In contrast to mainstream opinion existing this side of 1865, John C. Calhoun of the antebellum period argued that the Constitution of 1789 did not create a new national political system; rather, it merely founded a different organization of the confederation among the thirteen states, which had originally confederated with one another under the Articles of Confederation. Although this author deems Calhoun’s views on slavery and race to be morally wrong, Calhoun’s profound articulation of constitutional thought is sufficiently important to merit the following detailed analysis of his work in relation to the confederation thesis.[1] Speaking of the states both in the past and during his mid-nineteenth-century present, Calhoun concisely summarizes his view that the United States has remained a confederation: “They, then, are now united, and have been, throughout, simply as confederated States.”” This article will both explicate and evaluate Calhoun’s work and the confederation thesis.
Before proceeding, however, it is important to briefly mention the historical person behind the theory. John Caldwell Calhoun was born to Scotch-Irish parents in 1782. His family settled in the western part of South Carolina. After an excellent undergraduate education at Yale, a legal education in Connecticut, and an early political career as a hawkish nationalist, Calhoun was confronted by the plight of South Carolina (and the other Southern states) under the federal tariff policy.[2] This and his readings of John Taylor of Caroline’s writings helped inspire Calhoun’s advocacy of the constitutional powers of the states.[3] He became a stalwart defender and theorist of states’ rights against the federal government and, in turn, each state’s prerogative to resist usurpations of its “”reserved”” powers. One of his first noted acts in this direction was his assistance in ghostwriting South Carolina’s Exposition and Protest, which further developed the already existing doctrines of interposition and nullification that were articulated via the Virginia and Kentucky Resolutions in 1798.[4] Interestingly, he did this while also serving as vice president under President John Quincy Adams; this, in turn, followed the precedent of Vice President Thomas Jefferson ghostwriting the Kentucky Resolution while serving under John Quincy’s father, President John Adams.
The tariff fight was the beginning of the South’s long struggle against the growing industrial power of the North, ultimately culminating in the Civil War. Through his long career as a senator from South Carolina, Calhoun became the intellectual leader and a prominent spokesman for the Southern states during the “”cold-war-Americana,”” which existed between the North and South before the actual “”hot war”” started in 1861. Calhoun’s magnum opus was a pair of works, “”A Disquisition on Government”” and “”A Discourse on the Constitution and Government of the United States,”” both of which he wrote near the end of his life. These most explicitly and completely developed his political and constitutional theory, which included his articulation of the confederation thesis.[5]
Aside from such sectional issues, the constitutional brilliance and foresight of Calhoun was well on display when he opposed the Mexican-American War because it would set a precedent for presidents goading Congress into supporting their unilateral decisions to order American troops into armed conflict.[6] True to Calhoun’s prediction, Polk’s prompting of armed hostilities between Mexican and American troops (due largely to Polk positioning U.S. troops on disputed soil) became a paradigmatic ruse that presidents have continually used to pressure Congress’s cooperation in approving their unilateral warmaking (e.g., the Civil War, the Gulf of Tankan, the first Iraq War, etc.).
This review-essay on Calhoun and the confederation thesis is divided into three sections. The first will introduce the confederation thesis by laying out how Calhoun and others have interpreted the relationship between the Declaration of Independence, the Articles of Confederation, and the Constitution. The second section will examine how Calhoun and others have construed the text and theory of the Constitution. Finally, the third will briefly weigh historical evidence that both validates and raises questions about the confederation thesis as well as Calhoun’s own work.
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The definition of sovereignty is crucial for the confederation thesis. Sir William Blackstone asserted that sovereignty is supreme power. Forrest McDonald quotes Blackstone’s famed Commentaries on the Laws of England on this point: “” ‘There is and must be’ “” in every state “” ‘a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty, reside.’ “”[7] Furthermore, John Taylor of Caroline further defines sovereignty to mean “”will to enact, and a power to execute.””[8] The two views are compatible and can be synthesized; sovereignty as a political term implies having the supreme (or ultimate) authority over a people in a definable geographic territory, and it is expressed by having both the “”will to enact”” and the “”power to execute”” positive law for a definable territory. In accordance with these views, Calhoun also adds the following and, hence, applies it directly to the American context:
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But how sovereignty itselfâthe supreme powerâcan be dividedâhow the people of the several States can be partly sovereign, and partly not sovereignâpartly supreme, and partly not supreme, it is impossible to conceive. Sovereignty is an entire thingâto divide, is to destroy it.[9]
Here Calhoun is articulating an integral element of the confederation thesis: the states retained their sovereignty even after ratifying the Constitution and, hence, due to the indivisible nature of sovereignty, the federal government cannot have a partial share of sovereignty. This view will be further elaborated in the pages that follow.
