You know, just when you think you have a pretty good grasp on something, someone always goes and says something that proves you don’t really know as much as you thought you did.
American philosopher Will Durant once said, “Education is a progressive discovery of our own ignorance.” I guess I am living proof of that statement. It seems that the more I study politics and the philosophies which guided our founders when they created our system of government, the more I realize that I don’t that damn much after all.
Such was the case that after a recent article, a person who I will only say gives me encouraging nudges from time to time, sent me some subject material to look in to. In retrospective I should be kicking myself squarely in the ass for not putting two and two together, but sometimes it takes someone else to point out the obvious.
As many times as I have read through the Federalist papers, and used them as reference material, the term federalism should not have come as a surprise to me, nevertheless, it did. After doing a bit of research on it, I felt that I should share what I learned with those few who read my columns.
When the term federalism was first brought to my attention, I thought it was another form that government may take, such as democracy, or socialism. What I learned is that federalism is more a theory, or a philosophy regarding the division of powers between units within a whole entity.
I tried and tried to find a way to explain the concept of federalism in a manner that would be easily understood by those who read it, but I just couldn’t. So, instead of me screwing it all up, I’ll just let you read what the Stanford Encyclopedia of Philosophy says about it.
“Federalism is the theory or advocacy of federal principles for dividing powers between member units and common institutions. Unlike in a unitary state, sovereignty in federal political orders is non-centralized, often constitutionally, between at least two levels so that units at each level have final authority and can be self governing in some issue area. Citizens thus have political obligations to, or have their rights secured by, two authorities. The division of power between the member unit and center may vary, typically the center has powers regarding defense and foreign policy, but member units may also have international roles. The decision-making bodies of member units may also participate in central decision-making bodies.”
Some may find topics such as this boring and meaningless. I, on the other hand, find this subject matter fascinating. Subjects such as this help me to more fully understand the relationship between the citizens and the state and federal government.
Getting back to the subject at hand, to paraphrase what Wikipedia says, Federalism is a political concept in which a group of members are bound together by covenant, or in our case, Constitution, which creates a governing head, while sovereignty is divided between the head and the various political units, such as states or provinces.
The drafting of the Constitution was only the first step in creating our current system of government. It then had to be ratified by the various states in order for the newly proposed government to have any authority.
A long, and often heated, series of debates ensued between two groups, the Federalists, and the anti-Federalists. Those who opposed the proposed Constitution, the anti-Federalists, feared that this new system of government would strip the states, and quite possibly the people, of their inherent rights.
Although the proposed Constitution specifically defined the powers of our government, the anti-Federalists were fearful that over time the central government would assume too many powers, stripping the states of their sovereignty.
They argued that without a Bill of Rights, there was no way to prevent the eventual usurpation of powers by the proposed federal government. Again, there were arguments both for, and against a Bill of Rights.
In Federalist 84, Alexander Hamilton offered what is probably the most significant statement in opposition to a Bill of Rights. People assume that the only rights they have, are those ten which are clearly defined in the Bill of Rights as it exists today. Not so, as Hamilton clearly states, “I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”
On the other hand, there were those who supported the idea of a Bill of Rights. Thomas Jefferson made it clear that, “A Bill of Rights is what the people are entitled to against every government, and what no just government should refuse, or rest on inference.”
And even though Madison was hesitant to consider a Bill of Rights, in a letter to Thomas Jefferson he admitted, “[I have] always been in favor of a bill of rights… At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment.”
Eventually, after much debate, twelve proposed amendments were offered for consideration, with ten of them being ratified, becoming our current Bill of Rights. As was stated, it was felt by some a Bill of Rights was unnecessary because the Constitution did not grant the proposed government the authority to infringe upon the rights of the states, or the individual. It was commonly accepted that these rights came from our Creator, as stated in the Declaration of Independence, and therefore untouchable by laws created by man.
Nevertheless, to calm the fears of those who felt that a centralized government would eventually infringe upon those rights, the Bill of Rights became part of our Constitution.
Preceding the Bill of Rights was a preamble, which states, “THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”
So, not only does the Constitution not grant the federal government the power to infringe upon our rights, the preamble to the Bill of Rights declares that further declaratory and restrictive clauses be added to ensure that the rights mentioned NEVER be infringed upon.
One of those amendments, the tenth, states, “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.”
There, in a nutshell, is federalism as it applies to the system of government under our Constitution. Yet as Jefferson so wisely saw, “Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.”
What Jefferson foresaw, that those entrusted with power have, over time, corrupted our system and perverted it into tyranny, has come to pass. Allow me to try to explain why. When talking about federalism, the divisions of powers between units, there are too beliefs. First there is dual federalism in which the state and federal governments are co-equals, each sovereign.
Under dual federalism, the various clauses of the Constitution, such as the Supremacy Clause, the Necessary and Proper Clause and the Commerce Clause are interpreted very narrowly, with very little room for assumed powers.
However, there is another path that federalism may take, that of cooperative federalism. Under this path it is asserted that the federal government is supreme over the states, and the various clauses of the Constitution can be interpreted widely, granting the federal government all kinds of assumed powers.
Now that you understand the two paths that federalism may take, which do you think our government has taken today? If you are honest with your answer you will have to choose the second, dual federalism.
But, and think about this, why on earth would they amend the Constitution to state that 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.”
Honestly, does it make any sense to say, on one hand, that the powers of government are limited and defined, then on the other hand allow the government to loosely interpret the Constitution to mean just about anything it wants it to mean?
Nevertheless, what Jefferson feared has come to pass, our government has amassed a huge amount of power that it was never intended they possess.
