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The States and the Constitution

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November-December 1965 - Vol 2, No 3

In this piece from the November–December issue of the Intercollegiate Review, acclaimed author M. Stanton Evans explores how the two major objectives of the framers of the Constitution: “to form a government vigorous enough to conduct the affairs of the nation, yet limited enough so that it did not endanger the rights of its citizens.”

The genius of American freedom is the division of powers. In this our system corresponds to the British practice from which it sprang; yet it is different. The division of powers in America means at once something more extensive and more specific than Crown, Lords, and Commons once meant in Britain. There has never been before, and perhaps never will be again, a government so equilibrated as the American system in full working order. Our complexities have been celebrated by spokesmen, both domestic and foreign, astonished that through such a maze of governments and sub-governments we can successfully rule ourselves.

The present age, with its special insistence upon collective action that is quick and sweeping, has seen such commentary redoubled. The ineffable counterpoise of the American Constitution, we hear it said, results in wasted energies, inefficiency, and needless delay. The purpose of this essay is neither to affirm nor to refute such charges, but rather to inspect in one of its most important particulars the curious machinery which has given rise to them. Our object is to determine what the American system is, and why it is; and although some of its merits will be implicit in what follows, a full discussion of them will have to await some other occasion.

The first point to be noted is that what seems to some critics to be confusion or sloppiness was quite deliberately arrived at. The Founding Fathers knew they were constructing a complex system, and themselves remarked on it. In an 1814 letter to John Taylor of Caroline, John Adams inquired: “Is there a constitution on record more complicated with balances than ours?” In the first place, he noted

eighteen states and some territories are balanced against the national government. . . . In the second place, the House of Representatives is balanced against the Senate and the Senate against the House. In the third place, the executive authority is in some degree balanced against the legislature. In the fourth place, the judiciary power is balanced against the House, the Senate, the executive power, and the state governments. In the fifth place, the Senate is balanced against the president in all appointments to office and in all treaties. This, in my opinion, is not merely a useless but a very pernicious—balance. In the sixth place, the people hold in their own hands the balance against their own representatives by biennial which I wish had been annual elections. In the seventh place, the legislatures of the several states are balanced against the Senate by sextennial elections. In the eighth place, the electors are balanced against the people in the choice of the president. And here is a complication and refinement of balances which for anything I recollect is an invention of our own and peculiar to us.1

Not all of these balances have survived; election of senators by the state legislatures was ended by the seventeenth amendment; the independent role of the state electors in choosing the president has, with an occasional exception, fallen into disuse. Yet the major outlines suggested by Adams are on the whole familiar enough to modern Americans in theory, if not in practice. So familiar indeed, that the reasons for their being have long since receded into the mists of memory.

Why is the American system so intricate? The large answer is that the Founding Fathers believed that only through the diffusion of political power could liberty be maintained. The more particular answer is that, in their quest for liberty, they relied in equal portions upon what they understood as their heritage as Englishmen, and upon their experience in the new world. They sought to bring tradition to bear upon the facts of their daily existence. From their heritage they derived one set of balances; from their experience another. The two fused, interlocked, and married, so that balances were struck within balances, and the system was equilibrated in every extremity.

From their English heritage—a heritage in which the absolute supremacy of Parliament à la Bagehot was not yet articulated—the colonists had derived the notion that governmental departments should in some wise be pitted against each other. The point of both exercises was given classic statement by James Madison in Federalist 51:

the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . 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.2

The insistence upon checks and balances was partly practical, of course; it had “worked,” the colonists believed, to preserve liberty in Great Britain, and it had “worked” in America. But its main force was theoretical; it was the prevailing idea of the age, affirmed by all respectable political philosophers. Madison’s disquisition is a brilliant statement of what all men of good sense in that era believed. No doctrine was more familiar to them than Adams’s assertion that a republic was “a government whose sovereignty is vested in more than one person.”3 The separation of legislative and executive, Edmund Randolph said at the constitutional convention, was the “received maxim” of the day;4 Madison called it “the sacred maxim of free government.”5 The doctrine fairly bristles from Madison’s Notes on the convention and from The Federalist Papers. According to then-current theories, the division of government into legislative, executive, and judiciary, with the legislature divided into a popular branch and an “aristocratic” branch, was as much as mortal men could do to restrain the effects of “faction,” while giving government its necessary powers. Had the American Constitution been a purely theoretical matter, things no doubt would have ended there.

