The Tenth Amendment was not the first-time questions about divided sovereignty, or the doctrine of imperium in imperio (empire within an empire), came up in political debates. In fact, there is a long history of such discussions that show why the Tenth Amendment may not have accomplished what those who supported it intended.
As 1776 approached, American colonial leaders began to question both their political and legal relationship with the Mother Country. Ultimately, as events quickly advanced the colonies toward revolution, it became necessary to articulate some type of legal basis for separation. Interestingly, these debates would fuel concerns of an American national tyranny from which the prototype to the Tenth Amendment—Article II of the Articles of Confederation—would emerge.
The Doctrine of Imperium in Imperio
The grievances that gave rise to the American Revolution are well known and will not be repeated here, but history does show the decision to separate from the mother country was a gradual one that gained steam well over a decade before 1776.
But colonial leaders had an intellectual problem on their hands. The sovereignty of a nation was considered to be absolute and indivisible. Those eighteenth-century Americans familiar with political philosophy understood that absolute and indivisible power were essential and necessary elements of sovereignty according to the Enlightenment-based political philosophers of the day. Therefore, if this maxim was to be accepted, and if the colonies recognized the ultimate sovereign authority of Great Britain, then what basis existed to dispute Parliament’s authority to lay direct taxes on the colonies and impose administrative regulations?
Samuel Johnson, a British author and committed Tory, reflected the view of most British politicians as well as the widely accepted view of sovereignty at the time when he explained:
“In sovereignty there are no gradations. There may be limited royalty… but there can be no limited government. There must, in every society, be some power or other, from which there is no appeal, which admits no restrictions, which pervades the whole mass of the community, regulates and adjusts all subordination, enacts laws or repeals them, erects or annuls judicatures, extends or contracts privileges, exempt itself from question or control, and bounded only by physical necessity.”[1]
Daniel Leonard, an American loyalist who wrote essays in opposition to the American Revolution, similarly declared that “two supreme or independent authorities cannot exist in the same state”, further noting that “it would be what is called imperium in imperio, the height of political absurdity.”[2] Why then, could Great Britain not justifiably impose any tax or regulation it wanted upon its own American colonies?
Some very bright Americans came up with different responses to this dilemma. Benjamin Franklin, for example, argued that Parliament had the authority to lay external taxes in the form of regulatory duties, but did not have the authority to lay internal taxes (such as the Stamp tax) because Americans were not represented in Parliament. Franklin noted the main distinction between internal and external taxation was that individuals could “choose” to not pay an external regulatory duty by not purchasing or selling a good. An internal tax on the other hand, “is forced upon the people without their consent, if not laid by their own representatives.”[3]
John Dickinson, a lawyer and politician who served in the Continental Congress and later the Constitutional Convention, found Franklin’s distinction between external and internal taxes to be absurd. In his famous series of essays entitled Letters from a Farmer in Pennsylvania, Dickinson argued that all taxes, whether designated internal or external, are founded on the same principle. That is, both internal and external taxes imposed on Americans was
“money drawn, without their consent, from a society, who have constantly enjoyed a constitutional mode of raising all money among themselves. The payment of this tax they have no possible method of avoiding; as they cannot do without the commodities on which it is laid, and they cannot manufacture these commodities themselves.”[4]
Moreover, if Great Britain was sovereign over American colonies as the colonies essentially conceded, a prohibition on imposing internal taxes was, in effect, an impermissible limit on a sovereign’s authority—a direct violation of the principle that a sovereign power was absolute. Even Franklin would end up conceding this point.[5]
Others argued that Parliament could not impose internal taxes because Americans did not elect Members of Parliament. In other words, there should be “no taxation without representation.” This belief certainly served as a useful political slogan to garner support for the American Revolution. But, despite the popularity this principle held at the time, and would later attain in the annals of American history, nowhere, as a matter of positive (human) law, was actual representation a prerequisite to the exercise of sovereign authority. After all, monarchs for centuries had in fact exercised sovereign authority without being elected. Even in Great Britain proper, due to voting and districting irregularities, British subjects were not necessarily represented at all times in Parliament though the electoral process.[6]
What the colonists needed was a new concept or idea that justified resistance to the central government of Great Britain without denying its inherent sovereign authority. The idea that eventually caught traction was a concept that was to play an essential role in the development of the United States Constitution and the Tenth Amendment.
