A thirst for power, and the bantling, I had liked to have said monster [his emphasis] for sovereignty, which have taken such fast hold of the states individually will ... form a strong phalanx against it [the proposed Federal Government] ... Yet I would fain try what the wisdom of the proposed Convention will suggest ... It may be the last peaceable mode. -- George Washington of Virginia, March 10, 1787.
Col. Mason, [of Virginia, asked]: Is it to be thought that the people of America, so watchful over their interest, so jealous of their liberties, will give up their all, will surrender both the sword and the purse, to the same body, and that too not chosen directly by themselves? ... Why is it hoped that they will part with it to a National Legislature? The proper answer is that in this case they do not part with power: They only transfer it from one set of immediate representatives to another set ... He took this occasion to repeat, that notwithstanding his solicitude to establish a national Government ... "I never will consent to destroying the State governments, and will ever be as careful to preserve the one as the other ... That the one government will be productive of disputes and jealousies against the other, I believe; but it will produce mutual safety." -- Madison's Journal of the Federal Convention, June 20 1787.1
The question turns, sir, on ... the expression "We, the people" instead of the States of America. [His emphasis] I need not take much pains to show that the principles of this system are extremely pernicious, impolitic and dangerous ... Here is a solution as radical as that which separated us from Great Britain ... Our rights and privileges are endangered, and the sovereignty of the States will be relinquished." -- Patrick Henry, opposing ratification of the Federal Constitution by Virginia, June 5, 1788.
Confusion has run rife over sovereignty ever since the American Revolution founded the United States on a revolutionary concept of it. There was no such confusion before because there was no such challenge to the hoary dogma that held the State supreme, with man its subject, made to serve it. That dogma then governed not only the external affairs of all of them but, as we have noted, their internal affairs, too. Even in such rare exceptions as the Swiss cantons, it was not challenged clearly, dramatically, as it was in the American Revolution.
True, it had been challenged in the English Revolution of the seventeenth century, and the drama there was personal to a point it never reached in the American Revolution. The latter cut off, politically, the sovereign King and Parliament who sought to tax British subjects without the consent of their representatives, whereas in the English Revolution Parliament physically cut off the head of the sovereign who had governed England unlimited by Parliament.2 But though such stark personification of the issue undoubtedly deepens drama, it confuses thought with emotion. Even without this troubling factor, the English Revolution was far from being as clear on principle as was the American Revolution it helped inspire.
Moreover "about the year 1770," as Lord Acton pointed out in his History of Freedom, "things had been brought back ... nearly to the condition which the [English] Revolution had been designed to remedy forever. Europe seemed incapable of becoming the home of free States. It was from America that the ... ideas long locked in the breast of solitary thinkers, and hidden among Latin folios -- burst forth like a conqueror upon the world they were destined to transform, under the title of the Rights of Man ... The general presumption was immense on the side of authority; and the world believed that the will of the constituted ruler ought to be supreme, and not the will of the subject people. Very few bold writers went so far as to say that lawful power may be resisted in cases of extreme necessity. But the colonizers of America ... who had gone forth not in search of gain, but to escape from laws under which other Englishmen were content to live were ... sensitive even to appearances."3
Lord Acton added later:
American independence was the beginning of a new era, not merely as a revival of Revolution, but because no other Revolution ever proceeded from so slight a cause, or was ever conducted with so much moderation. ... It established ... democracy in its highest perfection, armed and vigilant, less against aristocracy and monarchy than against its own weakness and excess. Whilst England was admired for the safeguards with which, in the course of many centuries, it had fortified liberty against the power of the crowd, America appeared still more worthy of admiration for the safeguards which, by the deliberations of a single memorable year [1787], it had set up against the power of its own sovereign people.4
The American Revolution was, in fact, two successive Revolutions. The First one, which has pre-empted the title, proclaimed in 1776 a revolutionary concept of sovereignty within the state; the Second established in 1787-89 this concept between states. This Double Revolution challenged and overthrew in America, inside and out, the dogma of sovereignty which then ruled all nations both ways, since time immemorial. Both Revolutions were one in this sense; Each was made for precisely the same principle -- that the citizen is sovereign. Yet to establish this concept between states was so immense an achievement as to be a Revolution in itself. It was, indeed, a greater revolution than the First American Revolution for at least three reasons.
