proceed to examine the periods from the first Continental Congress to Independence, from Independence
to the Constitution's ratification, and the ratification period itself, with a view to testing the validity of these claims.
The Source of Sovereignty from the First Continental Congress to the Declaration of Independence (1774-1776). The best-known
nationalist argument concerning this period can be found in Joseph Story's Commentaries on the Constitution. The delegates
to the Congres, he said, were not in any real sense representatives of the colonies. They were appointed either by the popular
branches alone of the legislatures, or by conventions of the people.
Thus was organized under the auspices and with the consent of the people, acting directly in their primary, sovereign capacity,
and without the intervention of the functionaries to whom the ordinary powers of government were delegated in the colonies,
the first general or national government.... The Congress thus assembled exercised de facto and de jure
a sovereign authority; not as the delegated agents of the governments de facto of the colonies, but in virtue
of original powers derived from the people.
To the question, at what point the colonies became a nation, and at what point Congress became possessed of sovereign power,
he replies, "The true answer would be, that as soon as Congress assumed powers and passed measures which were in their
nature national, to that extent the people, from whose acquiescence and consent they took effect, must be considered as agreeing
to form a nation." [Story, Commentaries 1: 145, 156]
Without recourse to the facts of history, we can already spot a number of logical non-sequiturs in Story's argument. First,
the issue of whether the Congress represented the people in their direct sovereign capacity and not the regular colonial governments,
is entirely distinct from that of whether the sovereign people thus represented were the peoples of the several colonies,
or of the nation as a whole. Second, the fact that Congress exercised war powers, which were admittedly incidental
to sovereignty, does not mean that it was itself possessed of sovereign authority. A joint military command exercising
the delegated war powers of a number of sovereignties was hardly new. The Greek states of the fifth century B.C.
formed such an arrangement for prosecuting the war against Persia. The North Atlantic Council and SHAPE headquarters do the
same thing today on behalf of the North Atlantic Treaty signatories. As Justice Iredell wrote in Penhallow v. Doane,
just because it was inexpedient for the States to exercise their war powers separately, and because they in fact chose not
to do so, it does not follow that they lacked the authority to do so, or to resume doing so. [3 Dallas 92-93 (1795)]
And in alledging that, by their acquiescence, the people agreed to form a single sovereign nation, Story in effect argues
from squatters' rights. The only way for the people of the United States to approve anything would have been through a direct
referendum. The fact that they "acquiesced" (meaning what? that they did not rise up in arms against Continental regulars
or rebel against their State conventions?) in the exercise of war powers by Congress during an emergency hardly constitutes
a permanent alienation of sovereignty. In the words of Charles McIlwain:
Commentators who are often more legalists than legists have, as it seems to me, been overfond of applying to the larger
questions of constitutional development a too narrow and rigid interpretation based on superficial analogies drawn from other
branches of law such as the law of property or of contract. The technicalities of the law of estoppel and of prescription
and the statutory provision extinguishing a civil remedy by lapse of time are thus used sometimes rather loosely and without
discrimination to prove a whole people's forfeiture by non-user of its former right of opposition to unconstitutional grievances.
[The American Revolution pp. 12-13]
An examination of the period 1774-1776 shows the nationalist argument to be deficient from the standpoint not only of logic,
but of fact as well. Story was in error on the nature of representation in the Congress, on the intentions of the colonies
in sending delegates, and on the nature of the powers exercised by Congress.
Appointment by lower houses or conventions did not change the fact that the delegates represented the peoples of thirteen
separate political communities. The term "convention" was ambiguous. It was used in two ways, both of which alluded to the
Convention Parliaments of seventeenth century England. In the first usage, a convention was an extraordinary or revolutionary
legislature which convened outside the ordinary constitutional process of a colony. Like the Convention Parliaments of England,
they were elected without a writ issued, and met without a summons from the King or his representatives.
At the same time, however, the term "convention" referred not only to an extraordinary legislature, but to something more:
it referred to the people themselves, assembled in their highest sovereign capacity, superior to any legislature. According
to St. George Tucker, the Virginian jurist and expositor of Blackstone, the Virginia convention was "either nothing at
all, or something superior to an ordinary legislature. It was the great body of the people assembled in the persons of their
deputies, to consult for the common good, and to act IN ALL THINGS FOR THE SAFETY OF THE PEOPLE." ["Of the Constitution
of the United States" p. 86] The conventions did indeed act as legislatures in the face of the dissolution of the ordinary
royal governments. However, they performed constitutional functions beyond the competence of an ordinary legislature. The
English Convention Parliaments had acted as more than mere Parliaments meeting without royal sanction. One Convention Parliament
reestablished the Stuart monarchy after the collapse of the Protectorate; the other placed William and Mary on the throne.
Tucker described the process in Virginia:
The dissolution of the constitutional assemblies by the governors appointed by the crown, obliged the people to resort
to other modes of deliberating for the common good. Hence the first introduction of conventions; bodies neither authorized
by nor known to the constitutional government; bodies, on the contrary, which the officers of the constitutional governments
considered as altogether illegal, and wanted not the inclination to treat as such. Nevertheless, they met, deliberated, and
resolved, for the common good. They were the people assembled by their deputies, not a legal, or constitutional assembly or
part of the government as then organized. Hence they were not, nor could they be deemed the ordinary legislature.... [The
convention] consisted of the people themselves assembled by their delegates, to whom the care of the common weal was unboundedly
confided. The ordinance under which the last convention was chosen, declaring, "That by the unhappy differences subsisting
between Great Britain and this colony, the usual meetings of the general assembly, deliberations on the situation of the country,
and making provision for the exigencies of government in a constitutional way, are altogether obstructed; for which reason
it has become indispensably necessary for the oppressed people of this country... to adopt such other mode of consulting
and providing for the general safety as may seem most
conducive to that great end." [Ibid. pp. 86-87]
James Wilson drew an explicit parallel between the irregular State governments of the Revolution and the Convention Parliaments
Was the convention parliament, that recalled Charles the second, and restored the monarchy, authorized by the forms of
the constitution? Was the convention of lords and commons, that placed King William on the throne, and secured the monarchy
and liberty likewise, authorized by the forms of the constitution? ["Speech Delivered in the Convention for the Province
of Pennsylvania," January 1775, Philadelphia. In McCloskey, ed., Works v. 2 p. 751]
Although most of the state constitutions of the revolutionary era were enacted by the ordinary legislatures or by the existing
conventions without a special election, a number of the constitutions provided for amendment only by convention. In the 1780s,
it became generally accepted that the fundamental law could be altered only by extraordinary assemblies of the people. The
U.S. Constitution was ratified by each State through a convention specially elected for the purpose. In sum, the conventions
were extraordinary colonial governments formed for revolutionary purposes, and acting outside the bounds of ordinary constitutional
restraints. But they represented the peoples of the several colonies, and in no sense represented the people of the United
To make a long story short (no pun intended), the fact that many States were under extraordinary or revolutionary governments
does not in any way alter the fact that they were functioning as independent bodies politic. The lower houses acted as conventions
or extraordinary legislatures for the same reason that the Convention Parliament did. The royal governors and upper houses
attempted to dissolve the lower houses, and otherwise deliberately impeded the functioning of government, leaving the lower
houses with no choice but to act outside the constitution. In the same way, James II had attempted to impede the functioning
of the English government by throwing his royal seal into the Thames on his way out of the kingdom. The colonies were governed
by revolutionary conventions because they were in the midst of a revolution. Even so, in two colonies, Rhode Island and Pennsylvania,
delegates were elected by the ordinary legislatures; and in Massachusetts, the birthplace of the revolutionary spirit, delegates
were chosen by a lower house which had been elected without any special instructions to choose delegates. [Van Tyne, "Sovereignty
in the American Revolution" pp. 529-530]
Story's argument simply does not hold water. The Continental Congress may have represented the irregular, revolutionary
governments of the States, but it represented the States nonetheless.
The credentials of the delegates to the First and Second Contintental Congresses show that the several colonies appointed
their delegates for the purpose of representing their colonies alone, and that most colonies empowered their delegates only
to advise and consult on common measures and to recommend measures to the home governments. Further, the delegates' credentials,
when they mentioned the object of their business, generally referred only to reconciliation with Great Britain on a proper
constitutional basis. The credentials, in short, hardly evidence any popular mandate to assume sovereign power. [All material
on credentials in the paragraphs below is taken from Journals of the Continental Congress I: 15-30; II: 14-50]
The delegates were appointed for the express purpose of representing their colonies in Congress. At the First Continental
Congress in 1775, the New Hampshire delegates' credentials referred to their "election... on behalf of this province...."
The Rhode Island Assembly appointed delegates "to represent the people of this Colony..." The Connecticut House of
Representatives directed the delegates "in behalf of this Colony, to attend such Congress...." In New Jersey, committees
appointed by "several counties" nominated deputies "to represent the same in the general congress of deputies from
the other Colonies...." In Delaware, pursuant to a circular letter from the Speaker of the House, the committees of correspondence
of the three lower counties (i.e., Delaware, which was commonly styled in that way) chose representatives to appoint delegates
as "deputies, on the part and behalf of this government...." In Maryland, the committees of several counties met to
appoint "deputies for this province...." A meeting of delegates from the counties of Virginia chose delegates "to
represent this Colony...." North Carolina's deputies were empowered to give "consent... on behalf of this province...."
Those of South Carolina were appointed "on the part and behalf of this Colony."
The credentials of the Second Congress' delegates, in 1775, tell the same story. New Hampshire appointed delegates "to
represent this province in the Continental Congress...." Massachusetts' delegates were "appointed and authorized to
represent this Colony...." Connecticut's delegates were to act "in behalf of this Colony..." New York's delegates
were elected "to represent this Colony...." Pennsylvania appointed "Deputies on the Part of this Province...."
Delaware's were "authorized to represent this Government at the American Congress...." Maryland: "to represent this
Province...." Virginia: "to represent this colony...." South Carolina: "To represent this Colony...." Rhode
Island: "to represent the people of this colony...."
It is difficult to read any implications of sovereign authority into the credentials of the 1774 delegates. The most strongly
worded commission was that of North Carolina. The deputies were "invested with such powers, as may make any acts done by
them, or consent given in behalf of this province, obligatory in honour upon every inhabitant hereof...." Even in this
case, the commission relied on the "honour" of North Carolina for its enforcement, since Congress had no way of carrying
out its measures except through the legislative acts of the colonies. The rest of the delegates' credentials were far less
extravagant. They were generally authorized only to meet, consult, etc., and report back home. The New Hampshire delegates
were empowered to "devise, consult, and adopt measures...." Mass.: "...to consult upon the present state of the
Colonies..., and to deliberate and determine upon wise and proper measures, to be by them recommended to all the Colonies...."
R.I.: "...to meet and join with the commissioners or delegates from the other Colonies, in consulting upon proper measures...."
Conn.: "...to consult and advise on proper measures... and... to report to this house." Penn.: "...to consult together...
and to form and adopt a plan...." Delaware: "...to consult and advise with the deputies from the other colonies, and
to determine upon all such prudent and lawful measures, as may be judged most expedient for the colonies immediately and unitedly
to adopt...." Md.: "...to effect one general plan of conduct...."
The delegates of 1775 were empowered in somewhat stronger language. New Hampshire: "...they... have full and Ample Power,
in behalf of this Province, to consent and Agree to all Measures, which said Congress shall deem necessary...." Mass.:
"...full power... to concert, agree upon, direct and order such further measures, as shall to them appear best calculated...."
S.C.: "...with full Powers to Concert, agree upon, direct and order such further Measures, as, in the Opinion of the said
deputies, and the Delegates of the other American Colonies to be Assembled, shall appear to be necessary...." As in the
previous year, the most strongly worded credentials were those of North Carolina: "...and they are hereby invested with
such powers as may make any Acts done by them, or any of them, or consent given in behalf of this Province, obligatory, in
honor, upon every inhabitant thereof." But again, this language could do no more than bind the honor of the sovereign
authority of North Carolina; it could not alienate it. No matter how strong the moral commitment of the colonies to Congress'
resolutions, they depended entirely on the colonies' acts for their execution. Maryland, in its own enthusiastic commission,
acknowledged as much: "...have full and ample power to consent and agree to all measures, which such Congress shall deem
necessary and effectual...; and this Province shall bind themselves to execute, to the utmost of their power, all resolutions
which the said Congress may adopt...." Even the North Carolina Assembly felt it necessary to pledge to adhere to the resolutions
of the previous Congress.
Even in 1775, many of the delegates' credentials gave them only consultative power, with no authority to consent or to
bind themselves, in honor or otherwise. Conn.: "...to join, consult and advise with the Delegates of the other Colonies
in British America, on proper Measures...." N.Y.: "...to concert and determine upon such measures, as shall be judged
most effectual...." New Jersey only authorized her delegates "to attend the Continental Congress of the Colonies....
And [to] report their Proceedings to the next Session of General Assembly." Dela.: "...with full power to them...
together with the Delegates from the other American Colonies, to concert, and agree upon such further measures, as shall appear
to them best calculated...." Rhode Island authorized her delegates "in consulting upon proper measures... agreeable
to the instructions given you by the General Assembly." Pennsylvania and Virginia only authorized their delegates to attend
to meet with other delegates, with no mention of any specific power to agree upon measures.
