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Divided Sovereignty

The Constitution forbids Federal taxing to build “highways and canals.” The Constitution is an enumerated powers document. The Constitution enumerates “promote” is the limit of Federal taxing to “provide” welfare. The Constitution enumerates a limit of “post Roads”, forbidding Interstate highways. The Constitution requires “No Preference” in the facilities of commerce of one state over another.


Who eats lunch and who is lunch illustrates the violent nature of life. We create governments to coerce compliance with law to mitigate violence from war and crimes. We create governments to monopolize violence. The essential task of governments is to punish. The opening paragraph of Thomas Paine’s Common Sense:


SOME writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins. Society is produced by our wants, and government by our wickedness; the former promotes our happiness POSITIVELY by uniting our affections, the latter NEGATIVELY by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher.

Ratification of the Constitution:

Men seeking power control governments. Some may be just. All are self-interested.

Federalist #51 (Madison): 


“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.


Two types of Governments to monopolize two types of violence:

The Constitution of the United States of America Divided Sovereignty between:

  • The Federal government for issues of war and peace.

  • States for coercing crimes and commercial disputes.

  • We the People for all powers and rights not enumerated as sacrificed in written constitutions.

  • War: The Federal government is granted sovereignty to monopolize violence to coerce peace and wage war.

  • Crimes and Commerce: States governments granted sovereignty to punish crimes and enforce resolution to commercial disputes.

The US Constitution is an enumerated powers document. Powers not enumerated are retained by the people and states. Changes to the Constitution via interpreting a “living constitution” are actions of a Tyarnny of the Majority.

Federalist #41:

Is the aggregate power of the general government greater than ought to have been vested in it? … that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment. That we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects: Security against foreign danger; Regulation of the intercourse with foreign nations; Maintenance of harmony and proper intercourse among the States; Certain miscellaneous objects of general utility; Restraint of the States from certain injurious acts; Provisions for giving due efficacy to all these powers.The powers falling within the FIRST class are those of declaring war and granting letters of marque; of providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money. Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American Union.

Federalist #45:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

Federalist #46 (Madison):

 The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes.

Federalist #51 (Madison): 

“Ambition must be made to counteract ambition.” 

Federalist #28 (Hamilton): 

“Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!” [The people have found it necessary to use these two types of governments to wage war on the other in the Revolutionary and Civil Wars.]



The division of “punishing powers” is clearly stated in the Preamble. 

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Early enforcement of the Constitution, Madison, Feb 6 1792, rejecting the Bounty Payment for Cod Fisheries Bill in the House:

“If Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post roads; in short, every thing, from the highest object of state legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare.”

The Federal government must “provide” for defense and is limited to only “promote” welfare. Liberty is the source of the “general welfare”.

In ratifying the Constitution, We the People, Divided Sovereignty between:

  1. Ourselves as sovereigns.

  2. The Federal government to wage war and coerce actions that build paths to war.

  3. The State government to resolve commercial disputes, civil disputes, and coerce criminal actions.

Governments are Punishers

Today we can use the Internet to create Word Clouds on see the great difference between “Community” and “Government”. Community is associated with our collaboration. Government is associated with coercion of our “wickedness”. 

Violation of the rights of Americans by the King resulted in the Revolutionary War. Americans rallied to form State governments to defend liberties. Those State Governments ratified the Articles of Confederation to create a Federal government to wage war on the British government.

The Articles of Confederation proved incompetent at waging war during the Revoluiton and incompetent at enforcing the peace after Revolution ended as exemplified by Shay’s Rebellion. So a Federal Convention called for May 1787. Many of America’s Revolutionary leaders worked from May into Septermber to writeThe Constitution of the United States.

It required 10 months for nine states to ratify the Constitution. In June and July Virginia and New York joined the Union. North Carolina North Carolina did not join until Noverber 1789. Rhode Island was the last to ratify in May 1790. Ratification was not a easy process. The founding generation had experienced war and was creating a Federal government dedicated to war. Federalist Papers were written to explaine the Constitution so it could be ratified. Federalist 1-11 and 15-29 explain the incompetence to wage war under the Articles and the need for a general government capable of waging war and coercing behaviors that build paths to war. The Federalist Papers also explain the enumerate nature of the Constitution limit the war-making nature of the Federal government from being applied within the nation.