Colonies had often won their independence from the motherland in the past. The principle that the citizens were equally the sovereigns had already been practiced in Athens and other city republics of ancient Greece and Medieval Europe, and in the Six Nations of the Iroquois Indians of America. But never before had men carried this concept of their own sovereignty to the point of freely uniting across state lines to create a new state composed of them all. The city democracies of Greece had perished because they were unable to unite on the basis of the free principle they shared, even to defend it. They did not go beyond leagues of sovereign states, nor as far toward federation as the Iroquois Confederacy, which helped inspire Franklin's original plan for a Union of the Colonies in 1754. This profound Revolution in human affairs was accomplished for the first time in history by the Thirteen States in their Federal Constitution.
It was the greater of their two revolutionary achievements, secondly, because, without it, the first revolution would have come to naught and the Thirteen Sovereign States would have gone the way of the Sovereign Cities of Greece. Before they reached that dismal end, the lustre which the First Revolution gave to the names of Washington and Franklin would have been lost in wars between Virginia and Pennsylvania. Such wars must have followed inevitably, had not these statesmen, by their leadership in the Second American Revolution, saved the American states from governing their common affairs by the same rule by which King George III and Czarina Catherine II governed theirs. The Second Revolution saved the First, and did far more: It led to an immeasurably greater success -- a triumph of democratic principle much vaster, proportionately, than the United States is today in size when compared to Virginia or Pennsylvania.
Finally, the Second American Revolution was the greater because it was achieved more rapidly, and without violence or bloodshed, through free and full debate. In less than two years it wrought its enduring reversal of the age old, universal concept of sovereignty that has afflicted mankind with -- in last analysis -- all the wars it has suffered. The fact that this was achieved without war -- despite the emotions which its war of words aroused5 -- was rightly judged by Acton to be a revolution in itself.
Ironically, this triumph of reason over force has kept even Americans from recognizing that the establishment of their Federal Union was a Revolution. They give all the honor to the Revolution that was made by war. Forgetting September 17, the day when the Federal Constitution was signed, and March 4, the day when their Federal Union began they celebrate as the birthday of their country July 4 -- the day when the Thirteen Colonies declared themselves united in upholding the sovereignty of their citizens, but divided henceforth into Thirteen "free and independent" countries.
Thus, the confusion over sovereignty began, paradoxically with the very two American Revolutions which reversed the old concept, in both its senses, and thereby faced all men thereafter with two successive choices. Starting among the people of the Thirteen States themselves, it inevitably spread as the peoples around the North Atlantic gradually established themselves as the true sovereigns of their own nations. For that left them, and the American Republic, facing the same choice the Thirteen had faced -- whether to follow this revolutionary concept all the way through, or reverse it in their relations with one another.
Another cause for the confusion that followed is that the concept of national sovereignty by which the Atlantican peoples still choose to govern their mutual relations contains, as does all error, some truth -- and more emotion.
To begin with, there is the truth to which Union Now had pointed,6 that men must limit their individual sovereignty and delegate some of it to their state in order to secure the rest. But this seems contradicted by another truth, that the sovereignty of the nation, in the sense of its independence from outside sovereigns, has served in many ways to secure the sovereignty of the citizen, still does and always will.
We each learn this latter truth at a time and in a way that impresses it on us the more. We learn it as children, when the mind is least trained and experienced in distinguishing truth from error, most totalitarian in its tendencies, and most capable of forming habits and impressions that are deep and lasting. We learn it in school-book histories from which we get the little that most of us ever know about our nation's history -- together with the modicum we know about the history of other peoples, even those nearest us. These histories over-simplify and heighten all that the nation's independence has done for the lives and liberties of its citizens. They also emphasize all that neighboring nations have done to imperil them by war or otherwise; and they minimize, or ignore, all that these neighbors have contributed to freedom -- to ours and to their own. They do this to the point where children in the most enlightened countries gain the same lasting impression which they gain in the Congo tribes namely, that danger lies in all other nations, and safety only in one's own.
Then there is the natural love we all feel for the nation from which we sprang and the country where we grew up and our desire to "belong" that is no less natural. These two emotions suffice to make men die defending their country, even though they enjoy no more liberty in it than the Russians do today in theirs.
Add all this together and it becomes too easy to understand why confusion over national sovereignty should be so rampant ... and hard to remove.
Yet if our reasoning is clear enough, even a child of twelve will see not only the truth, the good, there is in the current concept of national sovereignty but the error, the evil, that outweighs the truth and makes this concept false on balance. And any child of twelve already knows the advantage of holding on to the good in anything, while discarding the bad.