But the Founders were not dealing simply with theories; they were dealing with the facts of life in America in 1787, and those could not be encompassed by the Euclidean trisection of the supreme authority. Madison and his colleagues confronted, not a single nation to be disposed of by abstract design, but thirteen separate nations, each possessed of an independent sovereignty. Such was the brute reality of the American situation, the reality from which arose those characteristics of our system rendering us not merely a “republic,” but a “federal republic,” and a “compound federal republic” at that. It is the federal element in our system which makes it so much more intricate than the English—even if our standard is the British constitution prior to the rise of parliamentary absolutism. There can be no adequate appraisal of the American government without recognizing this fact, without understanding that the states were the chief agents in founding the republic and maintaining its prolonged prosperity. The tension between local and general authorities, the diffusion of power, the necessity of a written constitution and of a pronounced legalism in the weighing of duties and prerogatives: these ingredients of American liberty are rooted in the institutions of federalism.


The Federal Idea

History affords perhaps two dozen clear examples of federations or confederacies prior to the founding of the United States. The Amphictyonic Council and the Delian League, the Ghibelline and Hanseatic Leagues of the Middle Ages, the Dutch Republic and the Swiss confederation, the sporadic fusions of Italian city states in the 15th and 16th centuries—all had been attempts to achieve concerted action with a maximum of local autonomy. Madison and Hamilton arrived in Philadelphia well read in the history of these experiments. Madison in particular stuffed himself with information about the Amphictyonic Council and the Lycian League, comparing their method of operation with the inadequacies of the Articles of Confederations.6The Federalist is replete with references to ancient confederations, and Federalist 18, 19, and 20 are given over to a case by case analysis of various attempts at federative association. The authors also note, in Federalist 19, that federalism in its modern form—as exemplified in the Holy Roman empire—owes much to the development of feudalism.7

In addition to this historical knowledge, the Founders had a certain residue of information and sentiment from their British background. While the structure of the British government was effectively centralized—the sheriffs were chosen by the king—a strong tradition of local autonomy, bequeathed by England’s own unusual variant of the feudal constitution, had nevertheless persisted. Edward Cheyney notes that “the ordinary Englishman in the seventeenth century had much more to do with local than with national government. The political institutions which surrounded him on all sides, insensibly controlling every action and forming the world to which his outward life conformed, were familiar to him and affected his habits and ideas, whether he remained at home or emigrated to the colonies, far more directly than did the political institutions of the nation.”8

Both by study and by habit, therefore, the Founders were predisposed to the idea of local autonomies under a federative system. But the federalism they evolved was different from either of its historical antecedents. The ancient and medieval examples, as Bryce noted, were most properly designated “leagues,” in which the unit of government that counts is the small autonomous state; such a league “will . . . vanish so soon as the communities which compose it separate themselves from one another.”9 Such a league was the American Confederation. In the second case, the British system of local government, the central authority has all the effective power—whatever the state of popular sentiment; the local officials are its functionaries, and through them it acts directly upon the citizens; the intermediary agencies are in fact administrative subdivisions, and can afford no security to freedom if slippage toward despotism sets in.

In the first case, the dispersal of power among several communities forestalls the dangers of consolidation, but tends to pull the system apart. In the second, the government gains in efficiency, decentralizing administration while maintaining responsibility at the center, but affords no safeguard against the ingathering of power.