If the American colonies could not deny the authority of the central British government to impose taxes and internal regulations because Great Britain was sovereign, then what was needed was a fundamental change to the concept of sovereignty itself. The line of reasoning that eventually gained influence and would be essential to the development of the Tenth Amendment, turned out to be a radical departure from years of legal thought and practice.
What if the esteemed political philosophers, such as Bodin, were wrong in asserting that sovereign authority was absolute and indivisible? Perhaps sovereignty was in fact divisible. Maybe imperium in imperio was not so irrational after all?
John Dickinson in his Letters from a Pennsylvania Farmer, implicitly acknowledged as much when he recounted the past history between the mother country and the American colonies. Dickinson carefully recounted the 150-year history prior to 1763 when Great Britain regulated its imperial trade, but did not impose internal taxes on the American colonies. The colonies “lived, grew, and flourished” under this system where colonies were essentially in control of internal, local affairs, while Great Britain regulated international trade. Dickinson, without explicitly saying so, argued that the political philosophers were wrong to the extent that they insisted sovereign authority was supreme in all aspects and was never divisible.
And in support of this position, Dickinson pointed out the very real-life example of the British-American colonial relationship prior to 1763. For as Dickinson notes “[i]f any person cannot conceive the supremacy of Great Britain to exist, without the power of laying taxes to levy money upon us, the history of the colonies, and of Great Britain, since their settlement, will prove the contrary.”[7] Dickinson was, in effect, seeking a way for the colonies to attain “home rule” status within the British Empire.[8]
Dickinson was not the only colonial lawyer to recognize that perhaps sovereignty was divisible. Thomas Jefferson expounded on the role of colonial legislatures versus the British Empire for whom King George III served as the chief executive. In doing so, Jefferson was implicitly acknowledging that in theory, if not in fact, sovereignty could be divided.
Writing in 1774 to delegates of the First Continental Congress in an effort to persuade the Congress to seek redress from the King, Jefferson explained that the role of the British King was to preside as the chief magistrate of the British Empire. Jefferson recognized that the early American settlers submitted themselves “to the same common sovereign” as the British people in the form of the British monarch. Yet, the King was essentially “no more than the chief officer of the people, appointed by the laws, and circumscribed with definite powers, to assist in working the great machine of government, erected for their use, and consequently subject to their superintendence [emphasis added].”[9]
Jefferson did not take issue with the King’s exercise of proper authority granted to him, so long as it was the People that gave him that power. Rather, Jefferson objected to the actions of the British Parliament that imposed what he believed were intrusive internal laws, such as the Stamp Act. These types of internal taxes and regulations were “void,” according to Jefferson, because Parliament has “no right to exercise authority” over the American people. For Jefferson, authority to control all other affairs beyond the King’s “definite powers” belonged to the American legislatures. Jefferson explained:
“From the nature of things, every society must at all times possess within itself the sovereign powers of legislation. The feelings of human nature revolt against the supposition of a state so situated as that it may not in any emergency provide against dangers which perhaps threaten immediate ruin. While those bodies are in existence to whom the people have delegated the powers of legislation, they alone possess and may exercise those powers[.]”[10]
Here, Jefferson is saying that the King, although sovereign in some respects, was not sovereign in all things. In the American colonies, the People granted the colonial legislatures sovereign power to legislate. In other words, Jefferson is arguing against the actions of the King’s ministers and Parliament by relying on the imperium in imperio principle that Daniel Leonard found to be so absurd.
The First Continental Congress ultimately adopted and proclaimed the doctrine of imperium in imperio in its Declaration and Resolves issued on October 14, 1774. Included among the resolves to Great Britain, Congress resolved in Article IV that the colonies were:
“Entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity… [and] we cheerfully consent to the operation of such acts of the British parliament, as are bona fide, restrained to the regulation of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members; excluding every idea of taxation internal or external, for raising a revenue on the subjects, in America, without their consent.”[11]
This Congressional resolution was a clear expression of the doctrine of imperium in imperio. With regard to taxation and internal matters, the colonies were the supreme authority. With regard to external commerce, Great Britain was supreme. Each political entity was supreme within its own sphere. The doctrine was now more than a theoretical idea used to justify resistance to an overbearing and intrusive imperial government; the doctrine of imperium in imperio was now a politically accepted concept (at least from the American point of view) purportedly asserted in effort to protect the natural rights and liberties of the American people.