We easily see the monstrous error the Communists make in reasoning that since it is necessary for men to delegate to the state some of their sovereignty, it is necessary for them to delegate to it all the rest; that since they gain by renouncing some of their liberty in order to form and maintain their state, it follows that they must gain still more if they renounce all their liberty and make the state all-powerful, inside as well as out.
It is, of course, much harder to see the monstrous error in our own thinking on the subject in its international aspect. Quite opposite errors are made about it by two opposing schools of thought. One school, which is very small in each free people, seems to reason that because national sovereignty is obviously dangerous to peace and individual freedom in some ways it must therefore be dangerous in all; they denounce it indiscriminately as if it were wrong at all times, with all nations and in all fields. Although the harm it does blinds them to the services it performs, they tolerate it, in most fields, for practical reasons. They center their attack on what they deem to be its most dangerous aspects, but do not positively uphold it as good in any respect. They fall, in short, into the same pitfall the Communist totalitarians do, though only as regards sovereignty between nations.
The reasoning of the other school falls into the same totalitarian fallacy, but from the opposite approach. This school includes the great majority of the people in most of the Atlantic democracies. They see nothing but good in national sovereignty; any limitation of it seems a "sacrifice". They may tolerate such "surrender" as slight, or temporary or direly needed, to avoid a greater evil -- but they never urge or defend it as a positive good.
Ironically, the most ardent spokesmen of this school, which insists that the sovereignty of their national government be unlimited even as regards the freest peoples, are also nearly always almost equally ardent in seeking to limit their government's sovereignty over themselves as citizens. In the United States they include the Republican conservatives who oppose any extension of the Federal government's power over them individually, and the Southern conservatives who seek to limit also Washington's power as regards their own states.
They want the national government to exercise the least sovereignty over them -- but the most as regards their closest counterparts -- the conservatives in the other free countries, who share this paradoxical desire. Those loudest in demanding that their government retain and exercise its sovereign right to raise barriers that interfere with business by making it impossible for a foreign firm to compete with them in their national market, oppose no less vehemently any exercise of its sovereignty that would limit their freedom to compete at home -- let alone any policy that would favor producers in one section against those in other sections.
Clearly these champions of unlimited national sovereignty are not moved, as are "total" totalitarians, by any love of the state for the state's sake. Apart from the selfish interests that enter into all human calculations, their motivation is the same as that of the opposite school in their nation -- they seek to save individual life and liberty. But whereas the former aim to save these ends by sacrificing all national sovereignty, the latter see any loss of it as a sacrifice of life and liberty.
They see what the other group is blind to -- that unlimited national sovereignty undoubtedly was essential to these ends in the past, and still is as regards many nations and many fields of government. But they themselves are blind to the exceptions to this rule which the opposite school sees so well. Yet they need but stop to think, to see that it is wrong to reason, as they do, that the unlimited sovereignty of the nation must remain essential to individual life and liberty,
a) now, because it obviously has been in the past;
b) with the peoples most advanced in free government, because it obviously still is as regards those least developed in freedom, or totally submerged by dictatorship, and
c) in every field of government, because it obviously is essential in many fields still, even between the freest peoples.
No one would think it common sense to reason that he must live only on milk forever because this was essential at one time in his life, use sign language with his brothers because he must so converse with a savage, or refuse to agree with his brothers on anything because there are certain personal matters that he must decide for himself. Yet such totalitarian "logic," when applied to the subject of national sovereignty, passes for reason so widely that relatively few even question it.
Sound reasoning runs, of course, between the totalitarian type of thinking that afflicts both these extreme schools. If we start with the premise that the state is made for man, we lose our base if we turn totalitarian in reasoning about the nation. We can conclude neither that because it brings some evil to us it can bring no good and should be abolished, nor that because it works some good it can do us no evil and should be maintained 100 per cent.
We know this is contrary to experience as well as to reason. We know that the state was once the caveman family, and later a tribe of kindred families, and later a city state or kingdom of neighboring tribes, and later a nation of kindred or neighboring cities and kingdoms. We know that total sovereignty was once lodged in each of these forms of the state, and that each not only did serve man at some time but still does today. We know that the good each of these forms of the state did for man, when it was supreme never kept him from moving to a higher form, and we also know that, even though this change was nearly always made by violence rather than reason, enough reason remained in men never to destroy completely the previous "state", but always to keep it where it still best served their purposes.
And so today, every state includes within it the family, and local government in various forms. We all agree that none of these suffices, but that each continues to serve us better in some respects than do any of the other forms of the state.
