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The Constitution and State Sovereignty. An Abridgement by John Chodes.


Chapter I - The Articles of Confederation.

.When certain American colonies of Great Britain, each acting for itself, although in concert with the others, determined to dissolve their political connection with the mother country, they sent their representatives to a general Congress of those colonies, and through them made a declaration that the colonies were, and of right ought to be, "free and independent States." As such they contracted an alliance for their "common defense," successfully resisted the effort to reduce them to submission, and secured the recognition by Great Britain of their separate independence; each state being distinctly recognized under its own name - not as one of a group or nation. That this was not merely a foreign view is evident from the second of the "Articles of Confederation" between the states, adopted subsequently to the Declaration of Independence, which is in these words: "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."

These "Articles of Confederation and Perpetual Union between the States," as they were styled in their title, were adopted by eleven of the original States in 1778, and by the other two in the course of the three yezrs next ensuing, and continued in force until 1789. During this period the General Government was vested in the Congress alone, in which each State, through its representatives, had an equal vote in the determination of all questions whatever. The Congress exercised all the executive as well as legislative powers delegated by the States...

The Government thus constituted was found inadequate for some necessary purposes, and it became equisite to reorganize it. The first idea of such reorganization arose from the necessity of regulating the commercial interourse of the States with one another and with foreign countries, and also of making some provisioin for pay ment of the debt contracted during the war for independence. These exigencies led to a proposition for a meeting of commissioners from the various States to consider the subject. Such a meeting was...(held) "at Philidelphia on the second Monday in May (1787), to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the Constitution of the Federal Governmnt adequate to the exigencies of the Union, and to report such an act for that purpose to the United States in Congress assembled, as, when agreed to by them, and afterward confirmed by the Legislatures of every State, will effectually providefor the same."

It is scarcely necessary to remind the well-informed reader that the term, "Constitution of the Federal Government," employed above, and "Federal Constitution," as used in other proceedings of that period, do not mean the instrument to which we now apply them, and which were not then in existance. They were applied to the system of government formulated in the Articles of Confederation...of course, (the commissioners') action could only be advisory until ratified by the States... The legislatures of the various States, with the exception of Rhode Island, adopted and proceeded to act upon these suggestions by the appointment of delegates...

The General Assembly of Virginia, after reciting the recommendation made, enacted: "That seven comissioners be appointed by joint ballot of both Houses of Assembly, who, or any three of them, are hereby authorized, as deputies from this Commonwealth, to meet such deputies as may be appointed and authorized by other states, to assemble in convention at Philadelphia, as above recommended, and to join with them in devising and discussing all such altercations and further provisions as may be necessary to render the Federal Constitution adequate to the exigencies of the Union, and in reporting such an act for that purpose to the United States in Congress, as when agreed to by them, and duly confirmed by the several States, will effectively provide for the same."

(Mr. Davis quotes the duties and powers of the delegates from New Jersey, Pennsylvania, North Carolina, Georgia, New York, Massachusetts, Connecticut, New Hampshire, Maryland and South Carolina. The language and objectives are basically the same.)

...The instructions given to the deputies of Delaware were substantially in accord with the others - being almost literally identical with those of Pennsylvania but the following proviso was added: "...the fifth article of the Confederation...declares that, 'in determining questions in the United States in Congress assembled, each State shall have one vote.' "

Rhode Island, as has already been mentioned, sent no delegates.

From the examination...(of the) instructions above quoted, we may derive certain conclusions...:

1. In the first place, it is clear that the delegates to the Convention of 1787 represented, not the people of the United States in mass, as has been most absurdly contended by some political writers, but the people of the several States, as States - just as in the Congress of that period - Delaware, with her sixty thousand inhabitants, having entire equality with Pennsylvania, which had more than four hundred thousand, or Virginia, with her seven hundred and fifty thousand.

2. The object for which they were appointed was not to organize a new government, but "solely and expressly" to amend the "Federal Constitution" already existing; in other words, "to revise the Articles of Confederation," and to suggest such "altercations" or additional "provisions" as should be deemed necessary to render them "adequate to the exigencies of the Union."