The Declaration of Independence was the former colonies’ joint proclamation to the world that they were now sovereign states (or state-peoples). The concluding paragraph of the document formally declares the former colonies’ separation from Great Britain:
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We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions do in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare. That these United Colonies, solemnly publish and declare themselves to be 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.[10]
More will be said about this momentarily, but here, following Calhoun, one should observe how the language implies that each of the new “”Free and Independent States”” has the full powers (i.e., “”Power to levy War, conclude Peace, contract Alliances, establish Commerce, and do all other Acts and Things which Independent States may of right do . . .””) of a sovereign State within the international system.[11]
Furthermore, according to Calhoun, the states maintained their “”‘free, independent, and sovereign'”” status as “”‘States'”” throughout the many stages and organizations of their confederation with one another in the past and present (e.g., their revolutionary collaboration, the Articles of the Confederation, and the Constitution):
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The retention of the same style, throughout every stage of their existence, affords strong, if not conclusive evidence that the political relation between these States, under their present constitution and government, is substantially the same as under the confederacy and revolutionary government; and what that relation was, we are left no doubt; as they are declared expressly to be “”free, independent, and sovereign States.””[12]
Although not well developed in Calhoun’s analysis, readers should see the very informal basis of cooperation among the states after they declared independence (which made them new, separate, independent, and sovereign states) and before the enactment of the Articles of Confederation. During this time, the states’ collaboration in Congress and during the war was utterly voluntary and informal, for there was no positive legal agreement (i.e., no legal compact or treaty) among the colonies that made the enactments and resolutions of the First and Second Continental Congress legally binding for the colonies/states. Before the enactment of the Articles of Confederation, Congress was merely an interstate diplomatic body lacking the formal delegated legal authority that it would receive when the states compacted under the Articles. As a result, each of the states could voluntarily participate in and/or ignore actions of Congress without violating legal obligations owed to the other states. Congress merely facilitated voluntary cooperation among them. So, Congress’s enactment of the Declaration of Independence was not an exercise of such formal delegated authority, for Congress did not yet possess this. Thus, Congress’s enactment of the Declaration cannot be viewed as a positive law imposing legal obligations on the states; the Declaration cannot be interpreted as establishing a legal obligation on the states to be in union with one another.
This, then, helps to illuminate the meaning of the phrase “”united States”” in the Declaration. The new states were only united in the sense of an informal and non-legally binding collaboration meant to achieve various common goals such as fighting for and recognizing their sovereign independence. For the reasons stated above, the Declaration cannot be viewed as establishing a legal bond of union. Although the new sovereign states were united to one another, this “”union”” was purely informal and lacking in legal obligations. Each state clearly retained full independence and sovereignty, regardless of its participation in this “”union.””[13]
Furthermore, there is compelling evidence from the text of the Declaration that this union is a purely voluntary, informal, and non-legal bond among the States. For the sake of clarity, it is helpful to briefly review this material. Forrest McDonald argues for the above thesis as follows:
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The third part is the actual declaration proper, in which the precise language is crucial: “”We, therefore, the Representatives of the united States of America . . . do in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare”” themselves to be “”FREE AND INDEPENDENT STATES,”” and as such “”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 plural language is used throughout. In addition, in keeping with an eighteenth-century convention, nouns in the document are capitalized, and what the delegates represent are united Statesâthat being not a name, but “”united”” being merely an adjective describing the stance of the states in opposition to Britain.[14]
In addition to noting the obvious “”plural language”” description of the new sovereign “”STATES,”” McDonald emphasizes the Declaration’s great attention to the “”eighteenth-century convention”” of capitalizing nouns, in contrast to the uncapitalized “”united”” in the term “”united States.”” According to McDonald, then, “”united”” is clearly an adjective, and it renders the phrase “”united States”” to merely be “”describing the stance of the states in opposition to Britain . . .””âi.e., they have Britain as a common enemy and are united to fight against her (although this “”union”” has not yet taken the form of a legal treaty).[15]
Victory in this war of independence corroborated the states’ assertion of themselves as independent and sovereign. Most importantly, it resulted in the new states’ main challenger, Great Britain, formerly recognizing their separate, independent, and sovereign status. In the Treaty of Paris (1783), Great Britain recognized the sovereignty of the new states in plural form:
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His Britannic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia to be free, sovereign and independent States; that he treats with them as such.[16]
The plural language, again, implied that each of the states was now regarded as “”free, sovereign, and independent””; each was seen as its own separate sovereignty within the international system. Even before the Treaty of Paris with Britain, other sovereign nations had begun referring to the new states in this plural form. Forrest McDonald also elucidates this fact: “”The 1778 Franco-American treaty of alliance also used the plural: ‘The Most Christian King and the United States of North America, to wit: New Hampshire, Massachusetts Bay, Rhode Island.'””[17] Hence, France recognized each of the states as being independent and sovereign.
Although the Articles of Confederation, which were drafted in 1777 and formally ratified in 1781, instituted a legal compact of “”union”” among sovereign states that previously had no such legal bond, the nature of this union was that of a confederation constituted by international treaty among sovereign states. The states compacted with one another to enter into “”perpetual Union”” (i.e., the legal bond did not expire after a certain time). As Calhoun recognized, however, when entering into this compact with the other states, each state retained its full “”sovereignty, freedom, and independence in every power, jurisdiction, and right.””[18] Thus, the states did not transfer any portion of their sovereignty to the new union.
The nature of the Articles of Confederation as a compact among sovereign states was further corroborated by its plural language, which is similar to that found in the Declaration of Independence, the Treaty of Paris, and the Franco-American Treaty. As McDonald observes, this can be seen in the following passage from the Articles stating how the “”Delegates of the United States”” agreed to “”Articles of Confederation and perpetual Union between the States of New Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia.””[19]
There is an important implication to the listing of the multiple states in the Articles: it further shows how this was a treaty (or compact) among independently sovereign states who were agreeing to confederate with one another (i.e., enter into federal union, which connoted a good faith united relationship among still independently sovereign states).[20] This is similar to the treaty format of the above-mentioned treaties with European states (e.g., France and Great Britain). In those cases, however, each treaty document actually contains multiple treaties between the European state and each of the thirteen sovereign states.
