By: Mike Maharrey
The Pledge of Allegiance is wrong. These United States are not “one nation, indivisible.” They are a federation.
This may seem like semantical nitpicking, but it is an extremely important distinction that impacts how we understand the powers of the general government.
Black’s Law Dictionary explains the difference between a federal and a national government.
“A national government is a government of the people of a single state or nation, united as a community by what is termed the ‘social compact,’ and possessing complete and perfect supremacy over persons and things, so far as they can be made the lawful objects of civil government. A federal government is distinguished from a national government by its being the government of a community of independent and sovereign states, united by compact.”
James Madison made a similar distinction when he explained the nature of the constitutional system in Federalist #39.
It appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act.
“Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution.”
The most important distinction between a national and a federal system is where sovereignty lies. In a national system, sovereignty (final or supreme authority) resides in the nation as a whole. As Alexander Hamilton explained in Federalist #32, “An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts.” In other words, the states would be subservient to the general government and the powers left to each state would be subject to “the general will.”
But Hamilton went on to say that this wasn’t the plan of the convention that created the Constitution. Instead, the framers intended to create a “partial union or consolidation.”
“The State governments would clearly retain all rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”
In simplest terms, in a national system, the nation itself is the fundamental political society. In a federal system, each member state is an independent political society that retains its sovereignty and authority. They only give up the power they delegated to the general government. And ultimately, they can take that power back as well.
In practice, power is divided and wielded much differently in a national vs a federal system.
In a national system, power isn’t divided at all. The central government exercises total authority and control. Smaller political units such as counties or cities are subservient to the general government. They exist and operate only with the blessing of the central authority and can only exercise powers given to them by the national government.
In a federal system, each member state maintains all authority that wasn’t specifically delegated to the general government. The central authority exists and operates only with the blessing of the member states and it can’t exercise any power not delegated to it.
James Madison outlined the division of powers in the Constitutional system in Federalist #45. He said the powers delegated to the federal government are “few and defined.” Those remaining in the state governments are “numerous and indefinite.”
St. George Tucker wrote the first systematic commentary on the Constitution. He explained the division of powers this way.
“[Federal] jurisdiction extends to certain enumerated objects, only, and leaves to the several states a residuary and inviolable sovereignty over all other objects.”
In one of the first significant speeches in support of ratifying the Constitution, James Wilson emphasized the federated nature of the proposed system, saying that federal power would not come from “tacit implication.” Instead, power would be collected from “the positive grant expressed in the instrument of the union,” and he insisted that every power “not given” by the states to the general government would be “reserved.”
In practice, the federal government can only exercise powers listed in the Constitution. If a power isn’t on the list, the feds can’t exercise it. That power remains with the states and the people.
This division of power is implicit in the way the Constitution was drafted. The fact that they listed specific federal powers logically excludes any powers not on this list. This is a legal principle —Designato unius est exclusio alterius — meaning, “the designation of one is the exclusion of the other.”
Alexander Hamilton confirmed this reading of the Constitution in Federalist #83.
“This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended.”
People who fail to understand the difference between a national and a federal government will tend to assume the central authority has far more power than it does.