3. It is evident that the term "Federal Constitution." or its equivalent, "Constitution of the Federal Government," was as freely and familiarly applied to the system of government established by the Articles of Confederation - undeniably a league or compact between States expressly retaining their sovereignty and independence - as to that amended system which was substituted for it by the Constitution that superceded those articles.

4. The functions of the delegates to the convention were, of course, only to advise, deliberate and discuss. No validity could attach to any action taken, unless and until it should be afterward ratified by the several States...


Chapter II - The Convention of 1787

When the Convention met in Philidelphia, in May, 1787, it soon became evident that the work before it would take a wider range and involve more radical changes in the "Federal Constitution" than at first been contemplated. Under the Articles of Confederation, the General Government was obliged to rely upon the governments of the several states for the execution of its enactments. Except its own officers and employees, and in time of war, the Federal army and navy, it could exercise no control upon individual citizens. With regard to the States, no compulsive or coercive measures could be employed to enforce its authority, in case of opposition or indifference to its exercise. This last was a feature of the Confederation which it was not desirable nor possible to change, and no objection was made to it; but it was generally admitted that some machinery should be devised to enable the General Government to exercise its legitimate functions by means of a mandatory authority operating directly upon the individual citizens within the limits of its constitutional powers. The necessity for such provision was undisputed.

Beyond the common ground of a recognition of this necessity, there was a wide diversity of opinion among the members of the Convention. Luther Martin, a delegate from Maryland, in an account of its proceedings, afterward given to the Legislature of that State, classified these differences as constituting three parties in the Convention, which he describes as foolows:

"One party, whose object and wish it was to abolish and annililate all State governments...(desired) to bring forward one General Government over this extensive continent of a monarchial nature, under certain restrictions and limitations...

"The second party was not the abolition of the State governments nor for the introduction of a monarchical government under any form; but they wished to establish such a system as could give their own States undue power and influence in the government over the other States."

"A third party was what I considered truly federal and republican...They were for taking our present federal system as the basis of their proceedings, and as far as experience had shown that other powers were necessary to the Federal Government, to give these powers..."

(Relating to the second party) There was naturally much dissatisfaction on the part of the greater States - Virginia, Pennsylvania, North Carolina, and Massachusettes - whose population at that period exceeded that of all the others combined, but which, in the Congress, constituted less than one third of the voting strength. On the other hand, the smaller States were tenacious of their equality in the Union. Of the very smallest, one, as we have seen, had sent no representatives to the Convention, and the other had instructed her delegates, unconditionally, to insist upon the maintenance of absolute equality in the Congress. This difference gave more trouble than any other question that came before the Convention, and for some time threatened to prove irreconcilable and to hinder any final agreement. It was ultimately settled by a compromise. Provision was made for the representation of the people of the States in one branch of the Federal Legislature (The House of Representatives) in proportion to teir numbers; in the other branch (the Senate), for the equal representation of the States as such. The perpetuity of this equality was furthermore guaranteed by a stipulation that no State should ever be deprived of its equal suffrage in the Senate without its own consent. This compromise required no sacrifice of principle on either side, and no provision of the Constitution has in practice proved more entirely satisfactory...

Early in the session of the Convention a series of resolutions was introduced by Mr. Edmund Randolph, of Virginia, embodying a proposed plan of government...the first of these resolutions...:

"Resolved, that it is the opinion of this committee that a national Government ought to be established, consisting of a supreme legislative, executive, and judiciary."

This was followed by other resolutions - twenty-three in all, as adopted and reported by the comittee - in which the word "national" occured twenty-six times.

The day after the report of the committee was made, Mr. Ellsworth, of Connecticut, moved to strike out the word "national Government" in the resolution above quoted and to insert the words "Government of the United States," which he said was the proper title. "He wished also the plan to go forth as an amendment to the Articles of Confederation." That is to say, he wished to avoid even the appearance of undertaking to form a new government, instead of reforming the old one, which was the proper object of the Convention. This motion was agreed to without opposition, and as a consequence, the word "national" was stricken out wherever it occured, and nowhere makes its appearance in the Constitution finally adopted...

