The balance between local, state and federal laws has been the center of debate since the conception of the United States of America. Whether a constitutional scholar, Supreme Court Justice, President, member of the House/Senate, or common citizen; the debate has lead to many legal and political battles. Despite the failure of the Articles of Confederation and the ratification of the Constitution; tension remains high regarding the nature of the central government’s relationship to the states. This tension at times is unseen by the public eye, however; perceived by many to be the catalyst for the Civil War, in recent times due to the Obama Administrations push for Universal Healthcare, the Debt Ceiling and for the call for a second stimulus package. One could even add to the pile due to the consistent abuses of power committed by all three branches of the Federal Government. This is not a new battle but one that has been smoldering since the first meetings of the Continental Congress.
Consider Sir William Blackstone, in Commentaries of the Laws of England, who defined law as, “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.” Not rocket science even, however; in this period of history, the “supreme power,” was the sovereign power of the crown. Blackstone believed that the sovereign and legislature to be equals. Thus these powers were not indivisible. The sovereign could only create other units of power; and even those units that were created were completely subordinate. Prior to 1688, the Crown was the sovereign power of Great Britain, laws were created by estates and laws were enforced through a court system. It wasn’t until 1701, that the Act of Settlement, that Parliament gained supremacy and earned “the triumph of English Liberty.”
Due to this doctrine of indivisibility, a power hard-won, Parliament could never fully compromise. Thus after 1763, colonial challenges by English Colonists were unacceptable. The period known in the colonies as “benign neglect” had fostered a “de-facto system of divided sovereignty.” A large portion of the colonial populace appealed to a higher law; others traced their rights back in terms of Englishmen, back to the Magna Carta, to time immemorial, i.e., “those rights included the principle that no person could be deprived of property without his consent, in person or through his representatives. American colonists were represented in their own legislatures; not in Parliament and that limited the powers of each. Some areas, such as trade within the empire, were property, the concern of Parliament, but just as a matter of convenience.”
The gap between American and English positions was irreconcilable. In a 1774 debated, John Adams stated that colonists were only bond to laws by “cheerful consent.” Royal Governor of Massachusetts, Thomas Hutchison believed, “no line can be drawn between the supreme authority of Parliament and the total independence of the colonies.” Adams rebuttal was, “if there is no such line, the consequence is either that the colonies are vassals of Parliament, or that they are totally independent.” In the end what broke the colonies away from the British Empire was the inability to agree on the “laws and nature of sovereignty.” Even after the Declaration of Independence, the Continental Congress was handed the responsibility as agents for each state, conducting war, diplomatic relations with foreign powers, however; by Blackstone’s definition the states held sovereign power. Due to operating in a period of war, there wasn’t much thought about this concept; Congress became divided between delegates who favored expansion of the central powers and those who fought for the rights of states.
The Founders at this time begin to think of a way to logically divide the concept of sovereignty, by dividing it at various levels. Each level would have certain responsibilities with inherent power to carry them out. The initial failure was the lack of power granted under the Articles of Confederation to carry out, “coercive powers” to carry out various responsibilities. The Constitution did solidify the broad powers of government within limited spheres and created a truly institutionalized system of sovereignty never seen before in history. Thus the doctrine of states rights was born, as early defenders felt their new doctrine was needed to prevent the “concentration of power in a leviathan government.” Too much power concentrated in a remote location was the definition of tyranny. The opposite view held by nationalists during our nation’s infancy felt that action by a strong central government “was vital to the nation to fulfill its promise and destiny, attaining wealth and stature.”