A Citizen s Introduction to Federalism: Federalism and the Future of Constitutional Government

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1 A Citizen s Introduction to Federalism: Federalism and the Future of Constitutional Government By John Hendrickson Public Interest Institute Research Analyst POLICY STUDY No September 2014

2 A Citizen s Introduction to Federalism: Federalism and the Future of Constitutional Government By John Hendrickson Public Interest Institute Research Analyst Executive Summary: The late intellectual historian Stephen J. Tonsor wrote that in America the founding is determinative, and the Constitution stands at the very center of American political conservatism. 1 As Tonsor wrote: Central to conservative doctrine, and the translation of this doctrine into the politics of a particular time and place, is the fear of unchecked power and its centralization It is for this reason that the checks of a balanced constitution are so important. It is for this reason that the diffusion of power to the states and particularly to local communities is imperative. Education, welfare, and social control must be taken out of the hands of the central power and its instrumentalities. 2 Conservatives understand that the American Founding is based upon the principle of liberty and limited government. In framing the Constitution, the Founding Fathers believed that government should be limited, and they achieved this through specific structures and principles contained within the Constitution. These structures and principles consisted of the rule of law, limited government, separation of powers, checks and balances, and federalism. Russell Kirk, the intellectual father of the post-world War II conservative movement, wrote that the American political system, first of all, is a system of limited, delegated powers, entrusted to political officers and representatives and leaders for certain well-defined public purposes. 3 The Constitution is a written document that limits the powers of the federal government. Article I, Section 8, lists the enumerated powers of Congress, and these are the specific powers that Congress can exercise. During the ratification debates over the Constitution some, such as the famous Virginian Patrick Henry, feared that the Constitution actually granted too much power to

3 A Citizen s Introduction to Federalism P a g e 3 the federal government and that it would not only endanger the liberty of the people, but also the states. It is important to keep in mind that under the Constitution the people are sovereign. The people delegate to government only so much power as they think it prudent for government to exercise; they reserve to themselves all the powers and rights that are not expressly granted to the federal or state or local governments, wrote Kirk. 4 In reassuring that the true intent of the Constitution was to limit power, James Madison, the principle architect of the Constitution, wrote in Federalist Paper 45: The powers delegated by the proposed constitution to the federal government are few and defined. Those which remain in the state governments, are numerous and indefinite. 5 Madison s argument in Federalist 45 was further illustrated within the Constitution through the Tenth Amendment to the Constitution: 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. 6 With enumerated powers and the Tenth Amendment the powers of the federal government would be limited and the states would be protected. Debates over governmental powers and federalism are some of the main political and constitutional debates that occur today and throughout our history. The size and scope of the federal government has risen gradually during our history, but a fundamental change occurred during the 20 th century. The Progressive Movement started to argue that the Constitution was out of date and the federal government needed more power to govern a modern, urban, and industrial nation. The result was the administrative and welfare states, which emerged under Presidents Franklin D. Roosevelt s New Deal and Lyndon B. Johnson s Great Society. John S. Baker argues that the administrative state represents the very consolidation of power opposed by all of the founders Federalist as well as Anti-Federalist. 7 The administrative state that emerged as a result of the New Deal, Great Society, and recent expansion of the federal government is normally the byproduct of a unitary sovereign, wrote Baker. 8 Donald J. Devine, a political scholar and veteran of the Reagan administration, wrote that America s progressive movement proclaimed the superiority of concentrated power over the Constitution s separated powers. 9 The result, as Devine argues, is that the central government is the major decision maker on most important matters. 10 Today it is hard to imagine any aspect of life that is not somehow affected by the federal leviathan. States as well as the people have become dependents upon the federal government.

