State Sovereignty in the United States

State Sovereignty in 1899 (United States)

The following information about State Sovereignty is from the Cyclopaedia of Political Science, Political Economy, and the Political History of the United States by the Best American and European Writers.

STATE SOVEREIGNTY (IN U. S. HISTORY), the theory of the relation of the states to the Union on which was based the right of secession. It held that all the rights and powers of sovereignty were vested in the thirteen states, or commonwealth, which originally formed the American Union; that the peoples of these commonwealths had authorized their state governments to form the confederation in 1777-81 and the constitution on 1787-9; that the peoples of the individual commonwealths thus formed a voluntary union, retaining to themselves the whole essence of sovereignty, but yielding to the new federal government certain of the insignia of government, previously held by the state governments; that the people of any state, by withdrawing from the federal government its grant of powers, ipso facto dissolved the only bond which united them in a continuously voluntary union with the other states; and that there is, and can be, no sovereignty in the people of all the states, considered as a nation, in internal affairs, and no insignia of sovereignty in foreign affairs, except what is granted to the federal government by the real sovereignties, the peoples of the individual commonwealths, or states. The above is the doctrine of state sovereignty pure and simple, as it includes the right of secession. There is a much more popular and far milder doctrine, of which Madison was the strongest supporter: it holds that the states were sovereign until the ratification of the constitution; and that they then ceased to be entirely sovereign, a government partly national and partly federal taking their place. A variety of the first theory was also upheld, particularly in 1861-5: it held that the states were still truly sovereign, but that their international responsibility and comity forbade them to secede even from a voluntary union on trivial grounds, and authorized the other states to war upon them and compel their return.

-In considering the question it is as well to begin by examining the word sovereignty itself, though examination must be brief. Mr. John Austin defines it thus:

If a determinate human superior, not in the habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior)is a society political and [789] independent. To that determinate superior the other members of the society are subject. * * The mutual relation which subsists between that superior and them may be styled the relation of sovereign and subject, or the relation of sovereignty and subjection.

This carefully guarded definition evidently implies that sovereignty resides in some small class, and it will settle the question of the sovereignty of the dukes of Burgundy in the middle ages, or of the princes of Servia in modern times. But its fundamental idea must be modified in the United States, where every governmental agency is supposed to be in the habit of obedience to the will of the people, expressed in written constitutions. The question for us must be, whether the people of the state, the commonwealth, or the people of the nation, has been habitually superior when it has seen fit to declare its will. This will show us whether the ultimate sovereignty, the absolute independence of action in domestic and foreign affairs, the uncontrolled power of decision in the last resort, is in the people of a state or in the national people.

-No theory of the nature of the American Union can be suggested against which arguments from authority, from the declarations and opinions of leading men, legislative bodies and conventions, can not be levied in array. The feeling of the American people has always been so strongly individualistic, their conventions and legislatures have been so much inclined to put confidence in their own assertions without regard to opposing facts, and their public men have been so influenced in feeling and language by their environment, that it is not difficult to bring arguments from authority in support of every variety of theory. This series of articles, relying on the facts of our history, and practically disregarding authority, is founded in a belief opposed to all the theories above enumerated: that the Union is not voluntary, in the sense implied in state sovereignty that it has always been compelled by force of circumstances, common interests, and everything that goes to develop a national will and make up a nation; that the nation has existed, by its own will maintained by arms, since the first shot was fired at Lexington; that it has since continually asserted its existence with a steadily growing certainty of success; but that the expression and assertion of its existence is limited, according to its own will and the political instincts of the people, by the controlling necessity for preserving state lines, state government and state rights, properly so called. (See CONGRESS, CONTINENTAL; DECLARATION OF INDEPENDENCE: NATION.) This article will therefore be confined to 1, the leading arguments for state sovereignty, as advanced by its supporters; 2, the historical arguments against it; and 3, state rights.