To both effectively wage wars agains enemies and limit war against the citizens, We the People, ratified an enumerated powers Constitution that Divided Sovereignty:

  1. Individual Sovereignty: Unless a liberty is enumerated as sacrificed in a written Constitution, We the People retain that liberty. The Governing are forbidden to ursurpe powers not enmerated as sacrificed. Under the Constitution there is a “presumption of innocence” in criminal coercion AND a “presumption of liberty” for all non-criminal conflicts between an individual and the Governing. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

  2. Federal: War and paths to war is Federal sovereignty, the Federal Monopoly of Violence. The Constitution enumerates unlimited power to tax citizens to wage war and supress actions that build paths to war. To limit wars, the Constitution forbids the Federal government from mixing war-powers to the Governing’s commercial and political self-interests.

  3. State: Crime and commercial complaince are the states’ Monopoly of Violence“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.” With the Constitution we stripped the States of sovereignty to wage war, form foreign alliances, print money, violate the commercial interests of other states, and deny liberty to their citizens. {Note: to accommodate Federal support for slavery, defense of the liberty of citizens was ignored by the Federal government for a century and a half with a brief enforcement during Reconstruction}.

War proves the need for American citizens, the sovereigns, to have two types of governments to defend liberty by using one type of government to wage war on the other:

  • We used state governments to wage war on the general government to end Taxation without Representation in the Revolution.

  • We used state governments to replace a general government incompetent at waging war and coercing behaviors that build paths to war in replacing the Articles of Confederation with the Constitution.

  • We used the general and state governments to war against states seceding without Article 5 amendment in the Civil War.

  • We used the general governments to occupy states with Federal troops for violating the liberty of citizens based on skin color. Racist men controlling some state governments used state laws to violate liberty as protected by the Preamble. Liberty, as defined in the Declaration of Independence is made force of law by the Preamble’s Federal mission statement. The 14th Amendment merely restates the Preamble and corrects a century of Federally supported slavery misconduct.


Divided Sovereignty is America’s ethical and legal solution to self-government. It is and has always been a work in progress with conflicts between Consolidation and Secession. The balance of forces is a work in progress, a nullify spectrum from grudging compliance, to the exercise of free speech to condemn, civil disobediance, jury nullification, state nullification, to rebellion.

  • Secession (Rebellion): Between 1754 and 1791 America’s Founders repeatedly tinkered with the how natural rights, civil rights, and the nature of government could be combined. They got it wrong a lot, fought multiple wars, internal rebellions, and skirmishes between States.

  • Secession (Rebellion): Civil War was required between 1861 and 1865 to correct the difference between The Declaration of Independence and the Constitutiion’s accommodation for slavery.

  • Secession (Rebellion): Riots and the Civil Rights Movement was required in the 1860’s to 1970’s to correct the difference between “States Rights” violations of Constitutionally protected individual liberties.

  • Consolidation: Currently, consolidation is responsible for creating Civilization Killers (examples Oil Famine, Climate Change, and $18 trillion in Federal debt, more in another paper). In direct violation of the Constituton’s Divided Sovereignty, Federal averous is taxing to provide “internal improvements.” Consolidation created a collution with State governments and a Tyranny of the Majority sacrificing the liberty of Posterity for cheaper gasoline prices today.

Democracy protects liberty only when restained by an extended, compound republic.

There are two facets of democracy:

  • Wisdom from the Many

Wisdom from the Many is the brilliant facet of democracy. In his book, The Wisdom of Crowds, James Surowiecki, provides case after case of how the aggregated self-interest of all of us, with each of us acting in our own self-interest, is wiser than the wisest of us at choosing between choices. When there is liberty to choose, when all costs are capitalized into the price of use, our aggregated wisdom is genius.

  • Tyranny of the Majority

Tyranny of the Majority is the vile facet of democracy. American examples of Tyranny of the Majority are: 

  • Slavery of African Americans.

  • Annihilation of the American Indians.

