Written by ELP Strategic Development Manager Jack McPherson
Editor’s Note: This is the first of a three-part series that examines the constitutional role of the States in utilizing Article V of the Constitution as a means of self-correction.
Americans often misunderstand the constitutional role of the States, and that misunderstanding has obscured one of the Constitution’s most important mechanisms of self-correction: the power of the people, acting through their States, to propose amendments under Article V. Some reduce state authority to the compromised slogan of “states’ rights,” often invoked in anachronistic defenses of the Confederate rebellion in the Civil War, erroneously described by some as the “war of northern aggression.”
Others commit the opposite error, treating the States as mere administrative subdivisions of a consolidated national government. Neither view captures the meaning of Federalism. A proper understanding of Federalism rather affirms the following: the States are republican political communities through which the people participate in the federal order; Article V is a lawful and excellent outflow of that role; and the present Convention of States movement is a prudent and urgently necessary exercise of constitutional political agency.
In order to fully grasp what the States are and what they do, let us turn our attention to James Madison’s Federalist 39 and 45, wherein the great constitutional architect writes that the Federal government’s powers are “few and defined”, while those retained by the States are “numerous and indefinite”. Here, Madison calls the States “constituent and essential parts” of the Federal system itself. The States, for Madison, are not artifacts, local federal administrators, or at-will adherents to a contractual obligation, empowered to terminate the contract when convenient, now only holding hands as a mere league of detachable sovereignties. Rather, Madison’s explanation in Federalist 39 is more exacting:
On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a NATIONAL, but a FEDERAL act.
The Constitution’s authority comes from the people, but not from the people considered only as one undifferentiated mass. It therefore must be said that the people—not the States—ratified the Constitution and its subsequent amendments, having done so through the apparatuses of “the distinct and independent States to which they respectively belong”. Here, the use of the word “independent” does not mean the States themselves exist preeminently to the entire regime. Rather, “independent” here affirms the States’ individuality and constitutionality apart from any other State, while serving to constitute the whole people (not as one gigantic mass, but as subsidiary parts comprising a popular whole), with each State possessing a legal stake in federal discourse equivalent to that of any other State.
This affirms each State as a political community through which the citizens in that State act. The people in that State possess their own republican constitution, their own laws, their own officers, and their own sphere of reserved authority. Article IV of the United States Constitution confirms that every State in the Union is to have a “Republican Form of Government”, while the Tenth Amendment preserves powers not delegated to the Federal government, nor prohibited to the States, “to the States respectively, or to the people”.
With this said, there is also a limiting principle placed on State sovereignty, which cannot in good faith be argued for as an unlimited good; if the enumerated powers of the Federal government are limited, such a limitation forms a boundary for the “numerous and indefinite” powers of the several States. Considering this, Madison explicitly asserts that the States only Constitutionally operate in their individuality and sovereignty insofar as “the public good, the real welfare of the great body of the people, is the supreme object” they pursue [italics my own]. State sovereignty, States’ power, and States’ participation in Federalism therefore can only be adequately exercised as a means by which the common good of the people of the one state and of each one of the several States is secured.
To further clarify this point, it must be said that this approach must not require a uniformity in the laws and codes which each State chooses to adopt. Rather, it requires that the laws and codes adopted by each state be directed interiorly to the welfare of its citizens and exteriorly to the common good of the citizens of one and of every State, as opposed to implementing laws or codes to the detriment or exploitation of any other.
Any measure in effect in any State which purports to achieve the common good for one State or for the several States, and violates either, is unconstitutional (e.g., the laws and measures of the State of Texas, for example, must provide for the common good for all Texans, and all citizens of the several states, and not doing so at the expense of the common good of a people from any other one State, or at the expense of the common good of the whole people of the country).
Another tenet (also affirmed by Federalist 39) of State participation in Federalism is the way in which the States are mediating vessels through which the will of the people—the residual claimants of all political power in the American regime—is communicated and acted upon. Madison is careful to clarify this mediated popular participation as that “derived from the supreme authority in each State, the authority of the people themselves”. The act of ratification, and any other subsequent act concerning the Constitution, Madison argues, is therefore “a FEDERAL act”.
It is important to note here that the term “mediated” in this context in no way refers to a process by which the power and agency of the people is somehow watered-down, distilled, mitigated, or otherwise degraded. Rather, it is very purely, and only, mediated. Being mediators, States are not simply passive channels for popular sovereignty. The State governments are erected and its representatives are chosen by the people themselves of each State, which constitute collections of national will and loci of national force.
Therefore, it can be said that States are constitutional communities through which the people deliberate, elect, legislate, govern, resist encroachment, and preserve the conditions of self-government. In other words, the States are bodies through which the American People live out a political principle as old classical Rome which also formed the core character of medieval political philosophy (both of which inexorably influenced the Founders): Quod omnes tangit, ab omnibus approbetur (what touches all must be approved by all).
Once this is understood, the States’ role in constitutional amendment will appear less like a procedural curiosity and more like the natural flowering of Federalism.