Although the Congress under the Articles had established delegated authority (unlike the Congress after the Declaration and before the enactment of the Articles) according to the terms of the Articles as a treaty among sovereign states, it mostly lacked direct control over individual citizens, and Congress depended on the states to enforce and wield much of its delegated power. This was especially noteworthy in the area of taxes and commerce. Specifically, Congress was dependent upon the states to attain revenue to fund its budget; it also lacked the ability to effectively regulate interstate commerce. This, in turn, resulted in Congress having problems functioning effectively in both areas.[21]
Although congressional powers had been legally established by the Articles, Congress lacked the ability to operationalize and wield these powers independent of the states. In this sense, Congress was analogous to the United Nations: it was a legally instituted treaty organization among sovereign states, but its de facto power was largely dependent upon the states’ cooperation.[22]
Given the various problems that bedeviled the Union under the Articles, a new compact of union was drafted in 1787 by a small convention of delegates from every state but Rhode Island. After concluding its work in framing a proposed constitution, this Philadelphia convention “”recommended that Congress forward the document to states”” for them to ratify. Congress proposed it to the states, and all the states appointed conventions to decide whether to ratify it.[23] The Constitution was ultimately ratified by all thirteen states, rendering it the second legal compact of union among the original thirteen states; hence, it replaced the Articles of Confederation, which had been the original legal compact.
There was a key difference between the Articles and the Constitution. With respect to the Articles, the central organization of federal authority was a Congress that was largely dependent upon the states to realize its powers. In contrast, the Constitution created a federal government that had very limited, but effective, sovereign powers over citizens in each of the states, and this provided the new federal government with some independent ability to enact and enforce its own legislation. In other words, according to Calhoun, the Constitution created a federal government among confederating states that could independently operate and wield its powers.[24] Thus, the new federal government could not be considered a confederation government in structure because it now lacked a confederation government’s “”Congress, or Council, or body representing it, by whatever name it may be called, [which] is much more nearly allied to an assembly of diplomatists, convened to deliberate and determine how a league or treaty between their several sovereigns, for certain defined purposes, shall be carried into execution.””[25] Whereas, under the Articles, Congress did have these characteristics: it functioned as a treaty organization for facilitating the confederation’s purposes and cooperative endeavors, even though real de facto power was still held by the states (e.g., only the states could directly tax individual citizens).
As Calhoun observed, however, the Constitution as a new constitutional compact did not alter the nature of either the states’ sovereignty or the union being a confederation.[26] This new form of union was still a confederation or compact among sovereign and independent states, and these states maintained their sovereignty after the constitutional compact was enacted and went into effect.
The above commentary on the Declaration of Independence and Articles of Confederation has laid out the rationale for viewing the states as sovereign before the Constitution. The reflection below will show how the States possessed their sovereignty during the framing/ratification period of the Constitution.
Calhoun was very clear that the states were still fully sovereign during the framing and ratification processes, and this can be seen in the relation of the states to both events.[27] His argument for this includes some of the following points. It was the states who authorized and established the framing of the Constitution. The Philadelphia convention was composed of delegations sent by the states. Although the delegates departed from their explicit mandate when they framed a new compact (rather than merely revising the old), their authority to frame and propose recommendations for a new compact was still derived from and remained contingent upon the states. Each state delegation only had one vote during the convention, and the delegates voted as parts of their delegations (not as individual members). If, for example, a delegate voted for a proposition but the majority of the delegation voted against it, the state’s vote would oppose the proposition.
Finally, at its conclusion, the convention handed over its recommendation for a new compact to the Congress, which forwarded it on to the states to determine whether the proposal would be accepted. The convention had no authority of its own to make positive law.[28]
Furthermore, as Calhoun made clear, the states had the authority to both enact the Constitution’s legally binding existence and choose to enter or remain outside of this compact. This can be seen in Article VII, which stipulated that nine states would need to ratify the Constitution in order for it to become enacted, and it would only be a compact “”between”” those states who so ratified it.[29]
Thus, in no way could nine (or more) states make the Constitution effective for the other four (or fewer) states who might not have ratified it, for the sovereignty of each state was recognized and respected. This is no surprise, for the Articles had explicitly recognized the states as being “”sovereign.”” Such facts suggest that the states had both Blackstone’s and Calhoun’s condition of “”supreme”” power, as well as Taylor’s condition of the “”will to enact, and a power to execute”” before and at the time of the Constitution’s ratification. For only the states had the high and final power to choose whether or not to continue and “”perfect”” their union by enacting the Constitution as a new legal compactâhence replacing the Articles as the original compactâamong one another.
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Forrest McDonald also shows the very practical rationale for why all the states were not included after “”We the People of the United States””: the Framers could not have said, “”We the People of the United States, viz. New Hampshire . . .”” for in the summer of 1787, no one could predict which states would ratify and which would not, and it was expected that a few would refuse for a long time and perhaps forever. The course of events bore out that expectation. New Hampshire’s convention refused to ratify when it met in February 1788, though it did approve when it reconvened in June. As it happened, New Hampshire became the ninth state to ratify, activating the Constitution for those nine that had approved it. Virginia and New York followed shortly afterward, creating a union of eleven members. But North Carolina flatly rejected the Constitution and did not vote to join the reconstituted entity until several months after the government had been in operation. The Rhode Island legislature at first refused even to call a ratifying convention, and that state did not ratify until May 1790.[31]
The explicit delineation of all the states in the Preamble could not have been done because no one knew whether all the states would ratify the Constitution. Thus, instead of explicitly listing all of the states by name, “”We the People”” is followed by “”of the United States.”” “”States”” here is a plural noun, and “”United States”” connotes all those states choosing to enter into union with one another. Thus, “”United States”” functions as a place-holder for nine (or more) sovereign states that would elect to ratify the Constitution. Hence, it still implies a multiple listing of states like what is found in the Articles of Confederation.
