Thomas Burke and State Sovereignty, 1777

Abstract

Article II of the Articles of Confederation states that “Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly del-egated to the United States, in Congress assembled.” While the provision is well-known, its author, Thomas Burke of North Carolina, is not. Scholars who have explored Burke’s role in crafting the Article have described him as the father of states’ rights or a republican ideo-logue and often dismiss Article II as unimportant to the American founding. This essay challenges those interpretations. It explores the context of Burke’s words and actions in 1777 to understand better his reasoning for calling for what became Article II. From his congres-sional debates with Richard Henry Lee and clashes with James Wilson over the use of implied and extra-constitutional powers to his calls for a bicameral Confederation Congress, Burke concluded that a provision that properly constitutionalized and protected a division of powers be-tween the states and central government was necessary. Rather than being an ideologue, this article reveals Burke to be searching for a so-lution to the metropolitan-periphery problem while remaining faithful to what he perceived to be the constitutional principles of the Ameri-can Revolution. Thus, rather than a neglected or dismissed member of the American founding, Burke emerges as an important theorist of fed-eralism.