Is the Constitution Really Inimical To States Rights ? Part Two

by Al Benson Jr.

It seems that, under the Articles of Confederation, there were states rights, as each state was considered sovereign and independent. However, with the ratification of the new constitution, that seems to have disappeared. Historian Clarence Carson has noted that, regarding the Articles of Confederation: "This bent, or tradition can be traced to many sources. Americans were, above all, a people of the book–the written word–the Bible. There was the Puritan idea, too, of the Covenant, an agreement between man and man and between man and God…Colonists had drawn their own political agreements, such as the Mayflower Compact and the Fundamental Orders of Connecticut…Once the colonies had broken away from England, the only historical allegiances that remained were to the states and localities…At any rate, there should be no doubt that the government of the United States under the Articles of Confederation was brought into being by the states."

Some delegates saw the new Constitution as potentially tyrannical and refused to sign it. George Mason of Virginia was unwilling to sign. The major objection was that it did not contain a bill of rights and there were objections in several state conventions to ratification being enacted without such being made part of the new document. Patrick Henry argued, and rightfully so, in the light of history, that a specific bill of rights was essential. He observed that governments regularly and automatically assumed powers that were not prohibited to them. Can anyone in our day deny the truth of this?  In fact, in our day, our own government regularly usurps powers denied to it and the courts ignore the whole situation, giving the executive and legislative branches a wink and a nod as our rights are stolen.

Added to all this was the problem of differing views of the Constitution, which seems to have been a major problem back before the War of Northern Aggression.

In his book "The Confederate Constitution of 1861" Marshall DeRosa noted that: "Within the context of American federalism does sovereignty reside in the people in their national or state capacities? To be more precise, does the U.S. Constitution establish an association of sovereign individuals within their respective states or a national community of sovereign individuals the states notwithstanding?"  It seems that, within the "more perfect Union" there has always been this tension. DeRosa noted that by 1861 this tension had become a major cleavage so that the Constitution "rather served as the vehicle for dissention and separation."

DeRosa observed that: "This was most certainly the case by 1861, as Northerners insisted on a model of federalism consisting of a national community of individuals, with sovereignty being a national phenomenon–that is, nationalism–whereas Southerners adhered to a model consisting of a community of states."

John C. Calhoun stated that a transition was taking place wherein the old Federal Republic was being transformed into a consolidated democracy, which placed sovereign authority at the national level while taking power away from the states. That trend continued, with William Henry Seward claiming that the Constitution had established a national community of individuals and not a community of states. And this thought occurred to me–is it possible that what Calhoun observed as a transformation was, in fact, actually there in seed form at the very beginning?

According to DeRosa, Seward claimed that: "the States are not parties to the Constitution as States; it is the Constitution of the people of the United States. But even if the States continue as States, they have surrendered their equality as States,  and submitted themselves to the sway of the numerical majority…" I surely do not agree with Seward’s blatant nationalism, but, what if that was really the intent from the beginning?  What if nationalism was sold to the Southern states surreptitiously as federalism, and, outside of a few men like Patrick Henry, hardly any grasped that? That may sound far out to some, but is it any further out than the idea of a group of men signing up for a "Union" they could not secede from only 13 years after they had experienced the same situation with Great Britain?  You have to wonder what would make men yoke themselves and their states again to a bondage they had only recently fought a war of independence to get away from. You have to wonder if some of these delegates had in mind something other than the freedom and liberty for both states and individuals that Patrick Henry envisioned.

To be continued.

Content ©2011 Al Benson Jr.

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