The Framers and the Sovereign

Debates on Sovereignty in the Constitutional Convention

© James Hogan

Apr 6, 2008

Interpretations of Sovereignty in British America

The conception of sovereignty in colonial and revolutionary America can be traced through the history of English common law and political philosophy. Sovereignty was, in effect, the absolute political authority of a state. It rested in that body whose actions could not be overturned by an appeal to any other authority. For most of England’s history this power had rested with the king through divine right. Then, following the Glorious Revolution of 1688, sovereignty would shift to the parliament. But as revolution approached in the colonies in the 1760s and 1770s, the American idea of sovereignty (the British would certainly disagree) would change again to one of dual sovereignty held by the parliament and the colonial legislatures. Following the Declaration of Independence and ratification of the Articles of Confederation, the place of sovereignty would change once more moving to the legislatures of the several states.

The Constitutional Convention would change the place of sovereignty again in the United States. Although not a primary or even a secondary purpose of the convention, the constitutional debates on congressional representation and ratification produced a constitution that wrested sovereignty from the states and delivered it to “We the People.”

Representation in the National Legislature

Of all the issues discussed during the Constitutional Convention, the one that occupied the most time and was the most contentious was the mode in which representatives would be apportioned in congress. Over the years this debate would be framed as conflict between large states and small states, which no doubt it was, but it also directly addressed the question of where sovereignty lay. William Patterson and Luther Martin would argue for the “one state, one vote” principle and base their argument directly on the basis of state sovereignty. To them, it was the sovereign states that entered into the union, it was the sovereign states that signed the Articles of Confederation and it was the sovereign states that should be represented in congress. James Madison, Benjamin Franklin and James Wilson however saw things differently. It wasn’t the states that broke away from England it was the nation. And while the Articles of Confederation did recognize state sovereignty, that was an error made due to the urgency of the war. An error that would not have happened had there been more time to deliberate the issue. Moreover, Wilson argued that all powers come from the consent of the governed and therefore from first principles representatives must be agents of the people and not the states.

The result of this was a compromise in which the House of Representatives would be proportional to population and directly elected by the people and a Senate that would be elected by the state legislatures and in which each state would be represented equally. And although it was a compromise, it still shifted power away from the states and toward the people. Whereas before the people had no direct representation, they now controlled one complete house in congress. Also, the idea of “one state, one vote” was officially killed as each state’s two senators could vote independently. Additionally, it removed the provision for the states to be able to recall representatives, which was present in the Articles of Confederation.

Process of Ratifying the Constitution

If direct representation in congress represented a significant shift in power, the decision on the ratification process would all but put the sovereignty question to rest. This time the fight to maintain state sovereignty was led by Elbridge Gerry and Oliver Ellsworth. They argued from the standpoint that since the current agreement to union was compact between states that only they could alter it. Additionally, Gerry would argue that an appeal to the people was unprecedented and doomed to failure. Well, it may have been unprecedented in practice but to Madison it wasn’t with respect to principle stating, “the people were in fact, the fountain of all power”. Wilson would echo these sentiments during the debate saying, “We must…go to the original powers of Society.” That moving sovereignty from the states and to the people was certainly a radical idea was not lost on Alexander Hamilton. But, while recognizing the revolutionary character of it, he also argued that it was the right thing to do. During the debate, Hamilton stated, “If the Legislatures have no power to ratify because thereby they diminish their own Sovereignty the people may come in on revolution Principles.”

On July 23, 1787 the resolution to ratify the Constitution by assemblies elected by the people passed with only Maryland voting no. And, with that vote and the subsequent ratification of the constitution by conventions directly elected by the people, little doubt could be left about where American sovereignty was placed.

Conclusion

During the Constitutional Convention of 1787, the framers put together what would become the national government of the United States. But in accomplishing that task they also answered the question, "Who was the sovereign of this new nation?"

“We the People.”

Sources:

Madison, James. Notes of Debates in the Federal Convention of 1787. Adrienne Koch intro. NY: W. W. Norton and Company. 1987. Introduction, Ohio University Press. 1966

Bailyn, Bernard. The Ideological Origins of the American Revolution. Cambridge, Massachusetts: Harvard University Press. 1967.

Rakove, Jack N. Original Meanings: Politics and Ideas in the Making of the Constitution. NY: Alfred A. Knopf, Inc. 1996.