All of this suggests that the term “”people”” has a plural connotation in the Preamble. For the sake of clarity, it is helpful to restate the term as “”peoples.”” The phrase, then, implies “”We”” the different peoples from the distinct sovereign states entering into a federal union with one another. It does not refer to a “”people”” as a single nation.[32]
The above points are further corroborated when reflecting on the federal character of the concepts implied in the phrase “”United States.”” As John Taylor of Caroline suggests, “”The word state implies a sovereign community.””[33] If this is true, then the very notion of a “”union”” of states implies a federation of sovereign communities. So the name “”United States”” suggests that the ultimate constitutional union of thirteen states is federal in nature. Daniel Boorstin shows how the concept of “”federal”” union during the framing and ratification period usually meant the “”drawing together of sovereign states.””[34] The term “”federal”” often meant “”treaty . . . to describe a relationship resting on good faith,”” and this is and was a common way to describe sovereign states entering into agreements with one another.[35] Realizing a federal union, then, implies that the member communities maintain their sovereignty. Thus, the phrase “”United States”” as a name for the federally-natured constitutional union of the states suggests that all these states still retain their sovereignty after entering into this federal union with one another.
Through reflecting on both the Preamble and Article VII, John C. Calhoun argued that the states retained their sovereignty after ratificationâi.e., they did not divest their sovereignty by ratifying the Constitution. This argument is made through demonstrating “”by whom, it [the Constitution] was ordained and established; for whom, it was ordained and established; for what, it was ordained and established; and over whom, it was ordained and established.””[36]
According to Calhoun, “”by whom”” the Constitution “”was ordained and established”” is clear from the phrase “”We the People of the United States.”” Here he employs similar considerations as have been discussed above. The Constitution was ordained and established by “”the people who ratified the instrument; for it was the act of ratification that established it.”” Moreover, it was the sovereign peoples of the states who ratified the Constitution: “”It was ratified by the several States, through conventions of delegates, chosen in each State by the people thereof; and acting, each in the name and by the authority of its State: and, as all the States ratified itâ’We, the people of the United States’âmeanâWe, the people of the several States of the Union.””[37] The state-peoples who ratified were demonstratively sovereign when they ratified, for they were “”members of the confederacy [under the Articles of Confederation]”” and the Articles clearly maintained that “”each State retains its sovereignty, freedom and independence.””[38]
Furthermore, the Constitution “”was ordained and established . . . forâ’The United States of America.’ “”[39] As Calhoun notes, this is made evident by the Preamble. Specifically, it is seen in the last phrase of the Preamble: “”for the United States of America.””[40] The addition of “”America”” does not alter the meaning or the above implications, for this just follows “”the style of the then confederacy.””[41] Also, it seems safe to presume that “”‘United States’ bears the same meaning in the conclusion of the preamble, as it does in its commencement.””[42] Thus, in identifying the “”United States of America”” at the conclusion of the Preamble as being synonymous in meaning to the “”United States”” at the beginning of the Preamble, Calhoun reasons that the “”constitution was ordained and established for the people of the several States, by whom, it was ordained and established.””[43] Thus, the Constitution was established to benefit the several peoples of the several states (i.e., the state-peoples) entering into union with one another.
In what ways was the Constitution established to benefit the state-peoples? Calhoun shows “”for what”” the Constitution was ordained and established through examining the “”objects”” that the “”preamble enumerates.””[44] These objects are: “”to form a more perfect union, to establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”” To “”effect”” or advance these goals, they ordained and established “”the constitution for the United States of America””âclearly meaning by “”for,”” that it was intended to be their constitution; and that the objects of ordaining and establishing it were to perfect their union, to establish justice among them, to insure their domestic tranquility, to provide for their common defense and general welfare, and to secure the blessing of liberty to them and to their posterity.[45]
Since the Constitution was ordained and established by each of the states as sovereign peoples, for the benefit of such states, and in order to realize the above “”objects”” for such states, it can be viewed as the creature and auxiliary of each of the state-peoples. In accordance with this, the federal government, which was created by the Constitution, should be viewed as a subordinate creature to the state-peoples who created the Constitution.
Calhoun suggests this latter point when arguing that the Constitution was “”ordained and established . . . over the government which it created.””[46] His first step in establishing this is to reflect upon how Article VII logically implies that the Constitution was “”not over the several States,”” for this “”declares, that the ratification by nine States shall be sufficient to establish the constitution between the States so ratifying.””[47] Calhoun reflects upon what is implied by Article VII’s language and the meaning of the term “”between””:
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“”Between,”” always means more than “”over””âand implies in this case, that the authority which ordained and established the constitution, was the joint and united authority of the States ratifying it; and that, among the effects of their ratification, it became a contract between them; and, as a compact, binding on themâbut only as such. In that sense the term, “”between,”” is appropriately applied. In no other, can it be. It was, doubtless, used in that sense in this instance.[48]
Since the sovereign states who established the Constitution in a “”joint and united capacity”” were the authorities that “”ordained and established the constitution,”” the Constitution exists as “”a contract between them.”” As “”a compact”” it is binding only “”as such””âi.e., only as a defined set of contractual obligations owed to the other equal members (other states) of the compact. Hence, the Constitution exists as a compact “”among”” equal partners, and it is not “”over”” them.[49]
This is further manifested by reasoning about authority relationships between creature-and-creator. Calhoun describes this in the following passage:
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Reason itself, if the constitution had been silent, would have led, with equal certainty, to the same conclusion. For it was the several States, or, what is the same thing, their people, in their sovereign capacity, who ordained and established the constitution. But the authority which ordains and establishes, is higher than that which is ordained and established; and, of course, the latter must be subordinate to the formerâand cannot, therefore, be over it.[50]
Since the “”authority which ordains and establishes, is higher than that which is ordained and established,”” the “”several States . . . in their sovereign capacity who ordained and established the constitution”” have a higher authority than the Constitution. Thus, the authority of the constitution “”must be subordinate”” to the authority of the States and, hence, “”cannot . . . be over it.””
