"Federal" Components
Several "federal" components were incorporated in the original Constitution of the United States as features to preserve the "compound" nature of the government and the participation of the separate State government in such decisions as Treaty ratification. Some of these have been removed or modified at various periods during our history:
Alexander Hamilton in "The Federalist No. 9" states:
"...The proposed Constitution, so far from implying an abolition of the State Governments, makes them constituent parts of the national sovereignty by allowing them direct representation in the Senate, and leaves them in possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the ideal of a Foederal Government."
St. George Tucker, Blackstone's Commentaries: With Notes of Refernce to The Constitution and Laws of the Federal Government of the United States; and the Commonwealth of Virginia, William Young Birch, and Abraham Small; Philadelphia, c 1803. "View of the Constitution of the United States."
"It is a federal compact; several sovereign and independent states may unite themselves together by a perpetual confederacy, without each ceasing to be a perfect state. They will together form a federal republic: the deliberations in common will offer no violence to each member, though they may in certain respects put some constraint on the exercise of it, in virtue of voluntary engagements [Vattel, B. 1. c. 1 º. 10.]. The extent, modifications, and objects of the federal authority are mere matters of discretion; so long as the separate organization of the members remains, and from the nature of the compact must continue to exist, both for local and domestic, and for federal purposes; the union is in fact, as well as in theory, an association of states, or, a confederacy [Federalist, vol. 1. p. 51. 52.]. The state governments not only retain every power, jurisdiction, and right not delegated to the United States, by the constitution, nor prohibited by it to the states [Amendments to C. U. S. art. 12.], but they are constituent and necessary parts of the federal government; and without their agency in their politic character, there could he neither a senate, nor president of the United States; the choice of the latter depending mediately, and of the former, immediately, upon the legislatures of the several states in the union [C. U. S. art. 1. 2.]...
Article I, Section 3.1. of the Constitution regarding the Senate originally provided that:
"The Senate of the United States shall be composed of two Senators form each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote." (Amended by XVII in 1913, to election of Senators by the people of the State.)
In "The Federalist" No. 62, James Madison states of the composition of the Senate:
"...that the equal vote allowed to each state, is at once a constitutional recognition of the portion of sovereignty remaining in the individual states, and an instrument for preserving that residuary sovereignty..."
Article II, Section 1.2 of the Constitution regarding the election of the of the President and Vice-President originally provided that the State would appoint electors equal to the whole number of Senators and Representatives to which they were entitled in Congress (or Electoral College.)
Under Section 1.3, these electorates would meet by State and vote for two persons, at least one of whom would not be an inhabitant of that State. The list of names and votes for each would be forwarded to the President of the Senate. All lists would be compiled and the person having the greatest number of votes as well as a majority of the votes of the combined electors would be President of the United States. If there was a tie, the House would choose. If no candidate had a majority, then the House would choose from the five highest names, In the manner of choice, each State delegation in the House would have one vote and choice would require a majority of State votes. The candidate with the next highest number of votes would be Vice-President. If there was a tie for second, the Senate would choose by ballot.
(Amended by XII 1803-1804 to allow for separate voting by the State electorate for President and Vice-President. In the case of a lack of a majority vote for one Presidential candidate, the amendment changes the number of candidates to three for selection by the House. A similar provision is made for lack of majority for Vice-Presidential candidate, allowing for a choice among the top two candidates by the Senate. Otherwise, provisions remain essentially the same.)
Article V. of the Constitution reads as follows:
"The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification shall be proposed by the Congress; provided that no amendment which shall be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate."
The principles of "comity" between the several "sovereign" States were continued in the clauses regarding "full faith and credit," "privileges and immunities" of State citizens and extradition:
Article. IV. Section. 1. of the Constitution:
"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
Article. IV. Section. 2. of the Constitution:
"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
"A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
"No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due." [Modified by Amendment XIII].
The separate commercial "sovereignty" of each State from one another was recognized in early cases regarding questions of inter-state recognition of corporate privileges to contract and sue. In Bank of Augusta v. Earle, 38 U.S. 519 (1839), the Court grappled with the argument that by principles of "comity" under the Law of Nations, it was presumed that corporations could contract out of the countries in which they were created, unless specifically prohibited from doing so either by their own charter or by the laws of the foreign nation in which they were contracting. that the law did not apply to the several United States as they were not nations to one another.
Chief Justice Taney for the Court stated:
"...The cases of contracts made in a foreign country are familiar examples; and Courts of justice have always expounded and executed them, according to the laws of the place in which they were made; provided that law was not repugnant to the laws or policy of their own country. The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered; and is inadmissible when contrary to its policy, or prejudicial to its interests. But it contributes so largely to promote justice between individuals, and to produce a friendly intercourse between the sovereignties to which they belong; that Courts of justice have continually acted upon it, as a part of the voluntary law of nations. It is truly said, in Story's Conflict of Laws, 37, that 'In the silence of any positive rule, affirming, or denying, or restraining the operation of foreign laws, Courts of justice presume the tacit adoption of them by their own government; unless they are repugnant to its policy, or prejudicial to its interests. It is not the comity of the Courts, but the comity of the nation which is administered, and ascertained in the same way, and guided by the same reasoning by which all other principles of municipal law are ascertained and guided.' Adopting, as we do, the principle here stated, we proceed to inquire whether, by the comity of nations, foreign corporations are permitted to make contracts within their jurisdiction; and we can perceive no sufficient reason for excluding them, when they are not contrary to the known policy of the state, or injurious to its interests..."
"...We think it is well settled, that by the law of comity among nations, a corporation created by one sovereignty is permitted to make contracts in another, and to sue in its Courts; and that the same law of comity prevails among the several sovereignties of this Union...Whenever a state sufficiently indicates that contracts which derive their validity from its comity are repugnant to its policy, or are considered as injurious to its interests; the presumption in favour of its adoption can no longer be made."
"It has, however, been supposed that the rules of comity between foreign nations do not apply to the states of this Union; that they extend to one another no other rights than those which are given by the Constitution of the United States; and that the Courts of the general government are not at liberty to presume, in the absence of all legislation on the subject, that a state has adopted the comity of nations towards the other states, as a part of its jurisprudence; or that it acknowledges any rights but those which are secured by the Constitution of the United States. The Court think otherwise. The intimate union of these states, as members of the same great political family; the deep and vital interests which bind them so closely together; should lead us, in the absence of proof to the contrary, to presume a greater degree of comity, and friendship, and kindness towards one another, than we should be authorized to presume between foreign nations. And when (as without doubt must occasionally happen) the interest or policy of any state requires it to restrict the rule, it has but to declare its will, and the legal presumption is at once at an end. But until this is done, upon what grounds could this Court refuse to administer the law of international comity between these states? They are sovereign states; and the history of the past, and the events which are daily occurring, furnish the strongest evidence that they have adopted towards each other the laws of comity in their fullest extent..."