The American Federal Republic corresponds to neither of these two forms, but may be said to stand between them. Its central or national government is not a mere league, for it does not wholly depend on component communities which we call the states. It is itself a commonwealth as well as a union of commonwealths, because it claims directly the obedience of every citizen, and acts immediately upon him through its courts and executive officers. Still less are the minor communities, the states, mere subdivisions of the union, creatures of the national government, like the counties of England or the departments of France. They have over their citizens an authority which is their own, and not delegated by the central government. They have not been called into being by that government. They existed before it. They could exist without it.10

Thus did Bryce set about explaining the American commonwealth to his countrymen. “America is a common-wealth of commonwealths,” he said, “a Republic of republics, a state which, while one, is nevertheless composed of other states even more essential to its existence than it is to theirs.”11

The vigor of the American states, at least until the 20th century, has seldom failed to impress foreign observers sensitized to the preconditions of freedom. It is no accident that the most notable friends of liberty in the nineteenth century—Tocqueville and Acton—were profoundly affected by the American variant of federalism. Tocqueville called it “the most perfect federal Constitution that ever existed”;12 Acton described it as America’s great contribution to theory and practice of government, saying: “It is the only method of curbing not only the majority but the power of the whole people, and it affords the soundest basis for a second chamber, which has been found essential security for freedom in every genuine democracy.”13

How America came to create a federal union transcending both ancient forebears and the British system which nourished it must be the next object of our consideration.


The Realities of 1787

Federalism demands diversity within a framework of orderly association. The first condition of successful federation, A. V. Dicey tells us, is “a body of countries . . . so closely connected by locality, by history, by race, or the like, as to be capable of bearing, in the eyes of their inhabitants, an impress of common nationality. . . . It is certain that where federalism flourishes it is in general the slowly matured fruit of some earlier and looser connection. Second, the inhabitants of the territory to be governed must desire union, and must not desire unity.”14 These were exactly the sentiments which prevailed in 1787. The Americans were actuated by loyalty to a common set of principles as sons of England: From Massachusetts Bay to Georgia, they had for 150 years considered themselves citizens of England entitled to the rights of Englishmen. They all looked to the British heritage of liberty under law, of respect for popular freedom and the rights of property. They all studied Coke and Locke and Blackstone and Montesquieu. And they all had state governments premised on English ideas: “The states were alike in structure; they had the same political inheritance; the fundamental ideas of English liberty and law, taking root in congenial soil, had grown strong in every section.”15 All of these common characteristics had led them to unite in the war for Independence, and clearly made them capable of bearing “an impress of common nationality.”

But there were other factors. Within the framework of heritage, practice and common cause there were strong motives toward diversity. During the war the colonies had reason to focus on values held in common, and to act in concert. War’s end gave them occasion to consider their differences once more—which, indeed, was one of the privileges for which the war had been fought. They had staged a revolution to defend local prerogatives against a distant central authority—as Andrew McLaughlin put it, “to support local government against a general government”16—and were not anxious to surrender their hard-won privileges to some other distant authority. And the state governments were working governments in fact, with all the customary advantages of authority de facto and de jure.

Dicey notes that “in 1787 a citizen of Massachusetts felt a far stronger attachment to Virginia or to Massachusetts than to the body of confederated states”17—a fact which may be verified by noting that Jefferson referred to Virginia as “my country,” and that John Adams, whose theoretical attention to states’ rights was nil, used the same affectionate language toward Massachusetts. These “countries” conducted themselves toward one another very much as countries everywhere behave in international concourse—sometimes wisely, sometimes not so wisely. Harold U. Faulkner summarizes the boundary disputes, commercial warfare, boycotts, and punitive duties which the states inflicted upon one another, concluding they in effect dealt with one another as foreign powers.18 Which in fact and in law is precisely what they were.

If all of this seems improbable to modern Americans, it is because we have forgotten the relative isolation of the states. It was then a four days’ ride from Boston to New York on the best roads in America. “The highways of Pennsylvania were almost impassable, and travel on them was little less than misery. South of the Potomac the roads were still worse; there even bridges were a luxury.”19 Charleston, the largest city in the South, had in some ways more in common with Bermuda, which at least shared its global latitude, than it did with Richmond. “Of affairs of Georgia,” Madison said in 1786, “I know as little as of those of Kamskatska.”20 Moreover, the fact that the colonies had been settled along the Atlantic seaboard meant each of them had its own coastline and harbors. The disputes characteristic of these foreign powers, while occurring frequently enough to stress the fact that they were “foreign,” were therefore minimized. The colonies did not have to depend greatly upon one another, and did not have to struggle over vital seaports.21 Prof. Francis Walker comments:

