Divided Sovereignty/sandbox

Divided Sovereignty is the key concept in Federal constitutions that divides sovereignty between the Federal government, States and people. In most Federations, Federal sovereignty is limited to the prescribed enumerated powers, with all other sovereignty retained by the people and States. James Madison explains divided sovereignty in 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."

In the case of the United States, Divided Sovereignty is expressed in the mission statement of the Federal government, the Preamble of the Constitution of the Federal union. Federal sovereignty is enumerated to “provide” the defense of liberty and restriction to only “promote” welfare.

The reason auxiliary precautions of Divided Sovereignty were needed was explained by Madison, Federalist #51: "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. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”"

Divided Sovereignty is to be a Federation’s defense against the tyranny of the Majority. Hamilton explains this in Federalist #9 and Madison in Federalist #10: ":AMONG the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction...


 * The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished;...


 * Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority..."

Hamilton declared that Federal control over subsistence is hostile to the Federal mission to defend liberty in Federalist #79:
 * “In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.”

State ratifying conventions confirmed this Divided Sovereignty. The original Thirteen States ratified the US Constitution based on Federalist explanations of “powers not enumerated are not granted”. Massachusetts, New Hampshire,, Virginia, , North Carolina, , New York, , and Rhode Island ratified with recommend amendments emphasizing Divided Sovereignty:


 * Clear commitment to the presumption of liberty; all liberties belong to the people unless enumerated in written constitutions.


 * This became Amendment IX of the Bill of Rights: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Sovereignty over liberties not specifically enumerated in written constitutions are retained by the people. There is no Federal sovereignty to tax or police liberties where sovereignty belongs to the individual.


 * Clear commitment to State Sovereignty over welfare.


 * This became Amendment X of the Bill of Rights: “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 people may assign some sovereignty over liberties retained to State Governments, but not the Federal government without an Article 5 amendment.