4 A Citizen s Introduction to Federalism P a g e 4 To restore traditional federalism, states as well as the people will have to repent of progressivism and return to the principles of the Constitution. Donald Devine argues that President Ronald Reagan serves as an example of a person who loved the Constitution and held deep respect for the American founding. 11 Only by the people rediscovering the principles of the American founding will federalism be restored. Devine argues that the past several years have been dispiriting for Americans, and this will only be reversed by returning to the Constitution. 12 Introduction The issue of federalism is at the center of the American constitutional system. During colonial America, the original thirteen colonies, because of geographic distance and other issues, were left by England to largely govern their own affairs. The American colonists, governed by their colonial charters, quickly got used to the idea of self-government. In addition local selfgovernment, based on counties or townships, became firmly established in the colonial period, and helped to prepare the nation for the concept of federalism that triumphed in the Constitutional Convention of By the time of the American Revolution, the states were developing their own written constitutions. The idea of a written constitution was and is important because it states the powers, responsibilities, and limits on government. At first more attention was given to writing state constitutions than considering a national government. John Adams, for example, is considered to be the Father of American constitutionalism because of his work on the Massachusetts Constitution. Efforts to form a continental union often fell short of anything close to a national government. The American colonies and later states did work together in cooperation in regard to the Stamp Act Congress, the First and Second Continental Congress, and finally the establishment of a confederal government under the Articles of Confederation. More attention was given to the political development of the states because of the deep belief in self-government and because people identified with their states and local government. Also they saw a centralized government as a threat to tyranny the example being the unconstitutional taxation by the British Parliament and King George III. A central or unitary government could not only rule by force, but also through coercion by using such things as a large standing army. With the American victory in the Revolutionary War, the young nation faced several problems. One of the immediate problems was the economy and the debts resulting from the war. The Articles of Confederation, which established a league of friendship among the states, was responsible for administrating national policy through the Confederation Congress. Under the Articles of Confederation, each state had one vote in Congress and it was almost impossible to

5 A Citizen s Introduction to Federalism P a g e 5 revise the Articles. Under this confederacy, the individual states held the majority of sovereignty. It was soon apparent that the Confederation Congress was dependent upon the states for revenues and for security. The states themselves were also struggling internally with economic problems and also fighting with each over trade barriers or territorial boundaries. In Massachusetts, a Revolutionary War veteran, Daniel Shays, led a group of angry farmers in revolt against the state for foreclosing on farms because of debt payments. Shays Rebellion was eventually put down, but it demonstrated the weakness of the Articles of Confederation, because the Confederation Congress could not respond. In response, a group of nationalists led by James Madison, Alexander Hamilton, and George Washington decided that the Articles of Confederation had to be either reformed or replaced. The result was a resolution passed at the Annapolis Convention, which called for a convention of the states to meet in Philadelphia in the summer of 1787 to consider revising the Articles of Confederation. The Philadelphia or Constitutional Convention was not welcomed by everyone. Patrick Henry, a leading voice of liberty during the Revolution, refused to attend because he smelt a rat, and Rhode Island did not send a delegation. In Philadelphia, the delegates that met to revise the Articles ended up replacing them completely. This is partly the result of the Nationalists or Federalists led by James Madison, who is considered the Father of the Constitution. The Constitution, which emerged from the Philadelphia Convention, was a document based on compromise. The Founding Fathers who attended the Convention drafted a written constitution that created a republican form of government that was limited in power. The Founding Fathers understood the dangers of not only unitary government, but also the weaknesses of the confederal system and pure democracies. They were students of history and the gathering in Philadelphia contained some of the best political minds in Western Civilization. Last, the Founders understood that no system of government would be perfect, because human nature is corrupted by original sin. The Constitution of 1787 was drafted by the wisdom of the Founding Fathers, who created a republican form of government based on representation, the rule of law, enumerated powers, separation of powers, checks and balances, and federalism. These were the constitutional principles behind the Constitution. The Founders understood the important role that the states had and that the Constitution would be limited to specific enumerated powers listed in Article I, Section 8.

6 A Citizen s Introduction to Federalism P a g e 6 Madison, in Federalist Paper No. 45, tried to reassure critics of the Constitution who thought it created a powerful central government, that the Constitution limited the powers of the national government, while reserving everything else to the states or the people. Federalism would divide power between the federal and state governments. Madison s compound republic or federalism was instrumental to the Constitution. Later this was reinforced with the Tenth Amendment to the Constitution, which is sometimes referred to as the federalism amendment. Under federalism the national/federal government and the state governments would each be sovereign in their respective constitutional spheres. The states would also be protected in the Constitution, not only because of enumerated powers, but also because members of the United States Senate would be elected by state legislatures. States also played a role in electing the President through the system of the Electoral College. Federalism is a cornerstone of American constitutionalism and it also is a major part of the nation s constitutional and political history. During the 19 th century American government followed dual federalism, which meant that the national and state governments were equally sovereign in their respective policy spheres. It was not until the 20 th century and the Progressive Era, which resulted in a constitutional revolution, that federalism was transformed. Starting in the early 20 th century, and especially during the 1930s, the states began to fall under the dependence of the federal government as Washington started to control more and more policy areas that were originally left to the states. This new form of federalism, cooperative federalism, started to turn the states into administrative districts of the federal government as constitutional limited government was replaced by an all-intrusive federal government. Today the nation is faced with numerous serious public policy problems, and the solution can be found in returning back to constitutional principles, especially federalism. In order to do this we need to understand and rediscover the principles, structure, and history of American federalism. As a nation we must remind ourselves of the wisdom of the Founding Fathers. Part I: The Articles of Confederation and the Constitutional Convention of 1787 President Calvin Coolidge stated that to live under the American Constitution is the greatest political privilege that was ever accorded to the human race. 14 The Constitution is not only the oldest written national constitution in the world, but it is a document rooted in liberty. 15 The Constitution, which was created out of the Philadelphia or Constitutional Convention in 1787, is the bedrock of the American system. The Founding Fathers who created the Constitution knew they were not creating a perfect system of government. As the late James McClellan, a noted constitutional scholar, wrote in Liberty, Order, and Justice:

