The Founders' Constitution
Volume 1, Chapter 8, Introduction
http://press-pubs.uchicago.edu/founders/documents/v1ch8I.html
The University of Chicago Press
8
Federal v. Consolidated Government
CHAPTER 8
Introduction
Beset on all sides by practical problems demanding solution or at least mitigation, compelled to think through theoretical issues whose terms required redefinition or at least clarification, the Founders of necessity were driven back to the theme of federalism. All roads, it seemed, passed through this junction. And no wonder, considering the quite distinct, different, and insular communities that had developed in British North America over almost 170 years of imperial rule. The history of many of those communities was marked by protracted struggles in which local colonial authorities tried to find a voice and a place for their opposition to the policies or indifference of central British authority. This long history constituted a body of common recollection of which few could be ignorant in 1776. At the same time it reinforced the traditional view that federalism was the proper form of large republics. Compared to this deeply rooted experience, the political awareness of a single American people and of a common American authority were late Revolutionary creations. Hence republicanism, representation, and constitutionalism itself were understood in a context of federal union.
It was to be expected, accordingly, that the character and degree of the federalism of the proposed new Constitution should be a most important, visible, and persistent point of contention. Its importance is underscored by the fact that those who had the gravest doubts about some of the implications of the federal principle nonetheless felt the need and had the wit to preempt the name "Federalists" for themselves. Its visibility is sufficiently attested by the documents assembled here. Its persistence is demonstrated by the continuing controversy and litigation over the balance of the federal system, beginning with the Sedition Act of 1798 and Cohens v. Virginia (6 Wheat. 264 [1821]). Certainly Chief Justice Marshall's early prediction in McCulloch v. Maryland has been fulfilled: questions of this sort are "perpetually arising, and will probably continue to arise" under the Constitution (4 Wheat. 316, at 405 [1819]).
The causes of this protracted controversy are complicated, and for much the same reason that other key concepts and terms such as constitutionalism, republicanism, and representation do not admit of simple explanations. A second look at the documents discloses that the thinking and language of political life were undergoing significant change, more often than not a deliberate refinement or rejection of earlier thought and speech. The developing language of political discourse was frequently a political decision by those who had the determination and skill to shape it to their ends.
How Close a Union?
Any federation is necessarily a compromise between the unity of a single central authority and the variety of separate local authorities. It thus implies and expresses a diversity of ends and an ambivalence toward the very act of federation itself as well as toward the preceding political condition. Hitherto independent units choose to federate because they have to, or because they cannot otherwise secure the good they seek (typically, security against those who would do them harm). But in federating rather than consolidating themselves into a new unit, the contracting parties express the desire not to give up the good they have hitherto enjoyed (typically, independence in pursuing the good as they see it). Like most other attempts to have one's cake and to eat it too, federation is fraught with frustration.
The anxieties centering on whether the government erected on the proposed Constitution would be a federal or consolidated union stem directly from uneasy compromise and its conflicting tendencies. The fact that even the most artful proponents of the Constitution could not give a simple answer to that question did little to calm those who feared to lose the good they had more than they hoped to gain the good they lacked. If, in the course of the discussions and debates, each side held fast to what it thought desirable, each nonetheless modified what it thought possible. A new vocabulary had to be devised to bring that accommodation about.
But all this took place against a history of federations extending for more than two millenia from ancient Greece to the Netherlands. James Madison had studied that long history assiduously at least a year before the Philadelphia Convention and came to summarize it in Federalist, nos. 18--20. Earlier usage had understood by "federal" or "confederal" government a league of formally equal and independent sovereign cities or states. The principal business of the federation was directed outwards--peace and war, foreign relations, and relations among the member cities or states. In general the whole was not expected to govern, let alone override, the distinctive ways of life of its parts. In reality, however (Madison and Hamilton argued), a community of sovereigns is no community at all; "a government over governments . . . is a solecism in theory" and a wretched absurdity in practice. The jealousies that kept the central authority of earlier confederacies weak and dependent upon its parts led necessarily to those parts being deprived of the strength that only union could give them. Unbridled rival ambitions, fears of being reduced to a common and inferior mode of life, hopes of achieving particular gains at the general expense: all these condemned a fatally flawed system to vibrate between anarchy and despotism.
