When people today talk about the “federal” government or the “national” government, they tend to use these terms as though they were interchangeable. When the delegates to the Constitutional Convention met in Philadelphia in 1787, however, they perceived these words as having starkly different meanings, and they convened with very definite opinions about whether they wanted one or the other term applied to their Constitution. Some delegates arrived with a firm determination to shift sovereignty, or supreme power, to the central government, and create a national government. Other delegates arrived equally determined to retain sovereignty in the states, and protect their federal arrangement. Over the course of the summer, their opinions evolved toward a compromise position that would make this Constitution “partly federal and partly national” (a formula that Madison later defended in Federalist No. 39). But this debate was not merely a war over the abstract meanings of words. Specific provisions that were adopted or rejected as parts of this Constitution contributed to the complex structure of federalism that the Framers ultimately adopted. In particular, the rejected federal veto over state laws, the explicit prohibitions on state powers, the enumerated powers of Congress, and the “Supremacy Clause” were all ways to divide sovereignty between the state and federal governments. Indeed, their choices would forever change how we understand the meaning of the word, “federal.”
On May 29, 1787, the Convention sat down to its first real day of addressing the business at hand, and Edmund Randolph dropped the bombshell that was the Virginia Plan. Some of the participants no doubt expected or even desired extreme measures, but others at that meeting must have been stunned by the extremity of the changes proposed. Most striking, for some of them, must have been the shift from a federal to a national form of government. The old Articles, after all, had explicitly been a “Confederation” and a “firm league of friendship.” Not once had the Articles referred to the United States as a “nation.” Instead, it had stated unequivocally that “Each state retains its sovereignty.” The Articles of Confederation had been more like a treaty between sovereign nations than a constitution forming a single government. By contrast, the Virginia Plan repeatedly referred to the “national” legislature and the “national” executive that the new system of government would create. And although it never explicitly stated where the supreme or sovereign power resided, one feature in that plan seemed to leave no room for doubt. The sixth resolution granted to the “national” legislature the power “to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union.” In other words, the national legislature would have the power to veto laws passed by the state legislatures. There could be no mistaking who was the boss in this new system.
Just like today, the Framers used the words “federal” and “national” in two different senses. The word federal means the political arrangement in which individual (state) governments form a union for limited purposes, and it also refers to the “federal government,” meaning the central government within that kind of arrangement. In a corresponding way, there is a “national” political arrangement, in which power is concentrated at the center, and a “national government,” which refers to that government that holds the concentrated power. When Edmund Randolph introduced the Virginia Plan on May 29, he launched into a discussion of their inadequate “federal system,” (meaning the relationship between the states and the central government), and he spoke of the inadequate powers of the “federal government” (meaning the central government within that system). By contrast, in the Virginia Plan that he offered to his colleagues, the word national was used 19 times, and the word federal was not used even once.
The delegates did not discuss the plan until the following day. After the Convention “went into Committee of the Whole,” the discussion immediately turned to the question of whether they intended to frame a national or a federal government. Edmund Randolph moved that the resolutions he presented the previous day be postponed, so that they could establish their intentions by affirming three propositions:
1. that a Union of the States merely federal will not accomplish the objects proposed by the articles of Confederation, namely common defence, security of liberty, & genl. welfare.
2. that no treaty or treaties among the whole or part of the States, as individual Sovereignties, would be sufficient.
3. that a national Government ought to be established consisting of a supreme Legislative, Executive & Judiciary.
All of these propositions sought to establish an agreement among the group that their goal was to move away from a federal arrangement and toward a national one. It was quickly decided to focus the debate directly on the third proposition, and Madison records that the subject “underwent a discussion, less however on [the proposition’s] general merits than on the force and extent of the particular terms national and supreme.”
Some members were clearly disconcerted. Charles Pinckney asked Randolph if “he meant to abolish the state governments altogether.” His older cousin, General Charles Pinckney (both from South Carolina), questioned whether the Convention had the authority even to discuss “a system founded on different principles from the Federal Constitution” (by which he meant the Articles of Confederation). Elbridge Gerry from Massachusetts expressed the same concern. Other delegates defended the proposal to adopt a more national form of government, at the same time explaining what they meant by the word. Gouverneur Morris of Pennsylvania repeated what was then a political axiom: “in all communities there must be one supreme power, and one only.” By inference, a federal government was one in which supreme power, or sovereignty, rested in the individual states, and a national government was one in which sovereignty rested in the central government. He preferred the national model. The impossibility of dividing sovereignty was something that was generally accepted at this time.