Sovereignty of these United States


by edpell
Tags: sovereignty, states, united
edpell
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Apr15-10, 05:41 PM
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When in history did we go from the States being sovereign and over the Federal government to the Federal government being sovereign and over the States?

The founders like Jefferson, Adams, Hamilton, Marshall and Webster all understood the States as sovereign with the right to secede.
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mgb_phys
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Apr15-10, 06:53 PM
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Pretty much as soon as the federal government could.
russ_watters
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Apr15-10, 08:26 PM
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Quote Quote by edpell View Post
When in history did we go from the States being sovereign and over the Federal government to the Federal government being sovereign and over the States?
September 17, 1787, the day the Articles of Confederation were replaced by the US Constitution, replacing state sovereignty with federal sovereignty.
The founders like Jefferson, Adams, Hamilton, Marshall and Webster all understood the States as sovereign with the right to secede.
Nonsense. Cite your source or retract your claim.

...Let me just cut to the chase: Hamilton wrote some of the Federalist Papers, Adams was a member of the Federalist party when elected President and Marshall helped defined the role of the federal government as one of the first chief justices of the USSC.

TheStatutoryApe
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Apr15-10, 09:14 PM
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Sovereignty of these United States


Quote Quote by russ_watters View Post
September 17, 1787, the day the Articles of Confederation were replaced by the US Constitution, replacing state sovereignty with federal sovereignty. Nonsense. Cite your source or retract your claim.

...Let me just cut to the chase: Hamilton wrote some of the Federalist Papers, Adams was a member of the Federalist party when elected President and Marshall helped defined the role of the federal government as one of the first chief justices of the USSC.
Still the constitution was rather strictly interpreted to maintain the freedoms of the states from the federal government until rather recently. The Constitution certainly gave a stronger position and more power to the federal government than did the Articles but that really isn't saying much since the Articles gave little power to the federal government and supplied virtually no means of actually wielding what power it did possess.
russ_watters
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Apr16-10, 06:04 AM
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Certainly, the Articles were a contradiction - it is a wonder how the founders ever believed they would work! But the Constitution is explicit on the matter:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
And what do you mean by enforcement exactly? Ultimately, there is only one true form of political power in the world and it comes out the barrel of a gun. The goal of a social contract type government is for the citizens to be happy enough with it that the government doesn't need to use its gun (much).
Pythagorean
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Apr16-10, 06:42 AM
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The federalists were pretty much working at it since the beginning, starting with a federal treasury.

The civil war resulted in a strengthening of the union and the 14th amendment made us all federal citizens (instead of pure sovereigns).
mheslep
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Apr16-10, 02:05 PM
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To place this in the OP's terms, the 1787 constitution made the Federal government sovereign for the specifically enumerated powers in the constitution. The founders took pains through the tenth amendment and through the federalist papers to make that point clear: unless claimed otherwise by the constitution, the states remain sovereign.

As Statutory Ape points out, that state of affairs has changed along the way. The last gasp so to speak of the old order was in US v Butler, where the court struck down the Federal govt paying farmers to take land out of circulation:

Quote Quote by US v Butler
The act invades the reserved rights of the states. It is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government. The tax, the appropriation of the funds raised, and the direction for their disbursement, are but parts of the plan. They are but means to an unconstitutional end.
After FDR's court packing threats the court started reversing itself over several cases in the late 1930s, culminating in US v. Darby (1941):
Quote Quote by US v Darby
The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.....
which I suppose is now the law of the land. But, the constitution is in my view one of the more carefully crafted and succinct writings in existence. The idea that the founders dumped superfluous amendments in it is crock.
mheslep
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Apr16-10, 02:14 PM
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Quote Quote by russ_watters View Post
Certainly, the Articles were a contradiction - it is a wonder how the founders ever believed they would work! But the Constitution is explicit on the matter:
any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Therein lies the issue. Clearly, this phrase must be taken in the context that the federal government is sovereign for only the matters enumerated in the constitution, and thus does not allow the federal government to be sovereign over the states in anything it attempts to do.
russ_watters
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Apr16-10, 02:51 PM
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Quote Quote by mheslep View Post
Therein lies the issue. Clearly, this phrase must be taken in the context that the federal government is sovereign for only the matters enumerated in the constitution, and thus does not allow the federal government to be sovereign over the states in anything it attempts to do.
You misread the line. That's not the US Constitution it is talking about, it is state constitutions. It's saying that state constitutions and laws may not contradict the US constitution or laws.