The doctrine was to resurface again, as we shall see, in the drafting and ratification debates over the 1787 proposed United States Constitution. For the time being, however, the arguments over imperium in imperio in relation to Great Britain became moot once separation became a foregone conclusion. But the American tradition of divided sovereign authority was born.[12]
The Declaration of Independence and State Sovereignty
When Great Britain’s “long train” of abuses became too much to bear, American political radicals began to promote the idea that separation was necessary. Not all colonists or colonies arrived at this conclusion at the same time. Some never did accept it. But by 1776, enough support among the thirteen American colonies coalesced and concluded that union with Great Britain was no longer possible. Thomas Paine reflected the radical attitude in 1776 when he wrote in his popular political tract Common Sense: “The blood of the slain, the weeping voice of nature cries, ‘Tis Time to Part.’”[13]
Significantly, at the time independence became a foregone conclusion, the question of individual state sovereignty was not seemingly a matter of great dispute or concern among delegates to the Continental Congress. Apparent from the Declaration of Independence itself and Congressional debates, it was clear that although the colonies may have declared their independence at the same time, each of the thirteen American colonies were separating individually with the intent of becoming independent nation-states vested with full sovereign authority.
In other words, declaring independence from Great Britain was not tantamount to forming a new unified nation that we know today at the United States of America. Rather, the radicals supporting independence believed they were dissolving their allegiance to Great Britain while retaining their independence in relation to each other.
The separate and complete sovereignty of the original thirteen American states upon declaring independence has not been a conclusion reached without dispute. Almost a century later, Abraham Lincoln became an outspoken critic of this view, arguing in a special session message to Congress in 1861 that “the Union is older than any of the States, and, in fact, it created them as States.”[14]
Although Lincoln’s argument was certainly more convenient for him at the time when the Union was unraveling in the face of the Civil War, the historical and legal facts overwhelmingly do not support this position. As historian Forrest McDonald persuasively argued, the People of the individual colonies did not return to a state of nature upon declaring independence, the state legislatures remained intact, and delegates to the Continental Congress were only agents of the states and could not undermine the authority of their principals—i.e. the states.[15]
But the Declaration of Independence itself provides the best evidence that upon declaring independence the colonies intended to become independent, sovereign-states. When Richard Henry Lee of Virginia introduced a resolution to the Second Continental Congress on June 7, 1776 he declared:
“that these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.”[16]
The purpose of issuing the Declaration was clearly set forth in the document itself:
“When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another… a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”[17]
Thus, the purpose was not to form or create a government. This would be done through the Articles of Confederation, the constitutions of each individual state, and later the United States Constitution.
The final paragraph of the Declaration itself, however, provides insight into the nature and status of the former colonies upon independence. A committee of five individuals was appointed to draft a declaration of independence: Thomas Jefferson, John Adams, Benjamin Franklin, Roger Sherman, and Robert Livingston. Although Jefferson’s original draft was revised a number of ways, the language actually declaring independence remained essentially unchanged from draft to draft:
“That these United Colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British crown and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent states may of right do.”[18]
The language Jefferson used, and which Congress finally adopted, not only declared independence from Great Britain but specifically described the former colonies as “free and independent states”. The clause also described what “free and independent states” entailed—listing the powers that each state possessed upon independence. The power to levy war, conclude peace, contract alliances and regulate commerce all were attributes of a full sovereign power; fully consistent with the notion of sovereignty as Jean Bodin described (see Chapter 1).
Even future Supreme Court Chief Justice, and Jefferson’s political enemy, John Marshall, would later agree that upon declaring their independence, the colonies became thirteen free, and sovereign, independent states. In the Gibbons v. Ogden case, Marshall declared that the states prior to the ratification of the Constitution “were sovereign, were completely independent, and were connected with each other only by a league.”[19]
Thus, although the thirteen American colonies declared their independence from Great Britain at the same time, and did so through the Continental Congress, what resulted, at least according to the Declaration of Independence, was not one unified nation of Americans, but thirteen, independent sovereign states vested with full sovereign authority and rights. The thirteen new states now contended they were vested with sovereignty that could not be taken away unless unlawfully seized or delegated to another body.
Dividing Sovereignty Under the Articles of Confederation
The Continental Congress, first organized in 1774 and re-constituted in May 1775, served as a legally unorganized body channeling the purported unified efforts of the states against Great Britain. Yet, when independence became a foregone conclusion, a need arose for a more organized body to conduct these American efforts.