It is only when the issue lies between our highest existing form, and a still higher one, that we cease this process of discarding the bad while retaining the good, and fall into the totalitarian all-or-nothing trap. It has caught man precisely at this point at each stage of this long development, as it still does, even where, as in the United States, we have already passed beyond the nation state and achieved a federal state. Yet we know that reason requires us -- especially those of us who most believe that the state, from the family on up, is made for the individual -- to remain always ready to withdraw some of our sovereignty which we have invested in any form of the state and re-invest it in a still higher form, wherever and whenever we find that we are endangering our capital by the present investment, or would gain greater returns elsewhere. In other words, common sense requires us to continue to eliminate the bad and retain the good in the highest as well as the lowest forms of the bodies politic we create.
This seems elementary, and because it is elementary Union Now began with this truth. In its fifth paragraph it explained that the proposed "Union would be designed (a) to provide effective common government in our democratic world in those fields where such democratic government will clearly serve man's freedom better than separate government, (b) to maintain independent national governments in all other fields where such government will best serve man's freedom." I then listed under point (a) five fields which I found the peoples of the North Atlantic democracies could govern better through a Union government than through their nations, and added: "By (b) I mean the Union government shall guarantee against all enemies, foreign and domestic, not only those rights of man that are common to all democracies but every existing national or local right that is not clearly incompatible with effective union government in the five named fields."
Later in that chapter (and elsewhere) I sought to make it still clearer that although I believed it in our interest to transfer our sovereignty in a few fields from our nation to an Atlantic Union, I favored guaranteeing the national independence of each people in all other fields as an asset. For the reader's convenience let me quote from Chapter I:
This does not mean eliminating all national rights. It means eliminating them only where elimination clearly serves the individuals concerned, and maintaining them in all other respects -- not simply where maintenance clearly serves the general individual interest but also in all doubtful cases ...
Our Union could afford to encourage the existing diversity among its members as a powerful safeguard against the domestic dangers to individual freedom. Just as the citizen could count on The Union to protect his nation from either invasion or dictatorship rising from within, he could count on his nation's autonomy to protect him from a majority in The Union becoming locally oppressive. The existence of so many national autonomies in The Union would guarantee each of them freedom to experiment politically, economically, socially ...
I thought I had made amply clear in Union Now that, far from seeking to abolish the independence of any nation, I sought to preserve it and make it legal -- de jure and not just de facto as at present7 -- in all the fields where it served individual life and liberty better than any Union could; that I regarded it not as a necessary evil to be tolerated but as a positive good to be maintained in all but a few fields.
Experience has proved that I did not make this nearly clear enough. Union Now has been and is attacked as a proposal to "destroy" national sovereignty, "abolish" the United States, "tear up the Declaration of Independence."
The elementary truth with which Union Now began was stated in that Declaration itself, which it cited on page 6. Though it was set forth in the Declaration of Independence more lucidly than ever before, men fell into precisely the same totalitarian traps to thought then as now when they faced the question of applying it between their states.
The Founding Fathers began by rebelling against the overcentralization of the British colonial system -- and by swinging immediately to the other extreme. They made their Thirteen States independent not only of the Crown but of each other, united only in a Confederation whose highest aim, as we have seen, was to preserve the sovereignty of each state. By this excessive decentralization they saved individual liberty from the excessive sovereignty of George III -- only to expose it to anarchy among the Thirteen. With no central sovereignty to limit the sovereignty of the states, political disputes developed among them, while economic difficulties led even the most democratic of these states, Rhode Island, to assert more and more coercive power over its sovereign citizens. In guarding against their Confederacy becoming despotic, the people of the Thirteen States had opened the door to tyranny in their home state.
Their experience with both extremes led them, as we have seen, to work out the golden mean between the two that federal union is. But it is highly important (as well as consoling) to note that even these exceptionally wise men8 worked out this happy balance by groping their way through confusion -- by making mutually reluctant compromises rather than by reasoning clearly. One side thought that the people should transfer all sovereignty from their states to the Union; the other contended no less totally that they should transfer none. Mainly because neither could persuade the other, they settled on the federal union system. It gave half a loaf to each side, by having the people transfer some sovereignty to the Union while leaving some in their respective states. It combined, in other words, a Union government with a confederation of governments. Precious few of the Founding Fathers, however, saw at the time the great merits of this division of sovereignty that we can see today. The result was to give the sovereign citizen, not half a loaf but the whole loaf in two halves. They did not see this -- so deeply did these Framers of the Constitution fall from opposite approaches, into the same totalitarian fallacy that befuddles us now.
