Disaster for the Constitution: Flawed Assertions of State Sovereignty

No doctrine has posed a greater threat to the U.S. Constitution than the flawed assertion of state sovereignty. It represented the extreme versions of the Virginia and Kentucky Resolutions of 1798 that asserted the authority of states to nullify federal laws, which would have eviscerated the Supremacy Clause and turned the Constitution on its head. It fueled the secession of southern states from the Union, and plunged the nation into the Civil War. And, it has been invoked to deny enforcement of the Bill of the Rights and 14th Amendment protections, including the Equal Protection Clause.


We have observed that the framers of the Constitution sought to relegate to the ash can of history the Articles of Confederation and its featured principle of state sovereignty. That principle had resulted in disaster for the fledgling nation, and delegates to the Constitutional Convention replaced the concept of “state” sovereignty with the newly minted governing principle of popular sovereignty. In essence, the framers designed a system in which all government power—federal and state alike—would flow from the sovereign people. As Chief Justice John Marshall declared, the Constitution established, “emphatically and truly, a government of the people. In form and substance, it emanates from them.”


The Constitution, contrary to the claims of John Calhoun and secessionists, was not a “compact” among sovereign states. Justice James Wilson, as a member of the Constitutional Convention, rebuked the premise: “This system is not a compact. The introduction to the work [the Preamble] is not a meaningless flourish; the system tells us what it is, an ordinance, an establishment of the people.” And James Madison, justly regarded as the Father of the Constitution, observed, “the objects of the Union could not be secured by any system founded on the principle of a confederation of sovereign states.” The Supreme Court, in Chisholm v. Georgia (1793), firmly rejected the concept of state sovereignty and the claim that the Constitution was a “compact” among the states.


The great mischief in the assertion of state sovereignty and the compact theory of the Constitution lies in its logical implications. If the states are sovereign and can form the Union, then they may leave it, that is, secede from it. That doctrine set fire to the nation when confederate states claimed the right to secede from the Union. That claim, without support in history and law, was rejected by the Supreme Court, in 1869, in Texas v. White. In 1871, Justice Bradley, speaking for the Court, dismissed the indefensible state compact theory and the pernicious doctrine of secession as “definitely and forever overthrown.”


So, what is the source of the confusion that lies behind the assertion of states as sovereign and independent communities, a doctrine that contains the seeds of the destruction of the Constitution and the United States, as we know it?


The term, “sovereignty,” as it evolved over the centuries, came to be known as the ultimate legal and political authority in a nation. Legal and political authority must emanate from a single source; otherwise, it is not the ultimate source of power. In some nations, the sovereign is a king or queen; in others, it may be Parliament. America’s struggle for independence and, later, stability, necessarily involved the rejection of monarchical and parliamentary sovereignty; it also required, as we have seen in the abysmal performance of the Articles of Confederation, the dismissal of state sovereignty, in favor of popular sovereignty.


State governments, like the federal government, could not, by definition, enjoy the attributes of sovereignty since they were created by the Constitution, which is the lone source of their respective powers. Moreover, the Supremacy Clause of Article VI subordinates states to the Constitution, treaties and federal laws, a legal arrangement that would be impossible if states were sovereign. Chief Justice John Jay brought clarity to the matter in Chisholm: “Here we see the people acting as sovereigns of the whole country; and in the language of sovereignty, establishing a constitution by which it was their will, that the state governments should be bound, and to which state constitutions should be made to conform.”


In truth, some or much of the confusion associated with the term, sovereignty, lies in its use or misuse. It is cast about, as Justice Joseph Story said, “in different senses, which often leads to a confusion of ideas, and sometimes to very mischievous and unfounded conclusions.” We should, in our public dialogue, speak a little more precisely when the issue of federalism is before us. Properly speaking, the federal government has limited authority or jurisdiction or dominion over particular matters, but certainly not sovereignty. We can say the same for state governments.


If we employ in our discourse such precision, or something close to it, then we can examine the real question that puzzles Americans: Which powers are granted to the national government, and which to the states? We turn next week to that great question.