Most “Anti-Federalists” were not anti-federalist: they favored a balance of power between the national government and individual state governments (Lee, n.d.). Some Anti-Federalists favored powerful states’ rights against a weak national government and, thus, were genuinely anti-federalist (Brutus, n.d.). Some “Federalists” were anti-federalist: they favored a strong national government at the cost of diminished state sovereignty. This appears to be Madison’s charge against Hamilton: when arguing for a strong central government, Hamilton proposed a national bank and use it to subsidize the debt of the 13 states (Miller, 1998, 84-98; 210-228). Some Federalists were genuinely federalists in their favoring a balance of power between the national government and individual state governments. Much of the political rancor among these groups continues to this day, although names of the factions have gone through several changes, from Federalist vs. Democratic-Republican, originally, to Democrat vs. Republican today.
The fundamental debate is over the proper amount of legislative, executive, and judicial power at the national level versus at the state level. Federalism, the United States’ official model of government, is the attempt to mollify both parties by bringing them to a compromise and consensus that, ideally, gives each one equal power in some political matters and superior or inferior powers in other political matters as appropriate. Where the Articles of Confederation leaned in the favor of the states, the U.S Constitution was an attempt to pull power toward the center, perhaps overshooting the mark in the minds of some, especially the so-called Anti-federalists.
There appear to be at least two distinct reasons for the factions and tensions between them, and at least three drivers toward the present circumstances in which the scale has tipped toward nationalism. Note that the term “nationalism” here refers to the view that the nation is the fundamental political unit and that the states’ interests and powers are subordinate to the nation’s.
Given two distinct reasons for the factions and the tension between them, there must be two different approaches to easing the tension between factions. One reason is that some people, while claiming to invoke the Constitution in general, or claiming to invoke federalism in particular, do not know what they are talking about. In short, federalist illiteracy is a result of constitutional illiteracy. The solution in this case, or at least a first step toward a solution, is to educate these people about the nature, scope, and limits of federalism, especially the U.S. version of it. Once educated, many of these people may find themselves in the other arena of debate.
The other reason for the factions and the tension between them is different interpretations of federalism in general and the U.S. version of federalism in particular. The people in these factions know the history and definition of federalism well, but interpret it differently enough from each other so as to cause the rancor.
Three primary drivers toward the present circumstances are constitutional amendments, U. S. Supreme Court decisions, and the history which, whether benignly or by force, has moved the U.S. in this direction. Since an understanding of this is a prerequisite to federalist literacy let us start here.
A Brief History: The Declaration of Independence to the Civil War
The problem becomes apparent after the Revolutionary War ends in 1783. Until then, the American colonies had found common cause in their fight against and declaration of independence from George III and British tyranny.
But with historical hindsight we can see a hint of a problem as early as the drafting of the Declaration of Independence. Its authors, led by Thomas Jefferson, took a page from John Locke’s political philosophy in declaring that a government’s sole purpose is to protect the “unalienable” (Locke would say “natural”) rights of its citizens, who may, if not must, revolt when the government fails in this task (Locke, 1690). For Locke, this begins with the birthright to property -- the ownership of oneself and the fruits of one’s labor. Locke believed that left in a state of nature without any government oversight, people were vulnerable to uncontrolled theft of or civil disagreements over their property. Thus, people need a government to act as an umpire in criminal and civil legal matters. Moreover, the right to property entailed the right to life and liberty, since without these, it was impossible to enjoy one’s right to property. But under Thomas Jefferson’s pen and with support of the Continental Congress, Locke’s trio, “life, liberty, and property,” became “life, liberty and the pursuit of happiness.” Why the change from “property” to “pursuit of happiness”?
