The key to stability in the design of the US Constitution is the application of Newton’s third law of physics to the political process, where self-interested parties check the power of other self-interested parties. Like rule changes to a sport like football or baseball, the Constitution itself has been modified. Rather than simply looking at individual amendments, this article considers the overall effectiveness of the Constitution at historic points in its lifetime.
The US Constitution depends upon two general schemes for stability: 1) separation of powers and 2) federalism.
Separation of powers has been around since antiquity. Its origin is rooted in allowing classes within a society to balance each other’s political power. It is less effective in a classless society like the United States. In a classless society, it becomes dependent upon desire of the branches of government to defend their constitutional power against infringement. The presence of political party loyalty diminishes the effectiveness of the crosscheck. In the extreme, our constitutional separation of powers is no more effective than a system with a single branch if one party calls the shots for all branches.
On the other hand, federalism sets up levels of government within a hierarchy to check each other vertically. The interests of these governments are much less dependent upon strength of parties than the levels of government because regional interests always vary.
How federal is the system of government laid out by the U.S. Constitution? The answer to the question depends upon:
- a solid understanding of federalism.
- which version of the Constitution.
- the governments’ adherence to the Constitution (administration).
Federalism
The real meaning of federalism is “cooperating heterogeneously distribution”.[1] Modern aviation computer systems are call “federated” because they depend upon heterogenous distribution for fault tolerance – in other words, to keep the plane from crashing. The principle of federalism in government is to distribute power into a network of governments that is self-correcting.
Federalism in the United States is built on the notion that both the nation and states share sovereignty. On the one side, the states are the agents of the people. Their aggregate power is to check the power of the national government from abuses. Either level of government can misbehave, and the other is to check power and correct any injustice. Both levels of government are limited in their powers by the boundaries set forth by the Constitution. Where the boundary between national and state government is has been affected throughout the lifetime of the Constitution by interpretation and by amendment. As that boundary favors the states, the more distributed (federal) the system; and the less power is centralized in the national government.
We can better understand the dynamics of US federalism over time if we consider the position of the boundary between state and national power to be analogous to a pendulum. History is a continuum, and a complete analysis of federalism should not begin just with the ratification of the Constitution. It needs to start with the actual founding of the nation, with the Declaration of Independence in 1776. At that time, the colonies viewed themselves as independent nation states. Federalism was at its zenith. The Continental Congress became the Confederate Congress with the adoption of the Articles of Confederation. Since the states controlled the money, they had all the power.
The Framing
After the Revolution, the apathy among the states to tighten the alliance frustrated a number of influential people in the founding generation. The Annapolis Convention to address trade and commerce was the last straw. Delegates from only 5 of the 13 states showed up. Four of the other states appointed delegates who didn’t show up, and four states didn’t even appoint delegates. The twelve delegates who did show up drafted a strong report to all thirteen states calling for what became the Constitutional Convention. The report was strongly worded. Consider the following paragraph:
That there are important defects in the system of the Federal Government is acknowledged by the Acts of all those States, which have concurred in the present Meeting; That the defects, upon a closer examination, may be found greater and more numerous, than even these acts imply, is at least so far probable, from the embarrassments which characterize the present State of our national affairs, foreign and domestic, as may reasonably be supposed to merit a deliberate and candid discussion, in some mode, which will unite the Sentiments and Council’s of all the States. In the choice of the mode, your Delegates are of opinion, that a Convention of Deputies from the different States, for the special and sole purpose of entering into this investigation, and digesting a plan for supplying such defects as may be discovered to exist, will be entitled to a preference from considerations, which will occur, without being particularized.[2]
Note that federal government above refers to the network of state governments, not a national government. The Convention delegates would refer to the new national government as the General Government. Upon ratification, the pendulum began to swing away from strong decentralization toward centralization. It is unfair to say that the majority of influential people switched to favoring centralized government overnight. In truth, there were those who wanted centralization from the start of the nation. The original “Dickinson Draft” of the Articles of Confederation had a much stronger central government than what was eventually ratified.[3] This occasion provided fuel for those who wanted centralization to address the topic more firmly.
Human nature being what it is, we see that many of the strongest opponents to centralization (like Patrick Henry) chose not to go to Philadelphia. With this in mind, we see that the bias of attendees at the Constitutional Convention was more for than against centralization in a disparate portion to the rest of the nation. Likewise, as centralists have done since the Constitution, they used the anxiety of the day to nudge citizens to vote for centralization. At the time, that concern was created by Shay’s Rebellion.
