The State Sovereignty Question Again Rears Its Head

In an August speech in downtown Chicago’s River Point Park—flanked by Mayor Brandon Johnson, both United States Senators from Illinois, and numerous local officials—Illinois Governor JB Pritzker defiantly accused President Donald Trump of "circumventing our democracy." He also demanded “justice under our constitutional rule of law.” In doing so, Governor Pritzker disclosed a fundamental misunderstanding of that Constitution by referring to the “sacred sovereignty of our state.” Illinois is not a sovereign state, nor is Chicago a sovereign city, as the Governor further asserted. States do have rights, under the Tenth Amendment to the Constitution. Crucially, however, there is only one sovereign, and it is the federal government. 

Governor Pritzker warns against constitutional rights being trampled by “a dangerous power grab.” Governor Pritzker has every right to ask the courts to clarify the constitutional issue, but he alarmingly goes on to urge his fellow governors to rally around his cause of state sovereignty. The ghost of Jefferson Davis emerges once again.

It should be clear to Governor Pritzker and all Americans that we fought a civil war to resolve the issue of sovereignty. We should not have to do that again.

Unfortunately, this misunderstanding is not limited to blue state governors. Last July, Judge Stephanos Bibas, a Trump appointee to the United States Court of Appeals for the Third Circuit, opined that both federal and state governments are sovereign (CoreCivic v. Governor of NJ), backing this up with a number of citations. 

One American who thought long and deeply on the issue of sovereignty is Orestes Brownson. His 1865 masterwork, The American Republic, is a lengthy reflection on the cause of the Civil War, and the word “sovereign” is found 457 times in that work. Brownson concludes: “the sovereignty of the American Republic vests in the States, though in the States collectively, or united, not severally, and thus escape alike consolidation and disintegration.” 

This is not easily comprehended—most likely because American statesmen, politicians, and jurists alike, he writes,

“have succeeded in obscuring the American system in the minds of the people, and giving them in its place pure and simple democracy…This tendency to a centralized democracy had more to do with provoking secession and rebellion than the anti-slavery sentiments of the Northern, Central, and Western States.”

The war had ended the disintegration threat posed by state sovereignty that had served as a counterweight against the centralizing influences of the North. Brownson warned that henceforth the federal government would assert itself as the supreme, national government striking a dangerous blow to the powers left to the states by the Constitution. He asks: “What barrier is left against consolidation? Has not one danger been removed only to give place to another?”

Brownson held that the Constitution itself, if rightly understood, resolves the tension between disintegration and consolidation. Prior to the writing of the Constitution, there was an inherent spirit that constituted the American people, a common understanding about what it is to be American. This issue was thoroughly thrashed out in the debates prior to the ratification of our Constitution.

Many Americans simply do not sufficiently appreciate our civic inheritance the way Brownson did. Throughout the entire course of human history, the world never witnessed a plan of self-government like the debates that led to the Constitution’s ratification. The Treaty of Paris, ending the Revolutionary War, ambiguously transferred sovereignty from the British crown, recognizing both the United States as a nation and the former colonies as free and independent states. In the throes of self-identification, it quickly became clear that the Articles of Confederation did not provide the cohesion between the states that was at the heart of the American spirit, the unwritten constitution to use Orestes Brownson’s term.

In order to form a more perfect union, American society's most august citizens engaged in an extended private debate on constitutional details in Philadelphia and then humbly subjected the product of their work for a final decision by the citizens through specially-called state conventions. The process of ratification of the Constitution engaged Americans the length and the breadth of the former colonies in intense, open, robust, often raucous, popular debates that lasted for months. That great debate started top down, but it ended bottom up. 

After all this, the unwritten constitution, the DNA of the American spirit, was authentically expressed as the Constitution of the United States, which asserts national unity without consolidation, and the rights of the several states without danger of disintegration. To guard against either of these influences, just as relevant today as in 1861, all that is necessary is, “to discard all our theories of the constitution, and return and adhere to the constitution itself, as it really is and always has been.”

Governor Pritzker uses the term “sacred.” Brownson held that both the written and the unwritten constitutions are something sacred, even providential. In an 1873 essay, he warned of politicians like Governor Pritzker as well as many MAGA influencers who have forgotten the Constitution’s providential origin and “treat it as their own creation, as a thing they have made, and may alter or unmake at their pleasure.” They see the violation of the Constitution as “no moral offense, for it is the violation of no moral law, of no eternal and immutable right. Nothing hinders the people, when they find the constitution in the way of some favorite project on which they are bent, from trampling it under their feet, and passing on as if it never had any existence.” 

Brownson’s lament is true of much of what comes out of Congress today. Going forward we will do well to follow Brownson’s advice and adhere to “the constitution itself, as it really is and always has been,” even though its complexity resists the simplifications of modern soundbites.

Tom McDonough is Executive Director of American Family Project. He authors the Substack Brownson’s Occasional Blog.