States' Rights and the Union: Imperium in Imperios, 1776-1876.

• Author: Farber, Daniel A.
• Position: Book reviews

STATES' RIGHTS AND THE UNION: IMPERIUM IN IMPERIO, 1776-1876. By Forrest McDonald. (1) University Press of Kansas. 2000. Pp. vii, 296. $29.95.

Much is said about the "sovereignty" of the States; but the word, even, is not in the national Constitution....

Abraham Lincoln (2)

"[I]n the 1990s, as in the 1870s," Forrest McDonald observes, "states' rights had found a powerful friend but, given the five-to-four majority, still a fickle one." (p. 233) McDonald's new history of quarrels over federalism, then, comes at an opportune time. It is a useful introduction to the subject: a quick, lively read with well-chosen references. It lacks, however, the attention to detail and sensitivity toward political dynamics that characterized McDonald's earlier writings.

The rhetoric of federalism, from 1776 to today, has often invoked the concept of sovereignty. This review will focus on McDonald's treatment of this key concept, both because of its intrinsic significance and because it illustrates some of the weaknesses of the book as a whole.

At least three major theories of sovereignty have figured in American thought. The most nationalistic view was Lincoln's. According to Lincoln, the colonies declared independence as a collective body, which thereby succeeded to the sovereignty formerly held by the King. This national sovereignty always remained with the federal government throughout a series of governmental reorganizations (first the Articles of Confederation, then the Constitution). (4) (p. 9) The Union, Lincoln said in his most frequently cited statement of his position, "is older than any of the States; and, in fact, it created them as States" -- for before they formed the Union and collectively declared independence, they were mere "dependent colonies." (5) On this view, only the nation ever enjoyed sovereign status.

A second view is that the states retained their separate sovereignty until the adoption of the Constitution, which created a new national sovereign ("E pluribus unum"). (6) Under this view, the Constitution was a new social compact among the American people. This view is supported by references in the Federalist Papers to "the People" as the source of national political authority. Thus, Federalist 22 speaks of the need to lay the "foundation[] of our national government" "on the solid basis of THE CONSENT OF THE PEOPLE," the "pure, original fountain of all legitimate authority." (7) Similarly, in discussing conflicts between the states and the federal government, Federalist 46 speaks of both as representing "the whole body of their common constituents," (8) and refers to the states as "subordinate governments." (9)

The final view was Calhoun's. According to Calhoun, the people of each state separately became sovereign when they became independent of England. When they adopted the Constitution, they retained their separate political existences, but delegated some of their powers to the national government and some to the state governments. (10) As McDonald points out, Federalist 39 seemingly supports this theory. (p. 19) Inquiring into the formation of the new Constitution, Federalist 39 explains that ratification takes place by the authority of the people -- "not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong." (11) Leaving little doubt of his view of the ratification process, Madison goes on to call ratification a "federal and not a national act," that is, "the act of the people, as forming so many independent States, not as forming one aggregate nation." (12)

Note that under any of these three theories, neither the state nor federal governments (who are the only bodies exercising any direct regulatory power) are themselves sovereign. Rather, sovereignty resides either in the people of the United States as a whole, or in the separate peoples of the various states. In these debates, sovereignty does not refer to actual, day-to-day governing authority, but rather to ultimate sources of political authority.

Since it is obvious that the Constitution was adopted and amended by the people of the various states, discussions of the topic often have a metaphysical air about them. The question is whether the people acted as an undivided whole incarnated in separate states or as distinct state communities in a joint venture (which then may or may not have merged into a single entity)--an issue reminiscent of medieval disputes about the true nature of the Trinity. Yet people were burned for mistaken views of the Trinity, and thousands died on Civil War battlefields while politicians debated the nature of sovereignty.

McDonald seems to think that this abstruse matter of sovereignty has a clear answer, and one that matters. In this he is not alone: as we will see below, at least four current Justices apparently share his perspective. Yet, the Framers themselves had no established orthodoxy on this point, and the muddled political developments of their times confound efforts to identify sovereignty after the fact. In Federalist 39, which refers to the origins of the Constitution in the "federal" action of the peoples of the various states, Madison concludes by speaking of the untidy mixed nature of the new government:

The proposed Constitution ... is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national. (13) Thus, if there was a simple answer about the location of sovereignty after ratification, the Framers themselves apparently didn't know it. Whether the concept of sovereignty has any greater utility in constitutional analysis today is at least equally unclear. There is no denying, however, that it retains great rhetorical force. (14) As Rakove says, after 1789, "sovereignty itself would remain diffused--which is to say, it would exist everywhere and nowhere." (15)

1. THE REVIVAL OF THE STATE COMPACT THEORY

   He views the Constitution as a compact among multiple sovereign peoples:

   The Constitution would be a compact not among sovereign states, as was the 1781 Articles of Confederation, nor a Lockean compact between ruler and ruled, nor even a compact of the whole people among themselves. It would be a compact among peoples of different political societies, in their capacities as people of the several states. (pp. 8-9) For this reason, he argues, John Calhoun's theory of the Constitution "was historically on solid ground." (p.106) In contrast, according to McDonald, the nationalist view of history espoused by Daniel Webster, John Marshall, and Abraham Lincoln was groundless. (p. 9-11,106)

   The nature of sovereignty in the framing period is not merely a matter of dispute among academics, but is also currently dividing the Supreme Court. In 1995, the state compact theory propounded by McDonald made an unexpected reappearance in the Supreme Court in the Term Limits case. Term Limits involved a state's power to set term limits for members of Congress. The majority view was that this power pertained solely to the new government created by the Constitution rather than any preexisting state authority, and hence was not "reserved" by the Tenth Amendment. In the course of this discussion, Justice Stevens' majority opinion explains the conventional view of state and federal sovereignty. Under the Articles of Confederation, "the States retained most of their sovereignty, like independent nations bound together only by treaties." The new Constitution "reject[ed] the...