Federalism and the Founders
Today, when we find ourselves confronted with some new abuse of reason or power in Washington, it's easy to fall into the familiar refrain that our politics would be improved if only we could restore America's commitment to federalism. What we often mean is that we would like to see the power of the national government curtailed and greater leeway given to state or local decision-makers.
Without question, there are instances when such decentralization would do us good. And yet, if we are to take politics seriously, we should not forget the risks inherent to the use of power at any level of government — or, for that matter, its use by the people themselves.
The question of how to balance state and national power was perhaps the single most important and most challenging question confronting the early republic. The way the framers took up that question, and the approach they landed on for addressing it, can help us appreciate just how unlikely the emergence of the United States as we now know it really was — and just how fortunate we are that it came to be.
INDIVIDUALLY OR UNITEDLY
"We have never pretended to make of America a useful ally," wrote the government of His Majesty the King of France to Louis-Guillaume Otto, the French chargé d'affaires in America, toward the end of the summer of 1787. "[W]e have had no other object" in aiding American independence "than to deprive Britain of that vast continent." As for the American government, the French laughed at the idea it would last for very long. "[I]n all the American provinces, there is more or less tendency toward democracy," the letter added. The result, it predicted, will be that the United States "will have little stability," giving France the opportunity to move in and re-establish the New World empire it had lost nearly 25 years earlier.
This bleak forecast would not have surprised certain well-placed Americans in 1787. The government under which the United States had declared independence could hardly have been called a "government" at all. The country itself was more nearly kin to a league of independent sovereignties on the order of the 18th-century mélange of German-speaking states or the cantons of Switzerland in central Europe than anything resembling a nation. Each of the 13 newly independent colonies had been founded at different times and with different ends in mind by the haphazard practices of their projectors and proprietors. And for most of their existence, each strove to maintain closer ties with the mother country than with the others.
Even during the Revolution, while sharing a common political complaint about taxation without representation and facing a common foe in the British Army and the Royal Navy, individual states took time to pick quarrels with one another. Sometimes (as in the counterclaims of Pennsylvania and Connecticut to the Wyoming Valley) these resulted in pitched battles. True, the colonies had declared independence "not Individually but Unitedly," as Philadelphia lawyer James Wilson pointed out. And yet Luther Martin of Maryland had argued just as fiercely that such independence "placed the 13 States in a state of Nature towards each other." Had France not demanded the formation of a common instrument of government — the Articles of Confederation — as a condition of its assistance, the new states might never have created a government at all.
What the states created in the Articles was almost laughably inadequate. In a world where the fastest method of long-distance transportation was by sail, while 25 miles a day was the best that could be hoped for on land, the 13 American states were spread over a land mass as large as Western Europe itself. Their previous histories of separate operation inclined few of them to cooperation; what they agreed to during the Revolution was at best a confederation built on mutual suspicion. After all, the states had just thrown off the rule of a distant, imperial metropolis; their new legislatures saw little reason to recreate one for themselves in America.
Hence, the Articles gave the Confederation Congress no power to levy taxes on the states without the unanimous consent of them all, which was rarely forthcoming. Without the authority to tax, the United States had no reliable way of repaying its wartime debts to bankers in Paris and Amsterdam, and no way to establish a uniform monetary system. Lacking such a system, each state cheerfully printed its own worthless paper currency to pay down its debts while enacting stay laws that prevented other states' sellers and lenders from collecting what they were owed. Congress had no way to fund an army, which meant that it had no way of enforcing treaty obligations with the Shawnee, the Delaware, and other tribes. It also disbanded its navy, which left American ships prey to piracy.
When the Confederation government tried to negotiate a treaty with Spain to open the navigation of the Mississippi River to American commerce, John Jay, the American negotiator, warned Congress, "I am not sanguine in my expectations that a satisfactory termination of this negotiation is practicable." He was right. The best he could do, after three years of negotiating, was an agreement with the Spanish to permit Americans to use the Mississippi, but only by the payment of prohibitive tolls. And all the while, Jay and George Washington suspected that the Spaniards were less interested in tolls than they were in promising Americans along the great rivers that fed into the Mississippi that all tolls would vanish if they deserted the American union and attached themselves to the Spanish empire. "For, what ties," Washington asked, "[should] we have upon those people...if the Spaniards on their right, and Gt. Britain on their left, instead of throwing stumbling blocks in their way as they now do, should hold out lures for their trade and alliance[?]"
