Over the course of the summer, the Convention began to moderate or eliminate some of the more nationalistic elements of the Virginia Plan: including the broad, indefinite powers it gave to Congress, the federal veto over state laws, and the all-important question of whether to base representation on population alone or whether to allow one branch of the legislature to represent the states equally. By the end of the Convention, the participants had come to recognize that the government they were constructing was indeed “partly federal and partly national” (just as Madison would later argue in Federalist No. 39). They would devise a system which would, for the first time, attempt to divide sovereignty between the state and the national governments.
Alexander Hamilton, during the Constitutional Convention, had insisted that “two sovereignties cannot coexist within the same limits.” But he changed his tune during the New York Ratifying Convention. When Melancton Smith tried to appeal to that axiom in his arguments against the Constitution, Hamilton responded: “This is curious sophistry. That two supreme powers cannot act together, is false.” Such a mixture only causes problems when the two sovereigns are aimed at each other or at the same object. In the government established by the Constitution, however: “The laws of the United States are supreme, as to all their proper, constitutional objects: the laws of the states are supreme in the same way.” Madison made essentially that same argument in Federalist No. 39. The jurisdiction of the federal government (and hence its supremacy) “extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.” And even before the ratification debates began, George Washington was the first to break the news in the Letter of Transmittal that the Convention sent to Congress along with the new Constitution. It was impossible, he said, “to secure [to each state] all rights of independent sovereignty,” but the states would only have to give up as much sovereignty as was necessary to preserve the rest.
The constitutional formula of “divided sovereignty” had been the work of compromise and concession within the Constitutional Convention, but it later became a cause of celebration and pride for Madison toward the end of his life. He boasted that the Constitution was totally unique, and “no other Government can furnish a key to its true character. Other Governments present an individual and indivisible sovereignty. The Constitution of the United States divides the sovereignty.” Naysayers had denied that such a system was possible, but the Constitution was designed to prove them wrong: “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.”
Nearly fifty years later, even outside observers like Alexis de Tocqueville agreed with Madison’s assessment. The United States had created something that was so novel that language itself had not yet caught up with the idea. The term “federal” was not adequate to accurately describe this curious arrangement of dividing supremacy between the national and state authorities. He suggested that the United States Constitution had created a new form of “incomplete national government.” His terminology never caught on. Instead, the word “federal” changed its meaning to adapt to the new reality, and people today associate the word with the kind of arrangement embodied in the United States Constitution. But in order to understand the term in all its complexity, the student of American government must move beyond the abstract terms and examine the practical solutions adopted in some key Constitutional provisions.