After eliminating the possibility that the Constitution is “”over”” the states, Calhoun reasoned that it must be over the federal government that is created by it. Again, this follows from the above proof showing how an authority that ordains and establishes another authority is superior to that created authority. The states created the Constitution, and the Constitution creates and defines the entire authority of the federal government. The Constitution is over the authority of the federal government “”and all its functionaries in their official character.””[51] The federal government has no authority beyond what is delineated in the Constitution, and all federal authority is generated by the states delegating this power through their ratification of the Constitution. All this suggests that the authority of the state-peoples is higher than that of the Constitution, and the authority of the Constitution is higher than that of the federal government. By logical implication, then, the authority of the state-peoples is also higher than that of the federal government.
Finally, Calhoun drew all his arguments together to show how (after ratification of the Constitution) the “”several States of the Union”” still retained the “”confederated character”” they had with the Articles:
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The several States of the Union, acting in their confederated character, ordained and established the constitution; that they ordained and established it for themselves, in the same character; that they ordained and established it for their welfare and safety, in the like character; that they established it as a compact between them, and not as a constitution over them; and that, as a compact, they are parties to it, in the same character. I have thus established, conclusively, that these States, in ratifying the constitution, did not lose the confederated character which they possessed when they ratified it, as well as in all the preceding stages of their existence; but, on the contrary, still retained it to the full.[52]
Since this portion of Calhoun’s argument is meant to show how each state (after the Constitution was ratified) retains its full sovereignty, the above passage suggests an important implication: since the states retained their “”confederated character”” (which they had with Articles) after enacting the Constitution and since this “”confederated character”” entailed the states being full sovereign entities, the states who entered the constitutional compact would still have their full sovereignty even after this compact was enacted.[53]
Furthermore, the Constitution itself clearly manifests the states’ supreme authority in Article V, where it explicates their final authority to amend the constitutional compact. As Article V makes clear, only “”three-fourths”” of the states (either by their legislatures or by conventions) can “”ratify”” (or enact) “”Amendments to this Constitution.””[54] Both (through overwhelming majorities) Congress can propose amendments and state legislatures can initiate a new constitutional convention, but (according to Article V) only the states can corporately make such proposals part of the constitutional compact.[55]
Even if the states corporately possess ultimate sovereign power over the compact (i.e., only the states together can authoritatively change or abolish the constitutional compact), what is the power of each individual state in relation to this compact? Since the Constitution is necessarily an agreement among equal authorities, no individual state can unilaterally change the terms of the contract. Thus, no state alone can alter the Constitution (nor can states acting together outside of the Article V parameters). Does this suggest that an individual state within the constitutional compact lacks true sovereignty?
A negative answer can be given to the above question. Each individual state-people retains its true sovereignty because each state-people can dismiss the federal government, which is its creature-agent that has been entrusted with certain delegated powers to govern individual citizens within the state on certain matters. In other words, a state-people can reclaim the powers that it delegated to the federal government through withdrawing from the constitutional compact. Of course, it would then have to rely solely on its own intrastate governing resources (i.e., granting all sovereign powers to its own state government) in order to independently function as a sovereign state. As a sovereign authority that was free to enter (or not enter) the constitutional compact and due to the absence of a higher unit of authority in the constitutional system, a state-people can exercise its sovereign authority through dissolving its membership in the constitutional compact (i.e., union with other states).
Madison recognized this possibility in Federalist 43 when arguing for the legitimacy of the states to dissolve their membership in the Articles of Confederation. He starts by rhetorically asking the question: “”On what principle the confederation, which stands in the solemn form of a compact among the states, can be superseded without the unanimous consent of the parties to it?””[56] He then answers the question as follows:
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The first question is answered at once 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.[57]
This might sound like a high hurdle. However, when reviewing the historical case that Madison applies it to, one can see that it is relevant to most situations in which a sovereign state decides to break a compact with other states for the sake of advancing its self-interest. Acting to abandon the Articles of Confederation was hardly an “”absolute necessity,”” a matter of “”self-preservation,”” or somehow necessary for their “”safety and happiness”” in the strict senses of these phrases. As Forrest McDonald argues, the states actually flourished during their years under the Articles of Confederation, and most were content with the status quo.[58]The real impetus for abandoning the Articles and developing the Constitution seemed to come from those “”who were concerned about the nation’s honor, or were concerned that the nation be great, or were concerned lest the experiment in republicanism should fail.””[59] With this in mind, one must interpret Madison’s description of urgency in Federalist 43 as hyperbolic. Although it might be possible to say that the states had a net interest in abandoning the Articles and accepting the Constitution, it is difficult to maintain that this choice was compelled by necessity, self-preservation, safety, or happiness. If such a modified interpretation of Madison is correct, then the real argument seems to be that states can legitimately terminate compacts with other states when they judge it to be in their interest. The instability of this, however, would be somewhat maintained by the fact that states will probably only rarely identify such a sufficient interest, for the wiles of the international state of nature would likely be worse than most inconveniences suffered in the compact.
