by Elias Alias May 08 2013; updated April 05 2016
In our writings here at The Mental Militia the reader will encounter the word “state” used with different meanings. When the word uses a lower-case “s”, as in “state”, we are denoting, generally, a “government”. When the word uses a capital “S”, as in “State”, we are denoting a political entity, such as any of the “several States”. Michigan is a State; the government of Michigan (and any or all other States) is the “state”.
Here we want to note that in a transition made through revolution, Colonies became States. Each Colony, in becoming a State, created its own Constitution, created its own system of law, of weights and measures, system of autonomous infrastructure, monetary system, and indeed all the systems of governance properly belonging to a nation-State Republic.
The thirteen Colonies became thirteen sovereign nation-States and acted as such under the Articles of Confederation until the ratification of the Constitution for the united States of America. That is the basis for what we call “the Union”, as in the United States.
Under the Articles of Confederation each confederate State possessed its own sovereignty. Each State may be described as being at that time a “sovereign nation-State Republic”. It was a confederation of nation-State Republics. Those nation-State Republics were duly empowered by their peoples’ own respective autonomy and sovereignty to delegate representatives to the convention which became the Constitutional Convention. Their delegates are the signers of the Constitution.
As such, the States’ delegates acted on the authority which derived from the sovereignty of their respective States. As such, said delegates were “authorized” to sign onto the Compact which we now call the Constitution for the united States of America.
Bearing that in mind, let us now look at something from a speech given by John C. Calhoun, a Southern statesman and the fifth Vice-President of the United States, who authored the Fort Hill Address in 1831.
In that speech Calhoun notes –
“The error is in the assumption that the General government was party to the compact.”
He is saying that the General (Federal) government was not a party with the several States in the actual compact which the States signed. And when we look into the matter, we notice that indeed no one signed the Constitution on behalf of the General (Federal) government. That is history, and it is huge.
I say it is huge because it shows clearly that the several States created the General (Federal) government. That means that the Federal government, despite its modern-day attitude toward the States, did not create the States, was not present when the Colonies became States, was not present at the Constitutional Convention, and, finally, did not have a representative within the compact’s delegate pool sent forth by the States.
No one from, or representing, the General government signed the U.S. Constitution – because the General government did not exist until the States signed it into being.
Much has been, and shall yet be, said on the subject of State sovereignty. It is pleasing to note that our friend, “Sheriff Richard Mack” of the CSPOA (Constitutional Sheriffs And Peace Officers Association), won a law suit against the Federal government in a 1997 Supreme Court decision which stands today as a major States rights decision.
In Mack/Printz vs USA (Bill Clinton administration) 1997 Justice Scalia wrote for the majority opinion. A synopsis of that writing is in a pamphlet distributed by Sheriff Mack and the Constitutional Sheriffs and Peace Officers Association (CSPOA). Here are some highlights from Sheriff Mack’s pamphlet –
(Justice Scalia, writing)
It is incontestable that the Constitution established a system of “dual sovereignty” Gregory v Ashcroft, 501 U.S. 452, 457 (1991); Tuflin v Levitt, 493 U.S. 455, 458 (1990). Although the States surrendered many of their powers to the new Federal Government, they retained “a residuary and inviolable sovereignty.” The Federalist No. 39, at 245 (J. Madison).
Residual state sovereignty was also implicit, of course, in the Constitution’s conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, Article I, Section 8, which implication was rendered express by the Tenth Amendment’s assertion that “[t]he 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.”
The Framers’ experience under the Articles of Confederation had persuaded them that using the States as the instruments of federal governance was both ineffectual and provocative of federal state conflict.
The Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the state and federal governments would exercise concurrent authority over the people.
The great innovation of this design was that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other “- – “a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.” U.S. Term Limits, Inc. v Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). The Constitution thus contemplates that a State’s government will represent and remain accountable to its own citizens.
As Madison expressed it: “[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.” The Federalist No. 39, at 245.
This separation of the two spheres is one of the “Constitution’s structural protections of liberty. “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”
Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that eachwill be controlled by itself. The Federalist No. 51, at 323.
The power of the Federal Government would be augmented immeasurably if it were able to impress into its service – and at no cost to itself – the police officers of the 50 States.
(end, Justice Scalia writing in majority opinion, Mack/Printz v USA 1997)
So there we see a Supreme Court landmark decision clearly stating that there is to be a proper balance between the sovereignty of the newly-created General government and the reserved sovereignty of the respective several States which created the General government.
At the bottom of any argument regarding States’ rights vs Federal supremacy, the most important thing is an understanding of what the word sovereignty means.
The word sovereignty indicates the supreme authority. In matters of political and/or governmental power it was, in olden times, the authority of the King, over which no power within his realm could stand in opposition. The King’s word was the law of the land, and no one held any higher power or authority. Down through the Centuries various titles of sovereignty have existed, and by the time of the 18th Century a King of England ruled with undisputed sovereignty over the British Empire. The King we are most concerned with was King George, against whom the thirteen Colonies rebelled and revolted.
The successful American Revolution displaced any authority of the King of England and supplanted it with a brand new concept — the concept of individual sovereignty, in which, for the first time in history, the individual soul enmeshed in a human body and born with unalienable rights was seen to be the ultimate source of sovereignty. It is called “Freedom”. It is called “Liberty”. It harbors the source of dignity. It harbors potential inherent in every individual born. And, less often than it should be, it is called “Personal Responsibility”. It is also called “Self-governance”.
All of those concepts — mental abstractions — are inextricably associated with what our Founders called “Unalienable Rights”. The principle was based on a perception of a “Creator”, referred to as “Nature or Nature’s God”. The idea held that the Creator endowed mankind with “unalienable rights”, and as such those rights were not to be subjected to any man-made government. That goes straight to the Original Intent of this nation’s Founders.
So the sequence of sovereignty originated with “Nature or Nature’s God” and moved immediately without interruption into the Soul of Man at the individual level. This sovereignty could be extended outward from each individual who wished to participate in the creation of a state or state-government, which the Colonists did during the Revolution, into a collective agreement or contract which would empower that collective to become a “State”. The Colonies became States by this process as individuals extended a small portion of each one’s personal sovereignty into the collective pool of sovereignty, which empowered and authorized and legitimized for most practical purposes a State’s autonomy as a governing body.
Finally, the several sovereign States delegated representatives who would create and ratify the Constitution for the united States of America, thusly creating, by extension of personal sovereignty and State sovereignty, a General government which we today call the Federal Government. The sovereignty which would empower and authorize the General government originated in “We The People” and came through their States. The sovereignty of the States in compact represented the sovereignty of each State’s individual citizen, who thereupon, as Justice Scalia has noted, then had two governmental protections, a system of “dual sovereignty”.
Let’s close this article with a brief video presentation on the Kentucky and Virginia Resolutions which will show clearly how this system of dual sovereignty protects all individual Americans today, using their States as their rightful interposition between Federal mischief and “We The People”.