Showing proper emphasis: "...any Thing in the Constitution or Laws of any State to the Contrary, notwithstanding."
russ_watters
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Apr16-10, 02:54 PM
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Quote Quote by Pythagorean View Post
The civil war resulted in a strengthening of the union and the 14th amendment made us all federal citizens (instead of pure sovereigns).
That portion of the 14th amendment is redundant in that it says basically the same thing as Article 6, quoted above. It was necessary only because Article 6 wasn't being properly followed. Wiki has articles on both, for reference:

http://en.wikipedia.org/wiki/Fourtee...s_Constitution
http://en.wikipedia.org/wiki/Privile...unities_Clause
http://en.wikipedia.org/wiki/Supremacy_Clause

The primary author of the Privileges or Immunities Clause was Congressman John Bingham of Ohio. Bingham's main inspiration was the Privileges and Immunities Clause in Article Four of the original unamended Constitution,[1] which provided: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
russ_watters
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Apr16-10, 03:15 PM
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Quote Quote by mheslep View Post
...which I suppose is now the law of the land. But, the constitution is in my view one of the more carefully crafted and succinct writings in existence. The idea that the founders dumped superfluous amendments in it is crock.
Your opinion, but that quote isn't the only court decision or historical precident to say it is superfluous:
Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified. [emphasis added] [1931]
and:
That this provision was not conceived to be a yardstick for measuring the powers granted to the Federal Government or reserved to the States was firmly settled by the refusal of both Houses of Congress to insert the word ''expressly'' before the word ''delegated,'' 3 and was confirmed by Madison's remarks in the course of the debate which took place while the proposed amendment was pending concerning Hamilton's plan to establish a national bank. ''Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States.'' 4 Nevertheless, for approximately a century, from the death of Marshall until 1937, the Tenth Amendment was frequently invoked to curtail powers expressly granted to Congress, notably the powers to regulate commerce, to enforce the Fourteenth Amendment, and to lay and collect taxes.
http://caselaw.lp.findlaw.com/data/c...t10/01.html#f3

In any case, you said it appears clearly in the federalist papers that this wasn't the intent: do you have a particular one in mind?
mheslep
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Apr16-10, 03:16 PM
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Quote Quote by russ_watters View Post
You misread the line. That's not the US Constitution it is talking about, it is state constitutions. It's saying that state constitutions and laws may not contradict the US constitution or laws.
Yes you're right I misread, though I think the point still holds. The authority of the federal government is, or should be, limited only to that which is enumerated in the constitution, and the general welfare language is not a do-what-you-will escape clause for the Fed. Otherwise the states are sovereign.
mheslep
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Apr16-10, 03:21 PM
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Quote Quote by russ_watters View Post

In any case, you said it appears clearly in the federalist papers that this wasn't the intent: do you have a particular one in mind?
Oh yes, 45 to start.
The Alleged Danger From the Powers of the Union to the State Governments Considered

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
I'd say Madison's first sentence has been almost exactly reversed in the modern era. It's a retro history parlor game to say so, but if the Depression era acts of Congress could have been forseen, and given the concerns of those which Madison attempts to allay above, this constitution never gets ratified as is in 1789.

Edit: And 39, which shows the care taken in striking a balance between loose confederacy (ie federal government) and a strong monolithic (ie national government)
The Conformity of the Plan to Republican Principles

Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution.

The next relation is, to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many FEDERAL as NATIONAL features.

The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the NATIONAL, not the FEDERAL character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a NATIONAL government.
Pythagorean
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Apr16-10, 03:21 PM
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Quote Quote by russ_watters View Post
That portion of the 14th amendment is redundant in that it says basically the same thing as Article 6, quoted above. It was necessary only because Article 6 wasn't being properly followed. Wiki has articles on both, for reference:

http://en.wikipedia.org/wiki/Fourtee...s_Constitution
http://en.wikipedia.org/wiki/Privile...unities_Clause
http://en.wikipedia.org/wiki/Supremacy_Clause
The redundancy seems to be in the line:

""No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.""

The line I'm talking about:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. "

Where they created a kind of dual-citizenship. The folklore (i.e. Authors like Lynne Meredith) claims that this was because they wanted to control the rights of newly freed slaves to make sure that they didn't have pure sovereign rights (so they couldn't quickly move in on politics and/or become land owners).

So they compromised, the legend goes, and made us all half-slaves by putting us in debt with national treasury, and carrying that debt through the US Dollar and its taxes.