In further examining a state’s right to secession, it is helpful to recognize that there is no higher authority in the system that could justifiably require a state to refrain from this. The federal government does not qualify, for its authority is ultimately found subordinate to that of a state’s sovereign authorityâalthough, as Calhoun observes, the federal government has authority over individual citizens of the states “”as far as they might come within the sphere of the powers delegated”” to it.[60] Moreover, federal powers are limited to those that have been delegated by the states, and the power to prevent states from exiting the union is not among those delegated. It would even be difficult to make a good case for this being an “”implied”” power, especially if one employs sound (strict constructionist) jurisprudence.
The Constitution itself doesn’t have legitimate authority to prevent a state from seceding, for its creature-level authority is also subordinate to a sovereign state-people’s creator-level authority. Even (for the sake of argument) if the Constitution was sufficiently authoritative, the terms of the Constitution do not preclude a state’s secession from the compact. There is no directive within the Constitution that mandates a state to permanently remain in the compact, so presumably the power to secede is retained (as implied by the Tenth Amendment) by each state-people.
According to Calhoun, the Tenth Amendment implies a state-people’s sovereign power to adopt, amend, or eliminate the powers granted to both the federal and state governments. When discussing the meaning of “”‘reserved powers'”” he says the following:
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But it may be askedâwhy was the reservation made both to the States and to the people? The answer is to be found in the fact, that, what are called, “”reserved powers,”” in the constitution of the United States, include all powers not delegated to Congress by itâor prohibited by it to the States. The powers thus designated are divided into two distinct classesâthose delegated by the people of the several States to their separate State governments, and those which they still retainânot having delegated them to either government. Among them is included the high sovereign power, by which they ordained and established both; and by which they can modify, change or abolish them at pleasure. This, with others not delegated, are those which are reserved to the people of the several States respectively.[61]
In terms of changing federal powers in a manner different from how they are enumerated in the Constitution, this would obviously have to stem from the constitutional amendment process specified in Article V. Thus, this power of each state-people would have to be exercised in collaboration with a sufficient number of other state-peoples (e.g., three-fourths of the states). However, in terms of wholly abolishing federal powers within a single state, this power is reserved by each state-people, but the seceding state-people would then have to function as an independent state not in union with the United States.
Furthermore, one or more states do not have legitimate authority to prevent one or more other states from seceding from the union. Each state is equal in authority to the other states, so one state cannot justifiably stop another from seceding. There is no provision or implication of the Constitution that enables compacting states to overcome the sovereignty of one another. The fact that a three-fourths (or more) majority of states can pass amendments (against the will of a minority of states) is not an indication that states within the constitutional compact have been divested of their sovereignty, for (in true principle) states can reclaim all their sovereign powers via secession.
Also, the Constitution gives evidence of the limits of itself as a compact. As Article VII suggests, the Constitution recognizes that each state has freedom not to be in the compact. Although all original thirteen states ultimately chose to enter the constitutional compact, Article VII still shows the constitutional conceptualization of the possibility of American states existing outside the federal union.
Finally, there is strong evidence that the original understanding of the Constitution does not affirm the power of either the states or the federal government to coerce a state into compliance. Even Alexander Hamilton, the most ardent of nationalists (during the founding period), recognized that a central government should not forcefully compel a noncomplying state. Hamilton expressed this view during the New York State Ratification Convention in which he and other Federalists sought to persuade the convention to adopt the Constitution:
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Suppose Massachusetts, or any large state, should refuse, and Congress should attempt to compel them, would they not have influence to procure assistance, especially from those states which are in the same situation as themselves[.] What picture does this idea present to our view? A complying state at war with a non-complying state; Congress marching the troops of one state into the bosom of another; this state collecting auxiliaries, and forming, perhaps, a majority against its federal head. Here is a nation at war with itself. Can any reasonable man be well disposed towards a government which makes war and carnage the only means of supporting itselfâa government that can exist only by the sword? Every such war must involve the innocent with the guilty. This single consideration should be sufficient to dispose every peaceable citizen against such a government.
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But can we believe that one state will ever suffer itself to be used as an instrument of coercion? The thing is a dream, and it is impossible.[62]
The fact that Hamilton, who was the advocate (during the Philadelphia convention) for consolidating the states into subsidiary wards of a centralized government, publicly recognizes the intolerableness of a central government employing warfare to compel noncomplying states implies that such nationalists conceded that the proposed federal government under the Constitution would not have this domestic warmaking power. If, by contrast, the federal government were to have such power (i.e., a power that Lincoln would presume it to possess about seventy years later), then it would be within the category of government that Hamilton here condemns. Moreover, Hamilton’s condemnation also seems to extend to the possible case of other states trying to militarily compel a noncomplying state; he also regards such a possibility as intolerable and hence not in accordance with the Constitution that he advocates. This, then, is powerful evidence that neither the states nor the central government were originally understood as being constitutionally authorized to militarily compel noncomplying states (e.g., forcing them to abide by the constitutional compact).