It was clear to the leading American minds of the time that there was no way the states were ever going to be persuaded to give up their individual authorities and identities and allow themselves to be blended into a single entity with the power to exercise unified economic or political authority. If there was any hope for the survival of the United States, they knew it would have to involve some kind of concession to a federation structure, one composed of a national government with enough authority to tame the insolence of the state governments yet not so much that it would cause them to rebel. In near despair, Washington wrote, "certain I am, that unless adequate Powers are given to Congress for the general purposes of the Federal Union that we shall soon moulder into dust and become contemptible in the Eyes of Europe, if we are not made the sport of their politicks."
As if to give point to that fear, the inhabitants of the contested borderland between New Hampshire and New York that we know today as Vermont opened negotiations with Frederick Haldimand, the governor-in-chief of Quebec, to explore the possibility of returning to British rule. Even worse, in 1786, a violent tax revolt known as Shays's Rebellion broke out in western Massachusetts. With no federal army at hand to suppress the uprising, the governor of Massachusetts was forced to raise a private army, which he funded by passing the hat to 153 wealthy Bostonians.
The Shaysites were eventually suppressed, but not before Washington despondently complained to his old wartime lieutenant "Light-horse" Harry Lee that he was "mortified beyond expression" when he perceived "the clouds which have spread over the brightest morn that ever dawned upon any Country." Given that Lee had told Washington of his belief that the Shaysites' objective was "the abolition of debts, the division of property and re-union with G. Britain," it was little wonder Washington felt this way. Worse still, as Lee added, "[i]n all the eastern states the same temper [prevails] more or less, and will certainly break forth whenever the opportune moment may arrive."
"A SYSTEM OF NATIONAL GOVERNMENT"
What followed from this dilemma is one of the great stories of the American republic — how a handful of national-minded individuals led by James Madison, and with the blessing of George Washington, arranged a conference of Virginia and Maryland delegates to discuss the navigation of the Potomac, proposed a larger commercial conference at Annapolis in 1786, and then persuaded the conference to petition the Confederation Congress to call for a convention in Philadelphia to review the Articles themselves. What emerged from that convention after the summer of 1787 was not a revision of the Articles — there is no evidence Madison ever intended anything so tame — but an entirely new Constitution that rebalanced government authority within the United States.
Had that plan not been in view, it is unlikely that Washington would have ever consented to attend, much less preside over, the Philadelphia convention. As Washington confidante Henry Knox wrote two months before the delegates assembled, "[o]ur present federal government is indeed a name, a shadow without power, or effect." Knox, who had reported regularly to Washington on the Shays insurrection, hoped that the convention would "possess the magnanimity to propose a wise modification of a national government." "If only propositions be obtained for bracing up the present radically defective thing," he added bitterly, "then better had it been, that the idea of the convention had never been conceived."
The American republic did not cease to be a federation, and under the convention's Constitution, the states continued to possess significant discretionary powers. States would oversee their own voting procedures. They would be represented as states in a new congressional Senate. A new executive president would be elected by the outcomes of elections in the states. And, thanks to a series of amendments that Madison first opposed and then endorsed, federal powers over several areas of civil liberties — freedom of religion and expression, freedom of assembly and of the press, freedom from unwarranted search and seizure, and the like — were sharply curtailed, or even eliminated. Above all, the states took their time ratifying the new Constitution — the process lasted well into 1788.
Yet what should not be lost to sight is how determined the 42 delegates who sat through most of the grueling sessions of the convention were to create a federalism that tilted strongly in a nationalistic direction. Three-quarters of them had served in the Revolutionary War where, in the words of John Marshall, they had "associated with brave men from different States, who were risking life and everything valuable, in a common cause, believed by all to be most precious." It was there that Marshall "was confirmed in the habit of considering America as my country and congress as my government."
Many of the framers had been committed to such nationalism as far back as independence. Benjamin Franklin, the most senior member of the convention, had advocated in July 1775 the creation of a national legislature with the power of "Settling all Disputes and Differences between Colony and Colony" and making "general Ordinances...that may relate to our general Commerce." In 1776, John Dickinson, who played a major role in the 1787 convention, had argued for assigning to a national government "the sole and exclusive Right and Power of determining on peace and War...Settling all Disputes and Differences...concerning Boundaries, Jurisdictions, or any other Cause whatever," and "Authority for the Defence and Welfare of the United Colonies." Even those who were skeptical of putting too much authority into the hands of a national government, like William Paterson of New Jersey, agreed that the delegates needed "to render the federal Constitution adequate to the exigencies of Government, & the preservation of the Union."