A serious difficulty, however, was forseen...(in the 13th of the Articles of Confederation):..."The Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any altercation, at any time hereafter, be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterward confirmed by the Legislatures of every State."

...There was(a) serious reason to fear that this (unanimous) consent could not be obtained. Rhode Island had declined to send any representatives to the Convention; of the three delegates from New York, two had withdrawn; and other indications of dissatisfaction had appeared. In case of the failure of a single Legislature to ratify, the labors of the Convention would go for naught, under a strict adherence to the letter of the article above cited. The danger of a total frustration of their efforts was imminent.

In this emergency the Convention took the responsiblity of transcending the limits of their instructions, and recommended a procedure which was in direct contravention of the letters of the Articles of Confederation. This was the introduction of a provision into the new Constitution, that the ratification of nine States should be sufficient for its establishment among themselves. In order to validate this provision, it was necessary to refer it to authority higher than that of Congress and the State Legislatures - that is, to the PEOPLE of the States, assembled by their representatives, in convention. Hence it was provided, by the seventh and last article of the new Constitution, that "the ratification of the Convention of nine States" should suffice for its establishment "between the States so ratifying the same."

...Under the American theory of republican government, conventions of the people, duly elected and accredited as such, are invested with the plenary power inherent in the people of an organized and independent community, assembled in mass. In other words, they represent and exercise what is properly the sovereignty of the people. State Legislatures, with restricted powers, do not possess or represent sovereignty. Still less does the Congress of a union or confederacy of States, which is by two degress removed from the seat of sovereignty...

In (the final article of the new Constitution) provision was deliberately made for the secession, if necessary, of a part of the States from a union which, when formed, had been declared "perpetual," and its terms and articles to be "inviolably observed by every Stae."

Opposition was made to the provision on this very ground - that it was virtually a dissolution of the union, and that it would furnish a precedent for future secessions...

Mr. Madison, who was one of the leading members of the Convention, advocated afterward, in the "Federalist," the adoption of the new Constitution, asks the question, "On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superceded without the unanimous consent of the parties to it?" He answers the question "by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed." He proceeds, however, to give other grounds of justification:

"It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breech of the whole treaty; and that a breach committed by either of the parties absolves the others, and authorized them, if they please, to pronounce the compact violated and void. (it may) unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the Federal pact..."

The idea of compelling any State or States to enter into or to continue in union with others by coercion, is as absolutely excluded under the one supposition as under the other - with reference to one State or a minority of States, as well as with regard to a majority. The article (Article VII of the Constitution) declares that "the ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution" - not between all, but - "between the States so ratifying the same."

...The attention of the reader may be directed to the refutation...that the Constitution was established by the people of the United States "in the aggregate." If such had been the case, the will of the majority, duly ascertained and expressed, would have been binding upon the minority. No such idea existed in its formation. It was not even established by the States in the aggregate, nor was it proposed that it should be. It was submitted for the acceptance of each separately, the time and place at their own option, so that the dates of ratification did extend from December 7, 1787, to may 29, 1790. The long period required for these ratifications makes manifest the absurdity of the assertion, that it was a decision by the votes of one people, or one community, in which a majority of the votes determined the result...

To the original copy of the Constitution...was attached the following words:

"Done in Convention, by the unanimous consent of the States present, the seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven, and of the Independence of the United States of America, the twelfth..."

This attachment to the instrument...has been strangely construed by some commentators as if it were part of the Constitution, and implied that it was "done," in the sense of completion of the work.

But the work was not done when the Convention closed its labors and adjourned. It was scarcely begun. There was no validity or binding force whatever in what had been already "done" Even if the majority of eight out of thirteen States had ratified it, the refusal of the ninth would have rendered it null and void. Mr. Madison...said: "It is now time to recollect that the powers (of the Constiution) were merely advisory and recommendatory; they were so meant by the States, and so understood by the Convention..."