Many readers might sill be resistant to the above claims (especially given the current dominance of what Donald Livingston terms “”Lincolnian historiography”” within American political thought).[63] Nevertheless, the constitutionality of secession was widely accepted in the early history of the United States
In addition to what has already been said above, Livingston presents more evidence suggesting that a state’s right to secession was part of the original understanding of the Constitution. According to Livingston, “”States can secede because they are sovereign political societies. Everyone in 1789 understood this, as a matter of international law.””[64] Most importantly, the states (as the lawgivers whose understanding during ratification gives the Constitution its original and authoritative meaning) clearly seemed to believe that secession was legitimate, for Virginia, New York, and Rhode Island claimed (in Livingston’s words) “”the right to withdraw powers they had delegated to federation and secede”” within their “”ordinances”” to enact the Constitution.[65]
Moving beyond the founding period, both Boorstin and Livingston show how prominent leaders during the early nineteenth century accepted (if not embraced) secession. According to Boorstin, the early nineteenth century saw examples of the “”imaginative American statesman”” who believed that “”all North America, following the Latin American example, should form itself into several independent and self-governing nations.””[66] In the 1820s, many “”leading Americansâincluding Albert Gallatin, James Monroe, William H. Crawford, Henry Clay, Thomas Hart Benton, and probably James Madison”” shared Thomas Jefferson’s “”vision”” for “”an independent Pacific republic (i.e., an Oregon republic).””[67] Furthermore, as Livingston describes, Jefferson grandly envisioned new and independent western nations spinning off from the United States’ territory across the North American continent:
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Jefferson thought that, as Americans went West and formed new states, the same logic of secession and division that had characterized American conduct so far would be carried out on an even larger scale. New Unions of states would be formed which would secede from the mother Union just as the colonies had seceded from the mother empire. Jefferson wrote Joseph Priestly in 1804 that he would welcome a Mississippi Confederacy on the West bank of the Mississippi alongside of the old Atlantic Confederacy. And he imagined that still other Unions of states would form as Americans moved to the Pacific. These would constitute what he called an “”empire of liberty.”” “”Free and independent Americans, unconnected with us but by ties of blood and interest, and employing like us the rights of self-government.””[68]
Such a view of the legitimacy of secession is no doubt surprising for contemporary Americans, but it was welcomed by the above-mentioned Americans in an earlier period.[69]
Although the right to secession is an important touchstone of the sovereignty of each of the states, readers might still be confused about the distinction between the states delegating some of their sovereign powers to the federal government and yet still retaining their full sovereignty. Thus, it is helpful to examine this conceptual difference. According to Kilpatrick, “”sovereignty”” entails having supreme authority over a given territory and people; whereas “”sovereign power”” merely derives from this authority. Thus, it is possible for an entity with sovereignty to delegate and reclaim sovereign power; such control over “”power”” derives from the entity’s “”sovereignty.”” For, “”sovereignty is the cause; sovereign powers the effect.””[70]
Furthermore, sovereignty means “”supreme”” authority over a people and territory. When one attempts to evenly divide such authority, the result is two coequal authorities over a people and territory. Neither one could be viewed as being the supreme authority in the system, for neither would have the power to be the final or highest authority for the system as a whole. Supreme authority, however, implies that there is a highest authority, and this necessarily is a single entity. As we have already discussed in the above analysis, one touchstone of each state’s ultimate authority (i.e., sovereignty) to make and unmake fundamental law is that each can choose to enter and withdraw from the federal union and constitutional compact.
Each state-people possesses its sovereignty independent from and outside of the Constitution, and the Constitution is not necessary for them to have sovereign powers. In creating and enacting the Constitution, each state-people delegated certain of its sovereign powers to the federal government which functioned as its agent, but (as a creature-agent) the federal government’s authority is subordinate to the authority of each of the state-peoples as creators. As seen above, Calhoun discussed how each of the state-peoples also granted both certain sovereign powers to their respective state governments and retained many powers for themselves; both cases are connoted in the Tenth Amendment’s concept of “”reserved powers.”” Moreover, as discussed above, only an entity with “”sovereignty”” could so grant and retain powers in this manner.
Thus, the Constitution implies that each state-people has “”sovereignty”” (and hence, full sovereignty) because the Constitution shows how each state-people demonstrated this through both creating and delegating power to the federal government and reserving powers for its intrastate government. These principles are clearly intrinsic to the nature of the Constitution. All the federal government’s authority is entirely “”delegated”” by each of the state-peoples, nd it does not exceed such enumerated delegations of power that each state-people made through ratifying the Constitution.[71] In his dissenting opinion (which was joined by former Chief Justice Rehnquist, Justice O’Connor, and Justice Scalia) in U.S. Term Limits, Inc. v. Thornton, Justice Thomas clearly articulates this:
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Because the people of the several States are the only true source of power, however, the Federal Government enjoys no authority beyond what the Constitution confers: The Federal Government’s powers are limited and enumerated. In the words of Justice Black: “”The United States is entirely a creature of the Constitution. Its power and authority have no other source.”” Reid v. Convert . . .[72]
The Tenth Amendment further upholds this: “”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.””[73] As suggested above, such “”reserved powers”” are all those that each of the sovereign state-peoples grants to its respective “”state”” government or that a state-“”people”” retains for itself (e.g., “”the high sovereign power, by which they ordained and established both [the federal and state governments]; and by which they can modify, change or abolish them at pleasure.””).[74] Before the Tenth Amendment (and as it happens, an impetus for adding it), seven of the original thirteen states demanded that the Constitution be amended so as to stipulate that states (and/or state-peoples) retain all powers not delegated to the federal government.[75]
This helps to further clarify the notion of entrusting sovereign powers. With respect to the Tenth Amendment, this concept is connoted in both the notions of “”delegated”” powers and the part of “”reserved”” powers entrusted to state governments. As discussed above, delegated federal powers are those that sovereign state-peoples entrust to the federal government and realize through compacting with one another in the Constitution. The facet of “”reserved”” powers entrusted to the states implies those powers that a state-people entrusts to its state government. In both cases, the federal and state governments are mere agents of each of the sovereign state-peoples, and each of the sovereign state-peoples maintains its full sovereignty (supreme authority), and hence, the power to reclaim the sovereign powers entrusted to its federal or state governing agents. The power entrusted to federal and state governments is only power over individual citizens within a state. It is not power over a state-people, which is fully sovereign and hence is the highest level of political power over itself.
