Amar, Akhil’s Constitution

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by Brian McCandliss

“Woe to you Scribes and Pharisees—hypocrites!”
–Jesus, Matthew 23:29

Akhil Reed Amar, professor of Constitutional Law at Yale University, and recognized “authority” on the Constitution among his peers, is author of the book America’s Constitution. However this is one book that you definitely can’t judge by its cover; for it does not describe the United States Constitution as written according to the intentions of its original Framers and ratifiers, so much as according to the intentions of Amar himself – thus prompting me to re-name his book as “Amar, Akhil’s Constitution.”

While Amar does admit that the states were each sovereign nations unto themselves prior to ratifying the Constitution, he claims that ratification ended their sovereignty, “merging” them into one single nation– much as one would merge several corporations to form a single conglomerate. In his own words: “[T]he United States did not become an indivisible nation prohibiting unilateral state secession – the crux of the Gettysburg contest – until 1788.” (1)

We find Amar’s entire explanation of precisely how the Constitution expresss this intent, in the following passage:

In dramatic contrast to Article VII–whose unanimity rule that no state can bind another confirms the sovereignty of each state prior to 1787 –Article V does not permit a single state convention to modify the federal Constitution for itself. Moreover, it makes clear that a state may be bound by a federal constitutional amendment even if that state votes against the amendment in a properly convened state convention. And this rule is flatly inconsistent with the idea that states remain sovereign after joining the Constitution, even if they were sovereign before joining it. Thus, ratification of the Constitution itself marked the moment when previously sovereign states gave up their sovereignty and legal independence. (2)

Here, Amar presumes that the states knowingly, willingly and voluntarily (and above all, permanently) surrendered themselves to a national Union, in which they could be individually “bound” to the Constitution by force — rather than simply by voluntary agreement, which he freely admits was the case under the 1781 Confederation. However, Amar gives absolutely no evidence to support this presumption. Certainly we find no expression of any state relinquishing its sovereignty– or authorizing coercive force against it— within the four corners of the Constitution itself, or any pertinent document written prior to it. Indeed, the term “nation” is never even once mentioned; rather, the United States is only referenced as “the Union.”

On the contrary, not only does the Constitution (or any other document) nowhere express this intent between the parties to it (i.e. the individual states), but in fact implies the opposite intent, naming many limitations on federal powers— all of which would be entirely subjective and meaningless, without a state’s sovereign power to enforce them against a federal majority. In short, a national Constitution, would be no Constitution.

Meanwhile numerous other documents emphatically express that the Constitution strictly describes a voluntary union, rather than a mandatory (i.e. national) one. Primary among these was The Law of Nations, in which Vattel explains that several nations can unite while still remaining sovereign:

Finally, several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfill engagements which he has voluntarily contracted. (3)

Here we see, that as with the Articles of Confederation before it, a Constitutional republic does not require any state to surrender its sovereignty to form “one nation.” Rather, here we see additional precedent that the Constitution could easily provide the federal government with additional powers to those delegated by the Articles of Confederation, while still remaining 100% voluntary—as opposed relinquishing sovereignty of the individual states; this would indeed be extreme indeed, defeating the entire purpose of achieving it in the first place.

Additionally, each state, in being founded upon democratic principles, was popularly sovereign: i.e. its People (i.e. its popular majority of voters) was its ruling power – not its government, or any other elite body (as was the case with many other nations). Therefore, no state could have properly relinquished its sovereignty, without the express permission of its People. This point is key, since the people of the states never authorized the Constitution, at all – and thus they could not have authorized the relinquishment of their respective sovereignty.

On the contrary, the Philadelphia Convention was only authorized by the People of each state, in order to modify the then-current Articles of Confederation – not to replace them with an entirely new document, or form a new union: however, the Constitution did both. Therefore, even if the Framers of the Constitution had intended for the Constitution to relinquish the sovereignties of the several states, and converge them into one sovereign nation (which they didn’t, as we’ll see below), then this would have been wholly null and void, by the simple lack of express intent by the ruling sovereigns themselves: the Peoples of the respective states. For sovereign nations, by definition, do not lose their sovereignty by act of omission, i.e. simply by failing to expressly retain it in their political dealings with other nations; rather, relinquishing national sovereignty requires a clear and express statement that explicitly states both the relinquishment and the details thereof. This is exemplified by the Paris Peace Treaty of 1783, whereby Great Britain expressly relinquished its claim to its former colonies:

His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof. [Emphasis added]

Without such a requirement, any nation could legally conquer a weaker one under the claim of “national authority–” and then legally validate the claim, via the catch-all that any pesky legal details were “settled on the battlefield.” (Strangely, this exact same claim was not tolerated for Saddam Hussein when he conquered the sovereign nation of Kuwait; but it continues to work just fine for Abraham Lincoln in conquering the sovereign nations of the individual American states).

In addition to the Constitution itself lacking any express intent to relinquish sovereignty, such intent is expressly denied in the various other documents written both before and after the Constitution was ratified by the states. These will be examined separately in pre-ratification and post-ratification documents, though neither treatment is exhaustive.

Pre-ratification Documents: Federalist

State sovereignty is expressly retained under the Constitution, according to several of the Federalist papers; these were the various companion-documents to the Constitution, which expressed its intended meaning to the sovereign Peoples of the individual states. This therefore expressed the intentions between these Peoples, as the original terms of the constitutional agreement.