Prior to the outbreak of the revolution, in 1775, hardly a trace of sentiment of American nationality had manifested itself among the colonies. Carolinians were content to be Carolinians; Virginians to be Virginians; New Yorkers to be New Yorkers. . . . The state governments had a real and vital existence. They were well organized, with compulsory powers. . . . The states dealt with the really larger interests of society, the care of the peace, the protection of person and property, the domestic relations, the ordinary course of private, social, and industrial life . . . 22

Such was the outlook and condition of the American colonies at the time of the revolutionary war; not one nation with thirteen administrative subdivisions, but thirteen nations, sovereign and independent. When the British government treated to end hostilities, it conceded independence not to “America,” but to the states, calling each of them out by name. The Treaty of Paris, September 3, 1783, states: “His Britannic majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantation, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign and independent states; that he treats with them as such.”23 This document is the legal basis for the existence of the United States—a ratification in international law of what had been achieved by the strength of American arms, a verbalization of sentiment and custom which prevailed among the fathers of our republic.


The Articles of Confederation

The Articles of Confederation, under whose sign the Revolution was concluded, had given full recognition to the particularism of the colonies. Richard Henry Lee’s motion before the Continental Congress (June 7, 1776) urging a plan of confederation presaged the language of the Treaty of Paris: “these United Colonies are, and of right ought to be, free and independent states.”24 Debate on this motion raised some of the questions which were to become stumbling blocks to the confederacy, hazards upon which the Constitution was almost capsized, and perplexities which still confound students of the American government. “If a confederation should take place,” John Adams wrote to his wife Abigail,

one great question is, how we shall vote. Whether each colony shall count one? Or whether each shall have a weight in proportion to its wealth, or number, or exports and imports, or a compound ratio of all? Another is, whether Congress shall have authority to limit the dimensions of each colony, to prevent those, which claim by charter, or proclamation, or commission, to the south sea, from growing too great and powerful, so as to be dangerous to the rest.25

Events relentlessly pressed the Americans toward a solution. By the summer of ’77, it was apparent a confederacy was needed to prosecute the war and to raise money to pay for it. Accordingly, the major impasse was broken and the dilemmas of sovereignty answered in favor of the states. The fathers agreed that: “In determining questions in the United States, in Congress assembled, each state shall have one vote.”26 The point was underscored in Article II, the first substantive paragraph of the document: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”27 A principal disputed issue, that of levying taxes, was left in the hands of the states. The power of raising taxes for the common treasury was intrusted to the state legislatures—source of considerable difficulty in years to come.

The Articles of Confederation were a great achievement. They established the concept of dual sovereignties within a single system, even though they failed to make the idea fully workable. McLaughlin observes that “with remarkable care they separated the particular or local powers from those of general character . . . under no conditions, of course, would the states surrender all political authority to any central government; but by the Articles of Confederation they granted nearly every power that was really of a general or national character.”28 Farrand shows that the Founders, while sensible of the Confederation’s defects, nevertheless believed it a worthy form of government, needing improvement rather than radical reconstruction.29 The conclusion of Merrill Jensen, although he has partially retracted the Beardian language about “radicals,” is to the point:

An analysis of the disputes over the Articles of Confederation makes it plain that they were not the result of either ignorance or inexperience. On the contrary, they were a natural outcome of the revolutionary movement within the American colonies. The radical leaders of the opposition to Great Britain after 1765 had consistently denied the authority of any government superior to the legislatures of the several colonies. From 1774 on, the radicals continued to deny the authority of a superior legislature whether located across the seas or within the American states.30

The Articles were, in short, designed to good purpose—to create sufficient power for essential national tasks, while preventing its excessive accumulation. They put diplomacy and commerce, the making of war and peace, the raising of a navy and the regulation of militia, and the establishment of rules for free internal trade, into the hands of the central government. They left all other powers to the states. In the first legal document of Union, two things were thus established: The sovereign independence of the states, as the legal entities creating the government; while some designated aspects of sovereignty were, for the good of the whole, transferred to a central authority.

