CHAPTER 7

Two American Revolutions Made You Sovereign

A thirst for power, and the bantling, I had liked to have said monster
[his emphasis] for sovereignty, which have taken such fast hold of the
states individually will ... form a strong phalanx against it [the
proposed Federal Government] ... Yet I would fain try what the wisdom of
the proposed Convention will suggest ... It may be the last peaceable
mode. -- George Washington of Virginia, March 10, 1787.

Col. Mason, [of Virginia, asked]: Is it to be thought that the people of
America, so watchful over their interest, so jealous of their liberties,
will give up their all, will surrender both the sword and the purse, to
the same body, and that too not chosen directly by themselves? ... Why
is it hoped that they will part with it to a National Legislature? The
proper answer is that in this case they do not part with power: They
only transfer it from one set of immediate representatives to another
set ... He took this occasion to repeat, that notwithstanding his
solicitude to establish a national Government ... "I never will consent
to destroying the State governments, and will ever be as careful to
preserve the one as the other ... That the one government will be
productive of disputes and jealousies against the other, I believe; but
it will produce mutual safety." -- Madison's Journal of the Federal
Convention, June 20 1787.[1]

The question turns, sir, on ... the expression "We, the people" instead
of the States of America. [His emphasis] I need not take much pains to
show that the principles of this system are extremely pernicious,
impolitic and dangerous ... Here is a solution as radical as that which
separated us from Great Britain ... Our rights and privileges are
endangered, and the sovereignty of the States will be relinquished." --
Patrick Henry, opposing ratification of the Federal Constitution by
Virginia, June 5,1788.

Confusion has run rife over sovereignty ever since the American
Revolution founded the United States on a revolutionary concept of it.
There was no such confusion before because there was no such challenge
to the hoary dogma that held the State supreme, with man its subject,
made to serve it. That dogma then governed not only the external affairs
of all of them but, as we have noted, their internal affairs, too. Even
in such rare exceptions as the Swiss cantons, it was not challenged
clearly, dramatically, as it was in the American Revolution.

True, it had been challenged in the English Revolution of the
seventeenth century, and the drama there was personal to a point it
never reached in the American Revolution. The latter cut off,
politically, the sovereign King and Parliament who sought to tax British
subjects without the consent of their representatives, whereas in the
English Revolution Parliament physically cut off the head of the
sovereign who had governed England unlimited by Parliament.[2] But
though such stark personification of the issue undoubtedly deepens
drama, it confuses thought with emotion. Even without this troubling
factor, the English Revolution was far from being as clear on principle
as was the American Revolution it helped inspire.

Moreover "about the year 1770," as Lord Acton pointed out in his History
of Freedom, "things had been brought back ... nearly to the condition
which the [English] Revolution had been designed to remedy forever.
Europe seemed incapable of becoming the home of free States. It was from
America that the ... ideas long locked in the breast of solitary
thinkers, and hidden among Latin folios -- burst forth like a conqueror
upon the world they were destined to transform, under the title of the
Rights of Man ... The general presumption was immense on the side of
authority; and the world believed that the will of the constituted ruler
ought to be supreme, and not the will of the subject people. Very few
bold writers went so far as to say that lawful power may be resisted in
cases of extreme necessity. But the colonizers of America ... who had
gone forth not in search of gain, but to escape from laws under which
other Englishmen were content to live were ... sensitive even to
appearances."[3]

Lord Acton added later:

American independence was the beginning of a new era, not merely as a
revival of Revolution, but because no other Revolution ever proceeded
from so slight a cause, or was ever conducted with so much moderation.
... It established ... democracy in its highest perfection, armed and
vigilant, less against aristocracy and monarchy than against its own
weakness and excess. Whilst England was admired for the safeguards with
which, in the course of many centuries, it had fortified liberty against
the power of the crowd, America appeared still more worthy of
admiration for the safeguards which, by the deliberations of a single
memorable year [1787], it had set up against the power of its own
sovereign people.[4]

THE TWO AMERICAN REVOLUTIONS

The American Revolution was, in fact, two successive Revolutions. The
First one, which has pre-empted the title, proclaimed in 1776 a
revolutionary concept of sovereignty within the state; the Second
established in 1787-89 this concept between states. This Double
Revolution challenged and overthrew in America, inside and out, the
dogma of sovereignty which then ruled all nations both ways, since time
immemorial. Both Revolutions were one in this sense; Each was made for
precisely the same principle -- that the citizen is sovereign. Yet to
establish this concept between states was so immense an achievement as
to be a Revolution in itself. It was, indeed, a greater revolution than
the First American Revolution for at least three reasons.