At the same time Richard Henry Lee introduced a resolution in Congress to declare independence on June 7, 1776, he introduced a resolution stating “[t]hat a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.”[20]
Drafting the Articles of the Confederation provided the opportunity for Thomas Burke,[*] an often underestimated and overlooked American revolutionary, to make his first appearance on the national scene and etch his name into the annals of history. Burke, who was educated in the theories of John Locke and natural rights theory, earned his political credentials while serving as a representative to the North Carolina state revolutionary congress. Among his political activities in North Carolina, he was chairman of the North Carolina congressional committee to draft a new North Carolina state constitution.[21] Burke described himself as a “passionate lover of liberty and hater of tyranny.”[22] Modern Americans could fairly describe Burke as a revolutionary radical and “grandfather” of the Tenth Amendment.
The North Carolina congressional committee appointed Burke a delegate to the Second Continental Congress in December 1776. While serving as a delegate from North Carolina, Burke steadfastly and vigorously defended the interests of North Carolina from political forces within Congress that Burke believed were attempting to diminish the authority and liberties of North Carolinians at the expense of other states and national interests.
Burke, for example, heartily objected to a Congressional resolution that would have established Congressional “committees of inspection” charged with apprehending military deserters and turning them over to the continental army. Burke insisted that only the states had the authority to act coercively against their citizens. If Congress could unilaterally seize this authority from the states in the case of military deserters, Burke argued, what would stop Congress from asserting its boundless authority over the life and liberty of all Americans?
James Wilson from Pennsylvania disagreed. Wilson responded that such authority needed to reside with Congress otherwise deserters may well go unpunished depending on which state the deserter was apprehended. Burke retorted, “[t]hat necessity was never to be admitted as an argument for assuming a dangerous and improper power tho it might be admitted as some excuse for some particular unlawful exercise of authority[.]”[23]
Given Burke’s sensitivity to potential encroachment on state authority, it should come as no surprise that he objected to the language included in the original draft of the proposed Articles of Confederation. Although Benjamin Franklin in July 1775 was the first to offer a plan entitled “the Articles of Confederation and Perpetual Union” to the Second Continental Congress, John Dickinson was the first to draft a proposal that Congress would eventually adopt as the Articles of Confederation. Dickinson’s draft established a much stronger central government than any prior proposals for union.
True to his convictions, Thomas Burke strongly objected to certain provisions in Dickinson’s draft; particularly with regard to Dickinson’s Article III that set forth the scope of authority of the confederation government.
Article III of Dickinson’s plan for confederation stated:
“Each colony shall retain and enjoy as much of its present Laws, Rights and Customs, as it may think fit, and reserves to itself the sole and exclusive Regulation and Government of its internal police, in all matters that shall not interfere with the Articles of Confederation.”
In April 1777, Burke introduced the following amendment in response that eventually became Article II of the Articles of Confederation:
“Each State retains its sovereignty, freedom and independence, and every other power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”[24]
In a letter to North Carolina governor Richard Caswell, Burke explained his reasoning for introducing the amendment. Referring to Dickinson’s original draft in Article III, Burke thought that the consequences of such a provision were not what the individual states expected because “it left in the power of the future Congress or General Council to explain away every right belonging to the States and to make their own power as unlimited as they please.”[25]
Burke went on to explain that in order to remedy this problem, he introduced his amendment (Article II) to uphold the principle that
“all sovereign power was in the States separately, and particular acts of [Congress], which should be expressly numerated, would be exercised in conjunction and not otherwise; but that in all things else each state would exercise the rights and power of sovereignty, uncontrolled.”[26]
Burke appears to be providing Caswell with two significant reasons for his amendment. First, the amendment addressed Burke’s concern that Dickinson’s provision defining the scope of Congressional authority was so open-ended and non-specific that it provided Congress with the opportunity to define its own powers without any effective limit; allowing for the usurpation of powers traditionally belonging to the individual states.
Second, Burke seemingly wanted to make it clear that Congressional authority was limited to those areas expressly provided for in the Articles. State authority, on the other hand, had no such limits and would operate in all areas except those expressly delegated to Congress.
Burke’s position should not be construed as an objection to a confederation government in general. In fact, Burke believed the confederate government had an important role to play. Burke believed that the confederate government should have enough authority to properly “call out” and “apply the common strength” for the defense all of the states.[27] Burke would later suggest Congress ask the states to impose duties on imports to raise money for the confederation government.