Even the Father of his Country fell into it -- and he stumbled into the pitfall on the side from which the fewest citizens do today. Valley Forge and all the war had given General Washington a much more acute understanding of the vices than the virtues of state sovereignty. We find him denouncing this "monster," and speaking with scorn of the "darling sovereignties" of the states -- without a qualifying phrase to concede that the people needed to keep part of the sovereignty delegated to their states. Even in his Farewell Address as President, eight years after the Federal Constitution was established, Washington put his accent on the central government. He did this to the point of discussing the country in terms of regions -- "the North," "'the South," "the East," "the West" -- omitting even to mention the states, dismissing them as "subdivisions" of the Union. In all the sound advice he gave the people in that Address, there was none enjoining them to maintain the sovereignty of their states to the degree which the federal balance requires for it to work most in favor of the sovereign citizens.
Alexander Hamilton not only shared Washington's view; in his main speech at the Federal Convention, on June 18, 1787, he flatly declared that it would be wiser if the state governments "were extinguished." True, he quickly added that he did not "mean to shock the public opinion by proposing such a measure." Yet the plan he offered effectively stripped the states of their sovereignty; their governors were to be appointed by the central government and to exercise a general veto on all state laws. "Cui bono" -- what good was there in leaving any sovereignty to the states, he asked, and obviously saw none.
At the Convention, James Madison was readier than Hamilton to tolerate the state governments, but like him did so merely as a lesser evil. Lord Acton found that "a note preserved in Washington's handwriting records: 'Mr. Madison thinks an individual independence of the states utterly irreconcilable with their aggregate sovereignty, and that consolidation of the whole into a simple republic would be as inexpedient as it is unattainable.'" Speaking in the Convention on June 21, Madison agreed that "the great objection made against the abolition of the state Governments was that the General Government could not extend its care to all the minute objects which fall under cognizance of the local jurisdictions." He went on to contend, however, that "were it practicable for the General Government to extend its care to every requisite object without the cooperation of the state Governments, the people would not be less free as members of one great Republic than as members of thirteen smaller ones ... Supposing therefore a tendency in the General Government to absorb the state Governments, no fatal consequence could result."
Washington, Hamilton and Madison were the three who took and kept the lead in changing the Confederation into an organic Union, but if they had achieved their heart's desire they would have jumped from that association of Sovereign States to the opposite extreme, and united the sovereign people in a single unitary nation, as centralized as Britain or France. They and their friends sought to do this, in fact, at the start of the Convention, and went far in this direction in the Plan Virginia proposed May 29, on which all the discussion centered at first.
By June 13 the Convention had accepted the basic features of this Plan. This included its grant of sweeping powers to a "National Legislature" -- in which it gave no control to the state governments -- (a) to act in all "cases to which the states are not competent," and (b) "to negative all State laws contravening in the opinion of the National Legislature, the articles of union." After very brief discussion, on May 31, point (a) was approved by nine state delegations, none opposing, but with the only other state represented -- Connecticut -- evenly divided.
In the next breath the Convention approved, "without debate or dissent," the absolute veto which (b) gave the national government. It is instructive to note that a little later, on June 8, Madison sought to make this veto all-embracing. He said he "could not but regard an indefinite power to negative legislative acts of the states as absolutely necessary." Young Charles Pinckney of South Carolina went further and held that "the states must be kept in due submission to the nation." By this time, however, fear of such concentration of power led to the defeat of their motion, seven states voting against it and three in favor.
Through the first five weeks of the Convention's debate this school showed little understanding of the danger of centralization, or of the advantages that individual liberty gains from the citizen leaving enough of his sovereignty in his state to prevent centralization. This danger helped arouse such opposition that on this basic point the Virginia Plan's victory of June 13 was lost by July 2. Thereafter this school accepted limitations of the central government's power, but against their will, and only as a necessary evil.
The opposition which forced this compromise on them was led by other Founding Fathers who fell into the same fallacy from the opposite approach -- which is so thronged today. This group saw dangers only in the citizens transferring any of their sovereignty from their states to the Union, and only good in keeping it totally there. Neither school spoke then in these terms of citizen sovereignty; instead, this group called this transfer "sacrificing" the sovereignty or independence of their state, as many do now. In the Convention their leading spokesmen were from the small states, notably William Patterson of New Jersey and Luther Martin of Maryland. The "New Jersey Plan" they offered in opposition to the Virginia Plan would have strengthened the Confederation considerably, but kept it still an association of sovereign states, in no sense a Union of sovereign Citizens.