What emerged from the convention was a national government that possessed powers independently from the states, as well as the authority to act directly on the American people. "Some contend that states are sovereign, when, in fact they are only political societies," Madison had argued at the convention. "The States never possessed the essential rights of sovereignty." And indeed, they would not. As the new Constitution made clear, in the new government, "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." It added that "the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." It declared the new national Congress would possess an independent taxing power, the power to declare war and to raise armies, and the power to regulate interstate commerce. Congress would, as William Grayson once remarked to Madison, "have the power of preventing the States from cheating one another as well as their own citizens by means of paper money." And if there were other powers deemed "necessary and proper" to national authority, Congress could exercise those, too. These authorities would never be without debate, but they could never be more than debated.
At the same time, the Constitution expressly forbade the states from exercising any of the customary prerogatives of sovereignty: "No State shall enter into any Treaty, Alliance, or Confederation...coin Money; emit Bills of Credit...pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility...lay any Imposts or Duties on Imports or Exports...keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War." Nor would any state be able to write rules for citizenship that differed from those of other states, or from those of the national government: As the Constitution declared, "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Above all, there would be a single executive president who "shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States."
Madison would have liked for the national government to have had even broader authority. One of his goals at the 1787 convention was to equip Congress with a veto power over state legislation. While serving in the Confederation Congress, he helped draft a proposed amendment to the Articles that would have authorized the use of force against uncooperative states. George Mason, meanwhile, wanted Congress to have the power to pass laws to forbid the import of luxuries (which he believed virtuous citizens of a republic should do without) as well as the authority to restrict voting rights based on ownership of property.
Alexander Hamilton went further, arguing for "a general and national government" that would "annihilate the state distinctions." He was "convinced that no amendment of the confederation [could] answer the purpose of a good government, so long as state sovereignties do, in any shape, exist." After all, had not "the federal institution of Germany" been created "upon the laudable principle of securing the independency of the several states of which it was composed"? And what was the result? "[T]heir councils are weak and distracted" and "cannot prevent the wars and confusions which the respective electors carry on against each other." He found the Swiss cantons to be "equally inefficient." For Hamilton, nothing would serve the purposes of the republic's survival except for "[a]ll state laws to be absolutely void which contravene the general laws," for the states' "militia and the appointment of officers to be under the national government," and for a national officer "to be appointed in each state to have a negative on all state laws."
None of them — Madison, Mason, or Hamilton — got their way entirely. But what the 1787 convention did was ambitious enough on its own terms. It was, as Madison wrote to Thomas Jefferson in Paris, "the sincere and unanimous wish of the Convention to cherish and preserve the Union of the States," and to that end, it created "a government which instead of operating, on the States, should operate without their intervention on the individuals composing them." Washington agreed. Writing to the Marquis de Lafayette the following February, he marveled that it was "little short of a miracle, that the Delegates from so many States...different from each other in their manners, circumstances, and prejudieces, should unite in forming a system of national Government." And yet that is precisely what had happened.
LIBERTY AND POWER
Not every voice across the American landscape was united in praise of what the Philadelphia delegates had done. At least one member of the convention — the attorney general of Delaware, Gunning Bedford, Jr. — did not believe the promise that "although the powers of the general government will be increased...it will be for the good of the whole" and "never will injure the lesser States." In the most provocative words uttered during the convention, Bedford announced, "[g]entlemen, I do not trust you. If you possess the power, the abuse of it could not be checked; and what then would prevent you from exercising it to our destruction?" Three of the most prominent delegates to the convention — Edmund Randolph, Elbridge Gerry, and even George Mason — refused to sign the new Constitution.
But the ratification process, despite its length and fury, would soon demonstrate how much of a minority Bedford and the others constituted. What's more, the movements that would spring up in later years to contest the national authority of the Constitution were not necessarily or entirely motivated by concerns for federalism — not the Whiskey Rebellion of the 1790s, certainly not John Calhoun's attempt to assert the power of state nullification, and even less so the attempted secession of the Southern Confederacy in 1861 and the later imposition of Jim Crow segregation. Although the Confederacy made a great deal of itself as a defender of states' rights, its practice during the Civil War was actually far below the line of the Lincoln administration, which was scrupulous in its deference to Northern state governors. In fact, the decades after the defeat of the Confederacy were what really constituted the golden age of states' rights.