With the exception of a few ardent nationalists like Hamilton and Gouverneur Morris, the founders did not repent the general formula; but they came to see that the apportionment of power they had achieved was not adequate to their purpose. The Confederation had trouble raising revenues, dependent as it was on the good will of the states for collections; it had a similar difficulty in enforcing other decrees, lacking as it did the power to act directly on the citizenry; and because of its financial distress, it proved too weak to uphold the interests and the honor of the United States abroad.

In 1787, after six years’ experience had improved their understanding of the federal balance, the Founders saw they had not given Congress the energy it needed to carry out tasks of national scope. Pressures mounted for correction and enlargement of the Articles, resulting in the Philadelphia convention of May, 1787. The Founders gathered, not to spin a new order out of their imaginations, but to put into action the results of their experience, to combine what they had learned with the imperatives of tradition and of law. And in all they did, they reckoned at every step with the obdurate reality enshrined in the custom and sentiment of America as in the legal framework of the Articles: They were dealing, not with a single nation, but with thirteen jealous and energetic sovereignties.


The Federal Convention

The American Constitution succeeded by making a virtue of hard necessity: it blended the formulae of Harrington and Montesquieu and Adams with the native conditions of American experience. The features of tripartite check and balance were interfused with the federal structure inherent in the existence of the states. The result was not one, but two securities for freedom, each interacting upon the other: The doctrine of divided powers within the federal authority, and the doctrine of enumerated powers which limited that authority in the aggregate. To compound matters, the states themselves were organized internally in terms of the tripartite balance, and were working agencies in various departments of the central authority.

In the convention, the states had one vote apiece. The burning question was whether they would emerge from the gathering with the same powers they carried into it. The large states, repeating arguments of ten years earlier, saw no merit in voting as states. Such things as population and wealth, they argued, would be more appropriate grounds for representation. The small states, concerned that they might be “swallowed up,” insisted upon equality. There seemed little prospect of reconciling everyone to a common arrangement. But not all members were blinded by parochial interests. Some foresaw that the apparent nemesis of the convention might be its principal virtue. The framers, after all, were interested in two major objectives: to form a government vigorous enough to conduct the affairs of the nation, yet limited enough so that it did not endanger the rights of its citizens.

As early as June 2, John Dickinson, one of the great unsung heroes of American political theory, gave an almost perfect summary of the result which was to emerge from the convention three months later. “One source of stability,” Dickinson said, “is the double branch of the Legislature. The division of the country into distinct states formed the other principal source of stability. This division ought therefore to be maintained, and considerable powers be left with the states. . . . If ancient republics have been found to flourish for a moment only [and] then vanish forever, it only proves they were badly constituted; and that we ought to seek for every remedy for their diseases.” One of these remedies he conceived to be the accidental lucky division of this country into distinct states; a division which some seemed desirous to abolish altogether. As to the point of representation in the national legislature as it might effect states of different sizes, he said it must probably end in mutual concession. He hoped that each state would retain an equal voice at least in one branch of the National Legislature.”31 Dickinson had attempted, in the early wrangling over the Confederation, to infuse greater strength into the central government; now he attempted to prevent that government from becoming too strong. Both efforts were correct, and both remarkable for the clarity with which they foretold the final equipoise of the Constitution.

A month and a half after Dickinson’s statement, precisely these “mutual concessions” were adopted. The delegates had already decided the lower house of the legislature would be chosen through proportional representation—that is, with seats apportioned among the states according to population. On July 16, by a narrow 5 to 4 vote, it was agreed the upper house would be chosen by states—that is, with each state having an equal vote. This was the turning point of the convention. Though many details remained to be settled, the major danger was averted. The small states had won the day, and the principle of states’ rights was welded permanently into the Constitution. “This is,” Farrand tells us, “the great compromise of the convention and of the Constitution. No other is to be placed quite in comparison with it.”32