  • Internment of Japanese Americans

  • And today, Climate Change, resource depletion, and our mortgaging the liberty and labor of every child in America for $53,000 each for cheaper gasoline prices today. The correlation between slavery and mortgaging the liberty of children is expanded in another paper on Illicit Energy

Tyranny of the Majority was well understood by the Framers. Many were or had been slave holders. They villified the institution of slavery while indulging in the economic advantage of using the coercise powers of government to alienate slaves from their unalienable Rights. How Americans today are repeating this crime against our children is expanded later in this paper on Civilization Killers.

Benjamin Franklin: “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!”

Thomas Jefferson: “A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.”

John Adams: “Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.”

John Quincy Adams: “Democracy has no forefathers, it looks to no posterity ; it is swallowed up in the present, and thinks of nothing but itself.”

Thomas Jefferson, Letter to Joseph C. Cabell, February 2, 1816, explains what was achieved in the first 3 decades of the United States of America:

“The way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to every one exactly the functions he is competent to.

Let the national government be entrusted with the defense of the nation, and its foreign and federal relations;

the State governments with the civil rights, law, police, and administration of what concerns the State generally;

the counties with the local concerns of the counties, and each ward direct the interests within itself.

It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man”s farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best.

What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body.”

I have thought it proper to quote at length these interesting passages, because they contain a luminous abridgment of the principal arguments in favor of the Union, and must effectually remove the false impressions which a misapplication of other parts of the work was calculated to make. They have, at the same time, an intimate connection with the more immediate design of this paper; which is, to illustrate the tendency of the Union to repress domestic faction and insurrection.


Democracy: The Essential and Flawed Tool

This graphic is an effort to illustrate the two faceted nature of democracy, how Divided Sovereignty between Federal and State Governments allow Wisdom from the Many to be useful while constraining Tyranny of the Majority.  

In Federalist #9 Hamilton extensively quotes Montesquieu:

So far are the suggestions of Montesquieu from standing in opposition to a general Union of the States, that he explicitly treats of a CONFEDERATE REPUBLIC as the expedient for extending the sphere of popular government, and reconciling the advantages of monarchy with those of republicanism.

“It is very probable,” (says he) “that mankind would have been obliged at length to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical government. I mean a CONFEDERATE REPUBLIC.

“This form of government is a convention by which several smaller STATES agree to become members of a larger ONE, which they intend to form. It is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body.

“A republic of this kind, able to withstand an external force, may support itself without any internal corruptions. The form of this society prevents all manner of inconveniences.

“If a single member should attempt to usurp the supreme authority, he could not be supposed to have an equal authority and credit in all the confederate states. Were he to have too great influence over one, this would alarm the rest. Were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped and overpower him before he could be settled in his usurpation.

“Should a popular insurrection happen in one of the confederate states the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty.

“As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies.”

In Federalist #10 Madison explains how the Constitution was to be empower by Wisdom from the Many while defending against Tyranny of the Majority (faction:

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.

In Federalist #39 Madison illustrates Divided Sovereignty as part federal and part national government.

First. In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.

On examining the first relation, 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.

That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. 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 next relation is, to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many FEDERAL as NATIONAL features.

The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the NATIONAL, not the FEDERAL character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a NATIONAL government.

But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme and ultimate authority would reside in the MAJORITY of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and principles. In requiring more than a majority, and particularly in computing the proportion by STATES, not by CITIZENS, it departs from the NATIONAL and advances towards the FEDERAL character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the FEDERAL and partakes of the NATIONAL character.

The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

Federalist #51 (James Madison):

“It is of great importance in a republic not only to guard the society against the oppression of its rulers but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure.”

Since the 17th Amendment removed the Federal nature of the Senate, the national government consolidated powers forbidden in the clear text of the Preamble, post Roads, Ports, Necessary and Proper, Commerce, Amendments 9 and 10. The Boston Tea Party was a revolt against the general government’s transportation monopoly. To prevent a Federal government repeat of the defects of the King’s transportation monopoly the Federal government was specifcally forbidden to tax to build internal improvements. Federal violation of this restriction created a “needful” majority addicted to foreign oil and willing to mortgage their children for $22 trillion more in benefits than the majority was willing to pay in taxes.

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