Federalist No. 39 is the most direct and detailed assurance of this to the people of each state, holding that that “the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious:”

But it was not sufficient,” say the adversaries of the proposed Constitution, “for the convention to adhere to the republican form. They ought, with equal care, to have preserved the federal form, which regards the Union as a Confederacy of sovereign states; instead of which, they have framed a national government, which regards the Union as a consolidation of the States.” And it is asked by what authority this bold and radical innovation was undertaken? The handle which has been made of this objection requires that it should be examined with some precision….

On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act.

That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution.

Here, we see that the will of the majority of the whole people of the United States would not bind the minority, in the same manner that the majority in each state binds the minority within it; nor would the will of the majority of the states bind the minority of states. Rather, the states under the Constitution would continue to form so many independent States– not one aggregate nation.

This– in dire contrast to Amar’s validation of popular myths– was the context in which the Peoples of each individual state ratified the Constitution: i.e. under the expressed intention that each state would retain its respective national sovereignty, and remain individually and popularly sovereign thereafter.

While Madison does express in Federalist No. 39, that the Constitution was indeed “partly federal and partly national,” this was prefaced by the above—and afterward specified in the context that “in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.” However if the Constitution had indeed surrendered the national sovereignty of the individual states, then it would be “wholly national,” in every sense other than name– thus making the federal government the final judge of its own powers; and hence this “federal” nature and limitations would be thus wholly subject to the whims of the federal policy-makers (as they are today).

Likewise explicit is Federalist No. 33, in which Alexander Hamilton undermines any national context via the so-called “Supremacy Clause” in Article VI of the Constitution, which many nationalists claim as “absolute proof” of such:

…it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.

In other words, the People of each state retained the sovereign power to refuse to obey federal laws; for sovereign rule, by definition, is always absolute. Therefore, conversely, if the federal government (or People) was the sovereign, then it could not technically “usurp” powers, but would again simply be the sole and final judge of its own powers.

In conclusion, we see that the People of each state ratified the Constitution only with the express sovereign intention, that they would retain their sovereignty in the constitutional union, as before it. While, as mentioned in the Law of Nations, they may have delegated additional powers to the federal government to those allowed previously under the Articles of Confederation, there is no reason to believe that this would be any less voluntary among the individual states; again as stated in Law of Nations, such joint deliberations would not impair the sovereignty of each member, but only put some voluntary restraint on the exercise of it as agreed (also as under the Articles of Confederation).

Post-ratification Documents

Shortly after the Constitution was ratified, Madison and Jefferson were particularly explicit in the 1799 Virginia Resolutions and 1798 Kentucky Resolutions, respectively, that the states had each retained their national sovereignty under the Constitution. While less persuasive, due to their timing, than pre-ratification documents, they do provide testimony of the Founders and Framers (specifically the key Framer, Madison) regarding the Constitution’s intended meaning.

In the latter document, Jefferson expressly states the following:

Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

Once again, this literally defines each state as sovereign; for if the Union were in fact one sovereign nation, then the states indeed would have thus been “united on the principle of unlimited submission to their general government.”

Meanwhile in the Virginia Resolutions, Madison likewise expresses similar sentiments:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

Madison continued even more explicitly, in his 1800 Report on the Virginia Resolutions:

It is indeed true that the term “states” …means the people composing those political societies, in their highest sovereign capacity….the Constitution was submitted to the “states” in that sense the “states” ratified it; and in that sense of the term “states,” they are consequently parties to the compact from which the powers of the federal government result…. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity…. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition…. However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.

Here Madison makes absolutely and unambiguously clear, that the sovereign will of the People of each state, wholly supersedes any power of the federal government—at least within that state’s territorial boundaries. Otherwise, once again the federal government could simply construe the Constitution as it pleased, and simply claim to respect its limitations– or in fact say anything at all; for without sovereign recourse, the individual states would be wholly powerless against the federal majority.

Unfortunately, this is the federal policy under which we now live; and which was instituted by the regime-change that occurred via the “Gettysburg Contest” as Amar terms it—but which is more popularly known as “the American Civil War,“ in which the federal officials deliberately killed 300,000 state-citizens who resisted its claims of national authority over them, brutalizing the individual states and their 8 million inhabitants (100 million in modern numbers) into submission, and suppressing the truth through censorship in order to re-write history.

Pundits like Amar simply serve as shills and lackeys to continue this suppression, by lending their professional credentials to support and validate the federal government’s version of truth and history– such as when he claims that “ratification of the Constitution itself marked the moment when previously sovereign states gave up their sovereignty and legal independence.” As we see above, this is utterly false: since the states never gave up their sovereignty (and in fact expressly retained it); however Amar’s claims lend credence to those of the current regime, through his cloak of neutrality—as well as his credentials, and related betrayal of professional ethics and public trust.

In order to repair the damage done to the Union—and restore liberty– we must first correct the breaches in the truth; and Amar’s claim is the key falsehood in Constitutional law and history, which must be corrected before the remainder of the Constitution can be recognized and enforced.

In short, the individual states are sovereign nations, by law; meanwhile the United States has no sovereign power of its own.

Brian McCandliss is a business and economics graduate of Liberty University in Lynchburg, VA, a law student, and a businessman in Detroit, Michigan.

References

1. Amar, Akhil Reed. America’s Constitution, pp. 38-39.
2. The David C. Baur Lecture: “Abraham Lincoln And The American Union,” by Akhil Reed Amar
3. Vattel, Emerich. The Law of Nations, Book I,§10. “Of states forming a federal republic.”