The states now became vital agents in the operation of the new government. Subsequent to the guarantee of equal suffrage, they were accorded the major role in electing the President, through the machinery of the electoral college. “The election of the President and Senate,” Madison later observed, “will depend, in all cases, on the legislatures of the several states.”33 And in further deference to small-state fears, it was made plain the new government would be one of severely limited powers. Its authority would extend only to matters given it in the Constitution, and would be barred from all matters not so designated. The powers of the federal government, as Madison put it, were to be “few and defined,” those of the state governments “numerous and indefinite.34

The Constitution was not intended, as has been by both its enemies and some mistaken friends, to reconstitute the nation according to a radically new design. Its purpose was to retain the original principle as nearly as possible, while correcting the system in the light of experience.35 The fundamental rules of construction were not altered; instead, certain specific powers which the Confederation did not give the central authority were to be vested in it. All such specific powers not transferred were, exactly as under the Confederation, to remain with the states.

This simple fact of our history, so important to assessing the founders’ intentions, has been obscured both by those who picture the Constitution as a grand and necessary consolidation, and by those who want to disparage it as a conspiracy against the common man. It may be argued the delegates in Philadelphia exceeded their powers; yet if so, they did not seek to overturn the going system. They sought to improve it. “The truth is,” Madison wrote,

that the great principles of the Constitution may be considered less as absolutely new, than as the expansion of principles which are found the Articles of Confederation. . . . If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of new powers to the Union, than in the invigoration of its original powers.36

Farrand repeatedly notes the reliance of the convention upon the formulae of the Articles, and adds:

There is practically nothing in the Constitution that did not arise out of the correction of . . . specific defects of the Confederation. . . . However much the members of the federal convention may have prepared themselves by reading and study, and however learnedly they might discourse upon governments, ancient and modern, when it came to concrete action they relied almost entirely upon what they themselves had seen and done. They were dependent upon their experience under the state constitutions and the articles of confederation . . . It is possible to say that every provision of the federal constitution can be accounted for in American experience between 1776 and 1787.37

When the Constitution emerged from the convention, however, many of its opponents claimed the system had been radically changed. The general government, they alleged, would engulf the states; the reserved powers cherished under the Confederation would be effaced. Madison, Hamilton, and James Wilson were at great pains to prove these accusations untrue; the Constitution like the Articles, they stressed, reserved all powers not specifically delegated to the several states.

Hamilton, the aboriginal centralist, was plain-spoken. “An entire consolidation of the states into one complete sovereignty,” he wrote in Federalist 32, “would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the state governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”38 (Emphasis added.)

In Federalist 33, Hamilton declared that “acts of the larger society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies . . . will be merely acts of usurpation and will deserve to be treated as such.”39

Madison, in Federalist 45, gave the position its classic formulation:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state.40

In Federalist 39, Madison put it that: “It is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all members of the republic, but which are not to be attained by the separate divisions of any. The subordinate governments, which can extend their care to all other objects which can be separately provided for, will retain their due authority and activity.”41

In the Virginia ratifying convention, Madison said the parties to the Constitution would be “the people—but not the people as composing one great body; but the people as composing thirteen sovereignties.”42

Among the most frequent accusations against the Constitution was that it contained no Bill of Rights. Wilson, Madison and Hamilton replied that, because the new government was one of enumerated powers, no Bill of Rights was necessary. Incursions against freedom of speech and press, etc., would be impossible, they argued, because no authority was given respecting such things. Moreover, a partial enumeration of “rights” could be highly dangerous, because it might create the presumption that rights omitted from the list were not secure from governmental interference. The “enumerated powers” doctrine provided far better security.

Madison wrote that he was not greatly concerned about enacting a Bill of Rights because “the rights in question are reserved by the manner in which the federal powers are granted. . . . The limited powers of the federal government, and the jealousy of the subordinate governments, afford a security which has not existed in the case of the state governments and exists in no other.”43

Hamilton, in Federalist 84, argued: “ . . . bills of rights, in the sense and to the extent which they are contended for, are not only unnecessary, 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?44 (Emphasis added.)

