One of the key arguments made by constitutional nationalists is that the Constitution provides that “We the People of the United States . . . do ordain and establish this Constitution.” The idea is that a single people throughout the country as a whole established the Constitution and therefore sovereignty resides at the national level in that people. Moreover, this national sovereignty negates any inferences that might otherwise follow from the idea that the Constitution consists of a compact of states. While this is certainly one interpretation of this language, it is certainly not the only one. And here I want to suggest an intermediate understanding – one that is in between national and states rights sovereignty.
We the People of the United States has two concepts in it: (1) the People and (2) the United States. Each of those ideas has two possible interpretations. The People might refer either to a single people of the nation or to the separate peoples of the different states. Similarly, the United States might refer to a single national country – as France does – or it might refer to a country that consists of multiple states. In the latter case, the meaning of the United States would be similar to the meaning of United Nations – an organization that consists of multiple different nations.
The nationalist view works best if both of these concepts have the nationalist interpretation – if it is one people and a single national country. The states right view works best if both of these concepts have the compact between states interpretation – if it is multiple peoples and a country consisting of multiple states.
While it is possible to view both concepts in either way, I believe that the stronger interpretation of people is the national view and the stronger interpretation of the country is the states view.
We the People of the United States is best understood as referring to a single people. After all, if the Framers had intended for the Constitution to reflect the actions of multiple peoples, it could have easily provided “We the Peoples of the United States.” But it does not say that. The better reading is that it establishes a single people. Also supporting this conclusion is the Tenth Amendment, which says that “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.”
What if American Exceptionalism, properly understood, really boils down to associational liberty? This question seemed apt after my read of the current volume of the excellent journal for all things philanthropy, Conversations on Philanthropy. This volume is a series of timely and historical reflections on law and philanthropy. Of pertinent interest to me are two essays: Bill Dennis’ “A Radical Reform for Nonprofit Tax Exemption” and Steven Grosby’s “Philanthropy, Law, and Associational Liberty: A Few Remarks on Gierke’s Genossenschaftsrecht.” I want to discuss Grosby’s essay here, but before I do that, the epigraph from Dennis’ essay by Richard Cornuelle is worth repeating in part: The foundation is an instrument forged by citizens who transfer profit from the commercial sector and put it directly to work as risk capital for the general betterment of society. To say or imply that the foundation exists only on the sufferance of government is to reason from the premise that the government is the whole of society.
As noted in the first post, Albert Gallatin initially aspired to being a private, rather than a political, entrepreneur. To that end the firm of Albert Gallatin and Co. tried to attract renters or buyers to land in Pennsylvania. McCraw describes how the firm “organized a company store, a boatyard on the Monongahela, and later a glassworks.” (192) Like many commercial men of his day, not the least of whom was Robert Morris, Gallatin’s speculations in land development eventually failed, but the experience of trying to make a go of it in the private economy was important.
Unlike Hamilton, Gallatin had a more nuanced feel for the variations of taste and opinion that a businessman must have to adapt to opportunities as they are, rather than as he might wish them to be. Failure has a way of accentuating the point. Again, McCraw’s text does not specifically highlight this difference, but it comes through well enough in the evidence.
As noted in the two previous posts, a powerful illustration is the attitude of both men to the subject of finance and its relationship to the economy. Most of those who dabbled in political economy at the time presented a hodgepodge of Smithian free-trade arguments and mercantilist expediencies, and neither Hamilton (as we have seen) nor Gallatin were immune to the mixing of apples and oranges.
This post consists of two parts: (1) thoughts prompted by re-reading John Hart Ely’s Democracy and Distrust; and (2) something resembling a meditation on the Guaranty Clause. As the reader will see, I am not able to articulate the connection between the two topics in anything but the most general terms. I hope others may be able to do so.
State sovereignty is the fundamental building block of the international legal system. International Law, much like the US Constitution, is at once an expression of, and self-imposed limitation upon, sovereignty. At the same time, international law is much less of a limitation on US sovereignty than is the US Constitution, and rightly so. Today’s international legal system is a strongly positivist, consent-based system. In general, states are not bound by any rules of international law that they have not themselves created or otherwise consented to. While states have chosen to greatly expand the scope and substance of international law, most of…
Concerns about sovereignty in an age of globalization are common, and often take a defensive posture that seeks to limit the reach of international law. But sovereignty and international law are not incompatible. Broadly understood, sovereignty may be defined as the advancement of the national interest, and the reality of globalization requires the United States…
Concerns about sovereignty in an age of globalization are common, and often take a defensive posture that seeks to limit the reach of international law. But sovereignty and international law are not incompatible. Broadly understood, sovereignty may be defined as the advancement of the national interest, and the reality of globalization requires the United States to make decisions that further the national interest through international engagement. In some cases global engagement finds expression by persuading other nations to take the path we have already chosen. One such example is the effort to combat bribery of foreign officials, which began as an…
State sovereignty is the fundamental building block of the international legal system. International Law, much like the US Constitution, is at once an expression of, and self-imposed limitation upon, sovereignty. At the same time, international law is much less of a limitation on US sovereignty than is the US Constitution, and rightly so. Today’s international legal…