It is especially hard to view the actions of the Continental Congress in either 1774 or 1775 as an assumption of sovereign
legislative power by the nation, considering that the sole purpose of the delegates was to restore colonial liberties under
the Crown. New Hampshire's 1774 delegates were sent with the intention "to secure and perpetuate [the colonies']
rights, liberties, and privileges, and to restore that peace, harmony, & mutual confidence which once happily subsisted
between the parent country and her colonies." R.I.: "...to obtain a repeal of the several acts of the British parliament...
and to establish the rights and liberties of the Colonies, upon a just and solid foundation...." Penn.: "...to form
and adopt a plan for the purpose of obtaining redress of American grievances..." Va.: "...to consider of the most proper
and effectual manner of so operating on the commercial connexion of the colonies with the Mother Country, as to procure redress...."
The commissions of 1775 were of the same kind. New Hampshire authorized its delegates to agree on measures "to Obtain
redress of American Grievances." Mass.: "...for the recovery and establishment of American rights and Liberties, and
for restoring harmony between Great Britain and the Colonies." N.Y.: "...for the preservation and re-establishment
of American rights and privileges, and for the restoration of harmony between Great Britain and the Colonies." Dela.:
"...for the accomodation of the unhappy differences between Great Britain and the Colonies...." Md.: "...to obtain
a redress of American grievances...." S.C.: "...for the Recovery and Establishment of American Rights and Liberties,
and for Restoring Harmony between Great Britain and her Colonies." R.I.: "...to obtain a repeal of the several acts
of the British Parliament... and... to establish the rights and liberties of the colonies, upon a just and solid foundation...."
The colonies' priority to Congress is not to be seen only in official documents. In writing to his wife at the outset of
the First Continental Congress, John Adams managed in one sentence to refer to Massachusetts as a country and to its delegation
as an embassy: "I flatter myself, however, that we shall conduct our embassy in such a manner as to merit the approbation
of our country." [to Mrs. Adams Sept. 18, 1774, in Letters of Members of the Continental Congress I: 35]
An examination of the history of Congress' activities, also, will show that it had no sovereign legislative power, but
only a recommendatory authority, which was worthless without the cooperation of the colonial legislatures. The plaintiffs
in error in Pennhallow v. Doane summed it up rather nicely:
Congress were allowed to issue money, but they could not guard it from counterfeit, nor make it a legal tender; nor effectually
bind the States to redeem it.... Congress assumed the power of regulating the post-office; but they could impose no penalties
for a breach of their resolution on the subject. Congress received Ambassadors, and other public ministers; but when the immunity
of the French minister's house was violated, the State of Pennsylvania only could punish the offender.... Congress made treaties,
but they could make no law to enforce an observance of them. Even for effectuating their resolutions, relative to admiralty
jurisdiction, Congress were obliged to address themselves by recommendations to the states, individually. [3 Dallas 68-69
We will now look at a few examples prior to Congress' exercise of war powers in June 1775 to demonstrate this point.
Even those who paid utmost respect to the moral authority of Congress were well aware that it depended on the colonies
for enforcement of its resolutions. Suffolk Country, Massachusetts, in its resolutions to Governor Gage of September 9, 1774,
put it thus: "That this county, confiding in the wisdom and integrity of the Continental Congress, now sitting at Philadelphia,
pay all due respect and submission to such measures as may be recommended by them to the colonies...." [Journals of
the Continental Congress I: 36]
On September 22, 1774, Congress was obliged to request compliance with its embargo resolutions in order to bring them into
execution: "Resolved unanimously, That the Congress request the Merchants and others in the several colonies, not to send
to Great Britain, any orders for goods...." [Ibid. I: 41]
In October 1774 Congress sent recommendations to the Boston Committee of Correspondence in answer to its requests
for advice. The Committee had requested on the 6th that Congress advise it on the proper course of action in response
to the Bitish fortification of the town. "...[If] the Congress advise to quit the town,--they obey--if it is judged that
by maintaining their ground they can better serve the public cause, they will not shrink from hardship and danger--finally,
that as the late acts of parliament have made it impossible that there should be a due administration of justice... they therefore
request the advice of the Congress." On the 10th Congress responded with a resolution stating, in part:
That it is the opinion of this body, that the removal of the people of Boston into the country, would be not only extremely
difficult in the execution, but so important in its consequences, as to require the utmost deliberation before it is adopted;
but, in case the provincial meeting of that Colony should judge it absolutely necessary, it is the opinion of the Congress,
that all Americans ought to contribute towards recompensing them for the injury they may thereby sustain....
Resolved, That the Congress recommend to the inhabitants of the colony of Massachusetts bay, to submit to a suspension
of the administration of Justice, where it cannot be procured in a legal and peaceable manner.... [Ibid. I: 59]
Most importantly, perhaps, Congress itself denied any legislative authority on its part. The Declaration and Resolves,
Resolution 4, of October 14, 1774, stated that the colonial assemblies were the only legislative authorities in the colonies:
...and as the English colonies are not represented, and by their local and other circumstances, cannot be represented in
the British parliament, they are entitled to a free and exclusive power of legislation in their provincial legislatures, where
the right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative
of their sovereign, in such manner as has been heretofore used and accustomed. [Ibid. I: 68]
In a pinch the nationalists will stipulate to the above facts. Their argument for national sovereignty only comes in full
force in the aftermath of Lexington and Concord, when the Congress supposedly "assumed" war powers--a point, it seems, at
which they would find the opening strains of Also Sprach Zarathustra to be fitting. But several colonies, especially
Massachusetts, had been taking military measures of their own ever since the British occupation of Boston; and Massachusetts
was moving toward the creation of a standing army.
Although military preparations naturally advanced most rapidly in Massachusetts, the other colonies were approaching a
war footing of their own, especially in New England. On October 13, 1774 the Connecticut assembly convened, and adopted an
act ordering the militia to train at least twelve half-days between then and May. It ordered the officers to check the condition
of weapons, and doubled the amount of ammunition to be stockpiled in the towns. In the same month, the Rhode Island assembly
approved petitions from the towns to create independent militia companies. In December the assembly authorized the creation
of still more companies, and appointed Simeon Potter of Bristol as Major General of Rhode Island forces. It provided, in case
of necessity, for sending Rhode Island troops to the aid of neighboring colonies. [Jensen, Founding of a Nation p.
In December Maryland recommended that all inhabitants between sixteen and fifty form militia companies, elect officers,
and drill. The county committees created to enforce the Association in Maryland were advised to raise money for arms. [Ibid.
p. 539] In March 1775 the Virginia convention assembled and recommended that the counties raise troops. In April, in reaction
to Governor Dunmore's military preparations (i.e., for counterrevolutionary war), the northern counties began to form independent
companies. On the 26th of that month, fourteen companies of light horse met at Fredericksburg, prepared to march on the capital
at Williamsburg, and awaited instructions from George Washington (then an officer of the Virginia militia). On the plea of
several Virginia delegates to Congress, they returned home. [Ibid. pp. 545, 547-48]
Of all the colonies, Massachusetts' were the most extensive in the months before Lexington. On September 20, 1774, the
Worcester county convention organized the militia into seven regiments, and recommended ythat the officers in each town enlist
a third of the men between sixteen and sixty to "act at a minute's warning," and that the towns appoint committees
ot supply the troops. Four other county conventions approved military measures in August and September. [Ibid. p. 553]
In October the Provincial Congress appointed a committee on defense. The committee submitted a report to the floor, which
was accepted with approval. The report that they approved provided for a Committee of Safety which could call out the militia,
march them where needed, and raise supplies. It appointed three generals and five commissaries. Some delegates had proposed
a standing army of 15,000, but the majority preferred to rely on the militia for the time being. [Ibid. pp. 558-59] On February
10, 1775, the Provincial Congress appointed a committee to prepare rules and regulations "for the constitutional army which
may be raised," and authorized the Committee of Safety to appoint a commissary to take charge of all military stores until
the army should take the field. That committee presented its report on March 27. On February 21, the Committee of Safety voted
to procure enough supplies to put 15,000 men in the field. On February 23, they ordered the commanders of militia and minuteman
companies to assemble a quarter of their men. In subsequent meetings the committees ordered supplies, organized military companies,
and established military depots. [Ibid. pp. 562-64] On April 8, the Congress resolved, "it is necessary for this colony
to make preparations for teir security and defense, by raising and establishing an army," but took no further concrete
action. [Ibid. p. 566]
In the meantime, the Massachusetts Provincial Congress voted to send delegates to the other New England colonies to request
cooperation, and met with representatives from Rhode Island and new Hampshire who agreed on the need to coordinate measures
between the New England colonies. [Ibid. pp. 566-567] This was how the situation stood on the eve of the battle of Lexington.
Massachusetts had no regular army, but was making all the preparations necessary to form one, on her own authority.
After Lexington and Concord, Massachusetts and her New England neighbors began to form regular armies. In the aftermath
of Lexington, the Massachusetts Provincial Congress was not in session. Joseph Warren, a leading member of the Committee of
Safety, took the initiative. He sent a circular letter to the localities, which said, in part, "We conjure you, therefore,
by all that is sacred, that you give assistance in forming an army.... We beg and entreat... that you will hasten and encourage
by all possible means, the enlistment of men to form the army, and send them forward to headquarters at Cambridge...."
On April 21 Warren and the Committee of Safety voted to raise an army of 8,000. On April 23 the Congress voted that an army
of 30,000 was needed for all New England, and that Massachusetts' share was 13,600. [Ibid. pp. 587-88] On May 3, the Congress
announced its decision to raise just that number: "[The aggression of the British Army] hath rendered the Establishment
of an Army indispensably necessary. We have accordingly passed an unanimous Resolve for thirteen thousand six hundred Men,
to be forthwith raised by this Colony...."[Journals of the Continental Congress II: 24-25]
Lest we of the twentieth century, who measure standing armies by the hundred thousands or millions, minimize the importance
of this act, we must bear in mind two thngs that the army contemplated by Massachusetts was roughly the same size as the regular
force proposed in Congress during the 1794 war scare with England. [McDonald, Presidency of George Washington p. 141]
Although she sought the cooperation of her sister New England colonies, Massachusetts was clearly prepared to raise a regular
army and organize a war effort on her own.
After Lexington, cooperation between Massachusetts and the other New England colonies proceeded at a much faster pace.
The resolution of the Massachusetts Congress quoted above also referred to proposals to the Congress of New Hampshire and
the governments of Rhode Island and Connecticut, "for furnishing men in the same proportion." [Journals of the Continental
Congress II: 24-25] In the meantime, the Rhode Island legislature had voted to raise an army of 1500 to assist Massachusetts,
and the Connecticut assembly voted to raise an army for the assistance of that colony is needed, on April 25 and 26, respectively.
[Jensen pp. 592-93]
Beginning on May 3, Massachusetts and the other colonies increasingly pressured Congress to form a single regular force
for the whole continent. In her announcement of a regular army, Massachusetts also strongly hinted that "a powerful Army,
on the side of America, hath been consider'd, by this Congress, as the only means left to stem the rapid Progress of a tyrannical
Ministry." [Journals of the Continental Congress II: 24-25] On June 2 the Continental Congress received a resolution
from the Massacusetts provincial Congress dated May 16, lamenting the lack of a regular civil power in that colony suitable
to control the army. "As the Army now collecting from different colonies is for the general defense of the right of America,
we wd. beg leave to suggest to yr. consideration the propriety of yr. taking the regulation and general direction of it, that
the operation may be more effectively answer to the purposes designed." [Ibid. II: 77-78]
Despite the mounting pressure for Continental oversight, for two months the war was conducted entirely by the individual
New England colonial commands around Boston, with a minimum of loose coordination under Massachusetts General Artemas Ward.
The battle of Bunker Hill and the capture of Ticonderoga were carried out in May by armies of the separate colonies. Until
the middle of June, two months after Lexington, the assistance of Congress was largely restricted to a generous amount of
advice. On May 15 Congress recommended that New York permit British troops to remain in barracks as long as they behaved peaceably,
but that they not be allowed to erect fortifications or to cut off New York City from the country, and that the inhabitants
"repel force by force." [Ibid. II: 52] After Ticonderoga, Congress recommended that New York remove military stores
from the fort to the south end of Lake George and apply to Massachusetts, New Hampshire, and Connecticut for forces to help
garrison the stores. [Ibid. II: 55] On the 25th the Continental Congress sent the New York Congress a list of important posts
and recommended they raise up to 3,000 men to garrison them, recommending also that they be enlisted until December 31. [Ibid.
II: 60-61] On the 26th Congress recommended that the New York Congress "persevere the more vigorously in preparing for
their defence...." [Ibid. II: 64] On May 31 Congress requested that the Governor of Connecticut send reinforcements to
the garrisons of Crown Point and Ticonderoga, and that the New York Congress furnish the Connecticut troops with provisions.