Chapter III - Ratification of the Constitution

The amended system of union, or confederation...devised by the Convention of 1787, and embodied, as we have seen, in the Constitution which they framed and have set forth, was now to be considered and acted on by the people of the several States. This they did in the highest and most majestic form in which the sanction of organized communities could be given or withheld - not through ambassadors, or Legislators, or deputies with limited powers, but through the conventions of delegates chosen expressly for the purpose and clothed with the plenary authority of sovereign people. The action of these conventions was deliberate, cautious, and careful. There was much debate, and no little opposition to be conciliated. Eleven States, however, ratified and adopted the new Constitution within the twelve months immediately following its submission to them. Two of them positively rejected it, and, although they afterward acceded to it, remained outside the Union in the exercise of their sovereign right, which nobody then denied - North Carolina for nine months, Rhode Island for nearly fifteen, after the new Government was organized and went into operation...

Delaware was the first to act. Her Convention met on December 3, 1787, and ratified the Constitution on the 7th. The readiness of this least in population, and next to the least in territorial extent, of all the States, to accept that instrument, is a very significant fact when we remember the jealous care with which she had guarded against any infringement of her sovereign Statehood. Delaware alone had given special instructions to her deputies in the Convention not to consent to any sacrifices of the principle of equal representation in Congress. The promptness and unanimity of her people in adopting the new Constitution prove very clearly, not only that they were satisfied with the preservation of that principle in the Federal Senate, but that they did not understand the Constitution, in any of its features, as compromising the "sovereignty, freedom, and independence" which she had so especially cherished. The ratification of their Convention is expressed in these words: "We, the deputies of the people of Delaware State, in convention met, having taken into our serious consideration the Federal Constitution proposed and agreed upon by the deputies of the United States at a General Convention held at the city of Philidelphia on the 17th day of September, A.D. 1787, have approved of, assented to, and ratified and confirmed, and by these presents do, in virtue of the powers and authority to us given for that purpose, for and behalf of ourselves and our constituents, fully, freely, and entirely, approve of, assent to, ratify, and confirm the said Constitution..."

Pennsylvania acted next...(the ratification wording was similar to Delaware's.) In New Jersey the ratification...was unanimous...(The wording was also similar to both Delaware and Pennsylvania.)

(Georgia and Connecticut were the next States to ratify.)

In Massachusetts there was a sharp contest. The people of that State were then - as for a long time afterward - exceedingly tenacious of their State independence and sovereignty. The proposed Constitution was subjected to a close, critical, and rigorous examination with reference to its bearing upon this very point. The Convention was a large one, and some of its leading members were very distrustful of the instrument under their consideration. It was ultimately adopted by a very close vote (187 to 168), and then only as accompanied by certain proposed amendments, the object of which was to guard more expressly against any sacrifice or compromise of State sovereignty, and under an assurance, given by the advocates of the Constitution, of the certainty that those amendments would be adopted. The most strenuously urged of these was that ultimately adopted, in substance, as the tenth amendment to the Constitution...as an emphatic assertion of the continued freedom, sovereignty, and independence of the States...

In terms substantially identical with those employed by the other states, Massachusetts thus announced her ratification...(Maryland and South Carolina followed with equivalent expressions.) But South Carolina, like Massachusetts, demanded certain amendments, and for greater assurance accompanied her ordinance of ratification with the following distinct assertion of the principle afterward embodied in the tenth amendment: "This Convention doth also declare that no section or paragraph of the said Constitution warrants a construction that the States do not retain every power not expressly relinquished by them and vested in the General Government of the Union."

(New Hampshire then ratified with similar language.)...

The debates in the Virginia Convention were long and animated...Among the members were Madison, Mason, and Randolph, who had been members of the Convention at Philidelphia. Mr. Madison was one of the most earnest advocates of the new Constitution, while Mr. Mason was as warmly opposed to its adoption; so also was Patrick Henry, the celebrated orator. It was assailed with great vehemance at every vulnerable or doubtful point, and was finally ratified...by a vote of 89 to 79...(with the demand for) certain amendments as a more explicit guarantee against consolidation... "That the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them, whenever the same shall be perverted to the injury or oppression, and that every power not granted thereby remains with them and at their will,"etc.,etc.