Perhaps because all 13 colonies had slaves in 1776, the colonies’ representatives in Congress would not want to declare that every person has the inalienable right to the ownership of himself and the fruits of his labor. A less cynical possibility is that the Declaration was meant in part as a call to arms and most young men who were targets of that call had no property. Thus, to ask them to die to protect the property of others might be self-defeating. And to be fair, Locke (1689) himself uses the term “pursuit of happiness,” although not in his political treatise (Book I, Ch, XXI, par. 51). Whatever the reason for the substitution, it is clear that the colonies were reluctant to give up their slaves, or their sovereign right to have slaves. To be sure, by 1783 when Massachusetts abolished slavery outright (Pennsylvania had abolished slavery for children born of slaves after 1780), that tide was beginning to make a slow turn. Some other states would follow suit so that by 1804 seven states (Pennsylvania, Massachusetts, New Hampshire, Connecticut, New York, Ohio, and New Jersey) had abolished slavery. But enough states demanded their right to decide the slave issue independently that by 1861 the disagreement turned into the Civil War.
Using slavery as an example of the rift between nationalism and states’- rights advocates, we should also note in contrast the Northwest Ordinance of 1787, which banned new slavery in the Northwest Territories, and The Act Prohibiting Importation of Slaves of 1808. Especially noteworthy is that Pres. Thomas Jefferson, a states’- rights activist, had called for this act in 1806, recognizing that the Constitution would not permit it before 1808. Thus, the rift that plagues federalism is itself fraught with ambivalence.
Even as slavery offered a specific example of the rift in question, its backdrop was the bigger question of states’ rights in general to govern themselves over and against the authority of the nation. With the Revolution over and the loss of that common cause, the colonies, now the states, began to worry more about themselves individually and less about the new nation as a whole.
Clear evidence for this was the attempt at a new government embodied in the Articles of Confederation, written in 1777 and ratified in 1781. The Articles promised individual state sovereignty with a weak national government, run by state congressional representatives, whose tasks nationally were to make war and peace, act on the nation’s behalf in diplomatic and commercial matters with foreign countries, and adjudicate disputes between states. Also, while the Articles gave the national government authority to requisition funds necessary for national initiatives, the government had no means of collecting those funds other than the willingness of a state to contribute.
By 1786 it became apparent to many political leaders that more had to happen for the nation to realize its full potential. Specifically, there was need for a national revenue-collecting system and a stronger national internal and external defense (Federalist No.1-12). Thus, by 1786, Alexander Hamilton posited the need for a much stronger central government. To this end, he led a convention in Annapolis, in Fall 1786, which convened to ask Congress to approve of a constitutional convention in Philadelphia the following May.
To a pessimist, the Philadelphia effort looked doomed from the start. A key provision of the Articles of Confederation was that they could not be amended without consent of all 13 states (Article XIII), and Rhode Island refused to show up for the Philadelphia convention. Nevertheless, with much argument and compromise, the Constitution was signed on Sept. 17, 1787, by representatives from 12 states, and provided that if at least nine states ratified the Constitution it would be the law of the United States and any state that didn’t ratify would fall outside the boundaries and protection of the U.S. Once the Constitution was put to the states, the gloves came off. Here we meet the Federalists and the Anti-Federalists formally for the first time.
The Federalists were represented by John Jay, Alexander Hamilton, and James Madison, most notably in their writing 85 editorials under the pseudonym “Publius,” meant to convince New York to ratify. The so-called Anti-Federalists were a more loose-knit group of opponents to the Constitution, who feared that too strong a central government would separate the people—both geographically and politically—from the government whose task was to protect the rights of those people. But as our introduction notes, many of these “Anti-Federalists” were not anti-federalist and some of the “Federalists” would more properly be called “nationalists.”
The Constitution was ratified, but not before a number of states, hesitating, insisted that if they ratified, Congress would have to add amendments that clarified the rights of the states and of individuals in a way that softened the apparent power grab of the national government. Congress complied and, in August 1789, proposed 12 amendments, 10 of which made it into the Bill of Rights, ratified in December 1791. This signaled an attempt to balance the authority of the national government with the rights of the states. In theory, this made the Constitution far more federalist in nature and intent than the Articles of Confederation.
