Some theoretically-minded Framers attempted to answer the question of federalism by returning to the fundamental principles of the Declaration of Independence, which took its bearings from Locke: Sovereignty is originally and ultimately in the hands of the people, not in any government body. James Wilson had made that point in the PA Ratifying Convention on December 1, 1787:
Upon what principle is it contended that the sovereign power resides in the state governments? The honorable gentleman has said truly, that there can be no subordinate sovereignty. Now, if there cannot, my position is, that the sovereignty resides in the people; they have not parted with it; they have only dispensed such portions of power as were conceived necessary for the public welfare.
Madison had even wanted to establish that principle in the Preamble of the Constitution by adding through amendment “that all power is originally vested in, and consequently derived from, the people” (JM’s proposed Bill of Rights, delivered to the House on June 8, 1789). It is the people, then, who decide what authority or authorities will wield sovereign power on their behalf. And under the Constitution of the United States, “the delegated sovereignty is divided between the General and the State Governments” (JM to Thomas Ritchie, Dec. 18, 1825). But not everyone was destined to agree with that formulation. And even among the proponents of divided sovereignty, locating precisely where that demarcation lay, and how it would be enforced, was in some respects left vague. The issues of sovereignty would revolve around how broadly the “enumerated powers” were interpreted, and who would determine the boundary line when there was a dispute between state and federal authority.
It had been anticipated that certain “disagreements concerning the line of division between” the two governments would frequently occur, and therefore some authority was needed for settling these disagreements (JM to Judge Roane, June 29, 1821). During the nullification crisis, there were many who maintained (what Madison asserted was a novel doctrine) “that sovereignty is in its nature indivisible; that the societies denominated States, in forming the constitutional compact of the United States, acted as indivisible sovereignties, and, consequently, that the sovereignty of each remains as absolute and entire as it was then” (JM, “Sovereignty,” 1835). Those partisans of absolute and indivisible state sovereignty claimed that the states had retained the authority to decide for themselves if the federal government had exceeded its authority. Later, Southern states would carry this doctrine to its extremes, claiming that as sovereign states they had the right to secede from the federal compact.
Madison, although he consistently believed that the states should play a role in keeping the federal government within its proper boundaries, was equally consistent in his belief that states could not be the final arbiters of that question:
Were this trust to be vested in the States in their individual characters, the Constitution of the United States might become different in every State, and . . . the State governments would not stand all in the same relation to the General Government, some retaining more, others less, of sovereignty. (James Madison to Judge Roane, June 29, 1821)
Instead, the authority to determine boundary disputes was generally deemed to reside in the federal courts, a prospect that had originally alarmed some Anti-Federalists. “Brutus” pointed out that “the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress.” Because the courts were wholly independent of the other branches, he warned that “perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial” (“Brutus” No. 15).
Madison likewise looked to the courts as the final arbiters, but he expressed higher hopes that their independency would instead lead to greater neutrality between the respective claims of the state and the federal governments:
Is it too much to anticipate, even, that the federal and State judges, as they become more and more co-ordinate in talents, with equal integrity, and feeling alike the impartiality enjoined by their oaths, will vary less and less, also, in their reasonings and opinions on all judicial subjects; and thereby mutually contribute to the clearer and firmer establishment of the true boundaries of power. (James Madison to Judge Roane, June 29, 1821)
Ultimately, James Madison celebrated “divided sovereignty”—not only as a possibility but as an important American innovation:
Other Governments present an individual and indivisible sovereignty. The Constitution of the United States divides the sovereignty; the portions surrendered by the States composing the Federal sovereignty over specified subjects; the portions retained forming the sovereignty of each over the residuary subjects within its sphere. If sovereignty cannot be thus divided, the political system of the United States is a chimera, mocking the vain pretensions of human wisdom. If it can be so divided, the system ought to have a fair opportunity of fulfilling the wishes and expectations which cling to the experiment. (James Madison to N. P. Trist, Feb. 15, 1830)
Whether the United States Constitution is an ingenious innovation or a foolhardy chimera, therefore, depends upon the courts’ neutrality and their ability to maintain the proper boundaries between the state and federal governments.