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Dual Sovereignty

Wednesday, 28 October 2015

by Staff, Spaulding Law

“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.”

Thus reads the Tenth Amendment to the United States Constitution, which is enumerated in the Bill of Rights. But just why was such language included and what does it really mean?

We’ve all heard of the Fox TV series “Are You Smarter Than a 5th Grader” which was hosted by Jeff Foxworthy. Here is a question that stumps even most 5th Graders. The question is: According to the United States Constitution, which is more powerful in America, the Federal Government or the State Government? Not surprisingly, most believe the correct answer is the Federal Government.

After all, the Federal Government has the FBI, the IRS and the US Marines. The Federal Government has the White House, the Capitol, the United States Supreme Court and the Lincoln Memorial. The Federal Government has Congress, the Library of Congress and Arlington National Cemetery.

On the other side of the coin, proponents of the principles of “federalism” argue that States came first, and the Federal Government is a creature of the Philadelphia Convention, which was convened by representatives of the Thirteen Colonies. Such proponents maintain that States are sovereign, all-supreme and should be given due deference by the Federal Government.

So what is the correct answer to the 5th grade stumping question? Which of the two governments is most powerful and who is right and who is wrong?

And the correct answer is (drumroll please)…IT DEPENDS. It really depends on the circumstances and there are many circumstances where the Federal Government has zero jurisdiction over the people. Therefore, for all 5th Graders and anyone else who is interested (which should be every single US Citizen), the government most powerful between the State and the Federal depends entirely upon which power is at issue. And that is one of the ingenious, miraculous and powerful principles of the United States Constitution—the principle of Dual Sovereignty.

Dual Sovereignty? Sovereignty means absolute power and control. So, how can both the individual states and the Federal Government reside in the same country or system and both be sovereign at the same time? How this happens can be described by the following fictional metaphor. Two people living together in the same household could be considered dual sovereigns in their home. For example, one person could be considered the absolute ruler in a very small area of their property—say the garage and the storage shed. The other person, on the other hand, could be the ruler over everything else, namely the living room, the kitchen, bedrooms, and basically everything but the garage and the storage shed. Thus, indeed, these are dual sovereigns residing in the same home, just in different and predesignated areas!

It is the same with America. The framers of our Constitution (which is our government and freedom rulebook) determined, after extensive debate and thought, to limit the sovereignty or power of the Federal Government to those areas of the (house of) Government specifically designated in the Constitution and, as indicated in the statement above, the 10th Amendment states that all other “powers not delegated to the United States” are “reserved to the States respectively, or to the people.”

Accordingly, when we are dealing with matters of national defense, the Federal Government is in charge. It is the same with coining money, the United States military, international relations, funding government through taxing powers or the most potentially far-reaching power—regulating interstate commerce. In those important but specifically enumerated and limited areas, the Federal Government is supreme and sovereign. However, as the American people, we cannot ever forget that in the areas of the (house of) Government not expressly and specifically delegated to the United States, the States are and should remain Supreme and even more powerful than Washington DC.

This principal is called “Dual Sovereignty” and it is something that every American 5th Grader, and every other American, should understand and fight to defend. If we allow the Federal Government to go unchecked, we will lose the very dual sovereignty our Founding Fathers knew was essential to a free America.

This information is made available by Spaulding Law for educational purposes only and not to provide legal advice. By using this website, you understand that there is no attorney-client relationship between you and Spaulding Law, unless you have entered into a separate representation agreement. This information should not be used as a substitute for competent legal advice from a licensed professional attorney.

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