Retained by the People: Federalism, the Ultimate Sovereign, and Natural Limits on Government Power

Brewing tensions between state governments and the federal government have reached a boiling point unmatched since the civil rights debates of the 1960s. In light of the rapid expansion of federal power combined with colliding views on various policies, the call for states’ rights has increasingly become a rallying cry for lawmakers that has gained traction with groups on varying points along the political spectrum, as well as a frequent theory employed by the Supreme Court. While the system of federalism created by the Constitution certainly has its unique benefits, and while it is true that the federal government was delegated less power than the state governments, a states’ rights model of federalism relies on the following three assumptions that are problematic from a historic perspective: (1) it was the states who granted the federal government certain sovereign powers and who retain ultimate sovereignty; (2) there is a zero-sum balance of power between these two sovereigns, and any reduction in federal power must be accompanied by an enhancement of state powers; and (3) when states are governing within their sphere of sovereign authority, their plenary police powers are only limited by explicit state or federal constitutional provisions. Through new historical analysis of ratification debates, original state constitutional provisions, and antebellum case law, this Article challenges the underlying assumptions of a states’ rights conception of federalism and instead illustrates that the people— as a sovereign body separate and distinct from the states—were viewed by both the framers and states as the ultimate source and residuary location of sovereign power. It was the people who formed both state and federal governments to act as agents for the people, exercising a bounded portion of the people’s sovereignty. As ultimate sovereigns, the people also have the ability to reserve additional powers to themselves without being required to delegate those powers to either state or federal governments in a zero-sum shuffling of sovereign authority. Finally, this Article demonstrates that the American model of popular sovereignty is more than merely an interesting academic concept. Certain sovereign powers were understood to remain with the people and have not been delegated to any government—such as the power to arbitrarily violate natural rights. This model of federalism was understood to impose additional substantive limitations on both federal and state powers dating back to the American Revolution. Viewed through this historic lens, federalism was not intended merely as a means of protecting the rights of states. Rather, the American conception of federalism was conceived as a means of protecting the rights of the people, and the division of limited powers between the federal and state governments is useful only inasmuch as it is accomplishing that end. Under this model, the ideals of limited government and strong protections of fundamental rights are not at odds with each other, but are rather principles that complement each other in providing for the welfare and security of the nation’s ultimate sovereign—the people