But one would not have to go into too much detail to find potential for clashes and disagreements. On the one hand, the10th Amendment, arguably the core of constitutional federalism, promised “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Similarly, the 9th Amendment promised “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
On the other hand, after detailing the congress’s powers, Art. I, sec. 8 concludes with the “Necessary and Proper” or “Elastic Clause”: “The Congress shall have Power... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof” (clause 18). And the Constitution declared itself “the Supreme Law of the land” (Article VI).
To students of social contract theory, perhaps while Locke was the muse of the Declaration of Independence, Thomas Hobbes (1651) was the muse of the U. S. Constitution. Locke (1690) felt that most people in a state of nature would get along fine without a government, but there would be a few who tried to steal the property of others, and there would be legitimate property disputes. Hence, the need for a government to protect property rights against these eventualities. Hobbes, taking a much dimmer view of human nature, felt that a strong government was necessary to keep people from killing each other and from stealing each other’s goods. Given the more prosaic purpose of the Constitution--a common defense and a national revenue system--versus the idealist, almost romantic purpose for the Declaration--to preserve the inalienable rights of men--we might wonder whether the rift that permeates our narrative is, in part, philosophically a rift between a Lockean view of humanity and a Hobbesian view. This might explain why the Declaration seemed kinder than the Constitution to the idea of states’ rights. But further discussion of this possibility is a subject for another time.
From here to the Civil War the tension and the uncertainty played itself out, often in the courts with the ball being passed back and forth between nationalistic decisions and decisions favoring states’ rights. One pair of examples, interestingly, has the same person, Chief Justice John Marshall, at its center. In McCulloch v Maryland (1819), the Marshall court found that Congress had the power to create a national bank and that Maryland could not tax it. One important move here was Marshall’s interpreting the Necessary and Proper Clause as including “appropriate and legitimate.” This was a nationalist decision. But in Barron v. Baltimore (1833), the Marshall Court found that the Bill of Rights did not apply to state governments; that, for example, only the federal government was prohibited from restricting free speech or free assembly. This favored states’ rights.
The tension came to a boil with the Civil War, when 11 out of 34 states tried to secede from the union and form the Confederate States of America in defense of states’ rights, and four other states continued to allow slavery. There is no need to settle here the question whether the war was primarily about slavery or whether this was just the flash point that pit fierce states’ rights advocates against nationalists. In either case, the rift was brought out in stark relief and whatever one’s hopes for federalism, the compromise was set aside as the two distinct sides fought it out.
Two Drivers Take Control: Amendments and the Supreme Court
In principle, the nationalists won the Civil War. Recalling that their political ancestors were the self-styled “Federalists,” we might declare that federalism won. But from a states’-rights perspective, this is not so straight-forward. The 13th, 14th, and 15th Amendments removed much of the states’ ability to make economic and legislative decisions for themselves, and the 14th Amendment has been the basis of many court cases that have given more power to the national government and taken that power from the states. On the Amendments side, the 17th (people vote directly for their senators), 19th (women’s vote), 24th (no poll tax), and 26th Amendments (18-year-olds can vote) removed the states’ ability to decide who can and who cannot vote. Add to these the 16th (income tax), 18th (Prohibition), and the 21st (Repeal of Prohibition), and the scale’s tipping in favor of the national government becomes clear.
In addition to amendments favoring the national side of the equation, there is the Supreme Court’s contribution to the tipping of the scales in favor of nationalism. One collection of such moves comes in the Court’s incorporating the Bill of Rights, that is, applying the Bill of Rights to the states as well as the federal government, based primarily on the “Due Process” clause of the 14th Amendment. The move has been fairly steady in one direction from Barron v. Baltimore (1833) (see above) and United States v. Cruickshank (1875) in which the Court held that neither the First nor Second Amendments applied to state governments, pivoting to Gitlow v. New York (1925) which held that states must honor the First Amendment’s protection of freedom of speech and freedom of the press, and McDonald v. City of Chicago (2010), which held that states must honor the Second Amendment’s protection of the right to bear arms.
