Theories of the Union

Author:Herman Belz

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Political unions are organizations of states possessing specific powers for carrying out purposes of mutual interest to constituent polities. Unions are formed by means of confederation or federation, and by definition are combinative or compound in nature rather than unitary or homogeneous. In American history the Union refers to the general structure of political authority created during the Revolution by the American people, acting through their colonial and state governments, for the pursuit of common purposes as an expression of their incipient nationality. Theories of the Union are explanations of the American state system, descriptive and normative in purpose, which have been formulated to guide political action and resolve controversies among the member states. Especially important in the period from 1789 to 1868, theories of the Union have been concerned with four principal issues: the origin and nature of statehood; the nature and extent of state powers; the origin, nature, and extent of the powers of the central government; and the manner of resolving conflicts between the states and the central authority.

Although intercolonial cooperation occurred intermittently before the Revolution, in an effective political sense the formation by the colonies in 1774 of an assembly to deal with imperial matters of common concern marked the beginning of the American Union. In 1776 this assembly, the CONTINENTAL CONGRESS, issued the DECLARATION OF INDEPENDENCE, proclaiming that the colonies "are, and of right ought to be, free and independent states." Yet the Declaration also referred to the people in the colonies as "one people," and to the colonies as "the United States of America." The practical effect was to announce the existence of a national Union comprising thirteen state governments and a central body, Congress, which, although not constituted as a government and incapable of legislating for individuals in the states, was more than merely the agent of the states. Although theory and principle to explain this new compound political organization were yet to be formulated, the fact of a division of SOVEREIGNTY characterized the American Union from the outset.

The Union thus existed as political reality before it was rationalized in a formal instrument of government, the ARTICLES OF CONFEDERATION (1781). Asserting that "[e]ach State retains its sovereignty, freedom and independence, and every Power, JURISDICTION, and right which is not by this confederation expressly delegated to the United States," the Articles conformed to the model of a league of autonomous states. However, the language of state sovereignty notwithstanding, the states were not perfect states. And Congress, although empowered only to make resolutions and recommendations rather than to make law, in matters submitted to its consideration acted as a real government. In practical effect the Union resembled the operation of the British empire, in which sovereignty had been divided between the colonial governments managing local affairs and the authority of Parliament regulating matters of general interest in the empire.

Theory of the Union was relevant to territorial problems of the 1780s, which raised the question of the origin and nature of statehood. The original colonies based their claim to statehood on their COLONIAL CHARTERS and the fact of succession to previously existing political establishments. This theory of the creation of states implied a fixed or determinate Union, and was useless to those people?either in existing states or outside them?who desired to form new states and join the Union. An alternative approach was to claim a revolutionary right of self-government; Vermont may be said to have employed this principle in its struggle to separate from New York and achieve statehood. A third method of state making was to form a political community and secure recognition from the other states. This technique was developed in the 1780s when Virginia and other states with extensive land claims, desiring to confirm their sovereignty, ceded some of their lands to Congress and secured in return approval of their claims and state boundaries. Implicit in these transactions was an expansive rather than static conception of the Union: although states might proclaim their sovereignty, the determination of statehood?the very existence of the states?depended on the sanction of the other states acting through Congress.

The CONSTITUTIONAL CONVENTION OF 1787 altered the nature and structure of the Union by creating a central government, capable of making law and regulating individuals, in place of the noncoercive authority of the Confederation. Precisely how much and in what ways the restructured Union differed from the Confederation was debated during the process of RATIFICATION OF THE CONSTITUTION. These debates gave rise to the classic theories of the Union expounded by statesmen of the early national period.

In providing for a government based on the SEPARATION OF POWERS and comprising a legislature elected in part by the people, the Framers of the Constitution applied republican principles to the problem of organizing the American Union. They did not, however, completely reject the essential principle of the Confederation, the idea that the states were the constituent power. This principle was retained in the provisions for equal state representation in

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the Senate and for the contingency plan for electing the President in the House of Representatives, where each state was to have had one vote. The result, as JAMES MADISON wrote in THE FEDERALIST #39, was a government partly national and partly federal in respect of the source, operation, and extent of its powers; the constituent basis on...

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