I affirm that (with the sole exception of duties on imports and exports) they [the states]
would, under the plan of the convention, retain that authority in the most absolute and
unqualified sense; and that an attempt on the part of the national government to abridge
them in the exercise of it would be a violent assumption of power, unwarranted by any
article or clause of its Constitution.
An entire consolidation of the States into one complete national sovereignty would
imply an entire subordination of the parts; and whatever powers might remain in them
would be altogether dependent on the general will. But as the plan of the convention aims
only at a partial union or consolidation, the State governments would clearly retain all the
rights of sovereignty which they before had, and which were not, by that act, exclusively
delegated to the United States.
This exclusive delegation, or rather this alienation, of State sovereignty would only exist in
three cases: where the Constitution in express terms granted an exclusive authority to the
Union; where it granted in one instance an authority to the Union, and in another
prohibited the States from exercising the like authority; and where it granted an authority
to the Union to which a similar authority in the States would be absolutely and totally
contradictory and repugnant.
I use these terms to distinguish this last case from another which might appear to resemble
it, but which would, in fact, be essentially different; I mean where the exercise of a
concurrent jurisdiction might be productive of occasional interferences in the policy of any
branch of administration, but would not imply any direct contradiction or repugnancy in
point of constitutional authority.
The necessity of a concurrent jurisdiction in certain cases results from the division of the
sovereign power; and the rule that all authorities, of which the States are not explicitly
divested in favor of the Union, remain with them in full vigor is not only a theoretical
consequence of that division, but is clearly admitted by the whole tenor of the instrument
which contains the articles of the proposed Constitution. We there find that,
notwithstanding the affirmative grants of general authorities, there has been the most
pointed care in those cases where it was deemed improper that the like authorities should
reside in the States to insert negative clauses prohibiting the exercise of them by the States.
The tenth section of the first article consists altogether of such provisions. This
circumstance is a clear indication of the sense of the convention, and furnishes a rule of
interpretation out of the body of the act, which justifies the position I have advanced and
refutes every hypothesis to the contrary.
Alexander Hamilton, Federalist # 32