There have been exceptions to the Court’s move toward nationalism. Plessy v. Ferguson (1896) is an infamous example, which gave the states wide latitude in interpreting constitutional rights. Specifically in this case, so long as a state was providing rail cars for Blacks as well as rail cars for Whites, the state’s Separate Car Act conformed to the 14th Amendment. Hence, “separate, but equal.” But by now, such decisions proved to be the exception to the rule that favored nationalism over states’ rights. Consider, for a more recent example, Roe V. Wade (1973), which removed from states the right to outlaw abortion before the 24th week of pregnancy.
Thanks, then, to the Constitutional Amendments and Supreme Court decisions, the U.S.’s putatively federalist system has tipped legally toward nationalism where once it had tipped toward states’ rights. Whether this should be the case is a matter of continued debate. Were the southern states coerced into ratifying the Civil War/Reconstruction Amendments? Hasn’t the Supreme Court often reversed itself? And have not many states, even after the Civil war, with Jim Crow laws, or legalization of marijuana, for example, asserted their independence from the national government?
The Utah Commission on Federalism (2017) makes clear its position in favor of a re-tipping of the scales towards states’ rights:
The Utah Commission on Federalism was created to develop a functional approach to restoring the structural protections to the individual voice that federalism was intended to safeguard. … [W]hat we believe are the basic Building Blocks of Federalism [include] clearly discernible governing limits, divisions and independent checks, and [we] call upon other states to join with us in restoring with clarity these fundamentals of federalism for the purpose of restoring the power of the individual voice of our people in the accountability, efficiency and effectiveness of their government.
At the same time, words and deeds of some high-level government officials suggest acceptance of the power status-quo or even a steeper slant in the present direction. One need look no farther than Pres. Donald Trump for two contemporary examples. On April 15, 2020, Trump claimed that he had authority over state shutdowns in the COVID-19 pandemic. When challenged, he claimed that the Constitution gives him the power to do anything he wants to do. But it does not. On Friday, May 22, 2020, Pres. Trump ordered all states to treat churches and other religious organizations essential and to open them “right now”(Gerstein, May 23, 2020). He does not have that authority. Lest these examples seem partisan, note that Democrats tend to be as prone, if not more, to impose a national political will on states. Consider, for example, the Affordable Care Act (“Obama Care”) or Senator Bernie Sanders’ kindred demand for “Medicare for All.”
If this were just an academic debate, we might acknowledge and, when time and interest permitted, engage in it. But it is more important than that: it gets to the very heart of American politics and where politics was originally meant to be the study of the good of the people (Aristotle, 1932), we should want to get this as right as we can for the common good.
Two Hurdles (Obstacles)
If we acknowledge the Constitution as the supreme law of the land and we recognize its intent as federalist, then we should engage in the present debate with the goal of giving the Constitution its proper role in our politics, which includes striking the proper balance between states’ rights and national authority. But as we have noted, two obstacles stand in our way: ignorance and interpretation.
The Utah Commission on Federalism (2017) notes as one of its raisons d’etre the “Dearth of
In 2013, the U.S. Department of Justice sued our state for passing a bill that clarified law enforcement jurisdiction as between the county sheriffs and federal law enforcement officers. With nearly 70% of all land in Utah still controlled by the federal government, we have federal officers frequently interfering with basic local law enforcement (writing tickets for speeding, expired vehicle registration, etc.) sending our citizens to federal court to respond. During the hearing in federal district court regarding police power jurisdiction as between the state and the federal government, the federal district court judge exhibited his appreciation for the fundamental principles of federalism with this assertion from the bench, “the checks and balances I have always heard about are between the branches of the respective governments, not between the federal and the state. There is delineated authorities between the two, but you're telling me there's some checks and balances in our constitutional system?” Worse yet, the assistant attorney general representing our state responded only by saying that he thought there was something in the Federalist Papers on the subject. That was fundamentally the sum of the defense of our jurisdiction as a sovereign state, due to the critical lack of functional knowledge of the basic principles of federalism.