With such melancholy examples before them, the Americans might be more amenable to a clearer and more rational understanding of federation. Indeed, precisely because their reluctance to merge stemmed, at its best, from a proper fear of despotic power, they might be reached by arguments designed to show that a more perfect union would better secure their liberties. Since those who opposed the Constitution were not intransigent in their federalism, they could be brought to accept--however reluctantly and with whatever misgivings--a Constitution that by older standards was hardly federal at all. Indeed, by accepting Hamilton's antonymy of federation or "league," on the one hand, and "government," on the other (see ch. 5, no. 21), and by granting the need for effective government at a level above that of the component units, modern defenders of federalism (as hitherto understood) had undercut themselves. Both the case for federalism and the character of federalism would come to take on a novel nature. No longer ought the question to be whether the proposed union deprived the states of the full sovereignty befitting members of a federal system, but whether the proposed union threatened to deprive them of their independence.
From the outset it appears to have been understood generally that "the good people of these colonies" had to act, in some respects at least, as one and not as many. Thus, in declaring the causes that had impelled them to separation from Britain, they adopted the form of a unanimous declaration of thirteen united states of America. In due succession came not thirteen separate negotiations for foreign loans or thirteen treaties of commerce and amity, but one. From this vantage the states owed their independence and very existence as states to the union, a union older than any of the states. (See Lincoln, Message to Congress in Special Session, 4 July 1861.) But at the same time the declaration of American independence had not precluded all forms of dual action: military campaigns, for instance, were undertaken by separately controlled state militias and a Continental Army. And indeed, from 1775 until the Articles of Confederation finally were ratified in 1781, the Continental Congress presided over an ad hoc confederation lacking any formal terms. Even so, there appears to have been concern from the outset that in acting as one, the distinctions of the parts not be obliterated (no. 2). Even the carefully delimited terms of the Articles of Confederation were not proof against an expansive interpretation, and hence worrisome (no. 3).
Against those who feared that enlarged powers in the center would subvert liberties in the states, were arrayed those who feared that a want of power in the center would leave the independence of all in jeopardy. James Wilson (no. 4) thought it mistaken to imagine that all powers of the Confederation were derived from the states. As "one undivided, independent nation," the government of the United States by the very act of union could be presumed to have powers that were beyond the competence of a state to grant or withhold. But for John Jay the United States had yet to take on the character of a single nation, for that presupposed reducing the several states to the rank of mere counties within a single state (Letters to J. Lowell, 10 May 1785, and John Adams, 4 May 1786). Jay's is the consolidationist position, plain and unadorned. It is deeply at odds with the concerns that led Jefferson (no. 5) to advocate a federation limited to what Locke had called the "federative" power, one having to do with all persons and communities outside the commonwealth. In the same breath, though, Jefferson could urge the internal use of federal power to shape the character and direction of the new commonwealths aborning in the West. The Western territory, he thought, ought to be carved into many small states so that government on the frontier be visible, close, and familiar. The less tractable a people were, the more important was it that they see that their government is intimately involved in their interests. Self-government implied a republic small enough to make that union of interests credible and effective. The necessary implication of Jefferson's "proper division of powers" (or graded "partition of cares" [no. 44]) was that the main business of governing those matters that touched men's daily lives most closely was to remain in the hands of distinctively diverse states. Such states, however, would already be inclined in a properly republican direction, having been bent (while still supple territories) by the conditions set by the general government.
Madison's thoughts before the Philadelphia Convention were running in quite another way (no. 6). His "middle ground" between individually independent states and a consolidation of those states into one simple republic was "a due supremacy of the national authority" with room for "the local authorities wherever they can be subordinately useful." A national veto "in all cases whatsoever on the legislative acts of the States, as heretofore exercised by the Kingly prerogative" was, in Madison's eyes, "the least possible encroachment on the State jurisdictions." Again, the ends being sought are revealing: the veto would protect the national government from state incursions on national authority and from state evasions of their obligations. But beyond that, "the national prerogative" would curb the unjust consequences of the states' fluctuating, passionate policies whereby local majorities were able to further their interests at the expense of the rights of local minorities and individuals. Both the survival and good name of republican government required significant inroads on the authority of the states. (See ch. 17, no. 22.) As it turned out, Madison had to settle, however reluctantly, for a combination of restraints and restrictions (Art. 1, secs. 9--10; Art. 6) that only came close to being a national veto.