...New York, the eleventh State to signify her assent, did so...after an arduous and protracted discussion, and then by a majority of but three votes - 30-27...The ratification was expressed in the usual terms...Accompanying it was a declaration of the principles in which the assent of New York was conceded...:

That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not, by the said Constitution, clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the people of the several States, or to their respective State governments, to whom they may have granted the same; and that those clauses in the said Constitution which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution, but such clauses are to be construed either as exceptions to certain specified powers or as inserted for greater caution.

The acceptance of these eleven States, having been signified to the Congress, provision was made for putting the new Consttution in operation. This was effected on March 4, 1789, when the Government was organized, with George Washington as President, and John Adams, Vice-President; the Senators and Representatives elected by the States which had acceded to the Constitution, organizing themselves as a Congress.

Meantime, two States were standing, as we have seen, unquestioned and unmolested, in an attitude of absolute independence. The Convention of North Carolina, on August 2, 1788, had rejected the proposed Constitution, or more properly speaking, had withheld ratification until action could be taken upon the subject-matter of the following resolution adopted by her Convention: "Resolved, that a declaration of rights, asserting and securing from enroachment the great principles of civil and religious liberty, and the unalienable rights of the people, together with amendments to the most ambiguous and exceptionable parts of the said Constitution of government, ought to be laid out before Congress and the Convention of the States, that shall or may be called for the purpose of amending the said Constitution, for their consideration, previous to the ratification of the Constitution aforesaid on the part of the State of North Carolina."

More than a year afterward, when the newly organized government had been in operation for nearly nine months, and when - although no convention of the States had been called to revise the Constitution - North Carolina had good reason to feel assured that the most important provisions of her proposed amendments and "declaration of rights" would be adopted, she acceded to the amended compact...

In Rhode Island the proposed Constitution was at first submitted to a direct vote of the people, who rejected it by an overwhelming majority. Subsequently...when the reorganized Government had been in operation for nearly fifteen months, and when it had become reasonably certain that the amendments would be adopted - a convention of the people of Rhode Island acceded to the new Union, and ratified the Constitution, though even then by a majority of only two votes in sixty-six - 34 to 32...

(Prior to ratification, North Carolina and Rhode Island) were absolutely independent and unconnected with any other political community...leaving these two States in the attitude of foreign though friendly powers. There was no claim of any right to control their action, as if they had been mere geographical or political divisions of one great consolidated community or "nation." Their accession to the Union was desired, but their freedom of choice in the matter was never questioned. And then it is to be noted, on their part, that, like the House of Judah, they refrained from any attempt to force the seceding sisters to return.

As illustrative of the relations existing during this period between the United States and Rhode Island, it may not be uninstructive to refer to a letter sent by the government of the latter to the President and Congress..."State of Rhode Island and Providence Plantations, in General Assembly, September Session, 1789...

"Our not having acceded to or adopted the new system of government formed and adopted by most of our sister States, we doubt not, has given uneasiness to them. That we have not seen our way clear to it, consistently with our idea of the principles upon which we all embarked together, has also given pain to us. We have not doubted that we might thereby avoid present difficulties, but we have apprehended future mischief...

"Can it be thought strange that, with these impressions, they (the people of Rhode Island) should wait to see the proposed system organized and in operation? - to see what further checks and securities would be agrred to and established by way of amendments, before they could adopt it as a Constitution of government for them selves and their posterity?...

"We are induced to hope that we shall not be altogether considered as foreigners having no particular affinity or connection with the United States...

"We feel ourselves attached by the strongest ties of friendship, kindred, and interest, to our sister States; and we can not, without the greatest reluctance, look to any other quarter for those advantages of commercial intercourse which we conceive to be more natural and reciprocal between them and us...

John Collins, Governor"

***Please check back for future installments (Chapters4-14)***


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