7 A Citizen s Introduction to Federalism P a g e 7 The Founders of the American republic did not suddenly invent the American Constitution overnight. Learning from the mistakes of the past, they revised and applied constitutional concepts deeply rooted in America s colonial past, the history of Great Britain, and the chronicles of the ancient world. By understanding the mistakes of the past, of course, we improve our chances of not repeating them in the future. 16 The idea of a constitution and the principle of self-government was part of the American colonial political culture. States formed their own written constitutions and Founding Fathers such as John Adams, who became known as the Father of American Constitutionalism, were instrumental in helping to create state constitutions. In fact, more attention was given to state governments rather than the national government. Before the ratification of the 1787 Constitution, the national government under the Continental Congress, and later the Articles of Confederation, was very loose and decentralized. In fact, Americans had no experience with any form of continental union. 17 The thirteen colonies, and later states, did work together in regard to their political opposition to Parliament s and King George III s policies, but efforts at union were difficult. The states held the majority of political power, and prior to the American Revolution the original thirteen colonies were each independent under the control of England. By the time of the Revolution, the colonies had already transformed themselves into thirteen constitutional republics, each claiming independence, sovereignty, and statehood. 18 Although efforts to join the colonies into a union failed before the Revolution (such as Benjamin Franklin s Albany Plan), the colonies did start to work together to coordinate opposition to British authority. Examples of this include the Stamp Act Congress, the Committees of Correspondence, the nonimportation agreements, and later the Continental Congress. The Articles of Confederation created the first significant form of a national government when the states ratified them in Previously the original thirteen states worked together through the First and Second Continental Congresses. The Articles of Confederation created a league of friendship between the states, and they would be governed by the Confederation Congress. This type of government is referred to as confederal, which means that states retain their sovereignty and delegate very limited specific powers to a national government. During the American Civil War, the eleven states of the south joined together to form the Confederate States of America, which was another example of a confederal system. In Europe, Switzerland has a confederalstyle government. As James McClellan explained: Until nearly the end of the eighteenth century, the word federal was a synonym for the word confederate. In politics, a federation was a league of states or cities. This had been the definition of such words from ancient times. The member-states

8 A Citizen s Introduction to Federalism P a g e 8 or member-cities of a federation or confederation did not acknowledge or create a central government. They remained independent, but were joined together loosely by treaty or some other agreement by which the members pledged themselves to cooperate with each other under certain circumstances or for certain limited purposes usually military action. A federal government scarcely was a government at all. It amounted to no more than a simple apparatus for enabling the members of the confederation to confer and cooperate. 19 The opposite, which is a central government or unitary government, had always been understood to mean a political structure in which there is one central sovereign power that all lesser political units must obey. 20 With the Articles of Confederation the states held the majority of the political power. The national governmental structure of the Articles of Confederation was very limited: The government established under the Articles of Confederation vested all the powers of the national government in a Congress of the States. There was no regular national judiciary and only the merest shadow of an executive power. Each state had one vote in Congress, regardless of size. Important measures required the votes of nine of the thirteen states to pass, while amendments to the Articles required the unanimous consent of all the states. 21 Reflecting on the Articles of Confederation, it appears that they were weak because of the limited powers that the Confederation Congress could exercise. In actuality the Articles were strong when taking into consideration the American fear of a strong central government. The Americans fought a major war for independence against England the world s superpower at that time and they were very concerned about a large, powerful, central government governed by a tyrannical executive. The Articles of Confederation could not properly address the structural problems facing the young republic in the aftermath of the American Revolution. This was especially true in addressing the economic and security problems of the nation. The Confederation Congress lacked authority to impose taxes to cover national expenses or enforce requests on states, and they could not address security issues such as Daniel Shays rebellion in Massachusetts. 22 Shays Rebellion occurred in Massachusetts when farmers revolted against their state government for foreclosing on farmers who did not pay their debts. Shays Rebellion was eventually put down, but the Confederation Congress was helpless. In addition to the turmoil caused by the economic problems, the states were often disputing with each other over trade and territorial boundaries and other issues that the Articles could not resolve. George Washington described the Articles as half-starved, limping government, always moving upon crutches and tottering at every step. 23