Colonies had often won their independence from the motherland in the
past. The principle that the citizens were equally the sovereigns had
already been practiced in Athens and other city republics of ancient
Greece and Medieval Europe, and in the Six Nations of the Iroquois
Indians of America. But never before had men carried this concept of
their own sovereignty to the point of freely uniting across state lines
to create a new state composed of them all. The city democracies of
Greece had perished because they were unable to unite on the basis of
the free principle they shared, even to defend it. They did not go
beyond leagues of sovereign states, nor as far toward federation as the
Iroquois Confederacy, which helped inspire Franklin's original plan for
a Union of the Colonies in 1754. This profound Revolution in human
affairs was accomplished for the first time in history by the Thirteen
States in their Federal Constitution.

It was the greater of their two revolutionary achievements, secondly,
because, without it, the first revolution would have come to naught and
the Thirteen Sovereign States would have gone the way of the Sovereign
Cities of Greece. Before they reached that dismal end, the lustre which
the First Revolution gave to the names of Washington and Franklin would
have been lost in wars between Virginia and Pennsylvania. Such wars must
have followed inevitably, had not these statesmen, by their leadership
in the Second American Revolution, saved the American states from
governing their common affairs by the same rule by which King George III
and Czarina Catherine II governed theirs. The Second Revolution saved
the First, and did far more: It led to an immeasurably greater success
-- a triumph of democratic principle much vaster, proportionately, than
the United States is today in size when compared to Virginia or
Pennsylvania.

Finally, the Second American Revolution was the greater because it was
achieved more rapidly, and without violence or bloodshed, through free
and full debate. In less than two years it wrought its enduring reversal
of the age old, universal concept of sovereignty that has afflicted
mankind with -- in last analysis -- all the wars it has suffered. The
fact that this was achieved without war -- despite the emotions which
its war of words aroused[5] -- was rightly judged by Acton to be a
revolution in itself.

Ironically, this triumph of reason over force has kept even Americans
from recognizing that the establishment of their Federal Union was a
Revolution. They give all the honor to the Revolution that was made by
war. Forgetting September 17, the day when the Federal Constitution was
signed, and March 4, the day when their Federal Union began they
celebrate as the birthday of their country July 4 -- the day when the
Thirteen Colonies declared themselves united in upholding the
sovereignty of their citizens, but divided henceforth into Thirteen
"free and independent" countries.

Thus, the confusion over sovereignty began, paradoxically with the very
two American Revolutions which reversed the old concept, in both its
senses, and thereby faced all men thereafter with two successive
choices. Starting among the people of the Thirteen States themselves, it
inevitably spread as the peoples around the North Atlantic gradually
established themselves as the true sovereigns of their own nations. For
that left them, and the American Republic, facing the same choice the
Thirteen had faced -- whether to follow this revolutionary concept all
the way through, or reverse it in their relations with one another.

THE TRUTH IN THE FALSE CONCEPT OF SOVEREIGNTY

Another cause for the confusion that followed is that the concept of
national sovereignty by which the Atlantican peoples still choose to
govern their mutual relations contains, as does all error, some truth --
and more emotion.

To begin with, there is the truth to which Union Now had pointed,[6]
that men must limit their individual sovereignty and delegate some of it
to their state in order to secure the rest. But this seems contradicted
by another truth, that the sovereignty of the nation, in the sense of
its independence from outside sovereigns, has served in many ways to
secure the sovereignty of the citizen, still does and always will.

We each learn this latter truth at a time and in a way that impresses it
on us the more. We learn it as children, when the mind is least trained
and experienced in distinguishing truth from error, most totalitarian in
its tendencies, and most capable of forming habits and impressions that
are deep and lasting. We learn it in school-book histories from which we
get the little that most of us ever know about our nation's history --
together with the modicum we know about the history of other peoples,
even those nearest us. These histories over-simplify and heighten all
that the nation's independence has done for the lives and liberties of
its citizens. They also emphasize all that neighboring nations have done
to imperil them by war or otherwise; and they minimize, or ignore, all
that these neighbors have contributed to freedom -- to ours and to their
own. They do this to the point where children in the most enlightened
countries gain the same lasting impression which they gain in the Congo
tribes namely, that danger lies in all other nations, and safety only in
one's own.

Then there is the natural love we all feel for the nation from which we
sprang and the country where we grew up and our desire to "belong" that
is no less natural. These two emotions suffice to make men die defending
their country, even though they enjoy no more liberty in it than the
Russians do today in theirs.

Add all this together and it becomes too easy to understand why
confusion over national sovereignty should be so rampant ... and hard to
remove.

Yet if our reasoning is clear enough, even a child of twelve will see
not only the truth, the good, there is in the current concept of
national sovereignty but the error, the evil, that outweighs the truth
and makes this concept false on balance. And any child of twelve already
knows the advantage of holding on to the good in anything, while
discarding the bad.

We easily see the monstrous error the Communists make in reasoning that
since it is necessary for men to delegate to the state some of their
sovereignty, it is necessary for them to delegate to it all the rest;
that since they gain by renouncing some of their liberty in order to
form and maintain their state, it follows that they must gain still more
if they renounce all their liberty and make the state all-powerful,
inside as well as out.