Edward Carrington was thinking along the same lines, calling a "foederal sovereignty [with] a compleat controul over the state Governments" the only plan worth discussing, indeed the "most moderate of any which obtain in any general form amongst reflective and intelligent Men" (no. 8). He rightly divined that his addressee, Jefferson, would be taken by surprise at the rapid change in public sentiment (no. 11; see also Thomas Jefferson to Richard Price, 8 Jan. 1789). That change can be traced as well in the shifting usage of a leading Anti-Federalist. After detecting in the proposed Constitution an unholy alliance of "young visionary men, and the consolidating aristocracy," the Federal Farmer went on to lay out the alternative forms of free government available to a united America (no. 12). He rejected alike a purely federal form ("Distinct republics connected under a federal head" that was merely advisory or recommendatory rather than coercive), and a simple consolidated government. The one would not suffice to "answer the purposes of government"; the other was impracticable, quite out of the question. The only eligible form was a "partial consolidation," that is, "a complete consolidation, quoad certain objects only." Eleven weeks later, the Federal Farmer was calling those who wanted a federal government "merely advisory" not federalists, but "pretended federalists" (no. 25). There were, he thought, men in both camps who had misappropriated the name. "The honest federalists" among the supporters of the Constitution and "the true federalists" among its critics were of one mind, he thought, as regarded preserving a significant place for the state governments "united under an efficient federal head." The partial consolidationists of October had become the true federalists of December. The Federal Farmer held that the true line of demarcation between the contending parties was their respective political stance toward the rights of the people. In general those who opposed the proposals of the Philadelphia Convention were "men who support the rights of the body of the people"; in general those who advocated the adoption of the Constitution without further amendments were "not very friendly to those rights." Thus the deeper ground of division was over republicanism, and it was in that context that the issue of federal v. consolidated government had to be considered. (See also Henry, no. 38.)
Republican Limits on Union
The bulk of the Anti-Federalist criticism of consolidation supported the Federal Farmer's analysis. The Constitution was held defective especially in that it would set up a government whose natural, perhaps inevitable tendency would be to annihilate the state governments or reduce them to insignificance. (Brutus, nos. 13, 31; Smilie, no. 16; Findley, no. 17; Henry, no. 38; Clinton, no. 39.) And that outcome would put an end to "the free internal Government" of a diverse people and so would be a profound rejection of the American revolutionary "Struggle for the natural Rights of Men" (S. Adams, no. 20). After events had run their course, would there be any remedy short of another revolution (Brutus, no. 34)? What, after all, was the great object in view? If the principal care of government was preserving internal peace, good order, and the due administration of law and justice, then the level of government entrusted with that care ought not be left defenseless against an aggrandizing national judiciary and legislature. Brutus acknowledged that the responsibility of the general government for protection against external dangers entailed granting that general government "authority sufficient to effect this, so far as is consistent with the providing for our internal protection and defence" (no. 26). The primacy of domestic policy was clearly a premise of Anti-Federalist thinking; not glory, but domestic happiness; not foreign adventures, but the peaceful enjoyment of liberty. (See also Federal Farmer, no. 28; Henry, no. 38.)
The response of the supporters of the Constitution was to stress, again and again, the inseparability of strength against external dangers and the enjoyment of internal peace, and the common concern of the state and general governments as related to "the great objects of life, liberty and property" (Wilson, no. 18). Hamilton in the Federalist attacked in turn the validity of the sharp distinction between confederation and consolidation, the viability of the federal principle as such, and even the presumption that state governmental concerns might tempt a national government to overstep its bounds ("slender allurements to ambition," he sneered in passing). He also argued that the people would be more jealous of national power; hence potentially dangerous power was better placed in hands where it would be watched. At the same time he predicted that the people were likely to proportion their confidence in a government according to the quality of its administration, a contest he openly expected the national government to win. The end in view was "ONE WHOLE."