9 A Citizen s Introduction to Federalism P a g e 9 A growing concern emerged that the Articles of Confederation were inadequate to resolve the political and economic problems facing the republic. This concern was especially shared by a group of individuals that became known as nationalists or more commonly referred to as the Federalists. Prominent leaders of the Federalists included individuals such as James Madison, Alexander Hamilton, and George Washington, among others. They believed that a stronger national government was needed to not only unify the nation, but to solve the many structural problems that the Articles could not resolve. The result was a resolution that emerged out of the Annapolis Convention in 1786 to call for a convention to address the possibility of amending the Articles of Confederation. This convention would be held in Philadelphia during the summer of The goal of the Philadelphia or Constitutional Convention was to revise the Articles of Confederation, but some patriots were suspicious of the convention. Patrick Henry, who would become an opponent of the Constitution, famously stated he smelt a rat, and Rhode Island did not send any delegates to participate. 24 Henry and other opponents of the Constitution would become known as Anti-Federalists. The fifty-five delegates to the Constitutional Convention were confronted with three major tasks: The first was to improve the relationship among the States, or to create a more perfect union. The second was to design a federal government with limited, delegated, and enumerated powers sufficient to govern effectively, reserving to the States and the people thereof those powers not delegated, in order to protect their rights and liberties and prevent the central government from usurping them. The third task was to implement the principle of government by consent and to confer legitimacy upon the new government by building it upon a solid foundation of popular sovereignty, without sacrificing the sovereignty of the States that agree to join the Union. 25 Matthew Spalding, a noted scholar of the American founding, wrote that the challenge for the American Founders in framing the Constitution was to secure the rights and liberties promised in the Declaration of Independence, preserving a republican form of government that reflected the consent of the governed, yet avoided despotism and tyranny. 26 This was the challenge for the delegates at the Constitutional Convention to devise a government that was strong enough, but also limited as to protect fundamental liberties. Fortunately the convention in Philadelphia represented some of the best minds in Western political philosophy. George Washington, the hero of the American Revolution, held considerable respect, and was selected to chair the Constitutional Convention. George Washington s role at the convention and

10 A Citizen s Introduction to Federalism P a g e 10 his support of the Constitution was vital. Washington s colleague from Virginia, James Madison would also be an indispensible leader at the convention and even though the deliberations were kept secret, his notes tell the story of the convention. Although not everyone agreed with each other, and some even left, the Constitutional Convention was described more as a gathering of polite friends than an assemblage of angry political zealots. 27 As James McClellan described: Under the influence of gentle manners, the Convention was conducted with a decorum not since encountered in these United States, as delegates of differing views observed with one another the old traditions of civility. Temperate speech led to moderation, and moderation made it possible for the Framers to resolve their differences peaceably and to achieve a lasting consensus. 28 To create a government that was republican, based on representation, abiding by the rule of law, and protecting both the sovereignty of the people and the states was a difficult challenge and hitherto unique to world history. Specifically the Framers had to devise a government that would solve the problems facing the nation. Some of these issues that needed to be resolved included: Put the government on a sound financial footing; Remove trade barriers, both with foreign countries and among the several States, and improve the flow of commerce; Provide sound money for the country, and improve both public and private credit; Set up means for strengthening the United States in the conduct of foreign policy; Obtain a greater degree of cooperation among the thirteen States, and require the state legislatures to protect the rights of property owners; Maintain good order under a republican form of government by preventing rebellions and mob violence when the state governments might be incompetent for that important task; Give the whole country such advantages as uniform bankruptcy laws, copyrights and patents, a postal service, management of western territories and Indian relations, naturalization of immigrants, and in general provide important services that state governments could not. 29 As the Philadelphia Convention began, the initiative was taken by James Madison, who would become the Father of the American Constitution, and the Federalists (nationalists) when the Virginia Plan was introduced by the delegation from Virginia. The Virginia Plan startled some of the delegates, especially those from small states, who feared that not only was this proposal a complete replacement of the Articles, but if adopted, that it might lead to dominance by the larger states.