The resolution also recommended that Governor Trumbull "appoint a person, in whom he can confide, to command the forces
at Crown Point and Ticonderogo [sic]." [Ibid. II: 74]
In the middle of June 1775, following two months of intense pressure from the colonies, the Continental Congress began
to take measures toward the formation of a Continental Army. On June 14 a Continental Congress resolution referred by name
to the Continental Army for the first time. It called for six companies of riflemen to be raised in Pennsylvania, two in Maryland,
and two in Virginia, and prescribed grades of pay. The enlistment oath was as follows:
I have, this day, voluntarily enlisted myself, as a soldier, in the American continental army, for one year, unless sooner
discharged: And I do bind myself to conform, in all instances, to such rules and regulations, as are, or shall be, established
by the government of the sad. Army.
It set up a committee to draft regulations for the army. [Ibid. II: 90] On June 15 Congress appointed George Washington
General of the continental forces. [Ibid. II: 91] The next day the Continental Army command and support structure was organized,
including two Major Generals, eight Brigadier Generals, one Adjutant General, one Commissary General, one Quartermaster General,
one Pay Master General, and one Chief Engineer. [Ibid. II: 92-95] On the 20th Washington was empowered to recruit troops on
his own authority. [Ibid. II: 100]
The creation of the Continental Army is at the heart of the nationalists' claims that Congress assumed sovereign authority.
The Continental Army was indeed under the direct control of Congress, and able to recruit men without the mediation of colonial
governments. But as we have just seen, the first two months of the Revolutionary War had been conducted on the sole authority
of the colonial governments, and Congress' role had been purely advisory. Only with the permission of the colonies did Congress
begin to assume the direction of an ongoing war effort. In short, Congress did not assume war powers on its own authority,
but as the delegated agent of the colonies' war powers. Moreover, the colonies continued to regulate their own militias, and
some even continued to maintain small regular forces. For example in 1781 Virginia, during Jefferson's Revolutionary War governorship,
sent a battalion of her regulars across the Ohio on an expedition to assert that State's sovereignty over the Northwest Territory.
Even the arch-nationalist Justice Story, in glaring contradiction to his own arguments above, admitted that the exercise
of war powers by Congress was only ad hoc and under the pressure of necessity, and could hardly be taken to reflect any intention
on the part of the colonists to create a sovereign national authority:
They [the colonies] were suddenly brought together, not so much by any deliberate choice of a permanent union, as
by the necessity of mutual co-operation and support in resistance of the measures of Great Britain. They found themselves,
after having assembled a general Congress for mutual advice and encouragement, compelled by the course of events to clothe
that body with sovereign powers in the most irregular and summary manner, and to permit them to assert the general prerogatives
of peace and war, without any previous compact, and sanctioned only by the silent acquiescence of the people. [Commentaries
Despite the formation of a Continental Army under its direct command, Congress continued to rely on the colonial governments
to enforce its non-military recommendations. The continental Association (embargo) depended entirely on the colonies for enforcement.
Congress on May 27, 1775 recommended the conditions under which the colonies' conventions should forgive those adjudged guilty
by local committees of violating the association.[Journals of the Continental Congress II: 67] On January 11, 1776
Congress requested that the cities, counties, and, in case of appeal, the colonial assemblies, conventions, or committees
of safety punish those who refused to accept bills of credit or attempted to discourage their acceptance. [Ibid. IV: 49] On
March 14, 1776 it recommended that the colonies disarm those "who are notoriously disaffected to the cause of America,
or who have not associated, and shall refuse to associate, to defend, by arms, these United Colonies...." [Ibid. IV: 205]
On June 24, 1776 Congress requested that the colonies pass laws against treason, defining citizenship, allegiance, and treason
in terms of the colonies:
Resolved, That all persons abiding within any of the United Colonies, and deriving protection from the laws of the
same, owe allegiance to the said laws, and are members of such colonies....
That all persons, members of, or ownign allegiance to any of the United Colonies, as before described, who shall levy war
against any of the said colonies within the same, or be adherent to the King of Great Britain, or others the enemies of the
said colonies, or any of them, within the same, giving to him or them aid and comfort, are guilty of treason against such
That it be recommended to the legislatures of the several United Colonies, to pass laws for punishing... such persons before
The second paragraph, note, in defining treason against a colony, used language almost identical to that traditionally
used in the common law to define treason against the British sovereign. Thus, the reciprocity of allegiance and protection,
a principle at the heart of the notion of citizenship, was established at the level of the individual colony. The same resolution
also recommended that the colonies pass laws against counterfeiting. [Ibid. V: 475-76]
This exercise of war powers by Congress could hardly have implied sovereign power, since it was exercised until July 1776
with the avowed purpose of restoring colonial ties to the crown to their proper constitutional form. Congress repeatedly issued
addresses proclaiming their allegiance to the King and expressing a hope of reconciliation. One of the best examples of this
was the February 13, 1776 letter of Congress to the inhabitants of the colonies. It referred to the threatened "total loss
of those [colonial] constitutions," and the resulting "disagreeable Necessity of making temporary Deviations
from those constitutions." The same letter stated that
the Powers, which the House of Commons receives from its Constituents, are entrusted by the Colonies to their Assemblies
in the several Provinces. Those Assemblies have Authority, to propose and assent to Laws for the Government of their Electors,
in the same Manner as [does] the House of Commons....
If it would be incongruous and absurd, that the same Property should be liable to be taxed by two Bodies independent of
each other; would less incongruity and Absurdity ensue, if the same Offense were to be subjected to different and perhaps
inconsistent Punishments? [Ibid. IV: 134-35]
In a single document, Congress described its exercise of power as a temporary deviation from the constitutions, implied
the indivisibility of sovereign legislative power, and located that power in the colonial assemblies alone.
The Continental Congress thus could not have assumed sovereign authority in the period before 1776. Every power it exercised
was one previously exercised by the colonies; it exercised the delegated sovereign power of the colonies only by their sufferance;
and the colonies continued to exercise these sovereign powers intermittently even after delegating them to Congress.
The Source of Sovereignty from the Declaration of Independence to the Ratification of the Constitution (1776-1789).
The nationalist arguments reach their full stride in dealing with the events surrounding independence in 1776. One of the
earliest such arguments was that of the circular letter of Congress to the States of September 13, 1779, which was written
to reassure creditors of the reliability of continental bills of credit and the ability of the United States to redeem them:
Our enemies, as well foreign as domestic, have labored to raise doubts on this level. They argue that the confederation
of the states remains yet to be perfected; that the union may be dissolved, Congress be abolished, and each state, resuming
its delegated powers, proceed in future to hold and exercise all the rights of sovereignty appertaining to an independent
state.... Examine this matter.
For every purpose essential to the defence of these states in the progress of the present war, and necessary to the attainment
of the objects of it, these states are now as fully, legally, and absolutely confederated as it is possible for them to be....
On the 4th of July, 1776, your representatives in Congress, perceiving that nothing less than unconditional submission would
satisfy our enemies, did, in the name of the people of the thirteen United Colonies, declare them to be free and independent
states, and "for the SUPPORT of that declaration, with a firm reliance on the protection of Divine Providence, did mutually
pledge to each other their LIVES, their FORTUNES, and their SACRED HONOR." Was ever confederation more formal, more solemn,
or explicit? It has been expressly assented to and ratified by every state in the union... and consequently, while any or
all of its objects remain unattained, it cannot, so far as it may respect such objects, be dissolved, consistent with the
laws of God or man. [Ibid. XV: 1058-59]
This is a remarkably flimsy piece of evidence, written as a piece of propaganda to reassure creditors. It consists of unlikely
insistence, wishful thinking, and a weak attempt to read a binding legal meaning into the florid rhetoric of the Declaration
of Independence (in these qualities, it perhaps qualifies as a precursor of Straussian constitutional interpretation). The
legal act of independence was the approval by Congress on July 2, 1776 of Richard Henry Lee's independence resolution. The
Declaration was simply a document written to publicize it after the fact.
Moreover, Congress did not in fact have the power to back up its credit, either by direct taxation or by enforcement of
claims on the States--as one might guess from the necessity of such a circular letter in the first place. The power did not
exist even after the Articles of Confederation were ratified in 1781, let alone before. Congress, with no direct powers of
taxation or enforcement, was a mere diplomatic council of sovereign States, States which could execute its decisions or not,
as they saw fit. As a result, the bills issued during the war were notoriously worthless.
Besides, if this document proves anything, it proves too much to suit the nationalists. First of all, it quoted the doctrine
of delegated powers without any attempt to refute it, and admitted that the Declaration was ratified by all the States (about
which more below). Second, it proclaimed only that the Union created by the Declaration was to endure until its objects
were attained. Therefore, if we are to take the circular letter as an authority, we must admit that any union created
at independence exercised only sovereign powers delegated to it by the States, with their assent, and that lasted only until
the Treaty of Paris in 1783.
Another nationalist argument is that of James Wilson. In the Philadelphia Convention, on June 19, 1787, Mr. Wilson denied
that, in becoming independent of Great Britain, the colonies became independent of one another. In the Declaration of Independence,
he observed, "the United Colonies were declared to be free & independent States,f" which implied
"that they were independent, not independently but Unitedly and that they were confederated as they were
independent, States." ["Debates in the Federal Convention" p. 239] In the Pennsylvania ratifying convention on December
4 of that year, Wilson declared that sovereignty was in the people, and not "in any government on earth...." Having
sovereignty in their hands, the people could delegate it to such bodies as they saw fit. The people, Wilson went on to say,
first created the State governments, and then a government of confederated States. [McMaster and Stone pp. 17-18]
Of course, the proponents of State sovereignty have never argued that sovereignty was vested in the State governments,
but in the peoples of the several States. Wilson took the liberty of refuting an argument he had put into his
adversaries' mouths, and then ignoring the bearing of their real argument on his own doctrine. The real question, which lies
at the heart of the sovereignty debate, is whether the people of the United States as a whole or the peoples of the several
States are sovereign. Wilson and the other nationalists ignored this question--it was much less embarassing to refute straw
The argument of the defendant in error in Pennhallow v. Doane (1795) made the same erroneous assumption:
On the declaration of independence, a new body politic was created; Congress was the organ of the declaration; but it was
the act of the people, not of the state legislatures, which were likewise nothing more than organs of the people. Having,
therefore, a national sovereignty, extending to all the powers of war and peace, including, as a necessary incident, the right
to judge of captures, the commissioners of appeals were lawfully instituted; and it is absurd to say that both the Federal
and State governments held sovereignty in the same points....
The individual States had no right to erect courts of prize, but under the authority of Congress, who derived their authority
from the whole people of America, as one united body. [3 Dallas 76]
Justice Iredell, in his minority opinion, demolished this pet national distinction between the State governments and the
people of the U.S.
By a State forming a Republic (speaking of it as a moral person) I do not mean the legislature of
the State, the executive of the State, or the Judiciary, but all the citizens which compose
that State, and are, if I may so express myself, integral
parts of it; together forming a body politic.
Justice Patterson, in his opinion for the majority, elaborated on the Congress' assumption of sovereign powers at the time
of independence. His claims are as strong as any, and his language is so extravagant as to desserve a quotation at length:
The powers of Congress were revolutionary in their nature, arising out of events, adequate to every national emergency,
and coextensive with the object to be attained. Congress was the general, the supreme, and controuling council of the nation,
the centre of union, the centre of force, and the sun of the political system. To determine what their powers were, we must
enquire what powers they exercised. Congress raised armies, fitted out a navy, and prescribed rules for their government:
Congress conducted all military operations both by land and sea: Congress emitted bills of credit, received and sent ambassadors,
and made treaties: Congress commissioned privateers to cruise against the enemy, directed what vessels should be liable to
capture, and prescribed rules for the distribution of prizes. These high acts of sovereignty were submitted to, acquiesced
in, and approved of, by the people of America.... Disastrous would have been the issue of the contest, if the States,
separately, had exercised the powers of war. For in such case there would have been as many supreme wills as there were states,
and as many wars as there were wills. Happily, however, for America, this was not the case; there was but one war,
and one sovereign will to conduct it. The danger being imminent, and common, it became necessary for the people or colonies
to coalesce and act in concert, in order to divert, or break, the violence of the gathering storm; they accordingly grew into
union, and formed one great political body, of which Congress was the directing principle and soul. As to war and peace, and
their necessary incidents, Congress, by the unanimous voice of the people, exercised exclusive jurisdiction, and stood, like
Jove, amidst the deities of old, paramount and supreme. [Ibid. 80-81]
Whew! Paterson here successively borrowed metaphors from physics, astronomy, physiology, and Greek mythology in his search
for a grandeur of language befitting the majesty of Congress. When he touchingly glanced on constitutional law, however, his
argument was wanting. Congress did not conduct all military operations, as we shall see. The people of America did not "approve"
the sovereign national power by their acquiescence. The supreme political advance of the American republics, the written constitution,
was important precisely because it ended the old fiction of the Roman civil law, so dear to royal absolutists, that the people
had handed over total sovereignty in some implied act of consent. The only way to recognize "the unanimous voice of the
people," Americans were quickly coming to agree, was through an explicit act of consent.