Like their opponents, they accepted compromise in the end, not because they saw the wisdom in it, but as a lesser evil.
Though the leaders of the New Jersey group lacked the prestige of Washington, and the talent of Hamilton and Madison, they held out stubbornly, because they felt that the majority of the people in the various states would never consent to "surrender their state's sovereignty." They were encouraged, too, by the fact that, even in Virginia, so famous a patriot as Patrick Henry was convinced that individual liberty required Virginia to retain its full sovereignty -- so much so that he refused to attend the Convention, though named as a delegate.
These extracts from Madison's Journal may show better how sharply these two opposing views on Sovereignty clashed in the convention:
A confederacy supposes sovereignty in the members composing it and sovereignty supposes equality. If we are to be considered as a nation, all state distinctions must be abolished ... New Jersey ... would be swallowed up. We had rather submit to a monarch, to a despot, than to such a fate. -- William Patterson, June 9, 1787.
Distinct states would be a perpetual source of discord. There can be no cure for this evil but in doing away with states altogether and uniting them all in one great Society. -- George Read of Delaware, June 11.
Had the legislature of the state of New York apprehended that their powers [those of the delegates] would have been construed to extend to the formation of a national government, to the extinguishment of their independency, no delegates would have appeared on the part of that state. -- John Lansing, Jr. of New York, June 16.
I cannot support the General Government at the expense of the state Governments, but will contend for the Safety and Happiness of the particular states at the expense of the U.S. -- Luther Martin, June 18.
At the separation from the British Empire, the people of America preferred the establishment of themselves into 13 separate sovereignties instead of incorporating themselves into one ... They are afraid of granting powers unnecessarily ... lest the powers should prove dangerous to the sovereignties of the particular states. -- Luther Martin, June 20.
As states are a collection of individual men, which ought we to respect the most, the rights of the people composing them, or of the artificial beings resulting from the composition? Nothing could be more preposterous or absurd than the sacrifice of the former to the latter. It has been said that if the smaller states renounce their equality, they renounce at the same time their liberty. The truth is it is a contest for power, not for liberty. Will the men composing the small states be less free than those composing the larger? The state of Delaware having 40,000 souls will lose power, if she has 1/10 only of the votes allowed to Pennsylvania, having 400,000: but will the people of Delaware be less free, if each citizen has an equal vote with each citizen of Pennsylvania? -- Alexander Hamilton, June 19. (His emphasis.)
The states and the advocates for them were intoxicated with the idea of their sovereignty. -- Elbridge Gerry of Massachusetts, June 19. (His emphasis.)
Can we forget for whom we are forming a Government? Is it for men, or for the imaginary beings called states? -- James Wilson of Pennsylvania, June 30. (His emphasis.)
Each extreme agreed to give the other half a loaf only after the Convention had reached a deadlock, five states against five, (with the other, Georgia, split in two itself) in the decisive vote that came on one phase of the issue on July 2. But the compromise (which also had several phases, with votes on each) was agreed to in the final test only five to four (with New York absent and Massachusetts split in two).
In between the two extreme schools there stood a few Founding Fathers who had contributed considerably to bringing about the deadlock, working out the basic compromise, and getting both sides to accept it. These were indeed a "precious few" -- for they were the only ones in the Convention who showed a good grasp then of what has since become accepted, at least within the United States, as the true democratic concept of sovereignty in a federal union. They alone saw clearly the simple truth that individual liberty required the people both to transfer some of their sovereignty to a Union they themselves composed, and to continue keeping their states independent of each other and of the Union government in other respects. To these few, the only total evil lay in the people giving total power to either the Union or the states in respect to each other, and the only total good lay in keeping these two agencies balanced in the way that served their sovereign citizens best. The first delegate to express this view at the Convention was John Dickinson of the smallest state, Delaware, famed throughout the Confederation for his "Farmer's Letters." George Mason of Virginia, author of its Bill of Rights, was perhaps an even more influential advocate of this concept. Dickinson put this case before the convention first on June 2 in these words, as summarized by Madison in hisJournal:
One source of stability is the double branch of the Legislature. The division of the country into distinct states formed the other principal source of stability. The division ought therefore to be maintained, and considerable powers left with the states ... Without this, and in the case of a consolidation of the states into one great Republic, we might read its fate in the history of smaller ones ... If ancient republics have been found to flourish for a moment only and then vanish forever, it only proves that they were badly constituted; and that we ought to seek for every remedy for their diseases. One of these remedies he conceived to be the accidental lucky division of this Country into distinct states, a division which some seemed desirous to abolish altogether.