11 A Citizen s Introduction to Federalism P a g e 11 The Virginia Plan: Called for a strong consolidated union that would act directly on individuals rather on state governments. The national government, divided into three branches, would have extensive powers on all questions on which the states were not competent to act. In an extraordinary provision of national power, the legislature would be able to veto any laws passed by the states. The legislature would consist of two houses, the first or lower house chosen by the people and the second or upper house elected by the lower house, without regard to representation of the states. 30 By introducing the Virginia Plan, James Madison and the nationalists were able to take control and establish the focus of the debate on completely replacing the Articles of Confederation. Delegates from the small states were fearful of the Virginia Plan, since it obviously favored larger states, because representation would be based on population and not equality as it was under the Articles of Confederation. The thought of having a national legislature veto laws passed by state governments was also horrific to many of the delegates who were especially supportive of states rights. In response to the Virginia Plan, William Patterson of New Jersey introduced the New Jersey Plan, which called for strengthening the Articles of Confederation and protecting the small states. The New Jersey Plan: called for a series of amendments to the Articles of Confederation that would have strengthened the power of Congress to raise money, and added a federal judiciary and an executive council empowered to use force to compel compliance with the Confederation s laws Congress would consist of representatives chosen by the state legislatures, not the people directly; national laws would only apply to states, not to individuals; and the powers of the general government would be severely limited. 31 The New Jersey Plan did not carry enough support to defeat the nationalists, but a compromise had to be reached by the delegates. The Great Compromise or the Connecticut Compromise became the middle ground for delegates. Roger Sherman, a delegate from Connecticut, offered the Great Compromise, under which a House of Representatives would be apportioned based on population and each state would have an equal vote in a Senate. 32 Eventually a Committee of Detail was formed to hammer out a draft Constitution and the delegates continued revising the draft until September 17, 1787 when they signed the Constitution and sent it to the Congress of the Confederation, and the convention officially adjourned. 33

12 A Citizen s Introduction to Federalism P a g e 12 Part II: The Structures of the Constitution: Rule of Law, Separation of Powers, and Checks and Balances The Constitution that was drafted was a document of compromise and unique structures designed to protect liberty and prevent political corruption and abuse. It is important to remember that the Constitution is a written document that specifically limited the powers of the national government. The Founders also placed important structures or constitutional devices such as separation of powers, checks and balances, federalism, and the rule of law to restrain the federal government s powers. 34 James McClellan states that an understanding of these unwritten concepts is essential to understanding of the meaning and purpose of the Constitution. 35 The Constitution, which is based on the rule of law, is important because all people who hold political authority are subject to the law of the land, and their public actions must conform to the Constitution and to certain principles of law. 36 Although history has numerous examples of abuse of political power and corruption, the Framers understood that the rule of law is essential to preserving liberty. The United States is known as a government of laws and not men, meaning that no public official is above the law. 37 Both public officials and citizens are required to live by the rule of law, and in the case of public officials, they must swear an oath to follow, protect, and defend the Constitution. The Founders understood that human nature was flawed and that no system of government created by man could be perfect, but as McClellan notes: The Constitution of the United States has never been suspended or successfully defied on a large scale. Thus the rule of law has usually governed the country since 1787 a record true of very few other countries of the world. 38 This is evidence of the genius of the Founders, whose Constitution survived a brutal Civil War and multiple constitutional crises. It also points to the constitutional culture of the American people, who even during the colonial period, believed in the importance of self-government and the rule of law. The American Revolution itself was about these constitutional principles, which is very unique in world history compared to other revolutions such as the French Revolution or the Communist Revolution in Russia. James McClellan states that the principles of separation of powers, checks and balances, federalism, and the rule of law are at the heart of the American Constitution. 39 In examining these constitutional structures it is important to start with the Preamble to the Constitution, which demonstrates the Framers intent for the Constitution: We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defense,

