Where is sovereignty lodged in the U.S. federal system established by the 1787 Federal Constitution? There have been numerous answers: in the federal government, in the state governments, in the presidency, in the Constitution, in the “American state” conceived organically, in the people who have delegated parts of their sovereignty to their various governments, not fully anywhere, and nowhere at all. The last theories credit the Constitution with refuting the early modern conception of sovereignty as a specific and definitive locus of authority.
The main dispute on this subject in American history has been between those who view the federal government as the definitive sovereign and those who view the states as retaining equal or greater sovereignty. This issue was fought bitterly for decades after 1789. The practical battles ended in 1865, but theoretical debates have continued.
The Federalists at the Constitutional Convention argued that sovereignty had passed from the Crown to the Congress on July 4; that the Articles of Confederation denied the states the core elements of sovereignty but failed to structure federal powers properly to make its sovereignty effective; and that the emerging Constitution should do this. Their opponents argued that sovereignty had passed from the Crown to the states and people, who delegated a subsidiary portion of it back to the federal government by contract in the Articles and should do likewise in the Constitution.
The Federalist Papers argue that sovereignty is divided in the Constitution, with each level of government being sovereign where its law applies. In this view, the great achievement of the Constitution was to divide sovereignty yet make it work as efficiently as in a classical sovereign state. But some see The Federalist Papers as propagandistic on this score, using a reduced meaning of sovereignty to get the Constitution ratified and salve the fears of the states about their actual loss of sovereignty. They point to the following:
1. The federal power to reach the individual: the federal government is largely elected by and imposes obligations directly on the individual citizens. State officials must swear an oath of loyalty to the federal Constitution, which declares itself and federal law “the supreme law of the land” over and above state constitutions. State militias are trained by federal rules and can be placed under federal command at the pleasure of the president. This is in line with Thomas Hobbes’s depiction of the sovereign state as penetrating to the individual, without dependence on interposition of intermediate or feudal authorities.
2. The reservation of the traditionally core sovereign functions of government exclusively to the federal government, notably for regular military forces, coinage, and foreign affairs: minor exceptions are allowed if the federal government itself authorizes them.
In this view, the great accomplishment of the Constitution is to reconcile the modern conception of central sovereignty with federal noncentralization of daily functions. The virtues of the modern sovereign state—a unified realm of public law and peace, and a common economic space—are reconciled with considerable local autonomy.
The federal powers to regulate and federalize the militias are crucial in relation to classical theories of sovereignty. The Federalist No. 39 calls these powers “natural incidents to the duties of superintending the common defence, and of watching over the internal peace of the Confederacy.” The thought comes close to Robert Dahl’s definition of a sovereign state as monopolizing the regulation of force (a refinement on Max Weber’s classic definition of it as holding a monopoly of the use of force). Since state and local governments also regulate the use of force, the federal government is only a final regulative authority over the regulation and use of force. This nevertheless provides military centralization as needed for supervising a unified realm of public order, when coupled with direct control over all regular armed forces, penetration to individual loyalty and oaths, and a unified realm of law under the Supremacy Clause of the Constitution. The result could be to provide a near-miminal revised definition of classical sovereignty. Like the classical sovereign, the federal government supervises the peace, although no one can guarantee the societal preconditions for peace.
Is, then, the federal government solely sovereign? The states retain considerable autonomy, with own revenues, own penetration to the individual citizen, own constitutions internally developed, and a wide range of functions within which their legislation is supreme. However, the federal government’s authority penetrates the personnel of the state governments in a manner that is not reciprocated. This protects the effectiveness of the federal government’s penetration to the ordinary citizen. The parallel or “coordinate” exercise of authority by federal and state governments over individuals goes hand in hand with provisions for the subordination of states to the federal government in core spheres of power. The states’ supremacy within its functional jurisdictions is thus often said to be “residual sovereignty.” While the view of primary federal sovereignty has predominated since 1865, the view of equal state sovereignty has survived and likely always will as long as substantial state autonomy endures.