The States’ Authority Over and Ability to Protect the U.S. Constitution

Article-V-of-the-ConstitutionStates’ rights are one of the most important features of the Constitution of the United States. This federal constitution is a compact agreed upon and ratified by the several states; subsequently, the primary authority on Constitutional use of power lies in the hands of the states, not directly in that of the people, nor in the hands of the federal government. The original intent of the Constitution was not to have a national government which would consume all the states, but a mixed federal one where the states would largely reserve their sovereignty in the everyday affairs of its residents. The federal government was originally designed act only in very limited capacities and only where specifically authorized by the Constitution. However, in recent history, this role has switched to where the federal government has started to take more initiative in legislation and regulation than was originally designed by the Framers. However, the Constitution provides recourse for its own preservation. Since the power regarding the intent of the Constitution resides within the States, the said parties have the authority to interpose for prevention of overreach by the federal government.

The authority of the states on the Constitution is derived primarily from the mode of ratification. Article VII outlined the parameters necessary for ratification of the Constitution of the 1787 Convention. “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”[1] The power for establishing this proposed Constitution did not lie in the hands of the people at the Constitutional Convention, nor with the existing national government, nor with the people at large. In the words of John C. Calhoun, “…the General Government emanated from the people of the several States, forming distinct political communities, and acting in their separate and sovereign capacity, and not from all of the people forming one aggregate political community…”[2]

Each state was required at its own respective ratifying convention to vote on the proposal. Consequently, the power which gave birth to the federal government lies with the creators, not with the creation. The Union was delegated certain responsibilities of the federal government, while the rest were left to the States through Tenth Amendment. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[3] In areas such as coining of money, declaring war, and raising armies, the powers were delegated to the federal government. However, under the Tenth Amendment, in areas not addressed by the Constitution such as regulation of intrastate commerce, creation of public schools, etc., the States retained their sovereignty and act in ways the federal government cannot.

The compact of the States delegated a great deal of authority to the established federal government, but the States did not relinquish their sovereignty in the process. In Federalist 46, James Madison wrote that “[T]he powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States as they are indispensably necessary to accomplish the purposes of the Union…”[4] In a letter written to Edward Everett, he further wrote that the Constitution “was formed by the states, that is, by the people in each of the states, acting in their highest sovereign capacity.”[5] Sovereign entities, acting under their own power, ratified the Constitution, and thus the origin of the Constitution’s power lies in the hands of the States.

Given that the authority of the Constitution’s formation is derived primarily from the States, the next issue involves the interpretation of the document by the creators. Madison also speaks on this subject in his letter to Everett. Since the States are the source of the Constitution’s power, they have the ability to alter the document. However, if such a move is to be made, it cannot be done by any state individually; Madison rejected the notion of nullification.[6] Changes to a document that required the ratification of several States cannot simply be nullified at will by one particular State, as South Carolina attempted, but by the action of several States in united opposition. This power does exist and is perfectly within the bounds of the Constitution.

In Federalist 46, Madison again referenced the ability of the states to interpose in matters dealing with overreaches of the federal government. If the latter party was to exceed its Constitutional bounds, and all other options for addressing the violations were to have been exhausted, there remains the option for the former to step in and take legal action for Constitutional protection.[7] Article V sets the parameters for proposing Constitutional Amendments, and there are two methods for doing so. Whenever two-thirds of both houses of Congress deem it necessary, Amendments shall be proposed to the Constitution. However, State legislatures also have this capability. “[O]n the Application of two thirds of the several States, shall call a Convention for proposing Amendment, which in either Case, shall be valid to all Intents and Purposes… when ratified by the Legislatures of three fourths thereof…”[8] In Federalist 85, Alexander Hamilton expounded on Madison’s explanation of recourse through the Article V provision for Amendments. “We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.”[9]

In times of abuse of power by the federal government, the American people are not without recourse. The States, from which the Constitution derives its power, are the final authority in determining the overreaches and abuses of power by the federal government. There is a reason why criminals are not allowed to preside over their own trials, nor declare their own state of innocence or guilt; there would be a conflict of interest. It is the same kind of situation when the issue is abuse of power. A corrupt government would never willingly admit its own abuses; hence the power of addressing such a government was placed in the hands of the States.

[1] Article VII, U.S. Constitution.

[2] John C. Calhoun, “Fort Hill Address.”

[3] Amendment X, U.S. Constitution.

[4] James Madison, “Federalist 46: The Subject of the Last Paper Resumed with an Examination of the Comparative Means of Influence of the Federal and State Governments.”

[5] James Madison, “Letter to Edward Everett: Opposition to Nullification.”

[6] Ibid.

[7] James Madison, Federalist 46.

[8] Article V, U.S. Constitution.

[9] Alexander Hamilton, “Federalist 85: Conclusion.”

This article was originally submitted as an assignment for a government class at Regent University. It has been modified for publication. 

Follow Seth on Twitter: @sconnell1776


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