13 A Citizen s Introduction to Federalism P a g e 13 promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. 40 The Constitution states that We the People are sovereign, and it created a republican form of government based upon representation. The Preamble of the Constitution became a significant departure from the Articles of Confederation. Matthew Spalding explains that We the People is very different from the opening of the Articles of Confederation, which speaks in the name of individual states, and represents an important shift in the understanding of constitutional sovereignty underlying the document. 41 Spalding further explains the significance of the Preamble: The Constitution then proclaims the broad objectives of We the People, their reasons for constituting a new government, and the ends or purposes for which the Constitution is formed. Of these six reasons, two are immediate requirements of safety and security common to every sovereign nation insure domestic tranquility and provide for the common defense and two look forward to building a particular society that upholds the rule of law and fosters prosperity and well-being for all citizens establish Justice and promote the General Welfare. The other two objectives grandly express the Founders hopes for their nation s and their people s future: the Constitution is meant to form a more perfect union and secure the blessings of liberty to ourselves and our posterity. 42 The Constitution is rather a short document which is divided into seven parts, or articles, each dealing with a general subject, and each article is further divided into sections and clauses. 43 The Constitution also provides specific delegated and enumerated powers to the national government as Spalding explains: Despite the popular term states rights, no government (federal, state, county, or local) actually possesses any rights at all. Recall from the Declaration of Independence that persons are endowed with unalienable rights. Governments only possess powers, which in legitimate governments are derived from the consent of the governed. In particular, governments only have those powers that are given (or delegated) to them by the people. Individuals, who possess rights by nature, hold those powers and may grant some of them to the government. The point is implicit throughout the Constitution 44

14 A Citizen s Introduction to Federalism P a g e 14 In regard to representation, the Constitution provided that the larger states would benefit from the membership of the House of Representatives, because it is determined by population and elected directly by the people. The Senate had equal representation with each state Legislature selecting two Senators, which would bring equality to smaller states who otherwise would have little representation in the House. Besides the bi-cameral legislature, the Constitution also created two other branches of government: the executive (the President and Vice President) and judicial (the Supreme Court). The three branches of government would be listed in the Constitution as follows: Article I, the legislative branch, Article II, the executive branch, and Article III, the judicial branch. Each branch would be separate, have specific powers, and have the ability to check the other branches. The Founders understood that human nature is flawed and no perfect government could ever be designed by mankind. As James Madison wrote in Federalist No. 51: Ambition must be made to counteract ambition. The interest of the man, must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this; you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. 45 James McClellan wrote that from Christian teaching, the Framers had learned, then, that human nature is not to be trusted. 46 The Founders pessimistic view of human nature was essential to the structural designs of separation of powers and checks and balances within the Constitution. The Founders were worried about factions (special interests) and majorities that could harm the minority. Bruce S. Thornton argues that: the solution of the Framers was the mixed government in which the democratic House of Representatives, the aristocratic Senate (chosen by the state legislatures), and the monarchial President (chosen by the Electoral College) would, along with the judiciary, divide the powers and functions of government and thus check and balance the tendency of each branch to maximize its power at the expense of the people s freedom. 47

15 A Citizen s Introduction to Federalism P a g e 15 The Founders understood that separation of powers is essential because of human nature each branch of government needed to have separate powers and the ability to check one another to prevent tyranny. The Constitution lists the powers of each branch of government, but as history has demonstrated these are not always clear. One recent example is the debate over President Barack Obama s use of executive power to go around Congress to ignore existing law, change a law to his liking, or outright make law through executive orders. The principle of checks and balances also applies because each branch of government can counter the other branches. Article 1 of the Constitution lists the powers of Congress and under these specific powers the Congress can hold the executive and judicial branches accountable. For example, the Congress can override a President s legislative veto, impeach the President, provide oversight on the executive branch and the federal courts, and declare war. The President can veto legislation, serve as Commander-in-Chief, and makes sure the laws are faithfully executed, while the Supreme Court can strike down laws that are unconstitutional and the Chief Justice presides over the impeachment trial of the President in the Senate. Interestingly, Article III brings up much debate because the concept of judicial review is not specifically stated in the Constitution, but rather that power was utilized by Chief Justice John Marshall in the historic case of Marbury v. Madison. James McClellan stated that the check and balance system is probably the most ingenious and carefully crafted feature of the American Constitution. 48 Some of the reasons why the Framers designed checks and balances include: They arranged that there should be some overlap of functions among the three major departments of government; They improved upon the state constitutions by arranging that the members of the three branches of government should be chosen in three different ways so making the executive and judicial branches more independent from the legislative; The Framers provided each department with constitutional means for resisting attempts at domination by the other departments; It may thus be seen that an elaborate system of checks and balances was woven into the Constitution. These checks and balances were intended to prevent any person or organ of government from interfering with constitutional freedoms or with the lawful functioning of another organ of government. They also help to maintain the separation of powers by arming each branch with a defensive power to resist encroachments from another branch. 49 Some of the specific checks and balances provided for in the Constitution include:

