Are the States Sovereign?

Too often in a debate or discussion about the Constitution, its creation and meaning, the fact that the federal government is a “product of the states” and not the other way around, is completely overlooked.

Today, most talk about “the government”, meaning the federal government, completely bypasses the fact that without the states, there would be no federal government. The Articles of Confederation proved that a “loose knit” organization does not have sufficient power to perform the basic and vital services required.

When the Framers convened in “filthy” Philadelphia in the heat of the summer of 1787, they set about defining what, in their minds, constituted an appropriate form and the extent of the powers which should be assigned to it. None of them expressed the idea of “unlimited” power. Rather, they focused on what they considered were essential services and powers necessary to preserve and protect the hard-won freedom the colonies had secured as a result of the revolutionary war.

To a delegate, they recognized that the states would have to give up some of their sovereignty if the federal government was to succeed. However, they were jealous individuals and did not want to give up any more than was absolutely necessary. Having witnessed the inadequacies of the Articles of Confederation and having an exceptional knowledge of history, they “hammered together” a set of conditions which they believed would create a federal government to which they, each state, could adhere. They wanted a federal government strong enough to protect them from outside predators; one that could provide a stable economy and serve as a “referee” in enforcing the rules the legislature would enact. Yet they wanted it severely restricted as to how many different powers it had, the extent of such powers and the prohibitions against intrusions on the lives and businesses of individual citizens (re-read the Bill of Rights)!

The fact that the states have succumbed like Pavlov’s dogs is no excuse or obliteration of the fact that the states created the union. Their submission is only evidence of the weakness of man in terms of resisting temptation. The offer by the federal government to provide monies for specific functions or activities does not remove the potential or right of any state to refuse! While it is not new, we are seeing a resurgence of this attitude in the “nullification” proclamations introduced by a number of states. They are asserting their rights to disagree and refuse acceptance of a federal mandate! Perhaps they are realizing the cost of acceptance and the federal control that comes with such acceptance. While this may be to Alexander Hamilton’s liking, it is far afield from Jefferson’s dictum of “that government is best that governs least!”

When one considers that the 10 Amendments added immediately following ratification of the basic Constitution incorporated two that addressed the specific question of state sovereignty, there should be little doubt in any reader’s mind. Let’s look at those two amendments.

IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

and Xth. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

While legal scholars have argued that the two amendments are redundant, a careful reading should clearly reveal that they are reinforcing the basic point that the United States is a creature of the States and not vice verse.
That’s my view. What’s yours? Reach me at constitutionviews@gmail.com
©Copyright 2011 Hillard W. Welch