As we go forward through time, the individual constitutional amendments have been made serially. As such, it makes sense to consider the whole of the resultant Constitution to be a version. Today in the United States we consider the Constitution to be a separate document from the Articles of Confederation. In the Federalist Papers Madison argued both that it was an amendment to the Articles and a new document. As odd as this may seem, it is possible to consider the Constitution as ratified in 1788 as either Articles of Confederation V2.0 or Constitution V1.0. On one hand, the Constitution evolved from a set of 15 amendments to the Articles called the “Virginia Plan”. On the other hand, the Constitution did create a whole new government that the framers referred to as the General Government. If we accept the customary view that the Bill of Rights were passed as a whole (a clear falsehood but adequate for this analysis), Constitution V1.1 included the first ten amendments. The 11th Amendment created V1.2. Using this convention, the 27th Amendment created the current Constitution, V1.18.
Constitution V1.0
Constitution V1.0 contained the following key items with respect to federalism:
- The enumerated “Powers of Congress” in Article I, section 8
- The Necessary and Proper Clause (also in section 8)
- Restriction on congressional power in Article I, section 9
- Restriction on the states in Article I, section 10
- The Supremacy Clause in Article VI
Federalism in V1.0 of the Constitution appears stronger than it actually is. Abstractly, this is why 16 of the 55 delegates did not sign V1.0.[4] In context, it reflects the political realities of its time. The people in general were against a central government, but a strong central government was important to the goals of the delegates. To most of them, state power was too strong and threatened survival. That is not to say that they wanted only a strong central government. A few did, but most wanted less power in the states.
The only vertical checks (on the national government) for the states were the appointment of national Senators and the second method of proposing amendments in Article V. The enumeration of powers in section 8 is only as good at limiting the General Government as the interpretation of the Necessary and Proper Clause. There is no direct and proactive way for the people or states to keep the national government from breeching these limitations. Elections and senatorial appointments are reactionary and indirect controls for the states and people to use. Delaying reaction is a sound republican principle, but delaying protection from abuse by a strong national government may be as dangerous as the over-action of a democracy. The people can become conditioned to the abuse – as we have seen in the 20th century.
The limitations in section 9 forbid Congress from taxing state exports and require fairness in regulating interstate commerce. It also forbids the Congress from inhibiting the slave trade until 1808 (20 years after ratification). After the Civil War, the limitations in this section are not consequential.
The restriction on the states in section 10 are more restrictive than it first appears. Those restrictions would become apparent with McCulloch v. Maryland in 1819. Like the Necessary and Proper Clause, the Supremacy Clause invited dominance of the new General Government, as opposed to supremacy of the Constitution itself. Many of the framers knew it and some refused to sign it. There were calls to change the ratification process to require a pass of the document through the state legislatures.[5] The attendees pushing for a strong central government knew that the new Constitution would not survive such scrutiny and would have none of it. The road to ratification required an immediate commitment to V1.1, the Bill of Rights.
Pre-Civil War Amendments
It is obvious that V1.1 was much stronger than V1.0 in protecting the rights of individuals. This was the result of the fact that the nation was extremely skeptical of this new General Government. It also attempted to strengthen federalism by adding the following:
- The 9th Amendment is intended to prevent the rights enumerated in V1.1 (and beyond) from being considered exhaustive. It is intended to prevent the Necessary and Proper Clause from allowing the government to trample on individual rights, thereby theoretically improving federalism by adjusting the boundary of sovereignty in favor of the states. With even enumerated rights under assault, today this amendment lies dormant.
- The 10th Amendment is intended to strengthen the powers of the states (as agents of the people). It defers to Article I, section 10, where the states’ powers are restricted. This is an important point to understanding the true nature of federalism in the United States. It removed no restrictions on the states nor did it directly reduce the exposure of the Necessary and Proper or Supremacy Clauses. The Supreme Court would make note of this in McCulloch v. Maryland.
The effect of Constitution V1.1 did less in actual construction to reinforce federalism than it did to affect administration – (to quote Ben Franklin, “well administered for a course of years”[6]). It reinforced the principle that the power of government emanated from the people to those who administered government. Although it attempted to strengthen federalism, none of the original exposures in V1.0 were actually diffused.
Constitution V1.2 (11th Amendment in 1795) protected federalism from overreach of the Supreme Court, but it didn’t really strengthen or weaken it. The Congress (and the states) acted swiftly to reign in abuse of power by the judicial branch. V1.3 (12th Amendment in 1804) corrected problems with selecting the executive branch. It was fundamentally neutral in its effects upon federalism and was the last amendment before the Civil War.
Pre-Civil War Administration
If we look objectively on the strength of federalism in the first three versions of the Constitution, it was less about the Constitution than it was the complex system of society itself. As complex systems do when they are young, there’s more “bang for buck”. The new General Government had very few laws on the books and no one in society saw a need to add a plethora of national laws. They were happy being left alone to their own affairs.
