The Nice Bypass: How the Structure Was Constructed to Sideline the States
“This Constitution does not attempt to coerce sovereign bodies, states, in their political capacity.”
With that one sentence, future Chief Justice Oliver Ellsworth identified the single most important and least understood feature of the Constitution. It wasn’t just a stronger version of the Articles of Confederation. It was a completely different system.
The principle driving this radical shift was simple: government would be based on “We the People,” not “We the States.” The Constitution was intentionally designed to bypass the states. And that truth is almost never taught today.
THE REQUISITION SYSTEM
To understand how radical this Constitutional change was, you must first understand the system it was designed to replace. In Chisholm v. Georgia, James Wilson identified the central operating principle of the Articles.
“The articles of confederation, it is well known, did not operate upon individual citizens; but operated only upon states.”
In the weeks leading up to the Philadelphia Convention, James Madison cataloged what he saw as the fatal flaws of that system in his Vices of the Political System of the United States. Madison’s primary charge was aimed at the “requisition” system: for any significant action, Congress could only request compliance from the states; it could not compel it.
“This evil has been so fully experienced both during the war and since the peace, results so naturally from the number and independent authority of the States and has been so uniformly examplified in every similar Confederacy, that it may be considered as not less radically and permanently inherent in, than it is fatal to the object of, the present System.”
Article VIII of the Articles of Confederation created the tax requisition system.
“All charges of war, and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the united states in congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states …
…The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several states within the time agreed upon by the united states in congress assembled.”
The practical result was clear to all: asking for tax money is not the same as collecting it. George Mason outlined some of the practical reasons why refusal happened.
“Requisitions have been often refused, sometimes from an impossibility of complying with them; often from that great variety of circumstances which retards the collection of moneys; and perhaps sometimes from a wilful design of procrastinating.”
Rufus King of Massachusetts voiced the widely-held Federalist frustration that the system allowed some states to carry the financial burden for those that did not pay.
“Massachusetts has paid while other states have been delinquent.”
Alexander Hamilton reserved his deepest contempt for the requisition system. His verdict? The entire system was rotten to the core and had to be destroyed.
“requisitions have been the cause of a principal part of our calamities; that the system is defective and rotten, and ought forever to be banished from our government.”
Patrick Henry saw the requisition system as a feature, not a flaw. On it, he said, “depends our political prosperity,” because if congress asked for too much, the states held the power to keep them in check.
THE BREAKING PPOINT
Frustrated with tax requisitions, nationalists sought the power to impose their own tax: a federal tariff. Two hurdles stood in their way: the Articles denied Congress the power to tax, and any change required unanimous consent from all thirteen states.
The 1783 tariff proposal therefore ignited a debate that went far beyond taxation. Another issue under debate was a nationalist goal to create federal tax collectors that would operate independently of the states.
“Mr. Wilson considered this mode of collection essential to the idea of a general revenue, since without it the proceeds would depend entirely on the punctuality, energy, and unanimity of the states. Mr. Hamilton was strenuously of the same opinion.”
Hamilton saw the tariff as a vehicle for a fundamental expansion of federal power. His additional reason for creating federal tax collectors revealed the political machinery he intended to build.
“it was expedient to introduce the influence of officers deriving their emoluments from & consequently interested in supporting the power of, Congress”
Hamilton had just exposed the political logic of the plan. As Madison noted at the time, the obvious goal was to create a payroll of officials loyal to their federal paymaster, not to the states.
“This remark was imprudent & injurious to the cause wch. it was meant to serve. This influence was the very source of jealousy which rendered the States averse to a revenue under the collection as well as appropriation of Congress.”
The admission was a tactical blunder. Hamilton had just handed his opponents a perfect “I told you so” moment – concrete proof of their suspicions.
“All the members of Congress who concurred in any degree with the States in this jealousy smiled at the disclosure. Mr. Bland & still more Mr. L. who were of this number took notice in private conversation that Mr. Hamilton had let out the secret.”
The 1783 Revenue Plan, authorizing a 5% federal tariff, passed Congress but was sent to the states for the required unanimous consent.
Lacking unanimous support, the plan died.
In 1784, Congress made another attempt, asking the states for a 15-year grant of power to regulate foreign commerce. Like the tariff, this amendment also failed to gain unanimous state support.
THE NATIONALIST DIAGNOSIS
For Madison, the lesson was obvious: the great problem of the Articles was that it lacked the power of coercion. In 1787, he listed this as another core vice of the system.
“want of sanction to the laws, and of coercion in the Government of the Confederacy…
…Under the form of such a Constitution, it is in fact nothing more than a treaty of amity of commerce and of alliance, between so many independent and Sovereign States.”
Madison illustrated his point with an analogy: what if a state could only recommend that its counties obey the law?
“If the laws of the States, were merely recommendatory to their citizens, or if they were to be rejudged by County authorities, what security, what probability would exist, that they would be carried into execution? Is the security or probability greater in favor of the acts of Congs. which depending for their execution on the will of the state legislatures, wch. are tho’ nominally authoritative, in fact recommendatory only.”
The problem extended beyond money. The requisition system for troops was also met with state resistance. In a letter to Thomas Jefferson, Elbridge Gerry gave a prominent example of the breakdown.