THE TRAP FREE MEN FALL IN FROM OPPOSITE SIDES

It is, of course, much harder to see the monstrous error in our own
thinking on the subject in its international aspect. Quite opposite
errors are made about it by two opposing schools of thought. One school,
which is very small in each free people, seems to reason that because
national sovereignty is obviously dangerous to peace and individual
freedom in some ways it must therefore be dangerous in all; they
denounce it indiscriminately as if it were wrong at all times, with all
nations and in all fields. Although the harm it does blinds them to the
services it performs, they tolerate it, in most fields, for practical
reasons. They center their attack on what they deem to be its most
dangerous aspects, but do not positively uphold it as good in any
respect. They fall, in short, into the same pitfall the Communist
totalitarians do, though only as regards sovereignty between nations.

The reasoning of the other school falls into the same totalitarian
fallacy, but from the opposite approach. This school includes the great
majority of the people in most of the Atlantic democracies. They see
nothing but good in national sovereignty; any limitation of it seems a
"sacrifice". They may tolerate such "surrender" as slight, or temporary
or direly needed, to avoid a greater evil -- but they never urge or
defend it as a positive good.

Ironically, the most ardent spokesmen of this school, which insists that
the sovereignty of their national government be unlimited even as
regards the freest peoples, are also nearly always almost equally ardent
in seeking to limit their government's sovereignty over themselves as
citizens. In the United States they include the Republican conservatives
who oppose any extension of the Federal government's power over them
individually, and the Southern conservatives who seek to limit also
Washington's power as regards their own states.

They want the national government to exercise the least sovereignty over
them -- but the most as regards their closest counterparts -- the
conservatives in the other free countries, who share this paradoxical
desire. Those loudest in demanding that their government retain and
exercise its sovereign right to raise barriers that interfere with
business by making it impossible for a foreign firm to compete with them
in their national market, oppose no less vehemently any exercise of its
sovereignty that would limit their freedom to compete at home -- let
alone any policy that would favor producers in one section against those
in other sections.

Clearly these champions of unlimited national sovereignty are not moved,
as are "total" totalitarians, by any love of the state for the state's
sake. Apart from the selfish interests that enter into all human
calculations, their motivation is the same as that of the opposite
school in their nation -- they seek to save individual life and liberty.
But whereas the former aim to save these ends by sacrificing all
national sovereignty, the latter see any loss of it as a sacrifice of
life and liberty.

They see what the other group is blind to -- that unlimited national
sovereignty undoubtedly was essential to these ends in the past, and
still is as regards many nations and many fields of government. But they
themselves are blind to the exceptions to this rule which the opposite
school sees so well. Yet they need but stop to think, to see that it is
wrong to reason, as they do, that the unlimited sovereignty of the
nation must remain essential to individual life and liberty,

a) now, because it obviously has been in the past;

b) with the peoples most advanced in free government, because it
obviously still is as regards those least developed in freedom, or
totally submerged by dictatorship, and

c) in every field of government, because it obviously is essential in
many fields still, even between the freest peoples.

No one would think it common sense to reason that he must live only on
milk forever because this was essential at one time in his life, use
sign language with his brothers because he must so converse with a
savage, or refuse to agree with his brothers on anything because there
are certain personal matters that he must decide for himself. Yet such
totalitarian "logic," when applied to the subject of national
sovereignty, passes for reason so widely that relatively few even
question it.

THE WAY OF REASON AND EXPERIENCE

Sound reasoning runs, of course, between the totalitarian type of
thinking that afflicts both these extreme schools. If we start with the
premise that the state is made for man, we lose our base if we turn
totalitarian in reasoning about the nation. We can conclude neither that
because it brings some evil to us it can bring no good and should be
abolished, nor that because it works some good it can do us no evil and
should be maintained 100 per cent.

We know this is contrary to experience as well as to reason. We know
that the state was once the caveman family, and later a tribe of kindred
families, and later a city state or kingdom of neighboring tribes, and
later a nation of kindred or neighboring cities and kingdoms. We know
that total sovereignty was once lodged in each of these forms of the
state, and that each not only did serve man at some time but still does
today. We know that the good each of these forms of the state did for
man, when it was supreme never kept him from moving to a higher form,
and we also know that, even though this change was nearly always made by
violence rather than reason, enough reason remained in men never to
destroy completely the previous "state", but always to keep it where it
still best served their purposes.

And so today, every state includes within it the family, and local
government in various forms. We all agree that none of these suffices,
but that each continues to serve us better in some respects than do any
of the other forms of the state.

It is only when the issue lies between our highest existing form, and a
still higher one, that we cease this process of discarding the bad while
retaining the good, and fall into the totalitarian all-or-nothing trap.
It has caught man precisely at this point at each stage of this long
development, as it still does, even where, as in the United States, we
have already passed beyond the nation state and achieved a federal
state. Yet we know that reason requires us -- especially those of us who
most believe that the state, from the family on up, is made for the
individual -- to remain always ready to withdraw some of our sovereignty
which we have invested in any form of the state and re-invest it in a
still higher form, wherever and whenever we find that we are endangering
our capital by the present investment, or would gain greater returns
elsewhere. In other words, common sense requires us to continue to
eliminate the bad and retain the good in the highest as well as the
lowest forms of the bodies politic we create.

