36
retained their separate political existences, but delegated some of their powers to the national
government and some to the state governments."
89
Each of these views, however, is in our
terms historically static. It is the third view Farber presents that we find an implicit notion
of development, a view he calls Transformational Nationalism: "The states retained their
separate sovereignty until the adoption of the Constitution, which created a new national
sovereign—'E pluribus Unum.'"
90
The idea of transformation is central here, for it allows
for the possibility of change and development: we may have started off as a pluribus, but
we have become, if not a Unum, at least an ongoing E pluribus Unum.
Thus, perhaps the Constitution institutionalizes the tension between the pluribus and
the unum I noted at the outset, giving us an ongoing argument to wage, which would be
consistent with the idea of politics as the process through which we negotiate our differ-
ences. Perhaps the nature of the American union, the sovereignty structure of the Constitu-
tion, falls under the caution Madison presented in Federalist 37 about the meaning of law in
general: "All new laws, though penned with the greatest technical skill, and passed on the
fullest and most mature deliberation, are considered as more or less obscure and equivocal,
until their meaning be liquidated and ascertained by a series of particular discussions and
adjudications."
91
It may be not the Founding or original understanding, but only historical
development that determines the nature of the American union. Otherwise, given the evi-
dence of ongoing conflict over that nature of the union, we might have to consider seriously
the possibility that there in fact is no principled, constitutionally coherent theory of the
structure of the American union. And that is not a welcome thought.
89
Farber, op. cit., at 637 (fn. omitted).
90
Farber, op. cit., at 636 (fn. omitted).
91
The Federalist Papers, p. 229.
Convention