-1. The word people is the x of American political algebra. All parties agree in the assertion that sovereignty is inherent in the people, not in the government; and in so far the unanimity of belief is almost startling, considering the diversity of results to which it has led. But the unanimity disappears as soon as we undertake to define the people Is it the people of all the states, of the nation, that is sovereign? Is it the people of each individual state that is sovereign? Jefferson Davis and his associates in 1861 held the latter view, and each, when the sovereign people of his state declared for secession, obeyed the behest of the only people known to him, even to the waging of war on the United States. The dominant party of the north and west held the former view, and justified the people of the nation, through its constituted agents, in suppressing rebellion by war. The democratic party of the north and west generally supported the war measures of the government, but did so on the ground of the third doctrine above mentioned, that the government was the agent of the non-seceding states in offsetting by war the unfriendly act of secession. If the doctrine of state sovereignty is correct, if each individual state is the only nation which its citizens can know, the southern states in 1860-61 undoubtedly exercised a constitutional and inalienable right in seceding, if they believed that the welfare of their citizens and their own preservation would be imperiled by remaining in the Union; and the suppression of the rebellion was a revolutionary transformation of a voluntary into an involuntary Union. And the argument of southern writers in favor of state sovereignty is, in general, as follows.

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-1. They direct attention to the slow and steady growth of the states along the Atlantic coast, the nucleus of each being widely separated from the others, and none of them ever mingling with its neighbors or losing its own identity; to the fact that each had its distinct government, the king being the common executive; and they conclude, that, when the connection between the colonies and the king was severed by r
ebellious swords, each colony became a living soul, and each necessarily possessed sovereign political will over its own territory and people.

In support of this assertion their appeals are mainly to authority; and if this form of argument could be accepted as conclusive, the doctrine of state, sovereignty would be very strong. The word People as used at the time, was almost invariably applied to the people of a state; and the people of all the states are loosely referred to as the continent, the generality, America in general.

When independence was finally declared, the instrument was carefully entitled The unanimous declaration of the thirteen united (sic) States of America, showing that thirteen independent wills became unanimous on the great occasion; and in declaring the independence of the states these bodies are always referred to in the plural:

that as Free and Independent States they have full Power to levy War, conclude Peace, contract Alliances, Establish Commerce, and to do all other Acts and Things which Independent States may of right do.

The idea may be indicated by the full title of Dr. Ramsay’s History of the Revolution of South Carolina [790] from a British Province to an Independent State And the language of the constitutions adopted by the several states during the revolutionary period is even stronger in the same direction.

The people of this state, being by the providence of God free and independent, have the sole and exclusive right of governing themselves as a free, sovereign and independent state; * * That this republic is and shall forever be and remain a free, sovereign and independent state.

(Connecticut act of 1776, establishing the charter as a constitution, preamble and article 1.) The people of this commonwealth have the sole and exclusive right of governing themselves as a free, sovereign and independent state. (Massachusetts constitution of 1780, still in force, art. 4.) This convention, therefore, in the name and by the authority of the good people of this state, doth ordain, determine and declare that no authority shall, on any pretense whatever, be exercised over the people or members of this state but such as shall be derived from and granted by them. (New York constitution of 1777. art. 1.) That the style of this country (sic) be hereafter the state of South Carolina. (South Carolina constitution of 1778, art. 1.) When we add to such expressions as these the emphatic caveat of the second of the articles of confederation, each state retains its sovereignty, freedom and independence, the whole makes up a formidable mass of contemporary testimony in favor of the sovereignty of the individual states; and it is re-enforced by the unconscious and ingenuous testimony given by the almost invariable language of men of the time in official and unofficial positions. And, finally, in the treaty of peace which closed the war, the high contracting parties joined in declaring, not that the United States as a nation was independent, but that the several states, Naming them in order, were free sovereign and independent states.