Patterson's argument was repeated in Story's Commentaries, that grab bag of faulty nationalist arguments:
But the declaration of independence of all the colonies was the united act of all. It was "a declaration by the representatives
of the United States of America in Congress assembled;" "by the delegates appointed by the good people of the colonies," as
in a prior declaration of rights they were called. It was not an act done by the State governments then organized, nor by
persons chosen by them. 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. It was not an act competent to the State governments, or any
of them, as organized under their charters, to adopt.... It was an act of original, inherent sovereignty by the people themselves,
resulting from their right to change the form of government, and to institute a new one, whenever necessary for their safety
and happiness.... No State had presumed of itself to form a new government, or to provide for the exigencies of the times,
without consulting Congress on the subject; and when any acted, it was in pursuance of the recommendations of Congress. It
was, therefore, the achevement of the whole for the benefit of the whole. The people of the united colonies made the colonies
free and independent States, and absolved them from all allegiance to the British crown. The Declaration of Independence has
accordingly always been treated as an act of paramount and sovereign authority, complete and perfect per se,
and ipso facto working an entire dissolution of all political connection with and allegiance to, Great Britain.
[Commentaries I: 154-55]
In the following pages we will examine all the above claims in the light of historical evidence. But first it will be useful
to see that many of these nationalists have refuted themselves out of their own mouths. For example, James Wilson, in a Philadelphia
speech on the eve of the State ratifying convention, said that the Federal Convention has comprehended "the views and establishments
of thirteen independent sovereignties." ["James Wilson's Speech at a Public Meeting" I: 65] In the convention itself,
on November 24, he said that the Federal Convention had been entrusted with framing a government for "thirteen independent
and sovereign States...." [McMaster and Stone p. 218] Two days later: "The United States contain already thirteen governments
mutually independent." [Debates in the Several State Conventions 2: 419]
William Patterson sang a different tune in the Federal Convention than he would later in the Supreme Court. On June 9,
1787 he proclaimed: "We are met here as the deputies of 13 independent, sovereign States, for federal purposes." ["Debates
in the Federal Convention... by James Madison" p. 76]
Joseph Story refuted himself more admirably than any of the other nationalists. In his work of Confederate constitutional
apologetics, Is Davis a Traitor?, Albert Taylor Bledsoe included an entertaining chapter entitled "Mr. Webster vs.
Mr. Webster," in which Webster's nationalist arguments were refuted in his own words. To find these contradictions, however,
Bledsoe had to use speeches made by Webster twenty years apart. A similar reduction of Joseph Story to absurdity would require
no such labor; one can find no end of contradictory arguments on any subject by simply turning a few pages in his Commentaries.
Story admitted himself that, before independence, the colonies had to political ties to each other besides their ties to
a common King, and that "each, in a limited sense, was sovereign within its territory. There was neither alliance nor confederacy
between them." [Commentaries I: 128] Therefore, by implication, there was no sovereign legislative authority
to devolve upon Congress. Further, he admitted:
The union, thus formed [by independence], grew out of the exigencies of the times; and from its nature and objects
might be deemed temporary, extending only to the maintenance of the common liberties and independence of the States, and to
terminate with the return of peace with Great Britain, and the accomplishment of the ends of the Revolutionary contest.
[Ibid. I: 162]
This is as good a place as any to deal with the contention that some or all of the sovereign powers of the Crown devolved
on Congress. The argument was widely used by land speculators to demonstrate Congress' power to settle the conflicting boundary
claims of the States, and by the proponents of a national bank to prove that Congress had authority to charter corporations.
James Wilson, in defending the Bank of North America in 1785, argued that, since the creation of corporations was an executive
function, and had been carried out on the Crown's authority before the Revolution, therefore Congress, possessing the executive
powers of the Crown, could grant charters of incorporation. ["Considerations on the Bank of North America," in McCloskey,
ed., 2: 830]
The most thorough-going statement of this doctrine is Justice Sutherland's majority opinion in U.S. v. Curtiss-Wright
As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sovereignty passed
from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United
States of America. Even before the Declaration, the colonies were a unit in foreign affairs, acting as a common agency--namely
the Continental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace,
raised an army, created a navy, and finally adopted the Declaration of Independence.... When... the external sovereignty of
Great Britain in respect of the colonies ceased, it immediately passed to the Union....
The Union existed before the Constitution, which was ordained and established among other things to form "a more perfect
Union." Prior to that event, it is clear that the Union, declared by the Articles of Confederation to be "perpetual," was
the sole possessor of external sovereignty and in the Union it remained without chane save in so far as the Constitution in
express terms qualified its exercise. [299 U.S. (1936) 304, 316-17]
This opinion is an example of how far one may depart from the truth, when one interprets history on the basis of case law
and the doctrines of politicians, rather than of contemporary records. Sutherland explicitly referred to the majority opinion
in Pennhallow v. Doane as an authority. And while his arguments show great erudition in the speeches of Webster and
Lincoln, they speak poorly of his acquaintance with the historical facts of the Revolution.
Even James Wilson would have agreed that the British Parliament had no legislative authority over the colonies, and that
no common legislative authority existed before the Revolution. Earlier, we quoted the resolutions of Congress on October 14,
1774 as evidence to that effect: "...[the colonists] are entitled to a free and exclusive power of legislation in their
several provincial legislatures, where their right of legislation can alone be preserved...." The best legal presentation
of this argument was in John Adams' Novanglus: "I agree that 'two supreme and independent authorities cannot exist
in the same state'...' and therefore, I contend, that our provincial legislatures are the only supreme authorities in our
colonies." [Novanglus, in Works of John Adams 4: 105] And, as the colonial assemblies were the only
supreme authorities in the colonies, they "have, and ought to exercise every power of the house of commons." [Ibid.
Hence, the accepted constitutional doctrine of the Revolution was that the British empire consisted of "distinct states...
united under one king," and "further cemented and united together by a treaty of commerce." There was no other
connection between Great Britain and the colonies, or between any two colonies, than that existing between England and Scotland
before the Union. [Ibid. 4: 113] "...Massachusetts is a realm, New York is a realm, Pennsylvania is another realm, to all
intents and purposes, as much as Ireland is, or England or Scotland ever were. The King of Great Britian is the sovereign
of all these realms." [Ibid. 4: 123]
So much even James Wilson admitted--but there is another crucial point that Wilson missed. The colonies were not united
under one King as such, acting ex officio as King of Great Britain or the Empire. The allegiance of each colony
was not to the British Crown, but to the natural person of George III, who also happened to be King of Great Britain, Ireland,
and each of the other colonies. Each realm's allegiance to his person was entirely the result of its inhabitants' act of fealty,
depending on no authority outside that realm. [Ibid. 4: 114] Hence, George III was King of, say, Masachusetts, by virtue of
the fealty to the natural person of Charles I brought with them, and by virtue of Massachusetts' acceptance of the Orange
and Hannoverian settlements of the Crown. Massachusetts was not subject to the King of England as such, but to King
George III of Massachusetts. The sovereign authority in Masschusetts was the King-in-General-Court, and no other.
The point to all this rather involved argument is that there was not, legally speaking, any single executive authority
of "the Crown" to devolve upon Congress, but only thirteen separate crowns which happened to be held by the same person. Congress
could not have inherited the executive authority of "the Crown" because no such authority existed.
The next issue to consider in our historical survey of the period 1776-1787 is that of the origin of the State governments.
Nationalists argue that the colonies formed regular governments in response to a Continental Congress resolution of May 1776,
and that therefore the State governments were created on the authority of the people of the nation as an aggregate. As we
will see, whatever power Congress had to propose, the power to dispose was a State monopoly. The regular government
created in each State, whatever its nature, was the act of the people of that State alone. Several States failed to respond
to Congress' recommendation, and R.I. and Connecticut retained their seventeenth century colonial charters, with some republican
modifications, well into the nineteenth century.
No one has ventured to deny that the colonies held the Congress in high respect, or that Congress possessed a great deal
of moral authority as the body in which the colonies coordinated their revolutionary measures. The point, rather, is that,
in a legal and constitutional sense, the colonies were the final authority upon which the resolutions of Congress depended
for their execution. This is nowhere more evident than in the question of the new State governments. Given the esteem in which
Congress was held, and the perceived need in each colony for maintaining unity with the revolutionary movements in the other
colonies, it is natural that each colony would seek the advice of all the others in Congress before so large an undertaking
as overthrowing its colonial charter government. But what is important is that Congress' recommendations never claimed to
be more than just that, and that no one at the time pretended that the final power of decision lay anywhere other than with
the colony for which the new government was formed.
The idea of forming regular civil power had arisen periodically throughout the war. The intention was originally not a
revolutionary one of permanently replacing the charter governments, but of providing some legitimate interim authority in
response to the vacuum of power in the royal governments. For example on June 9, 1775, the Continental Congress resolved that,
given the illegitimacy of the Act of Parliament altering the charter of Massachusetts Bay, and the actions of the royal governor
in subversion of that charter, the governor of that colony be considered absent (overtones of 1689). Congress further resolved
that, in order to conform, as near as may be, to the spirit and substance of that charter, it be recommended to the provincial
convention, to write letters to the inhabitants of the several places, which are intituled to representation in Assembly,
requesting them to chuse such representatives, and that the Assembly, when chosen, do elect counsellors; which assembly and
council should exercise the powers of government, until a Governor, of his Majesty's appointment, will consent to govern the
colony according to its charter. [Journals of the Continental Congress II: 83-84]
On December 4, 1775, in the aftermath of Governor Dunmore's declaration of martial law in Virginia, Congress resolved
that if the convention of Virginia shall find it necessary to establish a form of government in that colony, it be recommended
to that convention to call a full and free representation of the people, and that the said representatives, if they think
it necessary, establish such form of government as in their judgment will best produce the happiness of the people....
[Ibid. III: 404]
By May of 1776, however, more final measures were in order. Paine's Common Sense, coupled with George III's outlawry
of the colonists as "rebels," had radically altered public opinion in America. A number of colonies, particularly the New
England colonies and Virginia, were strongly leaning toward independence. Things had gone so far that, even if articles of
peace had preserved some ties to the Crown, they would have been radically different from those under the colonial charters.
At the same time, the middle colonies were much more reserved in their attitudes toward independence, and the more radical
delegates of New England and Virginia sought to encourage a constitutional shake-up in Pennsylvania and New York, among other
colonies. These two considerations led to the Congressional resolution of May 10:
Resolved, That it be recommended to the respective assemblies and conventions of the United Colonies, where no government
sufficient to the exigencies of their affairs have been hitherto established, to adopt such government as shall, in the opinion
of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America
in general.[Ibid. IV: 342]
St. George Tucker provided some insight into the formation of the new constitution in Virginia. He remarked that Virginia's
ties to the crown were expected to exist no longer than absolutely necessary to collect the sense of the people,
and the unanimous vote of the convention upon the question at so early a period of the session, proves beyond all doubt,
that the members must have left their respective counties fully prepared to give the assent of their constituents to a final
separation from the mother country.
But the delegates considered it ridiculous to dissolve the royal government with nothing else to fill the vacuum.
Though the chains of dependence must be broken, the bonds of society and civil governmentt must yet be preserved.... It
would therefore have been absurdity in the extreme, in the convention, to suppose it to be the sense of their constituents,
that they might cast off their dependence on Great Britain, and annihilate the government exercised under its authority, without
establishing another in its stead.
What bears remarking on is that Tucker seems nowhere to have considered either independence or a republican constitution
to be a matter for any other than the people of Virginia to decide. "The constitution of the state must therefore, be considered
as the act of the people, equally as the dissolution of the former government; both being not only in form, but in effect,
from the necessity and nature of the case, one and the same act." [Appendix, Note C, Tucker's Blackstone pp. 86-87]
This last sentence takes on special significance when we consider that the Virginia convention adopted a republican constitution,
expressly renouncing allegiance to the Crown, on June 29--three days before the Continental Congress got around to declaring
The modern American view of independence goes little beyond the legend of the "signing" on July 4, based perhaps on a hazy
recollection of Trumbull's painting of the demigods in Philadelphia. The reality is both much more complex, and much more
The Continental Congress debated independence on February 29, but ended the debate because five or six of the colonies--mainly
the middle ones--had instructed their delegates not to vote independence without consulting them. [Jensen, Founding of
a Nation p. 654] The implications of this are very important. Congress was merely an assemblage of representatives from
the revolutionary governments of the colonies--appointed by them, and recallable by them. It had no authority to vote for
independence until the colonial governments authorized their delegates to do so. Moreover, the fact that the colonies found
it expedient to coordinate their declarations of independence in Congress by no means reflected an obligation to do so. The
impasse over independence in Congress did not hinder those colonies which saw fit to become independent on their own.