The general idea is that you still have your sovereign rights, but you can easily sign them away by entering into the contract with the US Federal Government (i.e., allowing yourself to become a Federal citizen under 14th amendment).

Meredith (and other sovereign authors) talk about all the ways we accept this citizenship, and enter unknowingly into a commercial contract with the government (by using zipcodes and federal codes for states in our mail: like AK, OR, WA. By checking "YES, I'm a US Citizen" on forms, by carrying US Federal Notes (US Dollars).


Of course, I don't know how much of this is true, but for a long time, people used it to get out of punishment for statutory laws (which is allegedly bound by the UCC and violates constitutional rights) and not pay taxes.

Most of them were actually successful in terms of legality, but the authors that distributed this information eventually got raided by the IRS.

As a personal anecdote, I relied on the Jefferson Party website, which pertains more to
Alaska (which started as a Foreign Trade Zone, so has a slightly different backbone of law.
I used their website to legally get out of a handful of moving violations (which actually prompted the local court system to skip the preliminary hearings for traffic violations: now we either turn in our ticket with money or we don't... and get a bench warrant... the preliminary hearing was the only opportunity to state your case constitutionally. Now you get arrested, spend a night in jail, and then state your case constitutionally. Not worth the night in jail)


The Jefferson Party website is now associated with malware. This is strange to me, because I know the group that ran it and they're not out to destroy people's computers, they're actually vigilantly trying to spread the word and increase public awareness. I can't help but suspect a third-party is involved here:

Here's google's warning page about the site

http://www.google.com/interstitial?u....jusbelli.com/
brainstorm
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Apr16-10, 10:17 PM
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What does sovereignty really mean in a republic anyway? The whole point of a republic is to allow citizens to self-govern by rule of reason. The branches of government are supposed to check and balance each other and protect the sovereign rights and freedoms of individuals.

This may be my own interpretation or not, I'm not sure, but it seems like the purpose of dividing power between federal and state governments is that they should check and balance each other's power to assure that no individual's rights and freedoms are solely conditional on the power of a single level of authority.

In other words, sovereignty is supposed to be multiple to prevent autocracy. If the point had ever been to delegate absolute sovereignty to any level of society from the president to the landlord, the whole principle of all people being equal and having inalienable rights and freedoms would have been compromised, because a single sovereign government or governor would have a monopoly on the institutional means of claiming those rights for the people within their jurisdiction.
TheStatutoryApe
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Apr16-10, 11:56 PM
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Quote Quote by Russ
And what do you mean by enforcement exactly? Ultimately, there is only one true form of political power in the world and it comes out the barrel of a gun. The goal of a social contract type government is for the citizens to be happy enough with it that the government doesn't need to use its gun (much).
In my perception the confederate states was much like a large scale formalized syndicalist style government. The Federal government was not an autonomous authoritative body but rather more a forum for voicing and resolving grievances. Resolutions arrived at by the fed were to be followed but this hinged on the willingness of the individual states to actually enforce any particular resolution. The problem here, as with most syndicalist style governments, was that those states with greater wealth, resources, and access to shipping lanes and ports necessarily made a far weightier vote than the less wealthy states. The consequence being that few wished to go against them and even if a resolution was made against these states they could easily flout the resolution without much concern that any of those states who rely upon them would actually attempt to enforce it. The effect of course is that the federal government made many resolutions that the governors of individual states were unwilling to abide or enforce.

Quote Quote by Russ
You misread the line. That's not the US Constitution it is talking about, it is state constitutions. It's saying that state constitutions and laws may not contradict the US constitution or laws.
The issue here is that the fed was not considered to have the authority to abridge state law through its actions unless the constitution gave it the explicit authority to do so. So congress could pass federal laws only so long as the subject of those laws fell squarely within the domain of the federal government and, assuming this criterion was met, no state law could then countermand the federal law. Mostly it has been invoked with regard to treaties as the fed reserves absolute authority to enter into treaties. Any treaty made by the Executive and ratified by congress, so long as its provisions do not violate the constitution, is supreme and countermands any laws of any individual state.

Quote Quote by Russ
That portion of the 14th amendment is redundant in that it says basically the same thing as Article 6, quoted above. It was necessary only because Article 6 wasn't being properly followed. Wiki has articles on both, for reference:
The Privileges and Immunities clause has always been interpreted as a remedy for the issue of individual states instituting discriminatory laws and taxes aimed at citizens of others states. This was a major issue under the Confederate States which was never adequately addressed.

