Our Constitution keeps on ticking

Past and present disputes between the United States of America and its member states, be it over the ownership of offshore waters (United States v. California, 332 U.S. 19, (1947)), immigration, or federal funding to "sanctuary cities," reflect a long tradition that began before, and actually led to the ratification of, the U.S. Constitution. Now often referred to as "Our Federalism" (Younger v. Harris, 401 U.S. 37 (1971)), wrangling over the distribution of powers between the states and the federal government under our Constitution has been common since the founding of the Republic. As recently expressed by the U.S. Supreme Court: "The States are separate and independent sovereigns. Sometimes they have to act like it." Nat'l Federation of Independent Bus. v. Sebelius, 132 S. Ct. 2566, 2603 (2012).

Indeed, the "Republican Form of government" provided for in the Constitution, and guaranteed to the states (U.S. Const. art. IV, Section 4), came into being because the Articles of Confederation that initially united the first 13 states (ratified in 1781) were found to be "greatly deficient and inadequate to the purpose" they were intended to serve ("The Federalist No. 2" (John Jay)), but the Congress established by the Articles could not amend them "unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State." (Art. of Conf., art. XIII.)

One state, Rhode Island, regularly objected to matters proposed in that early Congress, and when a convention to amend the Articles was called, Rhode Island refused to send a delegation to Philadelphia. Thus, Rhode Island was the only state that did not participate in the proceedings that eventually led to the Constitution's ratification.

After the Constitution was ratified by nine states (U.S. Const. art. VII), President George Washington was elected, and the first Congress assembled, there were only 11 "United States," because North Carolina and Rhode Island had not yet agreed to ratification, in part because they insisted that the Constitution contain a bill of rights.

"In his First Inaugural Address, President Washington went out of his way to mention that suitably drafted amendments might answer various 'objections which have been urged against' the Constitution and thereby reduce skeptics' 'inquietude'" (Akhil Reed Amar, "America's Constitution," at p. 318), and in Congress, Representative Elbridge Gerry of Massachusetts (later of "gerrymandering" fame), who had opposed the Constitution, argued: "There are two States not in the Union; it would be a very desirable circumstance to gain them. I should therefore be in favor of such amendments as might tend to invite them and gain their confidence; good policy will dictate to us to expedite that event." (Id. at p. 319.)

North Carolina ratified the Constitution soon after the Bill of Rights was approved by the first Congress, but Rhode Island continued to reject ratification for several other reasons until, much to the chagrin of the state's merchants, who had by then become "zealous advocates" for the Constitution, the U.S. Senate passed a bill that would have banned trade with Rhode Island. (Samantha Payne, "'Rogue Island': The last state to ratify the Constitution;" archives.gov, National Archives and Records Administration. Retrieved May 18, 2015)

Before the House of Representatives could act on the Senate's bill, on May 29, 1790, Rhode Island ratified the Constitution by a vote of 34 to 32, along with a long list of caveats and proposed amendments, such as abolition of the slave trade.

The Constitution that was eventually ratified by all 13 states provides that: "The Constitution and Laws of the United States which shall be made in Pursuance thereto; 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, anything in the Constitution or Laws of any State to the contrary notwithstanding." (U.S. Const. art. VI)

However, that Constitution contemplates a federal government of enumerated powers (South Dakota v. Dole, 483 U.S. 203, 218 (1987) (O'Connor, J. dissenting)), which are "few and defined." ("The Federalist No. 45" (James Madison)). The powers retained by the states are, on the other hand, said to be "numerous and indefinite." (Id.)

As Justice Anthony Kennedy reminded us over 20 years ago: "Federalism was our Nation's own discovery. The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other." U.S. Term Limits v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring).

We do not know how the current disputes will be resolved, but thanks to the Constitution's Framers, we have a process for resolving them which has endured for over 200 years.