This is a specific instance of wider constitutional illiteracy. I offer evidence for such illiteracy in my text Constitutional Literacy: A Twenty-first Century Imperative. (Dreisbach, 2016). There, one can find anecdotal evidence, evidence from research and the popular press, evidence from the training curricula of U. S. police academies, and a constitutional literacy test administered to 90 subjects. While my focus was not federalism per se, it stands to reason that one who has little or no knowledge of the Constitution will have little or no knowledge of the scope and limits of U.S. federalism. As The Utah Commission on Federalism (2017) notes, the solution is a proper education on the subject. And I would add the value of a curriculum available in all levels of education that aimed at teaching—at the appropriate level—themes internal to the Constitution (e.g., distinguishing it from other documents, such as the Declaration of Independence or the Gettysburg Address); history internal to the Constitution (e.g., events leading to the convention and the convention itself); relevant themes external to the Constitution (e.g., what does “cruel and unusual mean”?); and relevant history external to the Constitution (e.g., Supreme Court decision) (Dreisbach, Ch. 6). And while educational institutions are the focus of this effort, we might also promote public service announcements and other means of keeping the Constitution in the minds of all Americans. Consider, for example, the Liberty Bill Act, introduced in the House of Representatives at the persistent urging of students from Liberty Middle School in Ashland, VA (Kroll, December 16, 2003). From 1998 to 2009, these students and their successors had annually visited Washington, DC to press Congress to have a condensed version of the U.S. Constitution placed on the back of the U.S. dollar bill. Whether that would have its intended effect—promotion of constitutional literacy—it is a clever and engaging proposal in itself.
The other and more challenging obstacle to bringing U.S. federalism into proper balance—if it is unbalanced—is the different interpretations of federalism specifically and the Constitution generally among scholars of the Constitution and of federalism.
For example, the late Justice Antonin Scalia (2012) held that when applying the Constitution to a legal case, the justices should determine the original meaning of the constitutional provision and stay as faithful to that as possible. This represents a type of “originalism,” while another type insists that the Court should abide by the original intent of the Framers. On the other hand, Justice Stephen Breyer (2006), no less a constitutional scholar than Scalia, regards the Constitution as a living document whose primary purpose is to ensure the liberty of people at the time of the Court’s decision. Since times change, the Court’s interpretation and subsequent decisions must change accordingly. In this same vein, it is interesting to note how dissenting opinions in Supreme Court decisions have often become the majority’s opinion in later decisions (Urofsky, 2015). This seems to support the living constitutionalist, such as Breyer, but the debate continues.
Even Hamilton and Madison, two-thirds of “Publius,” the author of The Federalist, would come to verbal blows over the precise meaning of federalism. (Sheehan, August 1, 2004).
In addition to disagreeing about how to interpret the Constitution, there is thoughtful disagreement about the nature of rights and the nature of justice.
Note that while the Declaration of Independence posits inalienable rights, that is, rights than cannot be taken or given away, the Constitution posits no such rights. All the rights that the Constitution confers or could logically confer, are rights that can be abrogated. The primary means is the amendment (Article V). State’s rights advocates may be more inclined than nationalists to speak of inalienable rights, but these are not constitutional.