One may see the degree to which this issue divided the Founding Fathers (and also the degree to which delegates from each state spoke freely as individuals in the Convention) in Madison's report of this clash on June 6 between Dickinson and his fellow delegate from Delaware, George Read, who spoke immediately after him:
Mr. Dickinson considered it as essential that one branch of the legislature should be drawn immediately from the people, and as expedient that the other should be chosen from the Legislatures of the states ... He was for a strong National Government but for leaving the states a considerable agency in the System.
Mr. Read. Too much attachment is betrayed to the state Governments. We must look beyond their continuance. A national Government must soon of necessity swallow all of them up ...
The next day Dickinson returned to the charge with the support of Mason. To quote from Madison's Journal:
Mr. Dickinson. The preservation of the states in a certain degree of agency is indispensable. It will produce that collision between the different authorities which should be wished for in order to check each other. To attempt to abolish the states altogether would degrade the Councils of our Country, would be impracticable, would be ruinous. He compared the proposed National System to the Solar System, in which the states were the planets and ought to be left to move freely in their proper orbits. The Gentleman from Pennsylvania [James Wilson wished, he said, to extinguish these planets.
If the state Governments were excluded from all agency in the national one, and all power drawn from the people at large, the consequences would be that the national Government would move in the same direction as the state Governments now, and would run into all the same mischiefs. The reform would only unite the 13 small streams into one great current pursuing the same course without any opposition whatever.
Col. Mason. Whatever power may be necessary for the National Government a certain portion must necessarily be left in the states. It is impossible for one power to pervade the extreme parts of the U.S. so as to carry equal justice to them. The state Legislatures also ought to have some means of defending themselves against encroachments of the National Government ... And what better means can we provide than giving them some share in, or rather to make them a constituent part of the National Establishment? There is a danger on both sides no doubt; but we have only seen the evils arising on the side of the state Governments. Those on the other side remain to be displayed.
No one during the Convention showed so good an understanding of the whole thorny problem as Mason did in his speech of June 20, 1787, quoted at the head of this chapter -- and his grasp of it was far from perfect.
Looking back, with not only experience but such men as Marshall, Jackson, Webster, Calhoun, Tocqueville, Emerson, Whitman and Lincoln to teach us, we can see what was not at all clear in 1787-89. The Constitution which emerged from the collision of the three conflicting concepts of sovereignty was animated throughout by the basic democratic one -- that the state is made for men, and of and by them, too, as individual citizens. That this should have resulted from so much confusion seems astonishing. And yet it was but natural. The upholders of each of the conflicting concepts, represented by the three great men of Virginia cited at the head of this chapter, were all permeated by this basic principle that sovereignty lies in the citizen. Though they talked in terms of the sovereignty or independence of the state, not of the citizens, they all agreed that the former was but power delegated to the latter.
Whether they favored transferring practically all this power from their state to the new Union, as Washington did, or practically none, as Patrick Henry urged, or dividing it between the two as Mason advised, they all sought thereby to preserve and advance the individual's liberty and life. Since the same basic concept of citizen sovereignty animated each, this principle understandably reached so high and comprehensive an embodiment in the resulting Federal Constitution as to be truly revolutionary.
If Washington, Hamilton and Madison seemed more confused than Mason and Dickinson at the time, their contribution to this result was still by far the greater. Had they not seem so well that individual life and liberty required an organic Union of all the American people, they would not have led so tenaciously toward this end; and without their leadership there would have been no such Constitution, no such issue in the Convention and no such Convention. If they were more confused than Mason early in the Convention, they were much less confused about its result than he was in the end. George Mason was one of the prime inventors of the federal solution in more ways than the one I have touched on, but he failed to see that he had won the battle in the Convention. He refused to sign the Constitution and joined Patrick Henry in actively opposing its ratification. That is perhaps why his immense contributions to Federal Union are so little recognized. Washington, Madison and Hamilton had conceded far more than he, but they were wise enough to see that their basic principle had won, on balance. They not only signed the Constitution but fought for its ratification as if it embodied all their dreams -- and none fought for it so hard as did Hamilton who had conceded the most. In nothing did their greatness shine forth so truly as in this.