-But, after all, what is all this argument from authority worth more than the impotent protests of a drowning man in the midst of a resistless current? His declarations that he will not drown can hardly save him without the added exertion of swimming. If sovereignty could be maintained by resolutions alone, the argument from authority would be of weight; but neither is true. Reams of resolutions would be of little avail in maintaining the sovereignty of Ireland or Poland, unless the resolvers are ready to back their resolutions by physical force; and no such readiness was ever shown by the individual states. Massachusetts came nearest to it in the sudden levy of troops and siege of Boston which followed the fight at Lexington; but even Massachusetts, while fighting the enemy with one hand, was with the other beckoning to the nation for help, and her delegates, as soon as the continental congress met in the following month, successfully urged the adoption of her troops as a continental army. In resolutions the states were prolific: when it came to war, the highest and most dread attribute of sovereignty, all instinctively shrank back, and pitted the true nation against a king, sovereign against sovereign. The mass of evidence above summarized goes just far enough to prove that the individual states were sovereignties in posse; and had any one of them ever ventured on the next essential step, and maintained its separate sovereignty by physical force, no sane man could have denied that it was at last a sovereignty in esse. But this last step has always been wanting, and, while that is the case, all is wanting. That states, thus cowering like frightened chickens under their mother’s wing, should have gone on calmly ignoring in words their mother’s existence, and asserting by resolution the sovereignty which they dared not maintain by force, only shows the inability of even the wisest men to see clearly all the phases of contemporary history. That able men should still argue that a sovereignty in posse can be transformed into a sovereignty in esse by such a cheap and easy weapon as a resolution, only proves that prejudice is still frequently of stronger weight than obvious fact. That the nation should have quietly tolerated such open denials of its very existence, only proves the national indisposition to apply unnecessary force. An imperator or a czar must suppress the least impeachment of his sovereignty: the American republic will still calmly allow even an open denial of its existence-always provided that the denial is confined to theory.

-But it must not be supposed that the argument from authority itself is so overwhelmingly in favor of state sovereignty as the summary above would imply. We may pass by the unofficial exhibitions of national spirit in revolutionary times, and still have a reserve force of authority to show the universal consciousness that the controlling, though always self-controlled, power was in the national people. Congress, in its declaration of July 6, 1775. says:

We exhibit to mankind the remarkable example of a people [not of thirteen peoples] attacked by unprovoked enemies. The same body formulates its proclamation of Dec. 6, 1775, thus:

We, therefore, in the name of the people of these United Colonies; and thus begins its declaration of July 4, 1776:

When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature and of nature’s God entitle them. This last step, this assumption of a separate and equal station among the powers of the earth, is the only means by which sovereignty can properly be asserted; and it never has been so asserted by a single state. The real national revolutionary nature of the declaration, and the subordinate part played by the states in it, are well stated in the address of congress to the people, Dec. 10, 1776:

It is well known to you, that, at the universal desire of the people, and with the hearty approbation of every province, the congress declared the United States free and independent. If we are to trust authority, we [791] may cite the sweeping assertion of Charles Cotesworth Pinckney, Jan. 18, 1788:

The separate independence and individual sovereignty of the several states were never thought of by the enlightened band of patriots who framed the declaration of independence, the several states are not even mentioned by name in any part of it.

And no man in the South Carolina legislature at that time said him nay when he denounced the claim, that each state is separately and individually independent, as a species of political heresy.

-Again, in its commission to its ambassadors to France, Oct, 23, 1776, congress remarks:

A trade upon equal terms, between
the subjects of his most Christian majesty and the people of these states will be beneficial to both nations; and the ultimate treaty of Feb. 6, 1778, refers regularly to the two parties or the two nations.

The treaties with the Netherlands, Sweden and Prussia, in 1783-5, use the same phrases. Nor did congress hesitate to bring the national power into plain view, when necessary. Dec. 4, 1775, it resolved that in the present situation of affairs, it will be very dangerous to the liberties and welfare of America, if any colony should separately petition the king or either house of parliament.