THE ELEMENTARY TRUTH Union Now BEGAN WITH

This seems elementary, and because it is elementary Union Now began with
this truth. In its fifth paragraph it explained that the proposed "Union
would be designed (a) to provide effective common government in our
democratic world in those fields where such democratic government will
clearly serve man's freedom better than separate government, (b) to
maintain independent national governments in all other fields where such
government will best serve man's freedom." I then listed under point (a)
five fields which I found the peoples of the North Atlantic democracies
could govern better through a Union government than through their
nations, and added: "By (b) I mean the Union government shall guarantee
against all enemies, foreign and domestic, not only those rights of man
that are common to all democracies but every existing national or local
right that is not clearly incompatible with effective union government
in the five named fields."

Later in that chapter (and elsewhere) I sought to make it still clearer
that although I believed it in our interest to transfer our sovereignty
in a few fields from our nation to an Atlantic Union, I favored
guaranteeing the national independence of each people in all other
fields as an asset. For the reader's convenience let me quote from
Chapter I:

This does not mean eliminating all national rights. It means eliminating
them only where elimination clearly serves the individuals concerned,
and maintaining them in all other respects -- not simply where
maintenance clearly serves the general individual interest but also in
all doubtful cases ...

Our Union could afford to encourage the existing diversity among its
members as a powerful safeguard against the domestic dangers to
individual freedom. Just as the citizen could count on The Union to
protect his nation from either invasion or dictatorship rising from
within, he could count on his nation's autonomy to protect him from a
majority in The Union becoming locally oppressive. The existence of so
many national autonomies in The Union would guarantee each of them
freedom to experiment politically, economically, socially ...

I thought I had made amply clear in Union Now that, far from seeking to
abolish the independence of any nation, I sought to preserve it and make
it legal -- de jure and not just de facto as at present[7] -- in all the
fields where it served individual life and liberty better than any Union
could; that I regarded it not as a necessary evil to be tolerated but as
a positive good to be maintained in all but a few fields.

Experience has proved that I did not make this nearly clear enough.
Union Now has been and is attacked as a proposal to "destroy" national
sovereignty, "abolish" the United States, "tear up the Declaration of
Independence."

WHERE THE FOUNDING FATHERS GROPED

The elementary truth with which Union Now began was stated in that
Declaration itself, which it cited on page 6. Though it was set forth in
the Declaration of Independence more lucidly than ever before, men fell
into precisely the same totalitarian traps to thought then as now when
they faced the question of applying it between their states.

The Founding Fathers began by rebelling against the overcentralization
of the British colonial system -- and by swinging immediately to the
other extreme. They made their Thirteen States independent not only of
the Crown but of each other, united only in a Confederation whose
highest aim, as we have seen, was to preserve the sovereignty of each
state. By this excessive decentralization they saved individual liberty
from the excessive sovereignty of George III -- only to expose it to
anarchy among the Thirteen. With no central sovereignty to limit the
sovereignty of the states, political disputes developed among them,
while economic difficulties led even the most democratic of these
states, Rhode Island, to assert more and more coercive power over its
sovereign citizens. In guarding against their Confederacy becoming
despotic, the people of the Thirteen States had opened the door to
tyranny in their home state.

Their experience with both extremes led them, as we have seen, to work
out the golden mean between the two that federal union is. But it is
highly important (as well as consoling) to note that even these
exceptionally wise men[8] worked out this happy balance by groping their
way through confusion -- by making mutually reluctant compromises rather
than by reasoning clearly. One side thought that the people should
transfer all sovereignty from their states to the Union; the other
contended no less totally that they should transfer none. Mainly because
neither could persuade the other, they settled on the federal union
system. It gave half a loaf to each side, by having the people transfer
some sovereignty to the Union while leaving some in their respective
states. It combined, in other words, a Union government with a
confederation of governments. Precious few of the Founding Fathers,
however, saw at the time the great merits of this division of
sovereignty that we can see today. The result was to give the sovereign
citizen, not half a loaf but the whole loaf in two halves. They did not
see this -- so deeply did these Framers of the Constitution fall from
opposite approaches, into the same totalitarian fallacy that befuddles
us now.

GEORGE WASHINGTON, TOO, FELL IN THIS TRAP

Even the Father of his Country fell into it -- and he stumbled into the
pitfall on the side from which the fewest citizens do today. Valley
Forge and all the war had given General Washington a much more acute
understanding of the vices than the virtues of state sovereignty. We
find him denouncing this "monster," and speaking with scorn of the
"darling sovereignties" of the states -- without a qualifying phrase to
concede that the people needed to keep part of the sovereignty delegated
to their states. Even in his Farewell Address as President, eight years
after the Federal Constitution was established, Washington put his
accent on the central government. He did this to the point of discussing
the country in terms of regions -- "the North," "'the South," "the
East," "the West" -- omitting even to mention the states, dismissing
them as "subdivisions" of the Union. In all the sound advice he gave the
people in that Address, there was none enjoining them to maintain the
sovereignty of their states to the degree which the federal balance
requires for it to work most in favor of the sovereign citizens.