Up to this point, the Necessary and Proper Clause was more or less interpreted faithfully, in keeping with Jefferson’s letter to Washington on the constitutionality of the First Bank of the United States.[7] In point of fact, James Wilson, the author of the Necessary and Proper clause agreed with Jefferson’s interpretation in the Pennsylvania ratification debates.[8] The General Government respected the limitations of Article I, section 8 and only assumed powers required to enable the enumerated list. That changed in 1819.
V1.2 may have defined a stronger version of federalism in 1795, but McCulloch v. Maryland weakened the administration of it in 1819. It did so by parsing that “necessary” did not mean “absolutely necessary”, thereby giving the General Government immense “wiggle room” for later generations to abuse. Madison and Jefferson both objected to the decision and corresponded with Judge Spencer Roane of Virginia, as well as to each other.[9] All three saw the dangers of the decision. The following year, Cohen v. Virginia went even further in weakening federalism. It would take generation turns to see the full impact of the decision on federalism.
How is it that the same Constitution can allow for such a power shift without amendment? A textual analysis of the Constitution is very important; but as Ben Franklin highlighted in his closing speech at the Constitutional Convention, it is the administration of the Constitution that is crucial.[10] A generation turn was fully underway by 1819. The second generation of Americans were taking over for the framing generation. Justice Marshall was as much a nationalist as Alexander Hamilton. As such, the persuasiveness of Supreme Court decisions influenced the second generation to be more accepting of the nationalist agenda. The acceptance was not uniformly embraced throughout the states. Add a focus on the injustice of slavery, and the Civil War was inevitable.
Post-Civil War
The 13th through 15th amendments (V1.4 to V1.6) are top-down instruments that forced the national will on all states. They could be viewed as further weakening federalism. On the other hand, they can be viewed as correcting injustice. From its inception the Constitution was at odds with the very principles in the Declaration of Independence over slavery. These amendments brought the two documents into harmony with each other. Federalism was weakened in that the General Government assumed the power to prevent a state from perpetrating an injustice on its people. Although this is actually in keeping with the original intent of checking powers, it set in motion a mentality that the State Governments were less virtuous than the General Government. This is a deadly misconception.
The Civil War aftermath sparked momentum away from bottoms-up government toward top-down government. After the Civil War, generations to follow have gradually lost sight of the “War Between the States” and view it more as the national government correcting the states in general. This inverts the entire theory of the United States where the states are to be the agents of the people because the people have more direct control of their state governments. Support for federalism has diminished generationally.
The Progressive Era
Now we come to the fruit born from McCulloch and Cohen, V1.7 and V1.8 (16th and 17th amendments). Successive generations have gradually become more accepting of such a minimization of federalism. The progressive movement had an enumerated agenda that it saw as correcting more injustices than just slavery.[11] These amendments are the result, but they were less about injustice and more about growth of the size and power of the national government.
The 16th amendment removed the restriction that direct taxes had to be apportioned. This was a severe blow to federalism because states could not protect their citizens from capitation (income) tax from the General government.
The 17th amendment is perhaps the most devastating hit to federalism. As the result of popular elections, Senators go to Washington and never look back to their constituents. The states are unable to keep Senators in line. V1.0 of the Constitution had two vertical checks against national power by the states. V1.8 directly eliminated state appointments of Senators. McCulloch had planted the seeds for the effective repeal of the 10th amendment, introduced in V1.1. The second method of amendment of Article V has never been successfully invoked. The existing power base in Washington DC sees it as no threat. Since 1913, federalism has steadily diminished to almost nonexistent in the United States.
Summary
In review of the history of US federalism, we initially see a bottom-up society that wanted no central government dictating day-to-day life issues. The Constitution itself set the pendulum in motion toward less federalism but met with early resistance. The first versions of the Constitution may have been the strongest versions of federalism to date, but even they were only as strong as their administration. Just like any complex system, the newness of the system meant that it did not consume a lot of energy from society. There were few laws, which meant those that were made were necessary (and mostly proper). In addition, the founders wisely used sunset provisions to get laws off the books that were ineffective. Unlike Congress today, they enforced the sunsets.
The first century of the Republic marked an era where society saw and corrected mistakes made by state power. Although truly acting as agents of the people, some of the states abused a segment of their population that was deprived of rights. This misbehavior gave the pendulum even more momentum away from federalism.