Note too that some rights are positive, entailing someone else’s obligation to act to help fulfill that right, while other rights are negative, meaning only that the right’s holder is free to exercise that right without interference from others. (Berlin, 1969). Thus, my right to buy your house according to our legally valid contract, requires you to give me your house as part of my exercise of that right. If you do not act, I cannot exercise my right. On the other hand, if I have a right to brush my teeth, that does not imply anyone else’s duty to brush my teeth. Your failure to brush my teeth is not a violation of my right. More seriously, note that the right to an abortion under Roe v. Wade is a negative right: no one owes a woman an abortion; government is simply not permitted to legally prevent her from getting an abortion. Today, one of the rights often argued about is the right to bear arms. Is this a positive right or a negative right? What are the individual state’s rights and duties on this subject versus the nation’s rights and duties?
Still another important distinction is between a legal right and a moral right. While one may have a moral duty not to spew hateful speech at another human, one has the legal right to do so, under the First Amendment, provided it does not provoke other sorts of illegal activity. So a right can be legal without being moral. On the other hand, one could argue that while Rosa Parks had the moral right to take any unoccupied seat on the public bus, in 1955, having paid her fare, she did not have the legal right to keep that seat under a Montgomery, Alabama, law requiring segregation of public busses. (Bredhoff, Schamel, and Potter, May/June 1999). Thus, legal rights and moral rights are two different sorts and these distinctions should be clear at the outset in debates about federalism. Where the Declaration of Independence has a stronger moral tone than the Constitution, and where the Declaration may lean more toward states’ rights than does the Constitution is it fair to say that moral rights are more of an issue for states’ rights advocates, and legal rights are more of an issue for nationalists?
The Constitution also lends itself to different interpretations of justice. Limiting ourselves to distributive justice, which is about the just distribution of goods and services, we face at least three possible views. Libertarianism holds that justice demands that what is mine is mine and no one else has a right to it, unless I voluntarily confer that right. (Nozick, 1977). Thus, if I have made an apple pie using only my own ingredients and my own equipment, and I made this pie on my property, then no one else, no matter how hungry or needy, has a right to it, unless I say so. Egalitarianism, on the other hand, holds that every stakeholder has the right to an equal piece of the pie (Rawls, 1971). In between these two views comes utilitarianism, which recognizes that I probably could not have made my pie if there were not a political, economic, and legal system in place that allowed me to take the time to cultivate or buy my ingredients, buy my equipment, and be protected by public safety agencies. Thus, there are other stakeholders than just myself in how I live my life. On the other hand, suppose one million people had a legitimate claim to a piece of my pie: one millionth of a piece would be meaningless and so no one would benefit. Into this breach steps the utilitarian who promotes the greatest good for the greatest number (Mill, 1863). How one decides what constitutes the greatest good, who gets to decide, and what about the tyranny of the majority, are questions for another time. The point here is that behind many disagreements about the scope and limits of federalism are disagreements about the sort of justice the federalist system is supposed to ensure. In general, libertarians are more apt to support states’-rights interpretations, egalitarians are more apt to support a nationalist model, and utilitarians may be found in either camp, depending on what they feel is the greatest good
Before engaging further in the debate about federalism, perhaps these otherwise federalist-literate people should compare notes on their underlying assumptions about the proper nature of rights and justice. It may be on this level where the real disagreement lies.
In our system of U.S. government, there is general consensus that it is meant to be a federal system and that the Constitution is its basis. But since a federal system recognizes two sides of government—the national and the individual states—debate continues, and sometimes rages, about the proper balance of national rights and duties versus states’ rights and duties. This disagreement has led to the Civil War and to many less lethal, but often unpleasant clashes. We seem to be managing the debate more civilly than in the past, with some notable exceptions, but the debate continues nonetheless.
There seem to be two obstacles to making headway in the debate, one is federalist illiteracy; the other is disagreements about interpretation among people who otherwise understand federalism and the Constitution well. Overcoming the first obstacle will entail education, with proper methods and content. Overcoming the second obstacle is more difficult to envision, but perhaps it will best begin with an understanding of the views behind the different interpretations starting with views concerning rights and justice. If there is no final resolution or consensus on this level, may it nevertheless be informative, productive, and civil.
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