Dec. 29, 1775, it resolved that the colonies of Virginia, Maryland and North Carolina be permitted to export produce to any part of the world, except Great Britain, etc. Finally, May 15, 1776, the congress recommended the various assemblies and conventions of the colonies to adopt such government as shall in the opinion of the representatives of the people best conduce to the happiness and safety of their constituents in particular and America in general; and the national power which thus brooded over the state governments themselves is indicated in an address of congress to the people of the United States, May 8, 1778:

Your interests will be fostered and nourished by governments that derive their power from your grant.

Even the state constitutions which declare the sovereignty of the state show the underlying consciousness of the delegates that a national power was in existence, though it was more prone to show itself by acts than by words. The constitutions of Delaware, Georgia, New Hampshire, New Jersey, New York, North Carolina and Pennsylvania, all refer expressly to the previous action of congress, and particularly to its resolution of May 15, 1776, as the justification of their action: and the four state constitutions (of Massachusetts, Maryland, Virginia and South Carolina) which do not expressly refer to it, do so tacitly by their long delay until congress took the initiative. The preamble of the South Carolina constitution of 1778 even assigns, as a reason for a new constitution, that the United Colonies of America have since been constituted independent states * * * by the declaration of the honorable the continental congress, dated the 4th day of July, 1776.

But the first constitution of South Carolina, March 26, 1776, strikes the deadliest of all possible blows at the theory of state sovereignty, whose essential dogma is that the United States exists in a state only by the continuing will of the state. On the contrary, article twenty-eight of this constitution declares that the resolutions of the continental congress, now of force in this colony, shall so continue until altered or revoked by them [congress].

The resolutions of the national congress in force in South Carolina, prior to any declaration of the sovereign will of South Carolina! Certainly Calhoun had no hand in framing this constitution.

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-Having stated the arguments, pro and contra, this article can only conclude that the arguments from authority are quite evenly balanced, but that the argument from fact is overwhelmingly against state sovereignty.

The states declared themselves sovereign over and over again; but calling themselves sovereign did not make them so. It is necessary that a state should be sovereign, not that it should call itself so, while still sheltering itself under a real national authority. The nation was made by events and by the acts of the national people, not by empty words or by the will of sovereign states; but the sovereign will of the nation has always been that there should be states, that the people should act politically through them, and that their rights and privileges should be respected.

-2. If the argument from fact, that the separate states were never more than sovereignties in posse, and that they never ventured to become sovereignties in esse, is sound, it, of course, disposes of state sovereignty not only in the birth of the nation and in the formation of the confederation, but in the adoption of the constitution also. If a sovereignty was created by general and national obedience to the resolutions of a revolutionary national assembly, unlimited by any organic law; and if that sovereignty was maintained by a successful national war, there is no argument to the contrary in the fact that the new sovereignty allowed its agents, the state governments, to shape the articles of confederation, and to appoint delegates to the convention of 1787. The national sovereignty thus created might have disintegrated and died; New York or Virginia might have broken away and sustained herself as a sovereignty in esse as well as in posse; but there was in fact no such result. The national feeling held the nation together, and forced the unwilling state governments to stand sponsors to a new national assembly. Such a body was the convention of 1787. It could not have been an assemblage of ambassadors from sovereign states, for, as is noted hereafter, no state constitution ever purported to give its legislature power to send such ambassadors or make such a treaty, and no governor even ventured to assume such a power. And the convention, when it met, proved its national character by disregarding altogether the articles of confederation, which were never to have been even amended, except by unanimous vote of all the legislatures: and by giving the ratification of the new form of government to state conventions, not even allowing the legislatures a voice in the matter.

-Nevertheless, [792] state sovereignty adduces a great mass of argument from authority in all the transactions which led to the adoption of the constitution, and in the constitution itself. The convention itself struck out the word national from the first resolution proposed to it, that a national government ought to be established.