The progressive era successfully sustained the momentum to eliminate federalism in the United States. Gradually more demands were made on the national government. Now that the Republic is no longer new, it suffers from the ills of a complex society that displays the signs of pending collapse. It now takes exponentially more energy (money) to sustain the national system. There are more national laws and more complex national laws than anyone can comprehend. We now see a system that desperately needs the pendulum to swing back toward federalism. A federal system would reduce the complexity of our current monolithic leviathan to a loosely coupled system of simpler systems that might be manageable.
Are there any constitutional means to restore federalism?
First, the notion that the national government would move to restore it is laughable. People with power seldom let it go. To think that the entire ruling class in DC would be willing to reduce their power is a fantasy.
Some advocate nullification (or the principles of 98 for the Virginia and Kentucky Resolutions of 1798). Both Jefferson and Madison would later deny their support for nullification.[12] The Supreme Court has consistently denied the legitimacy of nullification. Today we see nullification with the states legalizing marijuana in defiance of the national statues. The only reason they are currently getting away with it is that the current executive branch has no interest in pursuing it. Had Chris Christie been elected in 2016, marijuana would be illegal in all states today – and prosecution would be widespread. By nature, the boundary between state and national power in general defies generalization. It should be determined on a case-by-case basis – by the ultimate arbiter – the people.
The only constitutional mechanism left to the states to push the pendulum back toward more federalism is an Article V Convention of States. Such a convention was almost called in the 1960s when the states recognized that Reynolds v. Simms was a violation of the guarantee of a republican form of government in Article IV, Section 4. The John Birch Society scared the states from following through with the notion of a “runaway convention” that would rewrite the Constitution. Roger Sherman, a significant framer, dispelled this canard on 13 Aug 1789 during the debates leading to the Bill of Rights. His words need to be emphasized:
All that is granted us by the 5th article is, that whenever we shall think it necessary, we may propose amendments to the constitution; not that we may propose to repeal the old, and substitute a new one.[13]
Nevertheless, well-intentioned organizations see more risk than reward. If there was risk in 1969 when the repeal of state applications started, there is a lot more risk today. With the demise of civics training, it should be apparent that the situation will only disintegrate as the older generation dies off.
That leaves non-constitutional means.
In point of fact, the states could always call for another Constitutional Convention – which, unlike an Article V Convention, is outside the Constitution by definition. There’s no way it would include more than a subset of the current states because a number of heavily populated states actually like the leviathan we currently have. To the people in those states, such a convention would be illegal and a repeat of the secessions that precipitate the Civil War.
One tactic that the states could employ is to challenge previous Supreme Court decisions. Specifically, any or all states could go back to the “little federal model”, where their Senates are apportioned by county rather than population. This would defy Reynolds v. Simms, which would no doubt lead to re-litigation that would wind up back in the Supreme Court. Whereas the Warren Court clearly violated the Constitution in ordering the states to apportion their Senates by population, a less activist Court might reverse the decision.
Then, there’s the option no one wants to consider – the one George Mason feared.
[1] Madison alludes this near the end of his letter to Judge Roane, https://www.gilderlehrman.org/collections/dddf4cc0-d636-4778-8fb0-612839760097
[2] http://avalon.law.yale.edu/18th_century/annapoli.asp
[3] “The Road to Union: America’s Forgotten First Constitution.” National Constitution Center – Constitutioncenter.org. Accessed March 21, 2019. https://constitutioncenter.org/blog/the-road-to-union-americas-forgotten-first-constitution.
“Encyclopedia of Greater Philadelphia.” John Dickinson Draft of the Articles of Confederation | Encyclopedia of Greater Philadelphia. Accessed March 21, 2019. http://philadelphiaencyclopedia.org/8982-0383_b3f20_1-2/.
[4] http://avalon.law.yale.edu/18th_century/debates_915.asp, especially Elbridge Gerry’s objections.
[5] http://avalon.law.yale.edu/18th_century/debates_910.asp, especially Edmund Randolph’s objections.
[6] http://avalon.law.yale.edu/18th_century/debates_917.asp
[7] http://avalon.law.yale.edu/18th_century/bank-tj.asp
[8] http://press-pubs.uchicago.edu/founders/documents/a1_8_18s5.html
[9] http://www.loc.gov/teachers/classroommaterials/connections/james-madison/file.html
[10] https://www.usconstitution.net/franklin.html
[11] “Overview of the Progressive Era,” Digital History, accessed July 01, 2016, http://www.digitalhistory.uh.edu/era.cfm?eraID=11.
[12] “Nullification: Unlawful and Unconstitutional.” The Heritage Foundation. Accessed August 02, 2016. http://www.heritage.org/research/factsheets/2012/02/nullification-unlawful-and-unconstitutional.
[13] Annals of Congress. August 13, 1789.