To achieve the second American Revolution peacefully, its leaders added to the confusion enduringly. They did this partly by disguising the new system's revolutionary character by giving it the name of the one it replaced. The terms, federal, federal union and union, which we now use to distinguish this system from both a unitary nation and a confederacy of nations, were then commonly used to describe the existing Confederation. The Virginia Plan had aimed openly to replace this with a "national" government, and national studded the first draft of the Constitution until June 20 On that day the nationalists, in their battle with the defenders of confederation, agreed to have national stricken out entirely, so as to save the substance of the change they sought. By tacit agreement the opposite adjective, federal, was also omitted from the Constitution.
That instrument carefully avoids specifically giving any name to the unprecedented federal-national system it created. Apart from casual references to it as the "Union," the Constitution always refers to the government it set up as "the United States," the name of the Confederation it replaced. This was ambiguous, and -- we shall see in the next chapter -- dangerously confusing. To use that name implies that the United States still are; whereas to say, as we do now, that the United States is reflects the revolution that had taken place. The vital difference between states united in a confederation and states united in a union of their citizens comes out, of course, in syntax. The verb, or pronoun, for the former is plural, the latter singular. So careful were the drafters of the Constitution to keep this point ambiguous that the term "United States" is used throughout the Constitution in ways that avoid using either are or is, them or it. There is only one exception, and it, ironically, is in this clause: "Treason against the United States shall consist only of levying war against them, or in adhering to their enemies ..."
Nor did the semantic confusion end there. Although federal was the banner under which their opponents fought in the Convention, the most extreme of the nationalists, Hamilton, took it over in the ensuing battle to get the Constitution ratified. To the classic papers that he edited, and co-authored with Madison and Jay, to expound its principles, he gave the title of The Federalist -- pouring the new wine into a bottle bearing the old familiar label of the Confederation. Thus the nationalists of 1787 became the Federalist party, while the Federalists of 1787 became known as the Anti-Federalists in 1788. This dizzy confusion helped keep many Americans from recognizing the revolutionary nature of the new Constitution -- but not Patrick Henry: "Here is a solution as radical as that which separated us from Great Britain," he rightly called it. But this time he was against the revolution he had led in 1775.
As time went on, the world began to see this revolution, too -- with the help of Tocqueville who pointed out in 1835 in his Democracy in America; "This Constitution, which may be confused with federal constitutions that have preceded it, rests, in fact, on a theory that is entirely new, and which stands as a great discovery in modern political science." Tocqueville saw, too, that its newness lay in combining, through the citizens, a unitary nation (in some respects) with a confederacy (in other respects) and thus making a "form of government that was not precisely either national or federal" (meaning federal in the old, confederate sense). In his awareness of, and enthusiasm for the full play America thus gave to sovereignty of the citizen, he wrote:
Whenever the political laws of the United States are to be discussed, it is with the doctrine of the sovereignty of the citizen that we must begin. The principle of the sovereignty of the people, which is always to be found, more or less, at the bottom of almost all human institutions, generally remains there concealed from view. It is obeyed without being recognized, or if for a moment it is brought to light, it is hastily cast back into the gloom of the sanctuary.
"The will of the nation" is one of those phrases that have been most largely abused by the wily and the despotic of every age. Some ... have even discovered it in the silence of a people, on the supposition that the fact of submission established the right to command.
In America the principle of the sovereignty of the people is neither barren nor concealed, as it is with some other nations; it is recognized by the customs and proclaimed by the laws; it spreads freely, and arrives without impediment at its most remote consequences ...
At the present day the principle of the sovereignty Or the people has acquired in the United States all the practical development that the imagination call conceive.9
True though this was in 1835, it is also true that Americans can now conceive of a further practical development of their sovereignty by the constitution of an Atlantic Union. And it was true even in 1835 that confusion over sovereignty had already raised its head enough again to cause a dangerous crisis in 1832, when South Carolina asserted its "sovereign" right as a state to nullify federal laws and secede from the Union. This was not carried out, thanks to President Jackson's vigorous reply. The Constitution not only "forms a government, not a league," he replied, but sets up a government "in which all the people are represented, which operates on the people individually, not upon the states"; therefore such "disunion" as South Carolina threatened, if upheld by "armed force is treason," and any citizen guilty of it would be punished accordingly. Nonetheless, the confusion and conflict between the two concepts of the sovereignty of the people spread, and led to the Civil War in 1861.
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Contents -- Chapter 6 -- Chapter 8