The differences between the proponents and opponents of the Constitution often turned on questions of degree (e.g., how much ought the general government's powers to be extended?), and form (e.g., how might a national revenue best be secured?). But for both parties questions of degree and form were crucial to the survival of the union and the character of the republic. It made a great difference whether the general government could address citizens directly or largely through the intermediation of state governments. It made a great difference whether the general government could command its own means of securing money and men or had to resort to the good offices of the several states. It made a great difference whether the states had a constitutionally secured leverage in the national council that left them able to protect their notions of diversity and requisite independence. On the whole, Madison's contributions to the Federalist muted the threat to the states even while carefully delineating the ways in which the states would indeed find themselves in a system that could not properly be termed "federal." It was, he maintained, "a composition" of national and federal elements, leaving the careful reader of Federalist, no. 39, to calculate where the center of gravity of that composition would be located. Besides, he asked in a rare flash of rhetorical indignation, had the exploded and "impious" doctrine of the divine right of kings now been converted in America to the notion that the people were made for the states, not the states for the people? The great end for whose sake Americans had fought and bled was hardly so that "particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty." To be sure, the claims for state authority were grounded on right and principle. In confronting those claims, Madison and other advocates of the Constitution relied on a still more fundamental right: the right of the people to locate political authority where they judged it to be most likely to secure the great ends of the Revolution. Thus the division and allocation of governmental powers was an open question for a deliberating people to consider. If they found Madison's evidence and reasoning persuasive, they too would conclude that public happiness and internal justice and external security could not be isolated from one another and could not readily be achieved under a government less national than the one proposed.
In all this the Anti-Federalists saw a willful indifference to the extent to which liberty, happiness, justice, and security required not only some enhanced national powers but an array of smaller governments whose vitality would still matter. Had the allurements of splendid achievements blinded the advocates of the Constitution to a more genuine and more beautiful species of national grandeur? (Nos. 33, 38; see Richard Henry Lee to Samuel Adams, 28 Apr. 1788.) Could this unprecedented mixture of federal and national elements--"a strange hotch-potch of both" (Luther Martin, 21 Mar. 1788)--end up other than entirely national (no. 38)? By what abuse of language could this still be called "federalism" (None of the Well-Born Conspirators, 23 Apr. 1788)? Further, some Anti-Federalists continued to assert what Hamilton and Madison, in the single voice of Publius, had denied: the compatibility of sovereignty in the union and sovereignty in the states. Unless this were the case, a [Pennsylvania] Farmer rejoined in a tightly reasoned essay (no. 35), a federal republic itself would be an impossibility, a conclusion no one was prepared to concede. The objects of sovereignty could be allocated between the general government and the states; indeed, the latter "ought to be fit to keep house alone if necessary."
Madison rejected both the possibility and the desirability of individual American states being sufficient unto themselves. Even in the midst of partisan heat and clamor (no. 40), union remained for him the indispensable condition for all that Americans cherished. There were sound, practical, republican reasons for resisting tendencies toward a consolidation of governments. There were equally sound, practical, republican reasons for seeking a consolidation of the country's diverse interests and affections. In the more intense partisan heat and clamor of 1798--1800 attending passage of the Alien and Sedition Acts, it was easier to overlook his measured statements and nuanced arguments. Very much has been and might still be written of Jefferson's Kentucky Resolutions (no. 41) and of Madison's defense of the Virginia Resolutions (no. 42)--of their similarities and of their even more interesting differences in assertion, language, and tone. All the more striking is it considering that Madison had criticized Jefferson's proposal for popular conventions out of a fear that frequent recurrence to the people would weaken the stability of government (see ch. 2, no. 19). But in the Adams administration's selective enforcement of the Sedition Act, both Madison and Jefferson saw an extraordinary danger to cherished liberties and the balance of the federal system. In this context it is worth noting that the "recurrence to fundamental principles" (of which the third Virginia Resolution is said to be an example), was defended by Madison both on grounds of sound republican practice and as a fulfillment of the Federalist response to Anti-Federalist anxieties of 1787.
If one took literally the notion that the Constitution was a compact between sovereign parties, it was a nice question whether a governor of a sovereign state should correspond with any official in Washington below the level of the President of the United States (no. 43). But such matters of protocol are appropriate only to a light-hearted intermezzo in the unfolding drama of federal versus consolidated government. Nullification--and worse--still lay ahead.
The Founders' Constitution
Volume 1, Chapter 8, Introduction
http://press-pubs.uchicago.edu/founders/documents/v1ch8I.html
The University of Chicago Press
