Antifederalist No. 39 

APPEARANCE AND REALITY-THE FORM IS FEDERAL; THE EFFECT IS 
NATIONAL 



    The following excerpt is from the essays of "A FARMER." It 
appeared in the Philadelphia Independent Gazetteer on April 15 
and 22, 1788 


     . . . . The Freeman, in his second number, after mentioning 
in a very delusory manner diverse powers which remain with the 
states, says we shall find many other instances under the 
constitution which require or imply the existence or continuance 
of the sovereignty and severalty of the states.  He, as well as 
all the advocates of the new system, take as their strong ground 
the election of senators by the state legislatures, and the 
special representation of the states in the federal senate, to 
prove that internal sovereignty still remains with the States.  
Therefore they say that the new system is so far from 
annihilating the state governments, that it secures them, that it 
cannot exist without them, that the existence of the one is 
essential to the existence of the other.  It is true that this 
particular partakes strongly of that mystery which is 
characteristic of the system itself.  But if I demonstrate that 
this particular, so far from implying the continuance of the 
state sovereignties, proves in the clearest manner the want of 
it, I hope the other particular powers will not be necessary to 
dwell upon. 
    The State legislatures do not choose senators by legislative 
or sovereign authority, but by a power of ministerial agency as 
mere electors or boards of appointment. They have no power to 
direct the senators how or what duties they shall perform; they 
have neither power to censure the senators, nor to supersede them 
for misconduct. It is not the power of choosing to office merely 
that designates sovereignty, or else corporations who appoint 
their own officers and make their own by-laws, or the heads of 
department who choose the officers under them, such as commanders 
of armies, etc., may be called sovereigns, because they can name 
men to office whom they cannot dismiss therefrom.  The exercise 
of sovereignty does not consist in choosing masters, such as the 
senators would be, who, when chosen, would be beyond control, but 
in the power of dismissing, impeaching, or the like, those to 
whom authority is delegated.  The power of instructing or 
superseding of delegates to Congress under the existing 
confederation has never been complained of, although the 
necessary rotation of members of Congress has often been censured 
for restraining the state sovereignties too much in the objects 
of their choice.  As well may the electors who are to vote for 
the president under the new constitution, be said to be vested 
with the sovereignty, as the State legislatures in the act of 
choosing senators.  The senators are not even dependent on the 
States for their wages, but in conjunction with the federal 
representatives establish their own wages.  The senators do not 
vote by States, but as individuals.  The representatives also 
vote as individuals, representing people in a consolidated or 
national government; they judge upon their own elections, and, 
with the Senate, have the power of regulating elections in time, 
place and manner, which is in other words to say, that they have 
the power of elections absolutely vested in them. 
     That the State governments have certain ministerial and 
convenient powers continued to them is not denied, and in the 
exercise of which they may support, but cannot control the 
general government, nor protect their own citizens from the 
exertion of civil or military tyranny-and this ministerial power 
will continue with the States as long as two-thirds of Congress 
shall think their agency necessary.  But even this will be no 
longer than two-thirds of Congress shall think proper to propose, 
and use the influence of which they would be so largely possessed 
to remove it. 
     But these powers of which the Freeman gives us such a 
profuse detail, and in describing which be repeats the same 
powers with only varying the terms, such as the powers of 
officering and training the militia, appointing State officers, 
and governing in a number of internal cases, do not any of them 
separately, nor all taken together, amount to independent 
sovereignty.  They are powers of mere ministerial agency, which 
may, and in many nations of Europe are or have been vested, as 
before observed, in heads of departments, hereditary vassals of 
the crown, or in corporations; but not that kind of independent 
sovereignty which can constitute a member of a federal republic, 
which can enable a State to exist within itself if the general 
government should cease. 
    I have often wondered how any writer of sense could have the 
confidence to avow, or could suppose the people to be ignorant 
enough to believe that, when a State is deprived of the power not 
only of standing armies (this the members of a confederacy ought 
to be), but of commanding its own militia, regulating its 
elections, directing or superseding its representatives, or 
paying them their wages; who is, moreover, deprived of the 
command of any property, I mean source of revenue or taxation, or 
what amounts to the same thing, who may enact laws for raising 
revenue, but who may have these laws rendered nugatory, and the 
execution thereof superseded by the laws of Congress. [sic] This 
is not a strained construction, but the natural operation of the 
powers of Congress under the new constitution; for every object 
of revenues, every source of taxation, is vested in the general 
government.  Even the power of making inspection laws, which, for 
obvious conveniency, is left with the several States, will be 
unproductive of the smallest revenue to the State governments; 
for, if any should arise, it is to be paid over to the officers 
of Congress. Besides, the words "to make all laws necessary and 
proper for carrying into execution the foregoing powers," etc., 
give, without doubt, the power of repelling or forbidding the 
execution of any tax law whatever, that may interfere with or 
impede the exercise of the general taxing power, and it would not 
be possible that two taxing powers should be exercised on the 
same sources of taxation without interfering with each other.  
May not the exercise of this power of Congress, when they think 
proper, operate not only to destroy those ministerial powers 
which are left with the States, but even the very forms?  May 
they not forbid the state legislatures to levy a shilling to pay 
themselves, or those whom they employ, days' wages? 
     The State governments may contract for making roads (except 
post-roads), erecting bridges, cutting canals, or any other 
object of public importance; but when the contract is performed 
or the work done, may not Congress constitutionally prevent the 
payment?  Certainly; they may do all this and much more, and no 
man would have a right to charge them with breaking the law of 
their appointment.  It is an established maxim, that wherever the 
whole power of the revenue or taxation is vested, there virtually 
is the whole effective, influential, sovereign power, let the 
forms be what they may.  By this armies are procured, by this 
every other controlling guard is defeated.  Every balance or 
check in government is only so far effective as it has a control 
over the revenue. 
     The State governments are not only destitute of all 
sovereign command of, or control over, the revenue or any part of 
it, but they are divested of the power of commanding or 
prescribing the duties, wages, or punishments of their own 
militia, or of protecting their life, property or characters from 
the rigors of martial law.  The power of making treason laws is 
both a power and an important defense of sovereignty; it is 
relative to and inseparable from it; to convince the States that 
they are consolidated into one national government, this power is 
wholly to be assumed by the general government.  All the 
prerogatives, all the essential characteristics of sovereignty, 
both of the internal and external kind, are vested in the general 
government, and consequently the several States would not be 
possessed of any essential power or effective guard of 
sovereignty. Thus I apprehend, it is evident that the 
consolidation of the States into one national government (in 
contra-distinction from a confederacy) would be the necessary 
consequence of the establishment of the new constitution, and the 
intention of its framers-and that consequently the State 
sovereignties would be eventually annihilated, though the forms 
may long remain as expensive and burdensome remembrances of what 
they were in the days when (although laboring under many 
disadvantages) they emancipated this country from foreign 
tyranny, humbled the pride and tarnished the glory of royalty, 
and erected a triumphant standard to liberty and independence. 
                        A FARMER