Finally, it is helpful to show how both Madison and Hamilton, as Framers, were mistaken in asserting that the new constitution created a system of dual-sovereignty in which both the states and the federal government were sovereign within their separate spheres. Madison frequently suggested this in references to the new system being partly federal and partly national/consolidated. Indeed, this is a major thesis of his writing in Federalist 39: “”The proposed constitution, therefore, even when tested by the rules laid down by its antagonists, is, in strictness, neither a national nor a federal constitution; but a composition of both.””[76] Madison seems to make the same point at the Virginia ratifying convention: “”In some respects it is a government of a federal nature; in others, it is of a consolidated nature.””[77] Hamilton also suggests, in Federalist 9:
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The proposed constitution, so far from implying an abolition of the state governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the senate, and leaves in their possession certain exclusive, and very important, portions of the sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.[78]
Here Hamilton does not seek to distinguish between “”sovereign power”” and “”sovereignty,”” so the reference to the states having “”sovereign power”” implies that they are one part of a system of dual-sovereignty.[79]
The problem with such notions has already been discussed above. The concept of “”sovereignty”” is only intelligible as an indivisible entity. Sovereignty means supreme authority, and logically there can only be one supreme authority, for if there are multiple coequal authorities, then none of them are supreme. Moreover, there is a hazard in positing two separate authorities (with different spheres of jurisdiction) over a given group of people in a definable territory, and then pretending that they are both “”supreme”” authorities. For it is impossible to maintain such an arrangement without recognizing (at least) a true, de facto supreme authority for resolving inevitable conflicts between the two. Thus, a single sovereign authority becomes both logically and practically necessary.
If Framers such as Madison and Hamilton really believed that the new Constitution created a system of dual sovereignty in which both states and the federal government existed as sovereign entities within separate spheres, then they were interpreting it to entail an unworkable contradiction.[80] Such an unworkable construction could only be fixed via recognizing sovereigntyâwhich implies “”supremacy””âin one body. Given that the state-peoples are the recognized sovereigns who enacted the Constitution as positive law, their understanding of the locus of sovereignty would seem to govern. Based on the careful guardedness with which the majority of the thirteen states proceeded in ratifying the Constitution (only doing so after stating reservations and calling for strict limits on federal powers), it is quite reasonable to presume that such state-peoples viewed themselves as the locus of sovereignty, not the federal government. For the sake of argument, even if only a few (a minority of) states viewed themselves as retaining their sovereignty when entering the compact, these few would still be sovereign because they would be the rightful arbiters of their status in the compact, which was made among equal sovereign states with no higher authority standing above them. In addition to these considerations, it is reasonable to presume that already constituted sovereignties would remain sovereign authorities over a system that they created.
The states, as supreme authorities in the system, have the ability to make final judgments about the compact. Each state has the right to terminate its participation in the compact; however, the state must then face the wiles of the state of nature. Thus, each state has the supreme authority over its involvement with the compact. When any state decides to reclaim the powers it has delegated to the federal government to govern over the individual citizens in its territory, the state can do so. For example, such reclaiming of powers and termination of the compact might arise due to the state’s dislike for how the federal government exercises its delegated powers (e.g., frequently conflicting with the state government).
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Second, there is historical evidence that the ratifying states understood themselves as retaining sovereignty, which is a tenet of the confederation thesis. This can be found in the debates at the state ratification conventions, the states’ ratification statements, and the states’ responses to Chisolm v. Georgia. Examples of this include South Carolina’s claim, in its ratification statement, that the states have “”sovereignty””;[81] the secession qualification of Virginia, New York, and Rhode Island in their ratification statements, which (as discussed above) implies the retaining of sovereignty;[82] the significant concessions made by Federalists to the Anti-Federalists during the ratification debates, suggesting that the Constitution was actually in conformity with the confederation characteristics that the Anti-Federalists desired (e.g., concessions made by Madison in Virginia, Hamilton in New York, Judge Iredell in North Carolina, and various Federalists in Massachusetts);[83] most of the states (especially Massachusetts and Connecticut) supportingâvia their ratification of the Eleventh AmendmentâGeorgia’s defense of its retained sovereignty in response the Supreme Court’s actions in Chisolm.[84]
In viewing themselves as retaining sovereignty, the states (each as a state-people) logically understood that they still possessed supreme authority over their domain (i.e., their borders and those residing within them). Since it seems most reasonable to regard a view held by a majority of the ratifying states as part of the true original understanding of the Constitution, the proposition that the states retained their sovereignty should be incorporated into the originalist interpretation and application of the Constitution. The federal government was merely the entrusted agent of each state.
Furthermore, with respect to historical evidence for the confederation thesis, one should note the fairly widespread understandings that the United States was still a confederation and that the states had the right to secede after ratifying the Constitution. As discussed above, Boorstin elucidates some secession evidence through mentioning examples of the nineteenth century’s “”imaginative American statesman,”” who believed that “”all North America . . . should form itself into several independent and self-governing nations.””[85]
There is also evidence from American school texts suggesting that the confederation thesis was actually a widespread originalist view; whereas acceptance of Publius’s notion of dual sovereignty was a development. Ruth Miller Elson shows this in her book, Guardians of Tradition: American Schoolbooks of the Nineteenth Cent