These reiterated arguments had their effect. Federalists and Anti-Federalists compromised on the proposition that the Constitution would go into effect, with certain desired amendments to follow. Preeminent among these was a clause putting into law the rule of construction elaborated by Madison and Hamilton. Among the states insisting upon this step were Virginia, Massachusetts, South Carolina, New Hampshire, New York, North Carolina, and Rhode Island. Each of these appended to its act of ratification either a demand that a guarantee of reserved powers be written into the Constitution, or a statement explaining that its act was based on the understanding that the powers were in fact reserved as the Constitution stood. Owing to the arguments of the proponents, it is safe to assume that in all the states—particularly in such smaller ones as New Jersey, Delaware, and Connecticut—the men who ratified the Constitution did so on the premise that the government they were establishing was one of enumerated, limited powers. But to make it certain, seven of them, or a clear majority, made the matter explicit.45

In 1823, Jefferson wrote: “I have been blamed for saying that a prevalence of the doctrine of consolidation would one day call for a reformation or revolution. I answer by asking if a single state of the Union would have agreed to the Constitution had it given all powers to the general government? If the whole opposition to it did not proceed from the jealousy and fear of every state of being subjected to the other states in matters merely its own?”46 The question was well asked. Had not the “enumerated powers” construction been agreed upon, the Constitution would never have come into being at all. McLaughlin tells us:

The Amendments which were asked for by the Massachusetts convention were intended to limit the powers of Congress and to assure the individual certain rights and privileges. The most important was the first, declaring that the Constitution should explicitly state that all powers not expressly delegated by the Constitution were reserved to the several states. The method of ratification had its influence in other states. Had the delegates been reduced to the alternative of rejecting the Constitution or accepting it without reasonable hope of amendment, their fears in some cases would have made rejection certain. But the conciliatory proposition met with favor. Of the seven states acting on the Constitution after Massachusetts, only one failed to accompany ratification with amendments recommended for subsequent adoption.47

The consensus of these states was translated into the clear words of the Tenth Amendment, which follows the language emerging from the recommended changes: “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.”

With that phrasing, and the legislative history which preceded it, there can be no serious doubt as to the severe boundaries the Founders intended to impose on the federal government. It is not within the power of words to make things plainer.


The Tenth Amendment

With the Tenth Amendment, we reach the most visible and accessible evidence of the Founders’ intentions concerning Federal-state relationships. People who may not have read The Federalist or looked up the debates in convention can quite readily get a copy of the Constitution itself, with all its amendments. And there, in black and white, is a tolerably clear statement of the states’ rights position. It is not surprising, therefore, that the meaning of the Tenth Amendment has been by degrees explained away. The Amendment, we are told, is at best a statement of conditions as they existed in 1789, at worst a redundancy. On the one hand, it is suggested, strict confinement of federal power may have been proper for an agrarian society, but obviously cannot be proper for America today. On the other, it is argued that the amendment is a truism holding merely that everything which pertains to the federal government pertains to it—a formulation which tells us nothing about appropriate lines of division.

A little investigation will prove both forms of this argument inconsistent with the evidence. We have seen that the doctrine of reserved powers, far from being an empty tautology, was fraught with specific meaning for the Founders; they would not accept the Constitution until it was guaranteed to them. To suggest the fruit of their insistence was a mere word game comports neither with their expressed purpose nor with the careful economy of language which, as good legalists, they constantly affected.

Moreover, as legalists, they did not intend the Tenth Amendment to be merely a statement of the then existing balance between state and Federal governments. Their intention was to govern that balance in the years to come—to lay down a rule of construction by which the dual sovereignties of state and nation could be held in proper equilibrium. Such a rule was and is necessary for the success of the federal enterprise. Federalism, yoking together two kinds of authority, must have ground rules for determining controversies. As one authority notes, “federalism, to be genuine, can never be completely one-sided. A balance of functions and authority, always precarious, must be maintained by the central and local authorities.”48 Without that balance, the project must inevitably slip into one extremity or the other, or else founder in dispute and eventual bloodshed. The Tenth Amendment was an effort to make clear the ground rules for avoiding such dangers.