Its debates are marked by frequent use of expressions relating to the sovereignty of the states.

That the states are at present equally sovereign and independent has been asserted from every quarter of this house, said one delegate. The expression We, the people of the United States, in the preamble to the constitution, and the omission of the names of the states, are usually cited as decisive proofs against state sovereignty. Undoubtedly the people of the nation were making the constitution, but it is very doubtful whether many of the delegates were aware of the fact: most of them probably still applied the word to the people of their own individual state, and felt, as the Federalist (No. 39) expressed it, that each state in ratifying the constitution is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. The omission of the names of the states seemed decisive to so respectable an authority as Mr. Motley, but unluckily the omission cuts the other way. In the first draft of the constitution, as reported by the committee, Aug. 6, 1787, the preamble reads, We, the people of the states of New Hampshire, Massachusetts, etc. [naming them in order], and the names were left out in the final draft from the apprehension that one or more of the states named might, by virtue of its supposed sovereignty, right the constitution, drop out of the Union, and compel an after alteration of the preamble. To the same effect is the seventh article of the constitution, as finally adopted.

The ratification of the conventions of nine states shall be sufficient for the establishment of this constitution between the states so ratifying the same. What, then, was to be the status of the states which should refuse to ratify? Were they still in the Union, perhaps as territories? Or were they to secede from the Union? Or had the other states already seceded and left them to keep warm the ashes of the old confederation, if they could? Was the constitution itself a successful secession from the confederation? or did it only provide for nec
essary secession in this seventh article? Such questions as these have always had an obvious fascination for the advocates of state sovereignty, while their opponents have usually avoided both Scylla and Charybdis by going overland and ignoring them altogether. But, in any candid discussion of the subject, they must be met and answered; and, in order to answer them, the effort has been made to state them fairly and strongly.

-Such questions, with their tacit implication that sovereignty is a mere affair of words, that any body of men, in order to be sovereign, has only to call itself, or be called, sovereign, afford silent but weighty testimony to the peculiar natural advantages which the American people enjoy, and have always enjoyed. If the proximity of more powerful neighbors had ever compelled the American people to sacrifice one or more states or parts of states as the price of a treaty of peace, the fallacy of state sovereignty would have been exposed. But this has never been necessary, except in the partial example of Maine in 1842 (see MAINE); and annexation, which is the complement of such territorial sacrifice, is always ignored by the advocates of the doctrine. Free from dangerous neighbors, the American people did not, until 1861, learn the truth which bitter experience had made familiar to less favored quarters of the globe, that sovereignty is always potentially an affair of blood and iron; and that it needs not only men who know, or think they know, their rights, but men who, knowing, dare maintain. Sovereignty is indivisible, as any controlling will is indivisible. As between the nation and the states, the only question must be, Which was the sovereignty? And it can only be answered by asking. Which dared to go alone, to carve out its own path, and achieve its own destiny? The question answers itself. Two states, Rhode Island and North Carolina, refused to ratify, and the constitution went into force without them. There could have been no more excellent opportunity than this to convert a sovereignty in posse into a sovereignty in esse; but this first and last test for sovereignty compelled each of these states to answer, It is not in me. Within two years both were confessedly in their natural places as part of the nation, both had ratified the constitution nominally as their voluntary act and deed, but actually, like other states, under stress of circumstances. We can not know how far Rhode Island was influenced by unofficial propositions to carve up her territory between Massachusetts and Connecticut, or how far North Carolina was influenced by official propositions in congress to suppress or restrain her commerce with the neighboring states. (See SECESSION.) We can only see the patent fact that these two states had and shrank from the opportunity to attempt to become sovereign in very truth.

