This is the third article in a series on basic constitutional principles.
Was the Constitution ratified by the American people as “one nation” or was it ratified by the states?
As pointed out in last week’s Constitution 101 post, the people stand as the sovereign in the system. So it was the people who ratified the Constitution. But, the people had already organized into political societies – states – and it was through those existing political societies that they ratified the Constitution.
The Constitution itself makes this distinction in Article 7.
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
So, it wasn’t the mass of Americans ratifying the Constitution as “one people” or “one nation.” It was the people of the states adopting a Constitution forming a union between those states choosing to ratify. James Madison and other founders referred to this as a “compact.” It was entirely possible for nine states to form the union with four remaining independent, sovereign nations. The ratification of the nine states would not have bound the people in the other four. When the majority of Americans adopted the Constitution, it did not suddenly bind the people living in those states yet to ratify.
This becomes significant when discussing the concept of state sovereignty. Those who minimize the independent nature of the states rely on a “one people” conception of ratification to argue that individual states lack the authority to nullify unconstitutional acts or secede from the union. They conceptualize the United States as a single nation formed by the people as a whole, and therefore leave the states very little autonomy. This simply does not stand up to the historical record.
When we use the term “state sovereignty” we don’t really mean the territory within its borders remains sovereign. We don’t mean the state government remains sovereign. We mean the political society formed by the people of that state remains sovereign.
Madison explained this concept in his Report of 1800 defending the Virginia Resolutions of 1798. These resolutions asserted the states’ right and duty to “interpose” “in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact.”
The other position involved in this branch of the resolution, namely, “that the states are parties to the Constitution or compact,” is, in the judgment of the committee, equally free from objection. It is indeed true, that the term “states,” is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus, it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments, established by those societies; sometimes those societies as organized into those particular governments; and, lastly, it means the people composing those political societies, in their highest sovereign capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconveniency is produced by it, where the true sense can be collected with certainty from the different applications. In the present instance, whatever different constructions of the term “states,” in the resolution, may have been entertained, all will at least concur in that last mentioned; because, in that sense, the Constitution was submitted to the “states,” in that sense the “states” ratified it; and, in that sense of the term “states,” they are consequently parties to the compact, from which the powers of the federal government result.
When we understand that the people of the states ratified the Constitution, not “one people” as a “nation,” it follows that the states retain their nature as sovereign political societies, only relinquishing the authority and power delegated to the general government. In all other areas, the states retain their independent, sovereign character.
Next week we will look more closely at nullification.