SOVEREIGNTY - REFINED
Absolutely essential to the clear understanding of the Constitutional framework of power in the United States is a grasp of the subtleties understood in the concepts of "sovereignty" and "sovereign" represented by our "bottom-up" system.
In Chisholm, Ex'r. v. Georgia, 2 Dall, 419, 1 U.S. (L.ed., 454, 457, 471, 472), 1793, Justice Wilson stated:
"To the Constitution of the United States the term SOVEREIGN is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves 'SOVEREIGN' people of the United States. But serenely conscious of that fact, they avoided the ostentatious declaration." at 454.
"In another sense, according to some writers, every State which governs itself without any dependence on another power, is a sovereign State. Whether, with regard to her own citizens, this is the case of the State of Georgia; whether those citizens have done, as the individuals of England are said, by their late instructors, to have done, surrendered the Supreme Power to the State or Government, and reserved nothing to themselves; or whether, like the people of other States, and of the United States, the citizens of Georgia have reserved the Supreme Power in their own hands; and on that Supreme Power have made the State dependent, instead of being sovereign...As a citizen, I know the Government of the State to be republican; and my short definition of such a Government is, - one constructed on this principle, that the Supreme Power resides in the body of the people. As a Judge in this court, I know, and can decide upon the knowledge, that the citizens of Georgia, when they acted upon the large scale of the Union, as part of the 'People of the United States,' did not surrender the Supreme or sovereign Power to that State; but, as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia is not a sovereign State..." at 457.
In the same case, Justice Iredell made the following statements:
"...A State does not owe its origin to the Government of the United States, in the highest or in any of its branches. It was in existence before it. It derives its authority from the same pure and sacred source as itself: The voluntary and deliberate choice of the people. A State, though subject in certain specified particulars to the authority of the Government of the United States, is in every other respect totally independent upon it. The people of the State created, the people of the State can only change, its Constitution. Upon this power there is no other limitation but that imposed by the Constitution of the United States; that it must be of the Republican form.."
(Primary reference, Gordon S. Woods, The Creation of the American Republic 1776-1787, W.W. Norton & Co., c 1969.)
In the larger sense, under the political ideology of the American Revolution, sovereignty was recognized as vested perpetually in the body of the people formed through social compact. Acting as a "body politic" through the vehicle of "conventions," the people were capable of devising any manner of self-government they wish; or could alter or abolish existing government.
As James Wilson stated:
"It [sovereignty] resides in the PEOPLE, as the fountain of government." "They have not parted with it; they have only dispensed such portions of power as were conceived necessary for the public welfare." Sovereignty always remains with the people-at-large; "they can delegate it in such proportions, to such bodies, on such terms, and under such limitations, as they think proper." (The Creation of the American Republic at 530.)
Once this is understood, only then is it possible to grasp how, under the Constitutional framework, the people "may take from subordinate governments powers with which they have hitherto trusted them, [States] and place these powers in the general [federal] government...They can distribute one portion of power to the more contracted circle called the State governments; they can also furnish another proportion to the government of the United States." (at 530-31)
When the Articles of Confederation proved ineffective for coercing the legislatures of the several States to implement federal decisions and agreements, the need for reform became apparent. In the process of reform, the "body politic" formally and ceremoniously removed from each State a selective portion of the political attributes of sovereignty necessary to function effectively on various levels domestically and internationally as one nation. Then, through the written document of the Constitution of the United States, the people of each State delegated power to a President and federal Congress to serve as their agents, authorized to act only through specific institutions and in specifically enumerated areas that represented selective attributes of national sovereignty. Similar to a limited "power of attorney," the federal government, as an agent, has no authority to assume powers beyond those specified.
In essence, on the external International scale of the "law of Nations," a sovereign nation was confirmed and authorities delegated to specific institutions (the Presidency and Senate comprised of representatives selected by the State legislatures,) to function in international foreign relations. On the domestic level, a general government of federal form was delegated certain powers for limited national purposes. Under their original territorial sovereignty, the individual States retained the mass of "police" or municipal powers to regulate actions within their boundaries.
On the domestic level, each State remains independent, "foreign" to, yet co-equal, with all other States, representing entirely different sovereignties from which their delegated authority eminates. In like respect, the federal government is "foreign" in relationship to the States, drawn from an entirely different sovereignty. The Constitution of the United States specifies the framework that allows these various governments to maintain their separate orbits, providing a firewall against the irresistible pull toward hierarchial integration.
Commented Justice Frankfurter in Bartkus v. Illinois, 359 U.S. 121 (1959):
"Some recent suggestions that the Constitution was in reality a deft device for establishing a centralized government are not only without factual justification but fly in the face of history. It has more accurately been shown that the men who wrote the Constitution as well as the citizens of the member States of the Confederation were fearful of the power of centralized government and sought to limit its power. Mr. Justice Brandeis has written that separation of powers was adopted in the Constitution 'not to promote efficiency but to preclude the exercise of arbitrary power.' Time has not lessened the concern of the Founders in devising a federal system which would likewise be a safeguard against arbitrary government..."