When Congress finally achieved the unanimity necessary to declare independence on July 2, it found two States, Rhode Island
and Virginia, already free and independent republics by their individual acts. On May 4 the Rhode Island legislature declared
that George III had broken the compact, repealed the act which required an oath to the King, and dropped the King's name from
all commissions and writs. [Ibid. p. 675] The Act of the General Assembly stated, in part:
And be it further enacted by this General Assembly... that in all commissions for officers, civil and military, and in
all writs and processes in law, whether original, judicial or executory, civil or ceremonial, wherever the name and authority
of the King is made use of, the same shall be omitted, and in room thereof the name and authority of the Governor and Company
of this Colony shall be substituted.... That the courts of law be no longer entitled nor considered as the King's court. That
no instrument in writing of any nature or kind, whether public or private, shall in the date thereof mention the year of the
King's reign.... [William R. Staples pp. 66-67]
Virginia's path to independence was less direct. At its outset in May, the convention was "determined on an immediate
declaration." There were three rival draft resolutions. The first, moved by Meriwether Smith, and the second, possibly
by Edmund Pendleton, unilaterally proclaimed independence without reference to Congress. Patrick Henry proposed that the formal
statement of independence be made in the name of all the colonies, although Virginians considered themselves "absolved
of our allegiance to the crown of G. B." Pendleton composed the final, composite resolution. It accepted the need to act
in concert with the other colonies, and instructed the Virginia delegates to introduce an independence resolution. The people
of the colony viewed the resolution as a de facto declaration of independence, and reacted with large-scale celebrations.
The inhabitants of Williamsburg hauled down the Union Jack and replaced it with the flag of the Continental Army. The celebrations
included the firing of cannon, the parade of troops, and fireworks. [Selby, Revolution in Virginia pp. 96-97]
Virginia, despite her good intentions, did not wait on Congress after all. The Constitution of June 29 included the following
Whereas George the third, King of Great Britain and Ireland, and elector of Hanover, heretofore entrusted with the exercise
of the kingly office in this government, hath endeavoured to prevent, the same into a detestable and insupportable tyranny
[here follows a lengthy bill of indictments]...,
By which several acts of misrule, the government of this country, as formerly exercised under the crown of Great Britain,
is TOTALLY DISSOLVED. ["The Constitution of Virginia--1776," in Federal and State Constitutions VII: 3814-15]
Anyone tempted to minimize the three days' difference between the Virginia and U.S. acts of independence should remember
that these events occurred before the days of electronic communications. The intelligence from Philadelpha available to the
Virginia convention was several days old. And the convention on June 29 only approved language which had been drafted
at some point earlier. Virginia declared her own independence, with no grounds for assuming that the other colonies would
reach unanimity in Congress. As we shall see shortly, two colonies voted against independence, one delegation was divided,
and one abstained, as late as July 1. The decision of Virginia was made for Virginia alone, regardless of how many other colonies
decided to join her.
In the meantime, the ball had been set rolling in Congress. On the eve of Richard Henry Lee's independence resolution,
June 3, John Adams wrote to Patrick Henry that the most natural course of things was first, that the colonies institute regular
government; second, that the colonies confederate; and third, "then to declare the colonies a sovereign state, or a number
of confederated sovereign states...." But he doubted the possibility of proceeding systematically, and guessed "that
we shall be obliged to declare ourselves independent States, before we confederate, and indeed before all the colonies have
established their governments." [Letters of Members of the Continental Congress 1: 141] This speculation is evidence,
if nothing else, that a declaration of independence, as a supposed act of national sovereignty, was not presumed to result
in ipso facto confederation. Even if Congres declared independence, the issue remained for the colonies of whether or not
In obedience to the instructions of the Virginia convention, Lee on June 7 introduced an independence resolution. It stated
Resolved, 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....
That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.
[Journals of the Continental Congress V: 425]
Once again, the language of the resolution suggested that independence should not automatically result in confederation,
but that an explicit act would be necessary.
The progress of the resolution from its inroduction to its approval is rather involved. On June 8 Congress took it up and
referred it to the Committee of the Whole. [Ibid. V: 427] On the 8th and 9th, it was debated in Committee. James Wilson, Robert
R. Livingston, E. Rutledge, John Dickinson, and others argued that they had no authority to vote for independence without
approval from their colonies. The people of the middle colonies, they said, were not yet ready for independence, but "were
fast ripening." Some of them "had expressly forbidden their delegates to consent to such a declaration...." If,
therefore, the delegates of a particular colony had no authority to declare independence without the authorization of that
colony, "certain they were the others could not declare it for them; the colonies being as yet perfectly independent of
each other...." If such a declaration were agreed to, the middle colonies' delegates would retire, "and possibly their
colonies might secede from the Union...." [Thomas Jefferson, "Notes of Debates in the Continental Congress," in Ibid.
VI: 1087-88] Congress took up the report of the Committee of the Whole on the 10th and agreed to postpone debate until July
1, in order to give the middle colonies time to "ripen." In the interest of saving time in the event the resolution was approved,
Congress on June 12 appointed a committee, consisting of one member from each colony, to prepare a declaration of independence
ahead of time. [Ibid. V: 428-29, 433; VI: 1088]
On July 1, the Committee of the Whole resumed consideration of Lee's motion. New Hampshire, Connecticut, Massachusetts,
Rhode Island, New Jersey, Maryland, Virginia, North Carolina, and Georgia voted in the affirmative. South Carolina and Pennsylvania
were opposed, Delaware was divided, and New York requested leave to abstain, pending instructions. Mr. Rutledge of South Carolina
requested that the vote be delayed one day, because he believed his colleagues would vote in favor for the sake of unanimity.
On July 2 Congress approved the independence resolution. All the colonies but New York voted in favor; and the New York delegates,
still awaiting authorization from home, absented themselves for the sake of a unanimous vote. A meeting of the Committee of
the Whole was scheduled for the next day to consider the wording of the draft declaration. [Jefferson, "Notes," in Ibid. VI:
1092] On the 3rd and 4th the Committee considered the declaration. They sent it to the floor with their approval, and the
Congress approved it on July 4. [Ibid. V: 510]
The wording of the Declaration suggested that the several States were the sovereign actors, and that they became independent
of each other as well as of the Crown. It was styled "THE UNANIMOUS DECLARATION OF THE THIRTEEN UNITED STATES OF AMERICA,"
reflecting the fact that the Congress voted by colonies, and the delegates acted with the permission of their colonial governments.
The Declaration concluded
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, 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.
The independence declared was of States, always referred to in the plural, not of a nation. And if the colonies were "one
people," as nationalists are so fond of quoting, they could have been so only in the sense as the Italians before 1861--that
is, in a cultural and moral, not in a political, sense.
Twentieth century Americans are so accustomed to thinking of a "State" as an administrative subdivision of the nation,
and identifying political allegiance with nationality, that they miss the significance of the term "State" in 1776. As Archie
Bunker said about Mike Stivic's quote from "Hamlet," "Aw, everybody knows Denmark ain't a state--it's the capital of South
Dakota!" But at the time of the Revolution, it was rare for political sovereignty to coincide with nationality. This was
the case only in a few countries of Western Europe, which could be counted on the fingers of one hand. Most of the world's
polities were either multi-ethnic dynastic states, like the Habsburg empire, or petty principalities like those of Italy.
By proclaiming themselves "free and independent States," the colonies became, not administrative districts of a sovereign
American nation, but thirteen independent republics. Under the heading of "State," Samuel Johnson in the 1755 edition of his
Dictionary gives two definitions of political relevance: "5. The community; the publick; the commonwealth."
and "7. A republick; a government not monarchical." [Dictionary of the English Language vol. 2]
If Congress declared the colonies independent by its own sovereign authority, the message was lost on the States. On July
3 the Massachusetts House romised, in its instructions to its congressional delegates, that in the event Congress considered
a declaration of independence proper, "this house will approve of the measure." [Jensen p. 677] New York, the only
colony whose delegates did not vote for independence on July 2, did not consider herself bound by the independence resolution
until her own convention authorized the vote. Seven States subsequently passed resolutions giving the declaration binding
force of law within their own territories, showing that they did not consider the authority of Congress sufficient in its
own right. The words of the State resolutions approving independence showed they considered themselves separately independent,
not jointly so. The Pennsylvania convention approved Congress' resolution, declaring "this, as well as the other United
States of America, free and independent...." The Connecticut assembly resolved "that this Colony is and of right ought
to be a free and independent State." [Van Tyne, 537-38, 537n]
The newly independent States persisted in their stiff-necked error, oblivious to the wrath of Justice Story. In their republican
constitutions, three States declared themselves sovereign, and several others provided for the exercise of various powers
generally identified with sovereign nations. The 1780 Constitution of Massachusetts, in Article IV, declared:
The people of this commonwealth have the sole and exclusive right of governing themselves, as a free sovereign, and independent
state, and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, which is not, or may
not hereafter be, by them expressly delegated to the United States of America, in Congress assembled. [Federal and
State Constitutions 3: 1890]
Article VII of the 1784 New Hampshire Constitution affirmed the same thing in almost identical language.[Ibid. 4: 2454]
The actual sovereign powers provided for in the constitutions varied from one State to the next. The 1776 Constitution
of Pennsylvania provided for appointment by the President of "naval officers, judge of the admiralty... and all other officers,
civil and military...." [Ibid. 5: 3087] The 1776 Constitution of Maryland, after affirming that "standing armies are
dangerous to liberty, and not to be raised or kept up, without consent of the Legislature," and that "the military
ought to be under strict subordination to and control of the civil power," provided that the Governor "have direction
of all the regular land and sea forces, under the laws of this State...; and may, during the recess of the General Assembly,
lay embargoes...." [Ibid. III: 1688, 1696] The 1776 Constitution of Delaware provided that the President, with the advice
of the Privy Council, should have power to "lay embargoes or prohibit the exportation of any commodity," and with the
advice and consent of the privy council, should "embody the militia, and act as captain-general and commander-in-chief
of them, and the other military forces of this State, under the laws of the same." [Ibid. I: 563-64] The 1776 North Carolina
Constitution authorized the Governor, with the advice of the Council of State, to "lay embargoes, or prohibit the exportation
of any commodity...." [Ibid. 5: 2791] Finally, the 1776 South Carolina Constitution specified that the President "have
no power to make war or peace, or enter into any final treaty, without the consent of the general assembly and legislative
council." [Ibid. 6: 3247]
Claude Van Tyne pointed out that the States simultaneously exercised all the "sovereign" powers of Congress, with greater
right. Virginia conducted her own diplomacy with France, at one time sending William Lee to negotiate loans and arms. Benjamin
Franklin mentioned three States negotiating with France on the same subjects. Patrick Henry treated with Spain for a loan
to Virginia, speaking of that State as a "free and independent country." Nine States raised their own navies. As opposed
to Congress, which could only urge volunteers to join the Continental Army, the State armies used conscription or paid larger
bounties than Congress could afford. The States established their own postal routes, regulated Indian affairs, enforced embargoes
in their own ports, and seized provisions for the army. And the States were able to tax their citizens to fund these activities--a
power beyond the competence of Congress. [Van Tyne pp. 540-42]
Congres in the period before the Confederation repeatedly ran up against the problem of its own impotence vis-a-vis the
States. On November 12, 1776, Congress had to request that Massachusetts stop recruiting soldiers at higher rates of pay than
Congress could afford. [Journals VI: 944] On January 14, 1777, Congress again found it necessary to recommend that
the States pass laws to make bills of credit legal tender and commanding their acceptance. [Ibid. VII: 36]
In the winter of 1776-77 Congress faced the issue of whether States had the right to carry on relations with one another
without Congressional sanction. On Christmas Day 1776, representatives of the four New England States met at Providence to
consider war measures. Benjamin Rush, in his diary entry of February 4, recorded the initial debates in Congress on the proceedings
of the meeting, which had been forwarded. James Wilson interpreted the act of sending the minutes to Congress as an admission
that the approval of Congress was required. John Adams went so far as to claim that "the four New England States bore the
same relation to Congress that four counties bore to a single State.... [They] have a right to meet upon matters wholly
indifferent, but they have no right to touch upon Continental subjects...." Benjamin Rush was more accusatory: "Their
business was chiefly continental, and therefore they usurped the powers of congres as much as four counties would usurp the
powers of legislation in a state shd. they attempt to tax themselves." The issue was initially decided in the affirmative,
and was then reversed a few days later. [Letters of Members of the Continental Congress 2: 234-35] Finally, on February
12, according to Thomas Burke's abstract of debates, the issue was resolved. The delegates of Pennsylvania and Maryland sought
a vote approving the meeting, "to the end that this approbation might imply a right to disapprove." After long debate,
the general opinion was that Congress had necessarily a right to inquire into the cause of any meeting and to require to
know what was transacted at such meetings, and and also to require an explanation of anything that was dubious, and satisfaction
for anything that was alarming to the whole, or any of the States; that this right necessarily existed in their power to take
care each for his respective State that no injury happened to her from without. But that Congress had no right to prohibit
meetings, or to censure them if the transactions in them were not injurious to others. [Ibid. 2: 249]
On February 25, Congress dealt with the question of whether it could directly empower State officials to execute its policies
without the approval of the State governments. Congress considered a recommendation to the States "to Enact Laws Empowering
all Constables Ferry keepers and Freeholders to take up persons suspected of being Deserters and carry them before any Justice
of the Peace." An amendment was moved "that the power should go immediately from Congress--without the Intervention
of the states." Owing to the fact that "many Gentlemen were inattentive," it passed. A delegate from North Carolina
tried, unsuccessfully, to enter his protest. He then requested that his dissent be entered in the Journal, and said "it
appeared to him that Congress was herein assuming a Power to give authority from themselves to persons within the States to
seize and Imprison the persons of the citizens and thereby to endanger the personal Liberty of every man in America."