The Fourteenth Amendment specifically requires states to recognize the right of its citizens to Due Process of Law and Equal Protection. Until this amendment was instituted the Bill of Rights was considered to only apply to the federal government. Since then the USSC has slowly but surely been defining Due Process and insinuating the various rights of the amendments one by one, a change that has been ongoing even through the last century and still a couple of those rights have not been incorporated.

Quote Quote by Brainstorm
What does sovereignty really mean in a republic anyway? The whole point of a republic is to allow citizens to self-govern by rule of reason. The branches of government are supposed to check and balance each other and protect the sovereign rights and freedoms of individuals.

This may be my own interpretation or not, I'm not sure, but it seems like the purpose of dividing power between federal and state governments is that they should check and balance each other's power to assure that no individual's rights and freedoms are solely conditional on the power of a single level of authority.

In other words, sovereignty is supposed to be multiple to prevent autocracy. If the point had ever been to delegate absolute sovereignty to any level of society from the president to the landlord, the whole principle of all people being equal and having inalienable rights and freedoms would have been compromised, because a single sovereign government or governor would have a monopoly on the institutional means of claiming those rights for the people within their jurisdiction.
The Constitution has been interpreted as a contract between the states and not of the people so the rights and limitations in the Constitution, unless otherwise specified, are considered to only apply to the federal government and its relationship with its citizens and the states.
brainstorm
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Apr17-10, 09:11 AM
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Quote Quote by TheStatutoryApe View Post
In my perception the confederate states was much like a large scale formalized syndicalist style government. The Federal government was not an autonomous authoritative body but rather more a forum for voicing and resolving grievances. Resolutions arrived at by the fed were to be followed but this hinged on the willingness of the individual states to actually enforce any particular resolution. The problem here, as with most syndicalist style governments, was that those states with greater wealth, resources, and access to shipping lanes and ports necessarily made a far weightier vote than the less wealthy states. The consequence being that few wished to go against them and even if a resolution was made against these states they could easily flout the resolution without much concern that any of those states who rely upon them would actually attempt to enforce it. The effect of course is that the federal government made many resolutions that the governors of individual states were unwilling to abide or enforce.
It seems to me that when you try to resolve this by giving less powerful entities more power, it only ends up magnifying the problem since those more powerful only work harder to buy the power of the "little guys" who have been given more power artificially. In other words, it just gives small players more bargaining power to become subsidiaries of bigger players. What would motivate a less powerful entity to actually utilize its power to stand up to bigger players, instead of just trading its power for a greater portion of the spoils?

The issue here is that the fed was not considered to have the authority to abridge state law through its actions unless the constitution gave it the explicit authority to do so. So congress could pass federal laws only so long as the subject of those laws fell squarely within the domain of the federal government and, assuming this criterion was met, no state law could then countermand the federal law. Mostly it has been invoked with regard to treaties as the fed reserves absolute authority to enter into treaties. Any treaty made by the Executive and ratified by congress, so long as its provisions do not violate the constitution, is supreme and countermands any laws of any individual state.
This reads like something a lawyer would write trying to specify and delimit rights and powers in order to contain them. What about the fact that these entities are supposed to check and balance each other, not just restrain themselves to their defined terrain?

The Constitution has been interpreted as a contract between the states and not of the people so the rights and limitations in the Constitution, unless otherwise specified, are considered to only apply to the federal government and its relationship with its citizens and the states.
So you are saying that state agents have no responsibility to observe the rights and limitations of the constitution? That doesn't make any sense? Why would anyone be immune from observing constitutional rights just because they have the privilege of claiming state authority? That sounds like confederationism.

I think the EU still protects state authority against federal intervention to a large degree. Last I heard, for example, the EU state governments determine citizenship and only people with EU state citizenship can get EU passports, but that may have changed.
mgb_phys
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Apr17-10, 11:15 AM
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Quote Quote by brainstorm View Post
Last I heard, for example, the EU state governments determine citizenship and only people with EU state citizenship can get EU passports, but that may have changed.
There are no eu passports or eu citizenship. Citizens of each member state can live and work in any member country . Although the eu has 'influnced' a few countries' rules on how they grant citizenship.

Quote Quote by brainstorm View Post
I think the EU still protects state authority against federal intervention to a large degree.
Still creates a few interesting political positions - each nations government argues that as much power as possible must be concentrated at national level - less bureaucracy / close to the people / accountable / no super-state etc.
While at the same fighting independance for local regions - because power given out to local areas leads to inefficiencies, unaccountability, less power for people, breakdown of nations etc.


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