States’ rights

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

About Tim McDowell

Colorado ACFEI Member’s Homeland Security Weblog

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