A motion was made for reconsidering, and the ensuing debate was chiefly between Mr. Wison of Pennsylvania (naturally) and
the delegate from North Carolina. Wilson argued that "all Provisions made by the Continental Councils must be carried into
execution by Continental authority...." The North Carolina delegate replied that he admitted continental objects were
subjects of continental councils, "but denied that the provisions made by Continental Councils were to be enforced by Continental
authority.... That the states alone had the power to act coercively against their own Citizens...." Mr. Wilson admitted
in reply "that he laid down the Principle too largely...." The amendment to empower State officials directly was defeated.
[Letters 2: 275-79] Recommendations of Congress were not obeyed by State officers until the State governments had approved.
[Van Tyne pp. 543-44]
In 1784, Congress addressed the issue of the source and extent of its authority before the Articles of Confederation had
been adopted. In a letter of November 1, 1783, the Connecticut Speaker of the House forwarded the address of the House questioning
Congress' power to grant army officers half-pay for life, as it had done on October 21, 1780. A committee of Congress drafted
a reply, which included the following:
...it cannot be expected that the present Congress should
be able to define the Powers under which the Delegates
from the several States acted previously to the Confederation.
The States themselves have not done it. They all gave general Powers to carry on
the War and to oppose the then Enemy effectually....
The Question is not whether Congress are vested by the Confederation with a Power to grant half Pay for Life. This need
not be enquired into. It is, whether by the 12th Article of the Confederation, they can do otherwise than to acknowledge that
a debt was created by the resolution of the 21st of Oct., 1780, which Resolution was agreed to by persons, having Plenipotentiary
powers from their respective States, to do whatever appeared to them necessary and expedient for opposing the enemy effectually.
[Journals XVI: 265-68]
The power of Congress before the Confederation, therefore, was not clearly defined, but it was beyond question a plenipotentiary
power derived from the sovereign States, and depending on them for enforcement.
The final question we must deal with in the period before the Constitution is to what extent, if any, the adoption of the
Confederation in 1781 changed the situation. Among nationalists, the Confederation invariably suffers in comparison to the
"union" prior to 1781. The Confederation is seen as a sort of fall from the purer union formed during the ardor of the War--akin
to the Israelites' apostasy in the days of Samuel, when they rejected Jehovah for a human king. Joseph Story belittled the
authority of Congress under the Confederation as
but a delusive and shadowy sovereignty, with little more than the empty pageantry of office. But they possessed not the
power to enforce any law, to secure any right, to regulate any trade, or even the poor prerogative of commanding means to
pay their own minister at a foreign court. They could contract debts, but they were without means to discharge them. They
could pledge the public faith, but they were incapable of redeeming it. They could enter into treaties, but every State in
the Union might disobey them with impunity.... In short, all powers which did not execute themselves were at the mercy of
the States, and might be trampled upon at will with impunity. [Commentaries I: 174-75]
Like too many of Story's arguments, this is nonsense. His characterization of the powers of Congress under the Confederation
is accurate, as far as it goes. But the very same words could have been used, with equal justice, to describe the powers of
Congress in 1774-81. Congress never had the power of enforcing its own acts, of collecting taxes, or any other coercive
powers, without action by the State governments--not even in the "sovereign union" of 1774-75 which Justice Patterson so fulsomely
The powers of Congress under the Confederation were virtually the same as it had exercised during the war. The limited
powers defined in the Articles were drafted in 1776-77, during the hardest period of the Revolution. The first, or Dickinson
draft, written in July 1776, was much more nationalistic than the final document. The States reserved only such of their "existing
laws" as were not affected by the constitutional powers of Congress. Congress, the Congrress of Story's high praise, quickly
set about clipping the excessive national powers in Dickinson's draft. Thomas Jefferson, author of the "nationalist" language
of the Declaration of Independence, which had supposedly created the holy and indissoluble Union, played a leading role in
scaling back Dickinson's Articles. On July 25, 1776, Congress discussed Article 15 of the Dickinson draft, which authorized
Congress to set boundaries of States whose charter claims extended to the Mississippi. Jefferson feared that Congress would
curtail the States' existing settlements, and expressed his confidence that the States would limit themselves. On August 2
he used much stronger language: "I protest against the right of Congress to decide upon the right of Virginia." [Journals
VI: 1077, 1083]
The final form of the Articles, presented on November 15, 1777, contained the following provision:
ART. 2. 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.
If this language represents an apostasy from the pure doctrine of the Revolution, the apostasy occurred remarkably early.
Claude Van Tyne's words are as good as any in summing up the question of sovereignty from 1774-89:
[The colonies] had used the word "union" and the expression "united colonies" a great deal during the earlier struggle,
when they simply meant united efforts for the attainment of concessions which no colony singly could hope to wrest from the
powerful British government. Now they continued the struggle for independence with the same general idea of united effort,
no longer of colonies, but of states independent and sovereign in all governmental matters, but leagued to overthrow the power
of England, and to command the respect of other world powers. To attempt united action by a clumsy system of correspondence
was impracticable, and the Continental Congress, in which were assembled representatives of the sovereign states, was a convenient
centre of intelligence and a source of advice which would keep their forces united. [Van Tyne p. 535]
The Source of Sovereignty in the Ratification of the Constitution (1787-1788). Even when one demonstrates, as we just
did, that the States were sovereign and independent until the ratification of the Constitution, the nationalists have a final
fallback position. They content that the Constitution was ratified by the people of the United States as an aggregate, and
not by the people of the several States.
The first major nationalist authority we cite is John Marshall, most famous for his tenure as Chief Justice of the Supreme
Court. In his opinion in McCulloch v. Maryland (1819) he resurrected the argument, in response to a claim nobody had
made, that the Constitution was ratified by "the people," and not by the State governments:
This mode of proceeding [ratifying conventions] was adopted; and by the Convention, by Congress, and by the State
Legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely,
effectively, and wisely, on such a subject, by assembling in Convention. It is true, they assembled in their several States--and
where else should they have assembled...? Of consequence, when they act, they act in their States. But the measures they adopt
do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments.
[4 Wheaton (17 U.S.) 403]
The most famous advocate of this position was Daniel Webster, in his Senate debates with Hayne (1830) and Calhoun (1833).
In the Webster-Hayne debates, he began his argument, in typical Webster style, by refuting an argument that hadn't been made:
He has not shown, it cannot be shown, that the constitution is a compact between State Governments. The constitution itself,
in its very front, refutes that proposition: it declares that it is ordained and established by the people of the United States.
So far from saying that it is established by the Governments of the several States, it does not even say that it is established
by the people of the several States; but it pronounces that it is established by the people of the United States in the aggregate.
["The Reply to Hayne: Second Speech on 'Foot's Resolution,' Debated in the Senate on the 26th and 27th of January, 1830,"
in Speeches and Orations p. 271]
This statement is vintage Webster. It begins by knocking a straw man argument, that the Constitution was a compact between
State governments, and then, fortified by this cheap victory, proceeds, as an a fortiori argument, to deal with the
real State sovereignty doctrine that the Constitution was ratified by the peoples of the several States. Moreover, his only
response was a superficial appeal to the language of the Preamble, outside of any historical context. This method will grow
all too familiar as we survey subsequent nationalist arguments.
In his debate with Calhoun, Webster advanced from simply ignoring the facts of history to falsifying them. The bone of
contention was Calhoun's resolution:
Resolved, That the people of the several States composing these United States are united as parties to a constitutional
compact, to which the people of each State acceded as a separate sovereign community, each binding itself by its own particular
This resolution was an accurate statement of the nature of the ratification process. Webster, however, accused Calhoun
of using unhistorical language--specifically, the words "compact" and "accede." In reference to the word "compact," he accused
Calhoun of introducing "a new word of his own...." But he saved his real outrage for the word "accede." The term, he
said, was not found in the text of the Constitution, or in any State act of ratification. Webster explained Calhoun's introduction
of this "new" term thus: the natural contrary to "accession" is "secession"; if one accepts that the Constitution was acceded
to by the States severally, each acting for itself alone, it follows that each can secede on its own authority. Hence,
Calhoun introduced this unhistorical language in order to provide a pretext for secession. ["The Constitution Not a Compact
Between Sovereign States: A Speech Delivered in the Senate of the United States, on the 16th of February, 1833," in Ibid.
pp. 273, 275-76, 278]
In fact, Webster was the one guilty of tampering with history. Albert Taylor Bledsoe, in Was Davis a Traitor?, devoted
an entire chapter to a long list of citations of leading figures from the founding period who used the terms "compact" and
"accession." Among others were James Wilson, Edmund Randolph, Elbridge Gerry, Benjamin Franklin, George Washington, John Marshall,
Gouverneur Morris, James Madison, John Jay, John Quincy Adams, and Edmund Pendleton. [pp. 13-14, 24-29] If the words were
not used in State acts of ratification, they at least were hardly the novelties alleged by Webster.
If the States are parties to a compact, added Webster, what are their rights, and where are the covenants and stipulations
of the respective parties expressed in the Constitution? "The States engage for nothing, they promise nothing.... The people
ordain the Constitution, and therein address themselves to the States, and to the legislatures of the States, in the language
of injunction and prohibition." ["Constitution Not a Compact," in Speeches and Orations p. 286]
Joseph Story is the next (and last) major nationalist authority we will examine. He trod a path already well worn by Webster
and Marshall. "The Constitution was neither made nor ratified by the States as sovereignties or political communities.
It was framed by a convention, proposed to the people of the States for their adoption by Congress; and was adopted by State
conventions...." [Commentaries 1: 223n] Story here made a distinction without a difference, since "the people of
the States" were "the States as sovereignties or political communities."
The Constitution, he continued, as supreme law, was laid down by a majority. It must be supreme over the entities composing
it, not only at their pleasure. [Ibid. 1: 244-45] He failed to explain how it was possible for Rhode Island and North Carolina
to remain independent well into Washington's first term, if the Constitution, as the expression of majority will, was supreme
His next tactic was to deny that the State governments had any authority to transfer their sovereignty:
No State, as such, that is, the body politic, as it was actually organized, had any power to enter into a contract for
the establishment of any new government over the whole people thereof, or to delegate the powers of government in whole or
in part to any other sovereignty. The State governments were framed by the people to administer the State constitutions, such
as they were, and not to transfer the administration thereof to any other persons or sovereignty. [Ibid. 1: 261]
At the risk of belaboring the point--a risk the nationalists force us into, by recycling each other's fallacious arguments--we
repeat: the States as bodies politic are not the same as the State governments. The people of each State are the State
as a body politic, in exactly the same sense that Story contends the people of the U.S. as a whole are the United States as
a body politic. It is odd that Story was so obtuse in failing to grasp, at the State level, a distinction he himself had made
at the national level.
One of the few nationalists who attempted to answer the real State sovereignty argument, rather than one of his own invention,
was Edward Corwin. For his intellectual honesty in answering the argument head-on, he deserves much respect. Corwin, in an
argument that was (if nothing else) original, explicitly denied that the peoples of the States, as opposed to their governments,
had ever been considered sovereign:
...even when the adjective "sovereign" is used in connection with the States by the men of 1787, it is... only with reference
to the State governments, and never with reference to the people of the States, who are indeed conceived of as political entities
in only a very negative sense, a sense moreover which tended to blend them always into simply "the People" anywhere and everywhere.
The matter can be put in this wise: whereas today, principally I presume because of the machinery that since 1787 has come
into general use for making and revising State constitutions, the "people of a State" appears as a real organ of the body
politic, in 1787 "the people" were regarded for the most part in the negative light of the ultimate source of the governing
power, which, however at least until the next revolution, had passed from them forever. ["National Power and State Interposition"
Despite Corwin's creativity and intellectual honesty, almost unique among nationalist commentators, his argument does not
meet the test of historical fact. In the 1780s, "sovereignty" was used equivocally, and attributed at various times either
to the people or to the government. The reason was that the distinction between the government and the sovereign people, in
reference to any level of government, was in the process of emerging at that time. It was used by James Wilson, the
most notable early theorist of popular sovereignty, to support his doctrine of national sovereignty. While it was emerging
in the States in a very uneven and spotty manner, the clear idea was nevertheless emerging that a State constitution was a
creation of sovereign will that should stand on some authority higher than an ordinary legislative act. The doctrine evolved
gradually as a logical response to the problems raised in creating popular governments, and the need to distinguish the constituent
authority from the ordinary legislative authority. The use of popular conventions or referenda to "ordain and establish" acts
of fundamental law was not invented by the framers of the U.S. Constitution; rather, the demonstration of popular sovereignty
in 1787-88 was the culmination of a process that began in the States. Gordon S. Wood's The Creation of the American Republics
is an excellent, in-depth examination of this process.
