The Constitution presupposes the existence of states as political bodies, and it goes a long way toward defining what the relationship between the state and federal governments will be. It names some areas where the federal government is supreme over the states; it names some areas where the states have limited or no jurisdiction; and it specifies some actions or conditions that are forbidden to them and some that are required of them. But the Constitution for the most part does not dictate to the states how they must conduct their internal affairs. The Articles of Confederation made clear that the states were the constituent parts of the United States as a “league of friendship,” and that the states themselves remained sovereign actors. By contrast, the Constitution makes clear that the people collectively act as the sovereign. Of course, a number of state constitutions made the same point with respect to the sovereignty of the people of their respective states. But upon entering civil society, the people’s natural sovereignty is delegated to a civil authority.
Given that the people act through representatives—both at the state and the federal level—it may seem unclear where in this federal arrangement that sovereignty has been delegated. The uncertainty regarding the precise nature of sovereignty in general and the disagreements about the precise locus of sovereignty in this federal arrangement have precipitated some of the most contentious (and even bloody) disagreements in American history.
In sovereign states, state legislatures wield tremendous powers. When the states created the Articles of Confederation, they were the sovereigns vis-à-vis the federal government. When the delegates sought to replace the Articles, however, the new preamble and ratification process made the powerful statement that this Constitution derived its authority from “We the People.” The relationship of the states and state legislatures to the United States would henceforward be changed. State legislatures and state governors continue to exercise the powers of their states, defined in the 10th Amendment as all “powers not delegated to the United States by the Constitution, nor prohibited by it to the States.” However, the Supremacy Clause in Article VI called the continued primacy of the state as an independent actor into question.
The states did not give up all of their powers under the new Constitution. However, the powers granted to the federal government can impinge on the prerogatives of the state legislatures. Additionally, some specific legislative powers that the states had enjoyed under the Articles of Confederation were stripped under the 1787 Constitution. Over time, additional state legislative prerogatives have been implicitly or explicitly trimmed as the rights provided to individual citizens and to the people collectively have been expanded under the Constitution, and as the federal government has grown both in power and scope.
Article I of the Constitution both implicitly and explicitly limits state legislatures. The legislative power given to the federal government implicitly affects the power that states can exercise. For example, because the power to regulate interstate commerce is vested in the federal government, less room exists for state legislatures to regulate in that area. Once an overlap is identified, the federal authority is generally considered supreme, but the notion of supremacy can become problematic. In an area where the federal government constitutionally acts, it is unquestionably supreme. The Supremacy Clause makes clear that the Constitution and the federal laws made in pursuance of the Constitution are supreme. Given that Article VI requires that federal officials and state officials, such as governors and state legislators, be bound “by oath or affirmation, to support this constitution,” it is clear that state officials acknowledge that the federal government is to be supreme in the areas in which it can act. But the fact of supremacy may be less important than who interprets and enforces the Constitution.
The Articles of Confederation already contained a supremacy clause of sorts: “Every State shall abide by the determinations of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the articles of this confederation shall be inviolably observed by every State” (Art. XIII). Therefore, in one sense, the Constitution makes no innovation when it declares that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” The main difference between the old and new arrangements was that the Constitution empowered the new federal government to enforce the supremacy of its laws through powerful executive and judiciary branches. The mere assertion of supremacy without the means for enforcement is an empty threat.
There are also explicit limits on states and state legislatures. For example, the Constitution prohibits states from coining money, issuing paper money, or retroactively interfering in contractual agreements. It is largely forgotten today that the irresponsible and sometimes corrupt policies of some of the states with regards to paper currency and contract laws were among the primary reasons some members of the Constitutional Convention believed a stronger central government was necessary.
Under the new Constitution, the states would be forbidden from issuing paper currency and “impairing the obligation of contracts” (Art. I, Sec. 10). The legal meaning of the contract clause would later prove problematic, but the general intent of these provisions was clear. Madison, in his preparatory notes before the Constitutional Convention, had named among the various ways that the states had sought to violate contracts: depreciated paper emissions, making property legal tender, installment laws, and “occlusions of the courts of justice.” All of them except the last involved altering the requirements by which the original terms of a contract could be fulfilled; the last example amounted to blocking the possible means of legal redress for the parties who might be injured by any of the former measures. These violations, many believed, were not only unjust in themselves, but they undermined the mutual trust which was necessary for good government. Gouverneur Morris at one point in the Convention exclaimed, “Ask any man if he confides in Congress – if he confides in the state of Pennsylvania – if he will lend his money, or enter into contract? He will tell you, no. He sees no stability. He can repose no confidence” (July 2). The passage of the contracts and tender clauses was intended to foreclose on some of the greatest injustices that were then being committed by the states.
Controlling the supply of money is a primary function of a sovereign government. Allowing states to exercise this power was deemed inconsistent with the existence of a federal government created in part to bind the states together as a nation. When James Madison was listing the vices of the old confederation (vices which he hoped the new Constitution would remedy), chief among them were: A “want of concert in matters where common interest requires it” and the “injustice of the laws of the States” (Vices of the Political System of the United States, April, 1787). The prohibitions on the state legislatures were meant to address both of these problems. Despite the fact that legislatures were limited with respect to some of the powers they were to exercise, the 1787 Constitution did require state legislatures to exercise power in specific instances. For example, state legislatures retain a role in the amendment process by ratifying amendments to the Constitution when three-fourths of the state legislatures agree. Additionally, state legislatures were tasked with choosing their state’s U.S. senators until the 17th Amendment required that senators be chosen directly by the people through elections.
Over time, the Constitution has expanded the rights of individuals and narrowed the ways in which state legislatures can act. For example, the 14th Amendment has been interpreted to broaden many of the protections that the Bill of Rights guarantees so that they apply to the states as well as to the federal government. For example, the 1st Amendment limits on the federal government also apply to state governments. The Constitution takes the same tack in limiting the prerogatives of states regarding voting rights. The amendments related to voting tend to be stated in negative language, noting that the right to vote is not to be abridged based on a particular characteristic. However, the effect of the amendments is to prescribe how states can grant the franchise. To the extent that the right to vote is still considered a state-granted right, the limitations on how the state can structure the right to vote is significant.