16 A Citizen s Introduction to Federalism P a g e 16 Checks upon the Congress: The Vice President (executive branch) presides over the Senate and can cast a tie-breaking vote (Article I, Section 3). The President is empowered to call special sessions of the Congress, and to adjourn both houses if they cannot agree upon a time for adjournment (Article II, Section 3). The President is given power to veto acts passed by the Congress (Article I, Section 7). The Supreme Court has power to review enactments of the Congress for unconstitutionality (an unspecified power derived from Article III). Checks upon the President: Congress has power to impeach and remove the President for high crimes and misdemeanors (Article II, Section 4). Congress may override a presidential veto by a two-thirds majority (Article I, Section 7). Congress can assure civilian control of the military through its power to appropriate or withhold funds to support military and naval forces, to make regulations for those forces, to call forth the militia of the states, to suppress insurrections and to repel invasions, and to declare war (Article I, Section 8). Congress has an inherent power to investigate actions of the executive branch concerning proper execution of the laws and proper expenditure of funds (Article I, Section 8). Congress is empowered to appropriate [or withhold] the funds for operation of the executive branch (Article I, Section 8). The Senate has power to approve, amend, or reject treaties. It may also attach reservations to the treaty, which may not alter the content but may qualify or limit the obligations assumed by the United States under the agreement (Article II, Section 2). The Senate has power to confirm or reject Presidential appointments to major posts [this includes cabinet officials, federal judges, and Supreme Court Justices] (Article II, Section 2). The Judiciary has power to review actions of the executive branch for their constitutionality (an unspecified power derived from Article III). Checks upon the Judiciary: Congress has power to impeach and remove federal judges for adequate cause (Article I, Section 3; Article II, Section 4; Article III, Section 1).

17 A Citizen s Introduction to Federalism P a g e 17 Congress has power to appropriate [or withhold] funds for operation of the judicial branch (Article I, Section 8). Congress has power to determine the number of judges and the size of federal courts (Article III, Section 1). Congress has power to regulate the original jurisdiction of inferior federal courts and the appellate jurisdiction of all federal courts (Article III, Sections 1 and 22). The President has power to appoint federal judges (Article II, Section 2). 50 Matthew Spalding argues that separation of powers, along with the further provisions for checks and balances, creates a dynamism within the workings of government that uses the interests and incentives of those in government to enforce constitutional limits beyond mere statement. 51 As Spalding further describes: The Constitution creates three branches of government, and each is vested with independent powers and responsibilities. Each also has its own basis of authority and serves different terms of office. No member of one branch can at the same time serve in another branch. But their powers aren t separated completely: In order to protect themselves and guard against encroachment, each department shares overlapping powers with the others. 52 These overlapping powers work together to fight the ambitions of each branch. In other words, government is structured so that each branch has an interest in keeping an eye on the others, checking powers while jealously protecting its own, wrote Spalding. 53 The principles of separation of powers and checks and balances are a major part of the genius of the American Founding Fathers. These principles are essential for constitutional limited government. James McClellan argued that of all the theories of government that have been propounded to establish limited government, the doctrine of separation of powers has been the most influential and successful. 54 McClellan further argues that both separation of powers and checks and balances are a necessary prerequisite to limited constitutional government because a concentration of political power is inherently dangerous and will sooner or later lead to the abuse of power and to oppressive government. 55 While it is true that separation of powers and checks and balances are still a fundamental part of American government, our political and constitutional history is filled with examples of all three branches of government acting outside their respective constitutional boundaries. Some examples include the radical Republicans in Congress in the aftermath of the Civil War, who tried to dominate the executive branch over Reconstruction policy, and this led to the constitutional crisis over the impeachment of President Andrew Johnson; President Franklin D.

18 A Citizen s Introduction to Federalism P a g e 18 Roosevelt, who utilized broad executive power during the Great Depression and World War II; and the liberal activist Supreme Court under Chief Justice Earl Warren that utilized judicial activism to pursue societal changes. Many examples exist in our history of the three branches competing against each other for political power. Perhaps the most significant is the increasing power of the President and the executive branch at the expense of the legislative branch. Part III: The Structures of the Constitution: Federalism The Framers understood that the principle of limited government was vital to protecting liberty. This was a major concern for the delegates who drafted the Constitution. The national government must be limited, and that is why a written Constitution and the principles of separation of powers and checks and balances were so important. The states were also concerned that the proposed Constitution limited the powers of the national government so that they could protect their sovereignty. The design to protect the sovereignty of the states became known as federalism. James McClellan argued that federalism requires a written Constitution. 56 As McClellan wrote: there must be a fundamental law delineating the two spheres of authority, lest neither sphere will know the limit of its powers. If the central government acquires too much power, it may swallow up the weaker states, creating a unitary form of government. If, on the other hand, the state governments become too powerful, the union may be reduced to a league or confederation, or be abolished altogether. 57 During both the debates during the Constitutional Convention and over ratification of the Constitution, the idea of limited government and the role of the states were debated by both advocates and opponents to the Constitution. The debates at the convention saw large and small states disagreeing on representation, which was eventually resolved with the Connecticut Compromise, but states were also concerned with the Constitution granting too much power to the national government. In Why States? The Challenge of Federalism, political scientist Eugene Hickok describes the concern that delegates had in protecting the states: The great irony in this, of course, is that the states meant everything in the late 18 th century. The men who gathered in Philadelphia to consider changes to the Articles of Confederation, an alliance among the states, came as delegates from their states to act on behalf of their states. 58

