New York was Hamilton’s great project. So closely divided was the state, that at various moments, he despaired of its coming into the union.
At one point the Antifederalists offered a compromise. They would support a conditional ratification dependent on the passage of certain key amendments, including the all important construction of delegated and reserved powers, or what eventually would become the Tenth Amendment. Hamilton wrote Madison for his opinion of the proposed compromise, and the response was unyielding: New York could “not be received on that plan.” It must be, Madison elaborated, “an adoption in toto, and forever.” Hamilton read the letter aloud to the Convention and it is reputed to have steeled the nerves of the Federalists for resistance. Rather than read, “on condition,” New York’s statement of ratification was amended to say, “in confidence.” The statement ran thus:
“Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution, and in confidence that the amendments which shall have been proposed to the said Constitution will receive an early and mature consideration, — We, the said delegates, in the name and in the behalf of the people of the state of New York, do, by these presents, assent to and ratify the said Constitution.” (Emphasis added)
In his America’s Constitution, A Biography (2005) p. 38, Ahkil Reed Amar concludes that this wording cinched the case against conditional ratification based upon powers reserved to the people of the states. Amar’s particular aim was to put any idea of legal secession to rest, but he also went on to implicate other forms of interposition as well.
Not so fast.
Amar stopped his reading at a point altogether too convenient for his thesis. Here is what the rest of the paragraph said:
“In full confidence, nevertheless, that, until a convention shall be called and convened for proposing amendments to the said Constitution, the militia of this state will not be continued in service out of this state for a longer term than six weeks, without the consent of the legislature thereof; that the Congress will not make or alter any regulation in this state, respecting the times, places, and manner, of holding elections for senators or representatives, unless the legislature of this state shall neglect or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same; and that, in those cases, such power will only be exercised until the legislature of this state shall make provision in the premises; that no excise will be imposed on any article of the growth, production, or manufacture of the United States, or any of them, within this state, ardent spirits excepted; and the Congress will not lay direct taxes within this state, but when the moneys arising from the impost and excise shall be insufficient for the public exigencies, nor then, until Congress shall first have made a requisition upon this state to assess, levy, and pay, the amount of such requisition, made agreeably to the census fixed in the said Constitution, in such way and manner as the legislature of this state shall judge best; but that in such case, if the state shall neglect or refuse to pay its proportion, pursuant to such requisition, then the Congress may assess and levy this state’s proportion, together with interest, at the rate of six per centum per annum, from the time at which the same was required to be paid.”
Here the representatives of the people of the state of New York fairly put the new government on notice in no uncertain terms that they reserved certain powers to their own legislature.
It was not merely that they had “confidence” that the new Congress would not do certain things out of some sense of common decency, such as the all important power of calling up the militia, but rather that it will not do such without consent of the legislature thereof. If this be not conditional, it certainly was declaratory of New Yorkers understanding of their reserved rights and powers, and they left little doubt as to what they would do about it if that understanding were not realized:
“We, the delegates of the people of the state of New York, duly elected and met in Convention, …, — Do declare and make known, —…That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments, to whom they may have granted the same; and that those clauses in the said Constitution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers, or as inserted merely for greater caution.” (Emphasis added)
This was a statement without equivocation. If the happiness of the people demanded it, the people were entitled to reassume those powers. And who were “the people”? The answer was placed in the very same paragraph. Not the people as an undifferentiated mass of the whole union, but to the people of the several states, or to be even clearer, “or to their respective state governments, to whom they may have granted the same.” Only the most hardened opinion could hope to see in the word “several,” the same ambiguity as is found in “the people of the United States.” It was as if the representatives of New York purposefully tried to avoidVirginia’s more ambiguous wording.
This statement was nowhere contested. It was not sent back to New York for reconsideration. It stands athwart Madison and Hamilton’s desired conclusion. New Yorkers did not cede any basic assumptions about the nature of their state’s reserved powers and sovereignty. Unlike the preamble to Virginia’s statement, their understanding was quite clear. The state would be watchful over the actions of the national government, and could when necessary assert its authority to ensure constitutional fidelity. Indeed, one could well argue that New York, through its statement of ratification, made the very first act of state interposition in the new Union.
On this ground, it becomes necessary to inquire what the federal check of the constituent sovereignties should look like. As we saw in part 2, Publius seemed unclear on the matter, offering both formal and confrontational modes of balancing between state and national power. How was this to play out in reality? How was the federal check to be made operational?
Madison offered other insights when the national government committed certain blatant violations of the First Amendment, and, to make matters worse, controlled the judicial branch as well. This was just the sort of issue not entirely comprehended in Federalist 39. What happens then when the “most effectual precautions” to secure “impartiality” fail? This will be the subject of the next few posts.