Alexander Hamilton not only shared Washington's view; in his main speech
at the Federal Convention, on June 18, 1787, he flatly declared that it
would be wiser if the state governments "were extinguished." True, he
quickly added that he did not "mean to shock the public opinion by
proposing such a measure." Yet the plan he offered effectively stripped
the states of their sovereignty; their governors were to be appointed by
the central government and to exercise a general veto on all state laws.
"Cui bono" -- what good was there in leaving any sovereignty to the
states, he asked, and obviously saw none.

At the Convention, James Madison was readier than Hamilton to tolerate
the state governments, but like him did so merely as a lesser evil. Lord
Acton found that "a note preserved in Washington's handwriting records:
'Mr. Madison thinks an individual independence of the states utterly
irreconcilable with their aggregate sovereignty, and that consolidation
of the whole into a simple republic would be as inexpedient as it is
unattainable.'" Speaking in the Convention on June 21, Madison agreed
that "the great objection made against the abolition of the state
Governments was that the General Government could not extend its care to
all the minute objects which fall under cognizance of the local
jurisdictions." He went on to contend, however, that "were it
practicable for the General Government to extend its care to every
requisite object without the cooperation of the state Governments, the
people would not be less free as members of one great Republic than as
members of thirteen smaller ones ... Supposing therefore a tendency in
the General Government to absorb the state Governments, no fatal
consequence could result."

Washington, Hamilton and Madison were the three who took and kept the
lead in changing the Confederation into an organic Union, but if they
had achieved their heart's desire they would have jumped from that
association of Sovereign States to the opposite extreme, and united the
sovereign people in a single unitary nation, as centralized as Britain
or France. They and their friends sought to do this, in fact, at the
start of the Convention, and went far in this direction in the Plan
Virginia proposed May 29, on which all the discussion centered at first.

By June 13 the Convention had accepted the basic features of this Plan.
This included its grant of sweeping powers to a "National Legislature"
-- in which it gave no control to the state governments -- (a) to act in
all "cases to which the states are not competent," and (b) "to negative
all State laws contravening in the opinion of the National Legislature,
the articles of union." After very brief discussion, on May 31, point
(a) was approved by nine state delegations, none opposing, but with the
only other state represented -- Connecticut -- evenly divided.

In the next breath the Convention approved, "without debate or dissent,"
the absolute veto which (b) gave the national government. It is
instructive to note that a little later, on June 8, Madison sought to
make this veto all-embracing. He said he "could not but regard an
indefinite power to negative legislative acts of the states as
absolutely necessary." Young Charles Pinckney of South Carolina went
further and held that "the states must be kept in due submission to the
nation." By this time, however, fear of such concentration of power led
to the defeat of their motion, seven states voting against it and three
in favor.

Through the first five weeks of the Convention's debate this school
showed little understanding of the danger of centralization, or of the
advantages that individual liberty gains from the citizen leaving enough
of his sovereignty in his state to prevent centralization. This danger
helped arouse such opposition that on this basic point the Virginia
Plan's victory of June 13 was lost by July 2. Thereafter this school
accepted limitations of the central government's power, but against
their will, and only as a necessary evil.

PATRICK HENRY FELL IN THE TRAP FROM THE OTHER SIDE

The opposition which forced this compromise on them was led by other
Founding Fathers who fell into the same fallacy from the opposite
approach -- which is so thronged today. This group saw dangers only in
the citizens transferring any of their sovereignty from their states to
the Union, and only good in keeping it totally there. Neither school
spoke then in these terms of citizen sovereignty; instead, this group
called this transfer "sacrificing" the sovereignty or independence of
their state, as many do now. In the Convention their leading spokesmen
were from the small states, notably William Patterson of New Jersey and
Luther Martin of Maryland. The "New Jersey Plan" they offered in
opposition to the Virginia Plan would have strengthened the
Confederation considerably, but kept it still an association of
sovereign states, in no sense a Union of sovereign Citizens.

Like their opponents, they accepted compromise in the end, not because
they saw the wisdom in it, but as a lesser evil.

Though the leaders of the New Jersey group lacked the prestige of
Washington, and the talent of Hamilton and Madison, they held out
stubbornly, because they felt that the majority of the people in the
various states would never consent to "surrender their state's
sovereignty." They were encouraged, too, by the fact that, even in
Virginia, so famous a patriot as Patrick Henry was convinced that
individual liberty required Virginia to retain its full sovereignty --
so much so that he refused to attend the Convention, though named as a
delegate.