“the States of Connecticut N York N Jersey and Pennsylvania were called on by Recommendation to raise 700 Men for the Service mentioned to serve one Year. The first and last will probably comply with the Recommendation.”
Gerry’s letter reported that New Jersey was raising no troops at all, while New York’s governor had gone to negotiate a separate treaty, rendering the congressional plan useless in practice.
For nationalists like Charles Pinckney, this state defiance required an unequivocal solution: transfer primary control over the militia from the states to the general government.
“To place therefore a necessary and Constitutional power of defence and coercion in the hands of the Federal authority, and to render our Militia uniform and national, I am decidedly in opinion they should have the exclusive right of establishing regulations for their Government and Discipline, which the States should be bound to comply with, as well as with their Requisitions for any number of Militia, whose march into another State, the Public safety or benefit should require.”
William Davie of North Carolina argued that these failures all stemmed from a single design flaw: the government acted on states, not on people. He claimed the only logical endpoint for such a system was enforcement by military force.
“Another radical vice in the old system, which was necessary to be corrected, and which will be understood without a long deduction of reasoning, was, that it legislated on states, instead of individuals; and that its powers could not be executed but by fire or by the sword – by military force, and not by the intervention of the civil magistrate.”
The Federalist diagnosis was stark: the choice under the Articles was either begging for compliance or compelling it with blood. With the Constitution, they argued for a radical alternative.
“These considerations determined the Convention to depart from that solecism in politics – the principle of legislation for states in their political capacities.”
FEDERALIST VS ANTI-FEDERALIST
James Madison arrived at the Philadelphia Convention with a clear objective: to replace the existing “federal” system that acted on states with a “national” government that would act directly on individuals.
This switch from federal to national power was no secret. The framers put it on the front page in the first three words.
“The introduction to this Constitution is in these words: “We, the people,” &c. The language of the Confederation is, “We, the states,” &c. The latter is a mere federal government of states.”
James Wilson explained what he saw as the central problem with the Articles: it could only make requests of states, not enforce them.
“Those, therefore, that assemble under it, have no power to make laws to apply to the individuals of the states confederated; and the attempts to make laws for collective societies necessarily leave a discretion to comply with them or not.”
beginning with “we, the undersigned Delegates of the States,” and declaring a “firm league of friendship” among the states.
The language of the Articles of Confederation confirms this view, beginning with “we, the undersigned Delegates of the States.” Article III declares that “The said states hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their Liberties, and their mutual and general welfare.”
Patrick Henry smelled a rat. To him, those first three words proved the whole point was to create a consolidated government.
“Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states.”
On the federalist side, William Samuel Johnson celebrated the shift, and argued that the only alternative to their plan was trying to rule the states by military force.
“The Convention saw this imperfection in attempting to legislate for states in their political capacity; that the coercion of law can be exercised by nothing but a military force. They have therefore gone upon entirely new ground.”
This “new ground” was a proposal to abandon a system that would end in military threats against states – in favor of legal action against individuals.
“The force which is to be employed is the energy of law; and this force is to operate only upon individuals who fail in their duty to their country. This is the peculiar glory of the Constitution, that it depends upon the mild and equal energy of the magistracy for the execution of the laws”
In Federalist 15, Hamilton stated his view in the starkest terms: the system’s “great and radical vice” was the principle of making laws for governments.
“The great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist.”
Madison’s response to Henry and other Anti-Federalists was as simple as it was direct: a government that has to beg 13 separate powers for its own survival is no government at all.
“A government which relies on thirteen independent sovereignties, for the means of its existence, is a solecism in theory, and a mere nullity in practice.”
Henry fired back that the Federalists were not merely fixing a weak government, they were building an empire.
“If we admit this consolidated government, it will be because we like a great, splendid one. Some way or other we must be a great and mighty empire; we must have an army, and a navy, and a number of things.”
Invoking the American Revolution, Henry reminded the people of a different goal.
“When the American spirit was in its youth, the language of America was different; liberty, sir, was then the primary object.”
THE BYPASS
In Federalist 16, Alexander Hamilton sharpened the entire Federalist position into a thinly veiled threat: the real choice being presented was not between liberty and empire, but between the Constitution and a military despotism.
“It seems to require no pains to prove that the States ought not to prefer a national Constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government. And yet this is the plain alternative involved by those who wish to deny it the power of extending its operations to individuals. Such a scheme, if practicable at all, would instantly degenerate into a military despotism”
Hamilton’s position was clear: a system that required state cooperation gave every state a veto.
“If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated.”
Charles Pinckney put a finer point on it: states would not just fail to act, they would actively work to defeat federal law.
“No act of the Federal Government in pursuance of its constitutional powers ought by any means to be within the control of the State Legislatures; if it is, experience warrants me in asserting, they will assuredly interfere and defeat its operation.”
Oliver Ellsworth boiled the entire Federalist argument down to one principle: you can take a person to court, but you can only take a state to war.
“I am for coercion by law – that coercion which acts only upon delinquent individuals. This Constitution does not attempt to coerce sovereign bodies, states, in their political capacity. No coercion is applicable to such bodies, but that of an armed force.”
The takeaway is the bedrock principle of the Constitutional system: states are not agents of the federal government.
Therefore, the federal government holds no constitutional authority to force them to implement federal acts or regulatory programs. The entire Constitution was set up precisely to avoid relying on the states in the first place.
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