Did the States Precede the Union?

This question dates to the founding generation.

James Wilson certainly did not think so, but the dirty little secret is that he was in the vast minority in the founding period. He wasn’t the only one, but only a few leading men of that generation were true nationalists who thought the Union predated the creation of the States.

But this question keeps coming up thanks to the wit and wisdom of Abraham Lincoln. Honest Abe made a great political discovery once assuming office: the Union was indissoluble because it came first. Generations of Americans have since echoed Lincoln’s novel view of American government and thus our current political mess was born.

This evidence is all against this position.

Eleven of the thirteen original States drafted constitutions before the ratification of the Articles of Confederation in 1781. This may seem trivial, but it is an important legal consideration.

New Hampshire authored the first State constitution in January 1776, seven months before the Declaration of Independence. They did so, according to the document, because the Continental Congress instructed the colonies to draft legislation protecting the rights of the colonists from illegal British acts, but by drafting a written constitution, the legislature of New Hampshire bucked the British model of an unwritten constitution and more importantly asserted that it alone could legislate for the people of that colony.

New Hampshire did not wait for the Continental Congress to come up with a “constitution” for an American “nation,” nor did any other State save Connecticut and Rhode Island.

Article II of the Articles of Confederation asserted that each State retained its sovereignty and independence. You can’t retain something you don’t have, and of course, the 1783 Treaty of Paris recognized each State individually. It was not a peace treaty with the United States as a whole but with the “thirteen united States of America” as Jefferson wrote in the Declaration.

And this is only scratching the surface. Yet, understanding the origins of American government is key to “thinking locally and acting locally.” These political communities did not wait for some central authority hundreds or thousands of miles away to act for them, nor did they think that such a central authority could act for them in relation to purely domestic matters, i.e., everything but international trade and defense.

This is why the nationalists in both American political parties are always wrong. The American Union is a federal republic, not a top-down national Leviathan. It has always been so, James Wilson and Abraham Lincoln notwithstanding. I discuss this in more detail in my latest podcast.

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