EXAMPLES OF HOW SOVEREIGNTY
SPLIT THE FOUNDING FATHERS

These extracts from Madison's Journal may show better how sharply these
two opposing views on Sovereignty clashed in the convention:

A confederacy supposes sovereignty in the members composing it and
sovereignty supposes equality. If we are to be considered as a nation,
all state distinctions must be abolished ... New Jersey ... would be
swallowed up. We had rather submit to a monarch, to a despot, than to
such a fate. -- William Patterson, June 9, 1787.

Distinct states would be a perpetual source of discord. There can be no
cure for this evil but in doing away with states altogether and uniting
them all in one great Society. -- George Read of Delaware, June 11.

Had the legislature of the state of New York apprehended that their
powers [those of the delegates] would have been construed to extend to
the formation of a national government, to the extinguishment of their
independency, no delegates would have appeared on the part of that
state. -- John Lansing, Jr. of New York, June 16.

I cannot support the General Government at the expense of the state
Governments, but will contend for the Safety and Happiness of the
particular states at the expense of the U.S. -- Luther Martin, June 18.

At the separation from the British Empire, the people of America
preferred the establishment of themselves into 13 separate sovereignties
instead of incorporating themselves into one ... They are afraid of
granting powers unnecessarily ... lest the powers should prove dangerous
to the sovereignties of the particular states. -- Luther Martin, June
20.

As states are a collection of individual men, which ought we to respect
the most, the rights of the people composing them, or of the artificial
beings resulting from the composition? Nothing could be more
preposterous or absurd than the sacrifice of the former to the latter.
It has been said that if the smaller states renounce their equality,
they renounce at the same time their liberty. The truth is it is a
contest for power, not for liberty. Will the men composing the small
states be less free than those composing the larger? The state of
Delaware having 40,000 souls will lose power, if she has 1/10 only of
the votes allowed to Pennsylvania, having 400,000: but will the people
of Delaware be less free, if each citizen has an equal vote with each
citizen of Pennsylvania? -- Alexander Hamilton, June 19. (His emphasis.)

The states and the advocates for them were intoxicated with the idea of
their sovereignty. -- Elbridge Gerry of Massachusetts, June 19. (His
emphasis.)

Can we forget for whom we are forming a Government? Is it for men, or
for the imaginary beings called states? -- James Wilson of Pennsylvania,
June 30. (His emphasis.)

Each extreme agreed to give the other half a loaf only after the
Convention had reached a deadlock, five states against five, (with the
other, Georgia, split in two itself) in the decisive vote that came on
one phase of the issue on July 2. But the compromise (which also had
several phases, with votes on each) was agreed to in the final test only
five to four (with New York absent and Massachusetts split in two).

THE PRECIOUS TRUTH THAT PRECIOUS FEW SAW THEN

In between the two extreme schools there stood a few Founding Fathers
who had contributed considerably to bringing about the deadlock, working
out the basic compromise, and getting both sides to accept it. These
were indeed a "precious few" -- for they were the only ones in the
Convention who showed a good grasp then of what has since become
accepted, at least within the United States, as the true democratic
concept of sovereignty in a federal union. They alone saw clearly the
simple truth that individual liberty required the people both to
transfer some of their sovereignty to a Union they themselves composed,
and to continue keeping their states independent of each other and of
the Union government in other respects. To these few, the only total
evil lay in the people giving total power to either the Union or the
states in respect to each other, and the only total good lay in keeping
these two agencies balanced in the way that served their sovereign
citizens best. The first delegate to express this view at the Convention
was John Dickinson of the smallest state, Delaware, famed throughout the
Confederation for his "Farmer's Letters." George Mason of Virginia,
author of its Bill of Rights, was perhaps an even more influential
advocate of this concept. Dickinson put this case before the convention
first on June 2 in these words, as summarized by Madison in his Journal:

One source of stability is the double branch of the Legislature. The
division of the country into distinct states formed the other principal
source of stability. The division ought therefore to be maintained, and
considerable powers left with the states ... Without this, and in the
case of a consolidation of the states into one great Republic, we might
read its fate in the history of smaller ones ... If ancient republics
have been found to flourish for a moment only and then vanish forever,
it only proves that they were badly constituted; and that we ought to
seek for every remedy for their diseases. One of these remedies he
conceived to be the accidental lucky division of this Country into
distinct states, a division which some seemed desirous to abolish
altogether.

One may see the degree to which this issue divided the Founding Fathers
(and also the degree to which delegates from each state spoke freely as
individuals in the Convention) in Madison's report of this clash on June
6 between Dickinson and his fellow delegate from Delaware, George Read,
who spoke immediately after him:

Mr. Dickinson considered it as essential that one branch of the
legislature should be drawn immediately from the people, and as
expedient that the other should be chosen from the Legislatures of the
states ... He was for a strong National Government but for leaving the
states a considerable agency in the System.

Mr. Read. Too much attachment is betrayed to the state Governments. We
must look beyond their continuance. A national Government must soon of
necessity swallow all of them up . . .

