I’ve written in the past few days about the unconstitutional usurpation of Delaware’s Constitutional Sheriffs’ arrest powers by the Attorney General of Delaware. I’ve also mentioned that whimsical and hastily made decisions that attempt to eradicate by sweeping measures time-honored common-law rules and principles are a threat to the respective states’ sovereignty. An historical look at the Constitutional Convention reveals the true significance of state sovereignty within the greater plan for our fledgling federalist nation. (As an aside, ironically, or perhaps, fittingly, Delaware was the first state to ratify the Constitution).
The “plan of the convention” as can be elicited from the historical materials, United States Supreme Court opinions, and the text of the Tenth Amendment draws a basic distinction between the powers of the newly created federal government and the powers retained by the preexisting, sovereign states. Chief Justice Marshall explained in the landmark decision of Sturges v. Crowninshield, 4 Wheat. 122, 193; 4 L.Ed. 529 (1819) that “it was neither necessary nor proper [for the Convention, and ultimately the Constitution] to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument.” (emphasis added).
This classic restatement of the principle by Chief Justice Marshall directly endorsed Hamilton’s reasoning in the Federalist No. 32, that the plan of the constitutional convention did not contemplate “[a]n entire consolidation of the States into one complete national sovereignty.” Only a partial, and limited consolidation was envisioned, in which “the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.” The Federalist No. 32, at 198 (emphasis added).
The text of the Tenth Amendment unambiguously affirmed this principle:
“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.”
The significance of this formulation and the subsequent jurisprudence interpreting the Tenth Amendment (at least, for the most part, up until the ill-advised and unfortunate Garcia decision, which, for a time reduced the Tenth Amendment to little more than a truism as stated by some commentators) is that whatever powers the individual states had before the new federal government was created were forever preserved and galvanized against federal usurpation. Moreover, any powers delegated to the United States, as opposed to the States’ retained, yet unwritten powers of sovereignty, had to be expressly vested in the new government by the Constitution itself. What this means to me is that federal powers cannot be created by implication, imaginative interpretation or by the stretching of the words and language of the Constitution; those powers have to be expressly granted to the federal government. Further, in order to divest a State of its retained powers of sovereignty, the Constitution also had to expressly do that. Again, doctrines of implication and interpretive wizardry cannot suffice to divest the States of their retained sovereignty.
One of the most, if not the most, inherent attributes of State sovereignty is to protect its people, i.e., public safety – perhaps, as Justice Campbell of the Michigan Supreme Court noted long ago, the most important prerogative of the State. As another of the Big Four Justices noted, courts, at least, have been intelligent enough to know to preserve these principles by reference to the organic document of government that is the respective states’ constitutions until the people themselves are unwise enough to undo them.
Although much criticism can be lodged at the Delaware Attorney General and harsh admonitions can be lodged against its General Assembly for attempting to usurp the Constitutional Sheriffs’ arrest powers in that state, it has to be pointed out that it is the individual citizens in that state who must realize that they are on the cusp of surrendering one of the most fundamental rights that they have. In allowing the attempted divestiture of the Sheriff’s’ rights, indeed their duties, to protect them, the citizens of Delaware threaten to surrender a right that may never be recovered absent some epic event. While these events touch upon the Tenth Amendment because they threaten to erode Delaware’s power to govern its own constitutional and sovereign destiny, it is ultimately up to the State itself (and more particularly its citizenry) to properly protect its sovereign powers. That starts with respecting its own Constitutional History in the Plan of the Convention.
Indeed, we are still today dealing with a new federal government and our collective states’ rights of sovereignty and the powers and duties that follow are a retained, original and unflappable reality that long preceded the formation of the new federal government. It is up to each state (and particularly to each of its individual citizens) to assert and protect this right to the fullest extent possible.