This is because American federalism, as it emerged from the Constitutional Convention, should not be mistaken for mere localism or populism. The Electoral College is not a celebration of populism, and the principal concern of American federalism is not localism. The overriding anxiety of the founders, even those Anti-Federalists who opposed ratification, was the balancing of liberty and power — which, in the political world of the 18th century, were akin to the strong force and the weak force in nuclear physics.
For the founders, liberty was the principal aim, as it was liberty that gave the natural rights described in the Declaration of Independence the appropriate scope for their exercise. Power was the fearful element, which could simultaneously enable and poison. The Whig tradition had taught the founders that, as John Trenchard and Thomas Gordon put it in Cato's Letters, "Power...is so monstrous, that it turns Men that have it into Monsters; and therefore the most amiable and unexceptionable Man upon Earth is not to be trusted with it." Liberty, they continued, is all but helpless in its path: "Power encroaches daily upon liberty," and too often "the balance between them is almost lost." As one Revolutionary pamphleteer wrote, "the lust of power" is "so inimical to a free, righteous government" that it will run rampant "unless the spirit of liberty prevails in the state."
And yet no political system could function without the use of power. Liberty unrestrained by power has no end but anarchy, and anarchy is what invites the resort to tyranny as a means of restoring order. "Had every Athenian citizen been a Socrates," Madison remarked in The Federalist, "every Athenian assembly would still have been a mob." The solution the Constitution posed was to maximize liberty, even at the expense of efficiency, but also to deploy power to restrain the Athenian-style mob — even while limiting that deployment to necessities and "exigencies" of government. Hence the separation of powers, which was written into the Constitution to force the three branches of government it created to spend more time contesting each other than encroaching on the people. Hence also federalism, not for the purpose of fetishizing states' rights or localism, but for keeping power as much out of the hands of the scheming and the unpredictable, whether they be at the local, state, or national level.
PASSION AND CONSTRAINT
No one had a clearer view of the vitality and usefulness of local institutions in America, or the American passion for egalitarian populism, than French diplomat Alexis de Tocqueville. Nevertheless, Tocqueville read the Constitution in strongly nationalistic terms. True, as he readily admitted, the Constitution is a document of divided sovereignty, with a "share of sovereignty...reserved to the particular states" and a "portion of power" reserved to the union. But "the federal legislators had formed very clear and very just ideas" of the "national authority," ideas that compelled Tocqueville to warn his readers not to "confuse" the American union "with...all confederations preceding" it.
In practical terms, the powers reserved to the federal union were the critical ones — so much so, Tocqueville argued, that "its national authority was in some regards more centralized than it was...in several of the absolute monarchies of Europe." The judiciary offered an illustrative example: As Tocqueville noted, "[t]he Union has only a single court to interpret the law," while the federal courts, and especially the Supreme Court, were "vested with the right to decide all questions of competence." And even though the Constitution "had set precise limits for federal sovereignty...each time that sovereignty is in competition with that of the states, a federal court will pronounce" upon it. In a parallel instance found in the Commerce Clause, "Congress alone has the right to regulate the commercial relations of the states among themselves." And when Congress "wants to levy a tax, it does not address itself to the government of Massachusetts, but to each inhabitant of Massachusetts."
It is no accident, and no denigration of federalism, to remember that liberty's defense — whether it be liberty for slaves or freedom of speech or even the right to bear arms — has more often come from the national authority than from the states. One need not look far to find states where the dictates of governors (think New York's Andrew Cuomo) have shown shockingly little regard for the natural or civil rights of Americans, and where horrendous misreadings of those rights at the state level have only found correction in the highest national court (think Masterpiece Cakeshop v. Colorado Civil Rights Commission).
If there is a great threat to civil liberties today — and especially the core liberties captured in the Constitution's first 10 amendments — it comes from a feckless Congress that has surrendered national authority to what amounts to an invisible fourth branch of government: the bureaucracy. And yet the states have hardly been less eager to create oppressive administrative burdens themselves.
We sometimes imagine that the solutions to all of our problems are to be found in "restoring federalism" — which is usually shorthand for curtailing national authority in favor of state or local authority. This ignores the fact that the propensity to abuse power can be found just as easily at the meetings of a local school board as in the District of Columbia.
The kind of federalism the founders espoused was not a freewheeling endorsement of state sovereignty — they had seen how dreadful the results of that might be — but a federalism that restrained power where they had seen its worst abuses: in the states. As Hamilton would write in Federalist 15, "[w]hy has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint." It is such constraint that requires not solely federalism, but a nation.