-But the constitutional phrase, between the states so ratifying the same, brings up the further question, Where were Rhode Island and North Carolina between March 4, 1789, and their respective ratifications in 1789-90? Were they in or out of the Union? Unless the nation existed, and these states were still a part of it, we are completely at sea. The nation which had by successful war extorted from Great Britain a recognition of its boundaries, would not have been slow upon occasion to compel Rhode Island and North Carolina, and Vermont as well, to respect those boundaries, and to recognize themselves as included within them. But no such occasion arose, and no argument can fairly be drawn from a forbearance of the nation to enforce its sovereign will. Failure to overcome an open defiance would have been a different matter; but a father’s authority is not to be fairly impeached from his forbearance in allowing a recalcitrant son [793] an hour for consideration. In point of fact, Rhode Island and North Carolina finally ratified the very constitution which they had at first rejected, without a single amendment to commend the chalice to their lips. There was no escape for them: they had to ratify; but the forbearance of the nation gave them an opportunity to do so voluntarily. That the new scheme of government should have been defeated by the will of two states, or that these two should remove themselves without successful war, from the boundaries fixed in 1783, would have been equally impossible; but the nation had been guilty of an oversight in allowing state legislatures to form the articles of confederation, with their absurd provision for a unanimous ratification of amendments, and the nation scrupulously atoned for its oversight by forbearing to press even the weakest of its states. There is of course a still stronger argument drawn from the nature of the constitution, but that will best be considered under the second head of this article.

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-It would be unfair to deny that the various conventions which ratified the constitution in 1787-90 considered themselves as acting for sovereign states. The debates of the Virginia convention show that the word people meant the people of the several and individual states, and not of the nation, in this declaration, which was a part of the ratification:

That the powers granted under this constitution, being derived from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression; and these words, in their literal meaning, have the essence of the doctrines both of state sovereignty and secession. But these words, again, are mere authority, void as against facts. Whose was the uncontrollable will, the sovereignty, that extorted ratification from an unwilling majority in Virginia, New York, New Hampshire and Massachusetts, and, later, in Rhode Island and North Carolina? Was it the will of any state? or was it the will of the nation, acting, according to its own preference, through state organizations? The question answers itself, provided the questioner will confine himself to the facts of our history, and turn a deaf ear to the conflicting arguments from authority, the opinions, sometimes correct and sometimes incorrect, of the actors in the history. But the question is often triumphantly asked, What would have happened if a part of the states had refused finally to ratify? Either the recusants would have left the constitutional number of ratifying states (9), or less than that number. In the latter case the condition placed upon ratification by the national will would not have been fulfilled; and the whole scheme of the constitution would have failed. In the former case, the pressure upon the recusant states would have been gradually increased until the alternative of ratification or force would have been distinctly presented. In either event, that of general confusion or that of the forcible maintenance of the national will, the sword, the ultima ratio of sovereignty, would have made its appearance; and, whatever the result of the struggle might have been.

state sovereignty would certainly have received before 1800 the quietus which it finally received in 1865. One sovereignty, or two, or three, might have emerged from the chaos, but state sovereignty, and even state rights, would hardly have survived. In this point of view the ratification debates of 1787-9 show the usual contradiction between authority and fact, between the constant assertion of state sovereignty and the ever-present fear that force might dispel the illusions of the assertion. A contemporary tradition is, that Washington, while signing the constitution, thus struck the key-note of this feeling:

Should the states reject this excellent constitution, the probability is that an opportunity will never again offer to cancel [substitute] another in peace: the next will be drawn in blood.

I fear a civil war, said Gerry.

Apprehending the danger of a general confusion and an ultimate decision by the sword, I shall give the plan my support, said Charles Pinckney.

Is it possible to deliberate between anarchy and conv
ulsion on the one side, and the chance of good to be expected from the plan on the other? asked Hamilton.

Suppose, said Thompson, in the Massachusetts convention, nine states adopt this constitution: who shall touch the other four? Some cry out, Force them. I say, Draw them. In the Virginia convention Patrick Henry unconsciously drew a pregn