And while the doctrine of popular sovereignty may not have become fully developed in the States in the 1780s, or commonly
used to explain the legal basis of their authority, when it was fully formulated it explained perfectly the events
of the period. Given the full acceptance of the notion of popular sovereignty after 1787, the only way to fit the historical
facts of the ratification period into a framework of popular sovereignty is by lodging that sovereignty in the people of the
States. Gravity caused apples to fall long before Newton ever formulated a theory to explain it.
As we have already seen, the distinction between the State governments and the peoples of the States as independent bodies
politic was explicitly stated by Justice Patterson in Pennhallow v. Doane just a few years after ratification of the
U.S. Constitution, and he appeared to regard it as a self-evident maxim. And as we will see below, Madison, referring in Federalist
No. 39 to the source of the Constitution's authority, asserted unequivocally that it was established by the people of
the several States, who were "the supreme authority in each State." In so doing, each State was considered as "a
sovereign body independent of all others."
Corwin attempted to minimize the force of these statements by quoting Madison's reference to the Constitution as being
founded "on the assent of the people of America." He claimed that Madison referred to the States only in the specific
act of ratification, rather than as a source of the Constitution's authority after ratification. [Ibid. p. 537] But how could
there be one sovereign people of America if each State was bound only by its own act? Did this sovereign people encompass
the peoples of Rhode Island and North Carolina in 1789? The States functioned as absolute sovereigns in declaring independence
and in governing themselves thereafter, as we have already shown. Whether or not the full theoretical apparatus yet existed
to describe their sovereignty, the States had acted as sovereign in every sense of the word, much like the man
who had been speaking prose all his life without knowing it.
As we study the history of the Constitution's ratification, we will see the justice of Albert Taylor Bledsoe's indictment
of Webster, and its applicability, not only to Webster, but to all the nationalists:
The truth is, that Mr. Webster was a mere theorist, nay, a mere party sophist. He took an oath to support, but not to study,
the Constitution.... If he ever read any of the documents to which he so confidently appeals, he must have read them with
a veil over his eyes; or else, in the heat of debate, he must have forgotten all his first lessons in the political history
of his country. From his own generation, he won the proud title of "the great expounder"; yet, after his appeal to posterity
shall have been decided, he will be pronounced "the great deceiver". [Bledsoe p. 89]
One initial fact strikes us in the Constitution's ratification history: the mode of ratification was in direct violation
of the Articles of Confederation. The Preamble to the Articles referred to the "articles of Confederation and perpetual
Union...." Article VI stated that "no two or more states shall enter into any treaty, confederation, or alliance whatever
between them, without the consent of the united states in congress assembled, specifying accurately the purposes for which
the same is to be entered into, and how long it shall continue." Article XIII paragraph 1 provided that "the union
shall be perpetual; nor shall any alteration at any time hereafter be made in any of [the articles]; unless such alteration
be agreed to in a congress of the united states, and be afterwards confirmed by legislatures of every state." Article
XIII paragraph 2: "And we do further solemnly plight and engage the faith of our respective constituents, that theyshall
abide by the determination of the united states in congress assembled, on all questions, which by the said confederation are
submitted to them. And that the articles thereof shall be inviolably observed by the states we represent, and that the union
shall be perpetual."
The Constitution's mode of ratification violated these provisions on three counts: first, it was ratified by popularly
elected conventions, rather than State legislatures; second, it went into effect between all States ratifying, upon ratification
by the ninth State, rather than requiring approval of all thirteen; and finally, because it allowed fewer than thirteen States
to confederate among themselves, it dissolved a preexisting union which was to have been "perpetual."
As early as June 5, 1787, the Philadelphia convention began debating proposals to provide for ratification by fewer than
thirteen States, and by popularly elected State ratifying conventions rather than legislatures--all in violation of the express
provisions of the Articles of Confederation, to which the faith of the people of the States had been plighted and engaged
by their representatives. James Madison on June 5 defended the use of conventions as essential. The existing Articles were
defective, "resting in many of the States on the Legislative sanction only." As the Articles had the standing of a
mere treaty, it was arguable that a breach of any article by any of the parties, absolved the other States from adhering to
the treaty. "For these reasons as well as others he thought it indispensable that the new Constitution should be ratified
in the most unexceptionable form, and by the supreme authority of the people themselves." ["Debates in the Federal Convention...
by James Madison" p. 156]
George Mason on July 23 echoed the same sentiments in stronger language:
Col. MASON considered a reference of theplan to the authority of the people as one of the most important and essential
of the Resolutions. The legislatures have no power to ratify it.... Whither then must we resort? To the people with whom all
power remains that has not been given up in the constitutions derived from them. It was of great moment he observed that this
doctrine should be cherished as the basis of free Government. Another strong reason was that admitting the Legislatures to
have a competent authority, it would be wrong to refer the plan to them, because succeeding Legislatures having equal authority
could undo the acts of their predecessors. [Ibid. p. 434]
Thus, despite the obfuscation of the nationalists, the purpose of ratification by conventions was not to establish the
Constitution on a national basis, but to establish it in each State on the most authoritative basis: that of the people
acting in their highest sovereign capacity. And notice, in passing: Madison's and Mason's chief reason for opposing legislative
ratification, that an equal authority might undo the acts of its predecessor, applies equally to the authority of State conventions.
Meanwhile, James Wilson on June 5 led the Committee of the Whole "by a train of observation" to the idea of not
allowing a few States to frustrate "the disposition of a plurality of States to confederate anew on better principles....
He hoped the provision for ratifying would be put on such a footing as to admit of such a partial union, with a door open
for the accession [Webster's devil word!] of the rest." Pinckney proposed nine as a convenient number. Wilson made
abundantly clear that he advocated destroying the old union of the Confederation and allowing a "partial union" on
its ashes, in which "a plurality of States... [could] confederate anew." [Ibid. p. 157] This should put beyond doubt the meaning
of the phrase "to form a more perfect Union."
A number of delegates were alarmed at the appearance of abandoning the Articles. On June 5 both Roger Sherman and Rufus
King referred to the necessity of submitting the Constitution to the State legislatures, according to the Articles' requirements.
["Notes of Major William Pierce (Ga.) in the Federal Convention of 1787," in Tansill ed. p. 95; "Debates in the Federal Convention...
by James Madison" p. 156] Olliver Ellsworth on June 20 identified the call for ratifying conventions as a tacit admission
that the old confederation was dissolved. He condemned such a dissolution as inadmissable. "He could not admit the doctrine
that a breach of any of the federal articles could dissolve the whole. It would be highly dangerous not to consider the confederation
as still subsisting." [Ibid. p. 240] Luther Martin on June 28 refused to admit that fewer than thirteen States could dissolve
the Confederation. "But we are already confederated, and no power on earth can dissolve it but by the consent of all
the contracting powers.... Is the old confederation dissolved, because some of the States wish a new Confederation?" ["Notes
of the Secret Debates of the Federal Convention..." in Tansill ed. p. 819]
Far from attempting to reassure the troubled delegates, the federalist clique blithely proclaimed the impending dissolution
of the union, and indeed almost casually threatened such a dissolution as a means of cowing the opposition on particular provisions
of the Constitution. On June 8, James Madison warned the delegates of the small States, who had been jealous of the large
States' representation under the Virginia Plan, of the consequences of dissolving the union. "If the large States possessed
the avarice & ambition with which they were charged, would the small ones in their neighborhood, be more secure when all
controul of a Genl. Govt. was withdrawn." ["Debates in the Federal Convention... by James Madison," in Tansill ed. p.
178] On June 9 James Wilson "observed that a majority, nay, even a minority of the States, have a right to confederate
with each other, and the rest may do as they please." ["Notes of the Secret Debates..." in Tansill p. 762] On June 19
Madison upheld the right of any number of States to dissolve the confederation. By the law of treaties, a breach by any party
absolved the others from adherence. On the same day, he warned of the consequences if New Jersey's insistence on an unacceptable
plan led to the dissolution of the union. "Let the Union of the States be dissolved, and one of two consequences must happen.
Either the States must remain individually independent & sovereign; or two or more Confederacies must be formed among
them." ["Debates in the Federal Convention... by James Madison," pp. 226-27, 232] On June 29 Nathaniel Gorham recognized
the right of the small States to dissolve the union, but warned of the consequences. "He conceived that a rupture of the
Union wd. be an event unhappy for all, but surely the large States would be least unable to take care of themselves, and to
make connections with one another." Madison concurred, speaking of peaceful union almost as an unnatural phenomenon, made
possible by a lingering habit. The still retained "habits of union" might soon pass away, and if the present opportunity
of preserving the union were wasted, it would be madness to trust to future opportunities. [Ibid. pp. 297, 302]
The proponents of the new Constitution were eager to hasten the old Confederation into its grave, and seemed positively
driven to remove any danger that the Articles might be successfully amended less radically. In the face of those who wanted
to preserve the viability of the existing union, the federalists were hell-bent on destroying it as an alternative to their
own agenda. James Wilson on June 30 condemned the Ellsworth proposal of equal representation in the uppor house, and warned,
"if a separation must take place, it could never happen on better grounds." [Ibid. p. 307] On July 14, Caleb Strong
warned that "Congress are nearly at an end. If no accomodation takes place, the Union itself must soon be dissolved."
[Ibid. p. 379] On July 18 the Convention voted down a provision for continuation of Congress until the new Constitution went
into effect. Gouverneur Morris thought "that Congs. ought not to be continued till all the States shall adopt it."
[Ibid. p. 406]
The framers of the new Constitution did not even have enough respect for the old "perpetual" union to allow it to
continue until the new one came into existence. On July 23 Morris proclaimed "The amendmt. [for ratification by the
legislatures] moved by Mr. Elseworth [sic] erroneously supposes that we are proceeding on the basis of the Confederation.
This Convention is unknown to the Confederation." [Ibid. p. 437] (Of course, the Convention had been appointed by a Congress
under the terms of the Confederation; so if it were "unknown" to the Confederation, it could only have been an unconstitutional
attempt at a coup.) Elbridge Gerry expressed the dilemma well: "If nine out of thirteen can dissolve the compact, six out
of nine will be just as able to dissolve the new one hereafter." [Ibid. p. 698]
In the ratification debates, the argument continued on the same lines. In Federalist No. 1, Alexander Hamilton presented
the alternatives of "an adoption of the new Constitution or a dismemberberment of the Union." [Hamilton, Madison, and
Jay p. 37]
In No. 40, after admitting that the objection to ratification by nine States was "the most plausible," Madison dismissed
it by saying that opponents of the Constitution had seldom put it forward because of the absurdity of allowing one State to
prevent a new union. And since the Antifederalists had abandoned the argument, Madison felt no need to answer it. (Nicely
done--did anyone see his hands move?) Shortly thereafter, Madison declared that a rigid adherence to forms ought to give way
to the "transcendent and precious right of the people to 'abolish or alter their governments as to theem shall seem most
likely to effect their safety and happiness....'" [Ibid. pp. 251, 252-53] In No. 43, he dealt with the question of relations
between the ratifying and non-ratifying States. He first dismissed it as "merely hypothetical," and "one of those
cases which must be left to provide for itself," and then offered reassurance that, although their political connections
would be dissolved, their moral ties would remain in good standing. Madison went on to express his hopes, in such an event,
for a "speedy triumph over the obstacles to reunion [emphasis mine]." [Ibid. pp. 279-80]
It would be fair to call this unmitigated gall. The nationalists at the Annapolis and Philadelphia conventions showed up
early, seized control of the agendas, shaped the debate as an alternative between their constitution and dissolving the unoin,
and then tried to railroad the document through the State conventions by warning of the impending end of the union--and now
Madison dismisses the question of non-ratifying States as "merely hypothetical."
In the Pennsylvania ratifying convention, John Whitehill on November 28, 1787 raised the issue of injustice to the non-ratifying
What right indeed have we in the manner here proposed to violate the existing confederation? It is declared, that the agreement
of nine states shall be sufficient to carry the new system into operation, and consequently to abrogate the old one. Then,
Mr. President, four of the present confederated states may not be comprehended in the compact: shall we, Sir, force these
dissenting states into the measure? The consequences of that attempt are evidently such as no man can either justify or approve.
But reverse the idea--would not these states have a fair pretext to charge the rest with an unconstitutional and unwarrantable
abandonment of the nature and obligation of the union of 1776? And having shown sufficient reason why they could not accede
to the proposed government, would they still not be entitled to demand performance of the original compact between the states?
[McMaster and Stone p. 257]
In the Massachusetts convention, the Constitution's opponents raised the same issues. Mason asked pointedly on February
1, 1788, "Now, sir, if we give Congress power to dissolve the Confederation, to what can we trust? If a nation consent
thus to treat their most solemn compacts, who will ever trust them?" [Debates in the Several State Conventions II:
In the New York convention Chancellor Robert Livingston triumphantly announced, as a fait accompli, the dissolution
of the union as a result of the ratification by the ninth State, New Hampshire. On June 25, 1788 he warned the convention
that, "since the intelligence of yesterday, it had become evident that the circumstances of the country were greatly altered,
and the ground of the present debate changed. The Confederation, he said, was now dissolved." [Ibid. II: 322]
In the Virginia convention the Antifederalists aggressively attacked the Constitution as dissolving a preexisting union.
