Founders’ View: State Governments Are Above National Government

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Posted: May 08, 2019 9:00 AM
Founders’ View: State Governments Are Above National Government

Source: AP Photo/Evan Vucci

Alexis de Tocqueville, in 1835, directly acknowledged the supremacy, sovereignty, and independence of the States.  He writes “In short, there are twenty-four [because at the time of his writing only 24 States existed in the Union] small sovereign nations, whose agglomeration constitutes the body of the Union.”  Tocqueville continues stating the supremacy of the States in governance of their sovereign people.  “[T]he Government of the States is the rule,” announces Tocqueville,” The great political principles which govern American society at this day undoubtedly took their origin and their growth in the State.”[1]  Tocqueville’s comment “at this day” continues to be relevant as the Compact of America, our Covenant, is still the governing Charter of our Union.

Tocqueville affirms the authority of the state legislatures over the federal government; when he writes, “In America the legislature of each State is supreme; nothing can impede its authority…since it represents that majority which claims to be the sole organ of reason.”[2]  And, as Tocqueville acknowledged, “Each colony became an independent republic, and assumed an absolute sovereignty.”[3]  Tocqueville further explained that “The Government of the States is the rule, the Federal Government the exception…Thus the government of the States remained the rule, and that the Confederation became the exception.”[4]  He is acknowledging the supremacy of the separate States, as confirmed by the 9th and 10th Amendments, and also that the constitutions, whether the Articles or the Constitution, formed a republican Confederacy, not a nation-State.  “The United States form not only a republic, but a confederation,” cites Tocqueville, continuing by stating “the Union is only an assemblage of confederate republics.”[5]

Even the Anti-Federalist Papers,[6] the series of articles written by various authors to warn against potential dangers of tyranny from weaknesses proposed in the Constitution, used the terms Union and confederation/confederacy throughout many of the short treatises.   Patrick Henry warned, “be extremely cautious, watchful, jealous of your liberty; for, instead of securing your rights, you may lose them forever…the republic may be lost forever.  States are the characteristics and the soul of a confederation.” Henry’s cautionary counsel about our Confederation continued, “If the states be not the agents of this compact…what danger could have arisen under the present Confederation.”[7]  As will be discussed in further detail later, and most soundly noted by Patrick Henry, the states are sovereign and the federal government is a creature of the States.

Continuing in Anti-Federalist No. 45, Sydney[8] prophesied of the diminishing of the States and consumption of power by the federal government.  “The state governments are considered in [the new constitution] as mere dependencies,” foretells Sydney, “existing solely by its toleration, and possessing powers of which they may be deprived whenever the general government is disposed so to do.”  He continued explaining how it may happen either promptly or by slow absorption; writing, “whether it will be effected by rapid progression, or by as certain, but slower operations – what is to limit the oppression of the general government?”[9]  As per Sydney’s foretelling, the state governments today are mere servants to the powers of the now, no longer federal, but national government.  Sydney concluded by stating that the general government will “dissolve all the power of the several state legislatures, and destroy the rights and liberties of the people [and the State governments will be] a mere shadow and form without substance…we may say, Delenda vit America.”[10]

Thomas Jefferson, in the Kentucky Resolution of 1798, opened that the States are supreme over the federal government, that by compact a “general government is for special purposes” and “certain definite powers,” but each state reserves to itself” the “right to their own self-government.”[11]

[1] Alexis de Tocqueville, 2007 (originally published in 1835 and 1840), Democracy in America, Volumes 1 and 2, Unabridged, (Stilwell, KS: Digireads.com Publishing), pp. 50-51.

[2] Alexis de Tocqueville, 2007 (originally published in 1835 and 1840), Democracy in America, Volumes 1 and 2, Unabridged, (Stilwell, KS: Digireads.com Publishing), p. 71.

[3] Alexis de Tocqueville, 2007 (originally published in 1835 and 1840), Democracy in America, Volumes 1 and 2, Unabridged, (Stilwell, KS: Digireads.com Publishing), p. 87.

[4] Alexis de Tocqueville, 2007 (originally published in 1835 and 1840), Democracy in America, Volumes 1 and 2, Unabridged, (Stilwell, KS: Digireads.com Publishing), p. 88.

[5] Alexis de Tocqueville, 2007 (originally published in 1835 and 1840), Democracy in America, Volumes 1 and 2, Unabridged, (Stilwell, KS: Digireads.com Publishing), p. 90.

[6] Patrick Henry, Robert Yates, and Samuel Byron, The Anti Federalist Papers, 2010 (originally published 1787-1790), (Lexington, KY:  Pacific Publishing Studios).

[7] Antifederalist Paper No. 40, Patrick Henry, no date given, Taken from Patrick Henry, Robert Yates, and Samuel Byron, The Anti Federalist Papers, 2010 (originally published 1787-1790), “, (Lexington, KY:  Pacific Publishing Studios), p. 77 and p. 78.

[8] Sydney was Robert Yates.

[9] Antifederalist Paper No. 45, June 13 and 14, 1788, (published in the New York Daily Patriotic Register).  Taken from Patrick Henry, Robert Yates, and Samuel Byron, The Anti Federalist Papers, 2010 (originally published 1787-1790), “, (Lexington, KY:  Pacific Publishing Studios), pp. 90-91.  Also see Antifederalist Paper No. 49 for a further discussion by An Old Whig on the forfeiting of State power and the union of states.

[10] Antifederalist Paper No. 45, June 13 and 14, 1788, (published in the New York Daily Patriotic Register).  Taken from Patrick Henry, Robert Yates, and Samuel Byron, The Anti Federalist Papers, 2010 (originally published 1787-1790), “, (Lexington, KY:   Pacific Publishing Studios), p. 93.   Note that “Delenda vit America” is a Carthaginian reference and is Latin for America destroyed my life.   See the entirety of Anti Federalist Paper No. 45 for a thorough discussion on the power issue between the State and general governments.

[11] William J. Watkins, Jr., 2008 (originally published in 2004), Reclaiming the American Revolution:  The Kentucky and Virginia Resolutions and their Legacy, (The Independent Institute, Palgrave Macmillan:  Oakland, CA, New York, NY), p. 59