No, this is not an article about the “Chicken & Egg” theory, but an important question about who is in charge of whom and which governments have power over the other.
Go to almost any classroom today and you will most likely be taught that the federal government is supreme and has authority over the states. Sometimes referred to as “federal supremacy”, this comes from a misunderstanding of the structure of sovereignty in this nation and a horrendous misreading of Article VI, Paragraph 2, also known as the “Supremacy Clause”.
Sovereignty in the United States
The thirteen colonies in America declared their independence from Great Britain when they passed the Lee Resolution on July 2nd, 1776. As part of the Lee Resolution the Second Continental Congress approved a Declaration of Independence which was adopted on July 4th. These two documents specify that the thirteen British colonies in America were now free and independent states with all the power and authority of any other state like Great Britain, France, and Spain. That means there were thirteen independent countries on the American continent.
Now some of you may be thinking that the Constitution was put in place in September 17th, 1787. While that is the date the Constitution was signed at the Constitutional Convention, it did not become binding until it was ratified by the ninth state, New Hampshire, on June 21st, 1788. (The final state didn’t ratify the Constitution was Rhode Island on May 29, 1790.) So, for almost 12 full years, the united States of America existed without the federal government. It wasn’t until March 4th, 1789 that the first Congressional session started and President Washington wasn’t inaugurated until April 30th. So what is this document that created the federal government?
Compact “Theory”
There are many who argue about whether the Constitution is a compact between the states or not.
COMPACT, noun An agreement; a contract between parties; a word that may be applied, in a general sense, to any covenant or contract between individuals; but it is more generally applied to agreements between nations and states, as treaties and confederacies. So the constitution of the United States is a political contract between the States; a national compact Or the word is applied to the agreement of the individuals of a community.
There are those who say they cannot find any language in the Constitution that shows it to be a compact. They claim that since the Preamble to the Constitution started with “We the People” it is an agreement amongst the people of the united States, not the states themselves. Apparently they didn’t read to the end of the Constitution.
done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven
It was the representatives of the states, selected by the people’s representatives, who agreed to the Constitution. Even James Madison, often called the father of the Constitution, described our government as being established by a compact between the states.
Our Governmental System is established by a compact, not between the Government of the U. States, and the State Governments; but between the States, as sovereign communities, stipulating each with the others, a surrender of certain portions, of their respective authorities, to be exercised by a Common Govt. and a reservation, for their own exercise, of all their other Authorities.
TO SPENCER ROANE. Montpellier, June 29, 1821
Why is this important? If the federal government is the product of a compact between sovereign states, then that government is subordinate to the agreement that created it and to the parties of that agreement.
Supremacy Clause
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;
U.S. Constitution, Article VI, Paragraph 2
Some of you will read this and say, “Yeah, see, the Constitution and laws of the United States are supreme”, but that is NOT what the Supremacy Clause says. It says the Constitution and the laws of the United States which shall be made in pursuance thereof are the supreme law of the land. Only laws which conform to the powers delegated to the federal government are the supreme laws of the land. Any law passed by Congress and signed by the President in violation of the Constitution is by definition illegal and therefore null and void. Don’t believe me? Read what Thomas Jefferson wrote:
and that whensoever the General government assumes undelegated powers, it’s acts are unauthoritative, void, & of no force.
The Papers of Thomas Jefferson, Volume 30: 1 January 1798 to 31 January 1799
Which Came First
So in the question of which came first, the federal government or the states, it is quite obvious that the states came first. After twelve years under the failed Articles of Confederation, these states decided to create a new compact between them. This compact would create a central government (now referred to as the federal government), delegate to them a list of enumerated powers, and reserving the rest to themselves.
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.
U.S. Constitution, Amendment 10
As parties to this compact, the states have some very important responsibilities. First and foremost, it is the responsibility of the states to keep their creation, the federal government, in check. Not only have the states failed in this responsibility by passing the 16th and 17th Amendments, they have given power to the federal government to ignore the wishes of the states. The states have also failed in their responsibility to protect our rights, which is the purpose of government in the first place.
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed
U.S. Declaration of Independence
Because of these failures, we have a runaway federal government, trampling our rights and the Constitution on a daily basis. And we have a federal judiciary drunk with power since none of the entities created to oversee them will do their job. Still, before you start pointing the finger at all those failures, recognize that the greatest failure of all is by the American people. It is we who have not maintained our knowledge of the Constitution. We are the ones who have not taught our children to be free. We have not required that those elected to represent us, at all levels, and uphold their oath to preserve, protect, and defend the Constitution. It is We the People who routinely hire those we know are lying to us, voting in corrupt and dishonorable men and women as our representatives. If there is a failure in America, the fault lies squarely on the shoulders of the American people.
The good news is that if we created this mess, we can clean it up. That is what the Constitution Study was created to do: To help We the People retake control of our governments, to teach ourselves and our children to be free, and to help us recognize our freedoms and prepare to assert and defend them.
Every member of the State ought diligently to read and to study the constitution of his country, and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.
John Jay, First Chief Justice of the supreme Court of the United States