Patrick Henry took the lead. On June 4, 1788, he called it "a proposal that goes to the utter annihilation of the most
solemn engagements of the states--a proposal of establishing nine states into a confederacy, to the eventual exclusion of
four states." [Ibid. III: 21] On June 5 Henry quite acutely portrayed the ratification of only nine States as a measure
to stampede recalcitrant States into joining the new union: "Other gentlemen have told us, within these walls, that the
union is gone, or that the union will be gone. Is not this trifling with the judgment of their fellow citizens?" "Show
me the reason why the American Union is to be dissolved. Who are those eight adopting states? Are they averse to give us a
little more time to consider, before we conclude?" [Ibid. III: 48, 62-63] On June 7 he asked, in the process of ratifying
the new Constitution, "do we not thereby disunite from other states? Shall those who have risked their lives for the sake
of the Union be at once thrown out of it?" [Ibid. III: 138] Henry knew a railroad job when he smelled it. On June 24 Governor
Randolph, as if to bear out Henry's warnings, declared the Confederation dissolved. "The confederation is gone; it has
no authority. If, in this situation, we reject the Constitution, the Union will be dissolved, the dogs of war will break loose,
and anarchy and discord will complete the ruin of this country." [Ibid. III: 603]
In the North Carolina convention, William Lenoir warned on July 30, 1788 that those States breaking the existing union
could not be trusted in the new one: "But it is said we shall be ruined if we do not adopt. If so, I would put less confidence
in those states. The states are all bound together by the confederation, and the rest cannot break from us without violating
the most solemn compact. If they break that, they will this." [Ibid. IV: 204]
In fact, all this talk of dissolving the union was not "merely hypothetical," as Madison charged. Two States did not ratify
until after the Constitution was already in operation. North Carolina remained independent of the United States until November
1, 1789, and did not ratify until the Bill of Rights had been added to the Constitution. Rhode Island did not ratify until
1790, and did so then reluctantly, under the pressure of U.S. economic blackmail. Legislation had already been passed which
would soon put a punitive tariff on imports from Rhode Island and exclude her shipping from U.S. ports. Had it not been for
the prospect of her rotting merchant fleets, she might well have remained independent indefinitely. [Patrick T. Conley pp.
287-90] So much for Madison's picture of "amity" between the U.S. and non-ratifying States.
The Constitution's Preamble says, "in order to form a more perfect Union," not "make the existing union more perfect."
The Philadelphia convention, as we have seen, made clear the lack of continuity between the two unions for failing to provide
for continuation of the old Congress until the new union went into effect. While belittling the ability of the old union to
meet its obligations, they deliberately suppressed its ability to meet them. The Federalists intended to make any reformation
of the old Confederation impossible. They left no choice but either ratifying their own Constitution or seeing the union collapse.
Confederate apologists have immensely enjoyed pointing out that the 1789 union was formed by secession from a previous
one. Albert Taylor Bledsoe wrote, "no one, at present, denies that the States had a right to secede from the Union formed
by the old Articles of Confederation. Indeed, this right was claimed and exercised by the States, when they withdrew from
that Confederation in order to form 'a more perfect Union.'" [Bledsoe p. 1] Likewise Jefferson Davis:
It is particularly to be noted that, during the intervals between the organization of the Federal Government under the
new Constitution and the ratification by North Carolina and Rhode Island, respectively, those States were absolutely independent
and unconnected with any other political community, unless they be considered as still representing the "United States of
America," which by the Articles of Confederation had been declared a "perpetual union." The other states had seceded from
the former Union--not in a body, but separately, each for itself--and had formed a new association, leaving these two States
in the attitude of foreign though friendly powers. [Rise and Fall of the Confederate Government 1: 111-12]
Nationalists minimize any connection between their holy union of 1776 and the Articles of Confederation, preferring to
consider those Articles as a decline from the nationalist ardor of the revolution. The events of 1787-89, they say, were rather
the creation of a new fundamental law for the mystical union of 1776, in which the people of the U.S. collectively determined
to "form a more perfect union." But this is untenable. The 1781 union under the Articles had at least as strong a mystical
basis in the popular will, as did the 1776 "union." The nationalists claim that popular acquiescence in Congress' "sovereign"
acts in 1775-76 constituted implied consent--a consent which Story at times admits to have been temporary and aimed at a definite
end. The 1781 articles, in contrast, were an explicit grant of power, ratified by legislatures directly elected by
the people. And if the popular "acquiescence" of 1775-76 was so authoritative, how is the acquiescence to the legislatures
in 1777-81 any less authoritative?
The actions of 1787-89 did not merely dissolve the Articles while leaving the 1776 "union" intact. By allowing nine States
to ratify, the framers explicitly acknowledged that up to four States might end all political ties to the union. And, as Jefferson
Davis pointed out, the process was not one of the entire people of the U.S. voting at one time for a more perfect union, but
the people of each State deciding, for themselves alone, whether to secede from the old union and join a new one. If there
was an eternal union of 1776, it must have existed on an extremely rarified level, to have no relation to any actual fundamental
Although the nationalists assert that the people of the United States as a single, sovereign nation ratified the Constitution,
the historical record indicates otherwise. Madison himself, while yet in the 1787 Constitutional convention, proclaimed on
August 13 that the States were the ratifying parties: "Who are to form the New Constitution...? Are not the States the
Agents? Will they not be the members of it? Did they not appoint this Convention? Are not they to ratify its proceedings?
Will not the new Constitution be their Act?" ["Debates in the Federal Convention... by James Madison" p. 526] The language
of George Washington, the president of the convention, in transmitting the Constitution to the States, implied that the States
as individual sovereignties were entering into a union. In his letter of September 17, 1787, he wrote
It is obviously impracticable in the federal government of these States, to secure all rights of independent sovereignty
to each, and yet provide for the interest and safety of all. Individuals entering into society, must give up a share of liberty
to preserve the rest. [Journals of the Continental Congress XXXIII: 502]
In Federalist No. 39, James Madison argued that the foundations of the Constitution's authority were completely
federal--that is, derived from the authority of the States:
It is to be the assent and ratification of the several States, derived from the supreme authority in each State--the authority
of the people themselves. The act, therefore, establishing the Constitution will not be a national but a federal
That it will be a federal and not a national act, as these terms are understood by the objectors--the act of the people,
as forming so many independent States, not as forming one aggregate nation--it is obvious from this single consideration:
that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority
of the States. It must result from the unanimous assent of the several States that are parties to it.... Each State,
in ratifying the Constitution, is considered as a sovereign body independent of all others, and only to be bound by its own
voluntary act. [Madison et al, Federalist Papers pp. 243-44]
Madison repeated the same argument in the Virginia ratifying convention on June 6, 1788. The parties to the Constitution
were "the people as composing thirteen sovereignties." No State could be bound without its own consent. [Debates
in the Several State Conventions III: 94]
James Dickinson, as Fabius, referred to the Constitution as a union of States:
As in forming a political society, each individual contributes some of his rights, in order that he may, from a
common stock of rights, derive greater benefits, than he could from merely his own; so, in forming
a confederation, each political society should contribute such a share of their rights, as will, from a common
stock of rights, produce the largest quantity of benefits for them. ["Observations on the Constitution" pp. 174-75]
Madison reaffirmed this argument a decade later during the controversy surrounding the Sedition Act. He drafted the Report
of 1799 to the Virginia Legislature, which condemned that act as a violation of the reserved powers of the States. In his
Report, Madison reiterated that the Constitution was submitted to the States in the sense of the people composing those political
societies, in thier highest sovereign capacity; in that sense the States ratified it, and "they are consequently parties
to the compact from which the powers of the Federal government result." ["Report on the Resolutions," in Kentucky and
Virginia Resolutions pp. 18-19]
This is as good a place as any to recall Webster's argument against the Constitution as a compact between States: If the
States are parties, where are their stipulations? Why does it contain prohibitions against the States? The best answer is
that of Albert Taylor Bledsoe:
Each State, as it adopted the Constitution, virtually said to every other, I will abstain from the exercise of certain
powers, and grant or delegate certain powers, according to all the stipulations of this instrument, provided you will do the
same thing. I will neither coin money, nor emit bills of credit, [etc.].... And I will, on the other hand, consent
that the General Government may regulate commerce, levy taxes, borrow money on the common credit [etc.].., provided
you will delegate the same powers. [Bledsoe p. 98]
In response to the nationalist arguments, we can only say, with Bledsoe:
When we consider, in the single light of history, the manner in which the Constitution of the United States was made, or
framed, and afterwards ratified, such assertions seem exceedingly wonderful, not to say inexplicable on the supposition that
their authors were honest men.... History will yet open the eyes of the world to the strange audacity of their assertions.
[Ibid. p. 7]
In tracing the source of sovereignty in the Constitution, it remains only for us to examine the origin and meaning of the
phrase, "WE THE PEOPLE of the United States," to which the nationalists attach such great significance. Justice story, in
particular, used it as one of his chief pieces of evidence that the Constitution was ratified by the people of the U.S. in
the aggregate. The legislative history of the language, however, does not bear out this contention.
The original draft of the Preamble, as it came out of the Committee of Detail on August 6, 1787, read: "We the people
of the States of [names enumerated] do ordain, declare, and establish the following Constitution for the Government
of Ourselves and our Posterity." ["Debates in the Federal Convention... by James Madison" p. 421] The next day the Preamble
was accepted as it was, with none objecting. [Ibid. p. 482] Following several weeks of debate and amendment, the August 6
draft was sent to the Committee of Stile for final polishing of the language. When it came out on September 12, the Preamble
had been altered to its present form: "WE THE PEOPLE of the United States...." [Ibid. p. 702] The new language
was accepted without debate, which would have been unlikely, had the author intended it to reflect a substantive change in
the nature of the union.
The question remains, why was the change in language made? The most plausible explanation is that of Jefferson Davis:
The reason for the modification afterward made in the language is obvious. It was found that unanimous ratification of
all the States could not be expected, and it was determined... that the consent of nine States should suffice for the
establishment of the new compact "between the States so ratifying the same...." When this conclusion was reached, it became
manifestly impracticable to designate beforehand the consenting States by name. [Davis 1: 124-25]
This explanation was apparently in use by Federalists during the period of ratification, because the Antifederalist Luther
Martin referred skeptically to it in the Maryland Gazette of June 3, 1788. "It is said [by the Federalists]
the accession of nine States being sufficient to render it binding required this." Martin, suspecting the Federalists
of some nationalist subterfuge in the change of wording, rejected the argument. "It is nonsense, for if only nine States
agree they are no more the people of the United States, than they are the people of the disagreeing States by
name." [Supplement to Max Farrand's The Records of the Federal Convention p. 292] Although the argument failed
to convince Martin, his citation of it indicates at least that the Federalists denied any nationalist meaning to the Preamble
during the ratification debates. That particular sophistry was reserved until after ratification, when they were safely entrenched
in the Supreme Court.
Gouverneur Morris, who played the chief role in drafting the phrasse, did not profess to find any other meaning in it.
Morris was one of five appointed to the Committee of Stile, which wrote the final language of the Constitution. "The finish
given to the style and arrangement of the Constitution fairly belongs to the pen of Mr. Morris; the task having, probably,
been handed over to him by the chairman of the Committee.., and with the ready concurrence of the others." [Records
of the Federal Convention 2: 553; 3: 170] Morris later wrote, "The Constitution was a compact, not between individuals
but between political societies, the people, not of America, but of the United States, each enjoying sovereign power and of
course equal rights." [The Life and Writings of Gouverneur Morris III: 193, in Bledsoe pp. 64-65] If that
arch-nationalist, and author of the Preamble, saw no mystical nationalist significance into it, no one else should presume
Henry Lee and James Iredell both explained that the phrase "WE THE PEOPLE of the United States" did not include the people
of any one State until they had ratified the Constitution for themselves. In the Virginia convnetion on June 5, 1788 Lee said,
"This expression was introduced into that paper with great propriety. This system is submitted to the people for their
consideration, because on them it is to operate, if adopted. It is not binding on the people until it becomes their act. It
is now submitted to the people of Virginia. If we do not adopt it, it will always be null and void as to us." [Debates
in the Several State Conventions III: 42] In the North Carolina convention, Iredell reassured his listeners on July 24
"that it would be easy to satisfy the gentlemen; that the style, We, the people, was not to be applied
to the members themselves, but was to be the style of the Constitution, when it should be ratified in their respective states."
[Ibid. IV: 25]
We have finally completed our survey of the source of sovereignty in the American federal system, from the time when the
colonies first associated together in the First Continental Congress, to the time when the States ratifed the Constitution.
We have demonstrated, with evidence which should satisfy any reasonable person, that the orginal sovereign power in every
case was inherent in the States, and that the powers exercised by Congress from 1774 to 1789 were merely delegated powers,
exercised with the permission of the States. In our next two chapters, we will examine the nature and distribution of sovereignty
in the federal system under the new Constitution: what powers the States delegated; what powers they retained for themselves;
who was to be the final judge of their powers; and what was to be the recourse of the States in the event of federal encroachment.
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