Whereas the words “national” and “federal” are often used interchangeably to describe the U.S. government today, these words were considered as distinct and even irreconcilable terms when the Constitution was being debated. A national government originally meant that sovereignty resided with the central authority, and all power was delegated to the constituent parts. A federal government, on the other hand, would be a collection of sovereign and independent states which delegated limited powers to a central body through a treaty or alliance. The U.S. Constitution establishes a government that is neither national nor federal, according to their original meanings. Madison’s solution was to create a new Constitution that would incorporate many more elements of a national government than had existed under the Articles of Confederation, and it would have to solve the problems of weakness and ineptitude that were characteristic of prior confederal arrangements. Nonetheless, it still would not embrace all of the features traditionally associated with national governments. As Madison argued in Federalist No. 39, in certain crucial respects “the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.” The system that Madison in Federalist No. 39 referred to as “partly federal and partly national” (and what Tocqueville would later call “an incomplete national government”) is what we today simply call Federalism.
If the old notions of Federalism had vested sovereignty in the constituent members, and the old notions of nationalism had vested it in the central government, where did sovereignty reside in a new system that was “partly federal and partly national”? That question cannot be answered without first addressing whether or not there can be such a thing as “divided sovereignty.” Many people think not.
During the Constitutional Convention, Hamilton declared his belief that “two sovereignties cannot coexist within the same limits.” He was therefore in favor of vesting “a complete sovereignty in the general government” (June 18). His proposals of that day, however, were not generally supported. Oliver Ellsworth expressed the more general view when he declared: “The United States are sovereign on one side of the line dividing the jurisdictions—the states on the other. Each ought to have power to defend their respective sovereignties” (August 20). William Samuel Johnson of Connecticut admonished the proponents of a stronger central government that they were bound to show precisely how the states would “retain some portion of sovereignty at least” under their proposed plan (June 21).
The Constitution made clear that the states could not retain all of the sovereignty they had enjoyed under the Articles. George Washington explained to the Confederation Congress in a letter accompanying the proposed Constitution: “It is obviously impracticable, in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all.” Almost everyone at the time, therefore, recognized that the states were relinquishing some sovereignty by adopting the new Constitution.