During the January 7 oral argument regarding the OSHA vaccination mandate, Supreme Court Justice Sonia Sotomayor stated, “I’m not sure I understand the distinction why the states would have the power [to institute a mandate such as OSHA’s], but the federal government wouldn’t.” No doubt millions of Americans share Justice Sotomayor’s puzzlement, believing, as she does, that the states are political subdivisions of the United States. Thus, we have every educator’s perfect prey: the teachable moment. Let’s do some Federalism 101.

Although Sotomayor, a lawyer and judge, should know better, others might be forgiven for their misunderstanding because they have been affirmatively misled by the Preamble to the Constitution, which Congress approved by resolution on September 17, 1787. Because the preamble begins with the words “We the people …” people may reasonably assume that a plebiscite adopted the Constitution.

However, that is not so. There was never a vote of the people on the Constitution. In fact, Alfred H. Kelly and Winfred A. Harbison state in their fine book, The American Constitution: Its Origins and Development, “it is extremely difficult to make any absolute statement as to whether or not the Constitution would have received a majority in a direct referendum based on universal suffrage.”

Rather, the Constitution itself. in Article VII, provides, “The ratifications of the conventions of nine states shall be sufficient for the establishment of this constitution between (sic) the states so ratifying the same.” Following Congress’s approval, legislatures in all thirteen states called for delegates to be elected to state conventions to consider the proposed Constitution, which nine states then ratified on June 21, 1788. The Constitution then went into effect on March 4, 1789.

Image: Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy (1940). Public domain.

Thus, the United States was created not by “the people” but by the states. The United States is a federation, a federal state. Its powers are those that the states delegated to it in the text of the Constitution. The entire federal government is one of the “enumerated” powers.

This is the fundamental element of the structure of American federalism which Sotomayor apparently slept through in law school. The federal government possesses only those powers granted it by the federal Constitution, whereas the states possess all powers not granted to the federal government nor forbidden by the state constitutions. Hence the state of Colorado, for example, is a sovereign state just like France or Germany, except to the extent that some of its sovereign power has been forbidden by its own constitution and some of it delegated to the United States federal government by the United States Constitution.

As an illustration of this critically important point at the center of federalism, let us suppose it were asked regarding a particular governmental power under consideration, whether (1) the United States possessed that power, and (2) whether the state of Colorado possessed that power. The answers would be (1) “No, unless granted by the federal Constitution” and (2) “Yes, unless prohibited by the Colorado Constitution.”

It is astonishing to see Justice Sotomayor unaware of this. Perhaps this is what George Elliot had in mind when she wrote in Middlemarch, “It is as useless to fight the interpretations of ignorance as to whip the fog.”