I ran across this book at a used book store in Humble, Texas. The title caught my attention and when I pulled the book out to examine it more closely the subtitle (State Sovereignty, The Founding Fathers, and the Making of the Constitution) really aroused my curiosity. I bought the book for $10.00 believing I would have an interest in the content. Although it was not exactly what I expected it was a very interesting book and I found it to be very informative. The book was copyrighted in 1967 and was written by William P. Murphy. My copy is 417 pages.
My first hint that it was not going to be what I expected is when I read the preface where the author described his experiences. He was a Professor at the University of Mississippi and inherited the course on Constitutional law. This was in 1953. Professor Murphy supported several decisions by the court that seemed to be dismissive of state's rights and ultimately he was removed from his position at the University of Mississippi. He ended up teaching at the University of Missouri. Mr. Murphy is very systematic in his presentation of the material. The first three chapters deal with the issue of State sovereignty before the Constitution. The next 14 chapters address the political philosophy of the delegates to the Constitutional Convention. The next nine chapters deal with the drafting of the Constitution. The final eight chapters address the ratification process in the states. I think the book would be informative for anyone who has an interest in this important aspect of American history.
Mr. Murphy is arguing for the fact that the ratifying of the Constitution settled the issue of nationalism and that it triumphed when the Constitution was ratified. I would disagree and would argue that nationalism triumphed not through the Constitution in 1787 but by the taking up of arms in 1861. For that matter there is a sense in which it still remains in dispute. Murphy goes to great lengths to give us the actual words of the founders which do us a great service. I was never convinced that his arguments were conclusively proved even from many of the quotes that he provided. One of the things that struck me over and over again was that many of the quotes he used to prove a point at times seem to prove the opposite point. He would give several quotes and then suggest that it was obvious that a certain conclusion should be drawn. I often found myself thinking that it was not obvious to me.
One of his main arguments is that the States surrendered their sovereignty in ratifying the Constitution and that they realized they were doing so. He made a compelling and technically correct argument that it was impossible that both the National government and the State governments could be sovereign. The very concept of sovereignty does not allow for plurality. Either the national government or the State governments were sovereign, they could not both be. While this is to be admitted the many quotes that he provides throughout the book reveals that the Founders believed that they both could be. While it may not have been a technically precise use of the term "sovereign" the Founders did use it in relation to both the National and the State governments. It could lead one to believe that neither the National nor the State governments were intended to be sovereign but the people. The Founders seemed to argue that both levels of governments would be sovereign in their designated spheres as outlined by the Constitution.
While it does seem to be clear that most thought the Articles of Confederation were inadequate to the needs of the nation most also seemed to be very sensitive to the need of preserving State authority. No doubt some were more sensitive to this perceived need than others. The government as it existed under the Articles of Confederation consisted of a single-bodied Congress in which each State delegation had one vote. So the delegation from each state would take a vote among themselves concerning any issue brought before them and the majority of the delegation would determine the vote cast by that State. The effect is that there were only 13 votes cast on every issue. One nay vote scrapped the whole measure. Consequently it was very difficult to get things done. Some might argue this would be a good thing, and in many cases it probably would be, but there were no doubt some things that were more effectively done on a national level. Part of the difficulty in waging the Revolutionary War was the absence of a strong National government. Of course even when this congress did agree it had no means of enforcing it decisions on the thirteen State Legislatures. Admittedly it was a bad system.
Throughout the Constitutional Convention and the ratifying process in the States the relationship between the National government and State governments was a key point of controversy. The arguments centering on this issue are interesting to say the least. In my opinion Mr. Murphy does not advance his argument when one considers how the point was argued. The group that become known as anti-federalists argued that the Constitution was too vague and provided too many opportunities for the usurpation of power. They argued incessantly that the National government would ultimately make the State governments unnecessary. The group that become known as the Federalists countered that the National government would not render the State governments unnecessary but would actually be dependent upon them for its continued existence.
Nearly every point of contention could be traced back to the fundamental reality that they were altering the relationship that existed between the National government and the State governments and many people were uneasy and uncomfortable with this trend. They saw it as endangering their liberties. There was a great deal of contention over the concepts of giving the National government the power to tax and to raise and support armies. One part of the Constitution which really raised alarm was at the end of Article I, Section 8, where congress is given power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Power vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
The anti-federalists saw a Congress that was being empowered to pass any law it felt needed. They believed there was great potential for abuse and tyranny to make inroads here. The Federalist countered the concern by arguing two things. The paragraph simply states what would be implied and understood in the ratifying of the Constitution. And, they only would have authority to pass laws relating to the expressed powers in the Constitution itself. The anti-federalists were not appeased. Again this remained a major point of contention throughout the ratifying process.
In most States the vote for ratification was hotly debated and narrowly ratified. In fact several of the States ratified with a recommendation that the new Congress consider the addition of a list of secured liberties. Rhode Island was the last of the 13 states to ratify, they did so on May 29, 1790. A little over a year and a half later the first ten amendments were ratified on December 15, 1791. The tenth amendment receives very little attention because it has largely been ignored. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The equal protection clause of the fourteenth amendment has been used to completely bury the tenth amendment. Our national Executive, Congress, and Judiciary have certainly assumed powers and extended their reach far beyond the limits clearly imposed by the Constitution.
I actually enjoyed this book very much and so glad I ran across it. I do not think the author proved his primary assertion and in my opinion in many respects disproved it. It was a book that allowed me to be exposed to quite a bit of new material and therefore was educational. For those who have an interest in Political philosophy, or the history of our Founding, or the Constitution, etc. I would highly recommend it.
The Triumph Of Nationalism by William P. Murphy