Our founders debated for months over the proposed form which our government should take. The end result was supposed to ensure that the division of power between the states and the central government were not blurred.
Limits were placed on the powers assigned to the federal government, and the states held a say in how things were to be run due to the fact that members of the Senate were to represent the states, with the House of Representatives being the voice of the people. This format ensured that both the people and the states could be protected from usurpations of power and infringements of their rights.
The consolidation of power took a long time, beginning back when Supreme Court Justice John Marshall was Chief Justice back in the late 1700’s. It was during his tenure as Chief Justice that in the case of McCulloch v. Maryland, that Chief Justice Marshall stated that the Constitution intended, “to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs … ” In other words, the Constitution was a living document, subject to interpretation depending upon the needs of the nation.
Remember, under the concept of dual federalism, the Constitution was to be interpreted narrowly, not loosely, as Marshall proclaimed. Marshall’s proclamation opened the way for numerous Supreme Court rulings, each granting the government more “assumed” powers.
Among these were the case of Gibbons v. Ogden, which ruled that Congress’s right to regulate commerce could be exercised to its utmost extent, while it acknowledged no limitations other than those specifically prescribed in the Constitution.
Had our Constitution been held to a strict interpretation, and the Commerce Clause strictly adhered to, we would never have seen our government bailing out businesses in the private sector, or the passage of Obamacare.
With this loose interpretation of the Constitution, the federal government continued to amass new powers until April of 1913, when a huge step was taken to diminish the sovereignty of the states. It was in that year that the 17th Amendment was ratified, giving the power to choose U.S. Senators to the people, and taking it from the states.
While this may seem like a big step forward for the people, let’s examine this a bit further before we make that claim. Prior to the ratification of the 17th Amendment, the states, through their representatives, had a say in legislation that was passed by the central/federal government. With the passage of the 17th Amendment, that say was passed to the people, leaving the states almost devoid of any say in the operations of the federal government.
Now, the people could elect members to both houses of Congress, but what was to stop Congress from any further encroachments of the rights of the people, or usurp more power from the states? Nothing. The people could merely change out representatives at the election booth. If those they chose refused to adhere to the limits imposed upon them by the Constitution, what recourse do the citizens hold other than open revolt?
You see, prior to 1913, the states could at any time recall their representatives for failing to represent the states and protect their sovereignty. With that power gone, the people had to hope that those they elected would abide by the Constitution on good faith.
Since that time our federal government has taken massive steps to expand its power and authority. Look at the New Deal passed by FDR. The various programs that formed the New Deal are nowhere to be found within the scope and powers described in the Constitution. Then in the 60’s Lyndon Johnson’s Great Society further expanded the scope of powers of our government. Now, with each succeeding president and new Congress, the size, and power of government continues to grow, almost exponentially.
In 1854, President Franklin Pierce vetoed a land grant for the mentally handicapped. In stating why, Pierce said, “If Congress is to make provision for [paupers], the fountains of charity will be dried up at home, and the several States, instead of bestowing their own means on the social wants of their people, may themselves through the strong temptations, which appear to the States as individuals, become humble suppliants for the bounty of the Federal Government, reversing their true relation to this Union.”
Pierce understood the relationship between the states and the federal government. In short his veto showed he understood the principles of dual federalism. Unfortunately for us, he may have been the last president who did.
If that be the case, who is to stop this madness when the government itself refuses to control its lust for power? In an 1826 letter to Nathaniel Macon, Thomas Jefferson stated, “Manfully maintain our good old principle of cherishing and fortifying the rights and authorities of the people in opposition to those who fear them, who wish to take all power from them and to transfer all to Washington.”
So, who is to stand for our rights, and the sovereignty of the states? The Supreme Court you say? Hardly, not with their loose interpretation of the various clauses. Alexander Hamilton once said, “No legislative act contrary to the Constitution can be valid. To deny this would be to affirm that the deputy (agent) is greater than his principal; that the servant is above the master; that the representatives of the people are superior to the people; that men, acting by virtue of powers may do not only what their powers do not authorize, but what they forbid… A Constitution is, in fact, and must be regarded by judges as fundamental law. If there should happen to be a irreconcilable variance between the two, the Constitution is to be preferred to the statute.”
Thomas Jefferson stated, “To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
Who then is to stand for the people, the states? In a letter to Spencer Roane, Thomas Jefferson told us that “[It is] the people, to whom all authority belongs.” Furthermore, Jefferson stated “The constitutions of most of our States assert that all power is inherent in the people; that… it is their right and duty to be at all times armed.”
In Federalist 28, Alexander Hamilton declared, “The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them.”
Did you catch that last part where he said, “…provided the citizens understand their rights and are disposed to defend them.” We the people still hold the ultimate power over our government, if we would only wake up and exercise it.
In Federalist 46, James Madison points this out, leaving little doubt what the intentions of the founders were in creating our system as they did, “The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone…”
Our nation’s founders were learned men, all versed in philosophy and history. Their experiment, that men could be trusted to govern themselves, through elected representatives, all the while ensuring that the sovereignty of the states, and their unalienable rights remained secured.
The lines which defined, and separated the powers of the federal government and the state governments, the concept of federalism, have not just been blurred, they have been eradicated.
Our nation could be restored if we the people would stop voting for ANYONE who runs a campaign based upon promises that are not theirs to keep. Until then, our government will continue to grow in both size, and scope of its powers until things reach a breaking point when people have had enough.
Either our nation will awaken, and the people will take back what is rightfully theirs, or this nation will crumble under the weight of a tyrannical government. The choice lies with each citizen of this once great nation.
As I said in a previous article, I can inform you, but it is you who must act. Well, this is one more lesson for you to ponder and absorb.