The next day Dickinson returned to the charge with the support of Mason.
To quote from Madison's Journal:

Mr. Dickinson. The preservation of the states in a certain degree of
agency is indispensable. It will produce that collision between the
different authorities which should be wished for in order to check each
other. To attempt to abolish the states altogether would degrade the
Councils of our Country, would be impracticable, would be ruinous. He
compared the proposed National System to the Solar System, in which the
states were the planets and ought to be left to move freely in their
proper orbits. The Gentleman from Pennsylvania [James Wilson wished, he
said, to extinguish these planets.

If the state Governments were excluded from all agency in the national
one, and all power drawn from the people at large, the consequences
would be that the national Government would move in the same direction
as the state Governments now, and would run into all the same mischiefs.
The reform would only unite the 13 small streams into one great current
pursuing the same course without any opposition whatever.

Col. Mason. Whatever power may be necessary for the National Government
a certain portion must necessarily be left in the states. It is
impossible for one power to pervade the extreme parts of the U.S. so as
to carry equal justice to them. The state Legislatures also ought to
have some means of defending themselves against encroachments of the
National Government ... And what better means can we provide than giving
them some share in, or rather to make them a constituent part of the
National Establishment? There is a danger on both sides no doubt; but we
have only seen the evils arising on the side of the state Governments.
Those on the other side remain to be displayed.

No one during the Convention showed so good an understanding of the
whole thorny problem as Mason did in his speech of June 20, 1787, quoted
at the head of this chapter -- and his grasp of it was far from perfect.

PEACEFUL REVOLUTION THROUGH CONFUSION

Looking back, with not only experience but such men as Marshall,
Jackson, Webster, Calhoun, Tocqueville, Emerson, Whitman and Lincoln to
teach us, we can see what was not at all clear in 1787-89. The
Constitution which emerged from the collision of the three conflicting
concepts of sovereignty was animated throughout by the basic democratic
one -- that the state is made for men, and of and by them, too, as
individual citizens. That this should have resulted from so much
confusion seems astonishing. And yet it was but natural. The upholders
of each of the conflicting concepts, represented by the three great men
of Virginia cited at the head of this chapter, were all permeated by
this basic principle that sovereignty lies in the citizen. Though they
talked in terms of the sovereignty or independence of the state, not of
the citizens, they all agreed that the former was but power delegated to
the latter.

Whether they favored transferring practically all this power from their
state to the new Union, as Washington did, or practically none, as
Patrick Henry urged, or dividing it between the two as Mason advised,
they all sought thereby to preserve and advance the individual's liberty
and life. Since the same basic concept of citizen sovereignty animated
each, this principle understandably reached so high and comprehensive an
embodiment in the resulting Federal Constitution as to be truly
revolutionary.

If Washington, Hamilton and Madison seemed more confused than Mason and
Dickinson at the time, their contribution to this result was still by
far the greater. Had they not seem so well that individual life and
liberty required an organic Union of all the American people, they would
not have led so tenaciously toward this end; and without their
leadership there would have been no such Constitution, no such issue in
the Convention and no such Convention. If they were more confused than
Mason early in the Convention, they were much less confused about its
result than he was in the end. George Mason was one of the prime
inventors of the federal solution in more ways than the one I have
touched on, but he failed to see that he had won the battle in the
Convention. He refused to sign the Constitution and joined Patrick Henry
in actively opposing its ratification. That is perhaps why his immense
contributions to Federal Union are so little recognized. Washington,
Madison and Hamilton had conceded far more than he, but they were wise
enough to see that their basic principle had won, on balance. They not
only signed the Constitution but fought for its ratification as if it
embodied all their dreams -- and none fought for it so hard as did
Hamilton who had conceded the most. In nothing did their greatness shine
forth so truly as in this.

WHAT'S IN A NAME? NO END OF CONFUSION

To achieve the second American Revolution peacefully, its leaders added
to the confusion enduringly. They did this partly by disguising the new
system's revolutionary character by giving it the name of the one it
replaced. The terms, federal, federal union and union, which we now use
to distinguish this system from both a unitary nation and a confederacy
of nations, were then commonly used to describe the existing
Confederation. The Virginia Plan had aimed openly to replace this with a
"national" government, and national studded the first draft of the
Constitution until June 20 On that day the nationalists, in their battle
with the defenders of confederation, agreed to have national stricken
out entirely, so as to save the substance of the change they sought. By
tacit agreement the opposite adjective, federal, was also omitted from
the Constitution.

That instrument carefully avoids specifically giving any name to the
unprecedented federal-national system it created. Apart from casual
references to it as the "Union," the Constitution always refers to the
government it set up as "the United States," the name of the
Confederation it replaced. This was ambiguous, and -- we shall see in
the next chapter -- dangerously confusing. To use that name implies that
the United States still are; whereas to say, as we do now, that the
United States is reflects the revolution that had taken place. The vital
difference between states united in a confederation and states united in
a union of their citizens comes out, of course, in syntax. The verb, or
pronoun, for the former is plural, the latter singular. So careful were
the drafters of the Constitution to keep this point ambiguous that the
term "United States" is used throughout the Constitution in ways that
avoid using either are or is, them or it. There is only one exception,
and it, ironically, is in this clause: "Treason against the United
States shall consist only of levying war against them, or in adhering to
their enemies ..."