Burke’s devotion to republican principles and state sovereignty was consistent with many revolutionaries of the time who opposed the British. Burke distinguished himself from others by his recognition that oppression and tyranny stemming from an overbearing central government was not something to be feared from just Great Britain but was a potential reality even with a centralized American government.[28]
Thomas Burke died on December 2, 1783 after completing his service in the Continental Congress and subsequently serving as governor of North Carolina. Burke never lived to see the Constitution of 1787 or the Tenth Amendment. Given Burke’s insistence that centralized authority be specifically limited to expressly defined powers, it is hard to believe he would have been pleased with the Tenth Amendment even though many perceived the Tenth Amendment as the new Constitution’s version of the Articles’ Article II.
In fact, as the 1787 Constitution was debated and considered, it became clear that if a new national government was going to be established, the fundamental protections contained in Article II needed to be included in the new Constitution. Many assumed and believed that these principles found their way into the Constitution via the Tenth Amendment. As we shall see, that was not necessarily the case.
[*] Thomas Burke should not be confused with the well-known British politician, and conservative thinker, Edmund Burke.
[1] Samuel Johnson, “Taxation No Tyranny: An Answer to the Resolutions and Address of the American Congress”, The Works of Samuel Johnson, (New York: Pafraets & Company, Troy, 1913); volume 14, 93-144; also http://www.samueljohnson.com/tnt.html (accessed September 17, 2011).
[2] Ibid, 351-52.
[3] Bernard Bailyn, Ideological Origins, 212-14.
[4] John Dickinson, Empire and Nation: Letters from a Farmer in Pennsylvania (John Dickinson). Letters from the Federal Farmer (Richard Henry Lee), ed. Forrest McDonald (Indianapolis: Liberty Fund 1999). Chapter: letter iv
accessed from http://oll.libertyfund.org/title/690/102303 on 2011-09-01
[5] See Gordon S. Wood, Creation of the American Republic, 351.
[6] For more information on the corruption, bribery, and inefficiency in English and American colonial elections following the Glorious Revolution, see Edmund S. Morgan, Inventing the People (New York: W.W. Norton & Company, 1988), 174-208.
[7] John Dickinson, Letters from a Farmer in Pennsylvania letter v, accessed from http://oll.libertyfund.org/title/690/102304 on 2011-09-01.
[8] Merrill Jensen, The Articles of Confederation (Madison: The University of Wisconsin Press, 1970), 12-13.
[9] Thomas Jefferson, “A Summary View of the Rights of British America”, The Avalon Project. Yale Law School, http://avalon.law.yale.edu/18th_century/jeffsumm.asp.
[10] Ibid.
[11] “Declaration and Resolves of the First Continental Congress”, The Avalon Project, http://avalon.law.yale.edu/18th_century/resolves.asp.
[12] See Bernard Bailyn, Ideological Origins, 228-29.
[13] Schweikart and Allen, A Patriot’s History, 79-80.
[14] For the full text of the speech see Abraham Lincoln, “Special Session Message, July 4, 1861,” in A Compilation of the Messages and Papers of the Presidents, vol. 7, ed. James D. Richardson (New York: Bureau of National Literature, 1897), pp. 3227-29, 3231-32. Available at http://www.fordham.edu/halsall/mod/1861lincoln-special.asp.
[15] Forrest McDonald, States’ Rights and the Union (Lawrence: University Press of Kansas, 2000), 9.
[16] Journals of the Continental Congress, 1774-1789, ed. Worthington C. Ford et al. (Washington, D.C., 1904-37), 5:425
[17] “Declaration of Independence”, The Avalon Project, http://avalon.law.yale.edu/18th_century/declare.asp.
[18] Ibid; for a history of the drafting of the Declaration of Independence see also Carl L. Becker, The Declaration of Independence: A Study in the History of Political Ideas, Vintage Books Ed. (New York: Random House, 1958),135-193.
[19] Gibbons v. Ogden, 22 U.S. 1, 187 (1824).
[20] Continental Congress 1776, 5:425.
[21] John Sayle Watterson, Thomas Burke Restless Revolutionary (Washington: University Press of America, 1980), 32-37.
[22] Ibid, 5.
[23] Edmund C. Barnett, ed. Letters of Members of the Continental Congress, vol. II, July 5, 1776 to December 31, 1777 (Washington: Carnegie Institution of Washington, 1923), 275-79, http://www.archive.org/details/lettersofmembers02burn.
[24] John Sayle Watterson, Thomas Burke, 63.
[25] Barnett, Letters of Members, 345-46.
[26] Ibid, 346.
[27] Ibid.
[28] John Sayle Watterson, Thomas Burke, 47.