19 A Citizen s Introduction to Federalism P a g e 19 The solution to this problem came with the idea of federalism. Federalism, just as with separation of powers and checks and balances, is a fundamental principle built into the Constitution to not only limit government, but to protect the states and the people respectively. It is important to remember that the Framers were both students of history and political theory. They understood the dangers of both a pure democracy and unitary government. In addition, the Framers understood that the Articles of Confederation or the confederal system was not working. The New Jersey Plan, although only offering to amend the Articles, demonstrated that the Confederation Congress need more power. The Founders then designed a new system which became federalism: The Founders devised an alternative system, what Madison called a compound republic and what is known today as federalism. The new arrangement consisted of a division between the central (or national or federal ) government and the states in which the existence and viability were Constitutionally sanctioned. 59 In framing the Constitution, the Founding Fathers were confronted with a number of issues that caused both disagreement and concern. This not only included the issue of representation, but also sectional differences over slavery, how we should elect the executive (President), and how to best protect fundamental liberties. The issue of federalism or what came to be called federalism was at the heart of it all. 60 As Hickok argues: The Constitution that emerged from Philadelphia in 1787 was debated in conventions in each state and was subject to ratification by the states. And much of the debate, deliberation, and conversation that took place during that summer in Philadelphia and during each state s ratifying convention revolved around trying to understand the relationship that would emerge between the proposed central government and the governments of the several states. 61 The unwritten structures of the Constitution rule of law, separation of powers, checks and balances, and federalism are supported by the powers specifically granted to the national government. One of the important purposes of a written Constitution is that the powers of government are stated within the document: The national government while strong was also limited. The Constitution withholds power in two ways: by specific prohibitions for example, no ex post facto laws or no taxes on exports; and by the general idea that the national government is one of enumerated powers that is, that the government does not possess any and all powers, but only those powers granted to it (which, to be sure, are rather broad). 62

20 A Citizen s Introduction to Federalism P a g e 20 The Constitution in Article 1, Section 8, lists the enumerated powers of our national government. Some of Congress s enumerated powers include the power to provide for the common defense, to tax, to regulate commerce with foreign nations and the states, to borrow money, to coin money, to declare war, to establish post offices, and to establish courts, among others. 63 Matthew Spalding describes the nature of the enumerated powers of Congress: The diverse powers granted to Congress at first seem rather disorganized, ranging from clearly momentous (to declare war) to the seemingly minute (to fix weights and measures). But upon reflection, an underlying pattern emerges based on the distinction between key functions assigned to the national government and those left to the state governments. The two most important functions concern the nation s security (such as the powers to maintain national defense) and the national economy (such as the power to tax or to regulate interstate commerce). And as might be expected, many of the powers complement each other in supporting those functions: The power to regulate interstate commerce, for instance, is consistent with the power to control currency, which is supported in turn by the power to punish counterfeiting and to establish standards for weights and measures. How can an economy function without a common currency? 64 While the federal government s powers are limited, the powers granted are complete. The objective was to create an energetic government that could effectively accomplish its purposes, noted Spalding. 65 This was the original goal of the Framers in drafting a new government which could handle the complex problems of the nation which the Articles of Confederation could not address. The enumerated powers under Article 1, Section 8, are also broad. Congress not only has the power to provide for the common defense, but also provide for the general welfare of the United States. 66 Congress also has the power: To make all Laws which shall be necessary and proper for carrying into Execution the forgoing Powers, and all other Powers vested in this Constitution in the Government of the United States, or in any Department or Officer thereof. 67 Both the General Welfare clause and the Necessary and Proper clause are very broad, and these two clauses along with the commerce clause became a source of debate not only in the aftermath of the ratification of the Constitution, but also throughout our history onto even today. During the constitutional debates of the early republic James Madison, Thomas Jefferson, Alexander Hamilton, and others debated the interpretation of the enumerated powers over such issues as