Nor did the semantic confusion end there. Although federal was the
banner under which their opponents fought in the Convention, the most
extreme of the nationalists, Hamilton, took it over in the ensuing
battle to get the Constitution ratified. To the classic papers that he
edited, and co-authored with Madison and Jay, to expound its principles,
he gave the title of The Federalist -- pouring the new wine into a
bottle bearing the old familiar label of the Confederation. Thus the
nationalists of 1787 became the Federalist party, while the Federalists
of 1787 became known as the Anti-Federalists in 1788. This dizzy
confusion helped keep many Americans from recognizing the revolutionary
nature of the new Constitution -- but not Patrick Henry: "Here is a
solution as radical as that which separated us from Great Britain," he
rightly called it. But this time he was against the revolution he had
led in 1775.

THE "GREAT DISCOVERY IN MODERN POLITICAL SCIENCE"

As time went on, the world began to see this revolution, too -- with the
help of Tocqueville who pointed out in 1835 in his Democracy in America;
"This Constitution, which may be confused with federal constitutions
that have preceded it, rests, in fact, on a theory that is entirely new,
and which stands as a great discovery in modern political science."
Tocqueville saw, too, that its newness lay in combining, through the
citizens, a unitary nation (in some respects) with a confederacy (in
other respects) and thus making a "form of government that was not
precisely either national or federal" (meaning federal in the old,
confederate sense). In his awareness of, and enthusiasm for the full
play America thus gave to sovereignty of the citizen, he wrote:

Whenever the political laws of the United States are to be discussed, it
is with the doctrine of the sovereignty of the citizen that we must
begin. The principle of the sovereignty of the people, which is always
to be found, more or less, at the bottom of almost all human
institutions, generally remains there concealed from view. It is obeyed
without being recognized, or if for a moment it is brought to light, it
is hastily cast back into the gloom of the sanctuary.

"The will of the nation" is one of those phrases that have been most
largely abused by the wily and the despotic of every age. Some ... have
even discovered it in the silence of a people, on the supposition that
the fact of submission established the right to command.

In America the principle of the sovereignty of the people is neither
barren nor concealed, as it is with some other nations; it is recognized
by the customs and proclaimed by the laws; it spreads freely, and
arrives without impediment at its most remote consequences. . .

At the present day the principle of the sovereignty Or the people has
acquired in the United States all the practical development that the
imagination call conceive.[9]

True though this was in 1835, it is also true that Americans can now
conceive of a further practical development of their sovereignty by the
constitution of an Atlantic Union. And it was true even in 1835 that
confusion over sovereignty had already raised its head enough again to
cause a dangerous crisis in 1832, when South Carolina asserted its
"sovereign" right as a state to nullify federal laws and secede from the
Union. This was not carried out, thanks to President Jackson's vigorous
reply. The Constitution not only "forms a government, not a league," he
replied, but sets up a government "in which all the people are
represented, which operates on the people individually, not upon the
states"; therefore such "disunion" as South Carolina threatened, if
upheld by "armed force is treason," and any citizen guilty of it would
be punished accordingly. Nonetheless, the confusion and conflict between
the two concepts of the sovereignty of the people spread, and led to the
Civil War in 1861.

____

1. Except that the two sentences quoted at the end are from the notes
taken by Robert Yates.

2. At his trial in 1647, Charles I contended that he was upholding "the
freedom and the liberties of the people" ... as do those Americans and
Britons today who oppose limiting by any Atlantic Parliament the
sovereignty of their nation in its relations with others.

3. Acton, Essays on Freedom and Power, Beacon Press, Boston pp. 81-82.
The whole of that chapter and the preceding one comprise his "History of
Freedom,", they deserve to be read and re-read by all who seek light on
liberty.

4. Ibid. page 150.

5. Both Patrick Henry and Governor Edmund Randolph feared the debate in
Virginia over ratification of the Federal Constitution would "kindle a
civil war" -- especially if Virginia ratified it, as it did, 89 to 79.
See the June 1955 Freedom & Union, p. 12, for excerpts from their
speeches on June 24, 1788. That issue includes a digest - of all that
debate which ran from June 4 to 25 with Patrick Henry leading the
opposition. A reprint is available from Freedom & Union for $0.20.

6. See especially Chapter VII.

7. I would refer the reader also to Chapter X, particularly the section
entitled, "The Great Federal Problem."

8. Lord Acton paid this tribute to them, with which I fully agree: "The
convention which sat in Philadelphia 1787 ... included the most eminent
men of America. It is astounding to observe the political wisdom, and
still more the political foresight, which their deliberations exhibit."
Essays on Freedom & Power, Beacon, Boston, p. 200.

9. Democracy in America, Vol. I, Chap. 4 (my translation).