The proper rule of construction under a federal system is so fundamental that, unless it is understood, the insights gained from other aspects of our study will profit us little. It would be all too easy for everything otherwise established simply to be “interpreted” away. Concerning the Tenth Amendment, R. L. Ashley says:

In this amendment we find given the means of determining whether apower is rightfully exercised by a state, and this is done by finding out what does not belong to the state. If a power is given to the central government alone, or if it is prohibited to the states by the Constitution, it cannot be used; all other powers belong to the states, and can be exercised by the state governments unless the state constitutions forbid. . . . Practically all matters belonging to the criminal and to the private laws are regulated by the states, including laws regarding property and the business and personal relations of one individual to another.49

The genius of federalism consists exactly in the fact that it balances units of government one against the other; should it yield to centralizing tendencies, the balance is upset. It must hew to strict construction or else relinquish its reason for being. A. V. Dicey gives an excellent summary of the federal logic:

The constitution must necessarily be a“written” constitution. . . . The constitution must be a written document, and, if possible, a written document of which the terms are open to no misapprehension. . . . The constitution must be what I have termed a “rigid” or “inexpansive” constitution. The law of the constitution must be either legally immutable, or else capable of being changed only by some authority above and beyond the ordinary legislative bodies, whether federal or state legislatures, existing under the constitution. . . . It is hard to see why it should be held inconceivable that the founders of apolity should have deliberately omitted to provide any means for lawfully changing its base. Such an omission would not be unnatural on the part of the authors of a federal union, since one main object of the states entering into the compact is to prevent further encroachments upon their several state rights; . . . The question, however, whether a federal constitution necessarily involves the existence of some ultimate sovereign power authorized to amend or alter its terms is of merely speculative interest, for under existing federal governments the constitution will be found to provide the means for its own improvement.50

The applicability of these words to our own Constitution is apparent. The Founders, as Judge Cooley pointed out, did not want the fundamental law to be changed whimsically;51 their object was to fix the relations of the state and federal governments with as much certitude as possible, and to insure as best they could that the central authority would not through improvisations gather state powers unto itself. Ability to change the fundamental law on the part of the ordinary legislature, Dicey writes

would be inconsistent with the aim of federalism, namely, the permanent division between the spheres of the national government and of the several states. IfCongress could legally change the Constitution, New York and Massachusetts would have no legal guarantee for the amount of independence reserved to them under the Constitution, and would be as subject to the sovereign power of Congress as is Scotland to the sovereignty of Parliament; the Union would cease to be afederal state, and would become a unitarian republic. . . . The legal sovereignty of the United States resides in the states’ governments as forming one aggregate body represented by three-fourths of the several states at any time belonging to the Union.52

And again:

The distribution of powers is an essential feature of federalism . . . as it is not intended that the central government should have the opportunity of encroaching upon the rights retained by the states, its sphere of action necessarily becomes the object of rigorous definition. . . . federalism, as it defines, and therefore limits, the powers of each department of the administration, is unfavourable to the interference or to the activity of government. Hence a federal government can hardly render services to the nation by undertaking for the national benefits functions which may be performed by individuals. . . . A system meant to maintain the status quo in politics is incompatible with schemes for wide social innovations. . . . The least observation of American politics shows how deeply the notion that the Constitution is something placed beyond the reach of amendment has impressed popular imagination. The difficulty of altering the Constitution produces conservative sentiment, and national conservatism doubles the difficulty of altering the Constitution.53

It must be granted that the Founders’ ideas were not quite so precise as Dicey’s. Their theoretical approach to states’ rights was somewhat halting, conducted without benefit of a working theoretical vocabulary. When they thought self-consciously about restraining power, they tended to slip into the more comfortable categories of checks and balances within the supreme authority, a theme on which men such as Adams and the early Madison were tireless virtuosos of eloquence. Their federalism, as we have indicated, was a practical matter, and the theory explaining it came tagging after the fact.

It was Jefferson who first formulated the full states’ rights position, in the national bank controversy of 1791. Quoting the language of the Tenth Amendment, Jefferson said: “To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.” The reserved powers of the states, he said, formed “the foundation of the Constitution.”54 If they were violated, there could be no certain security for freedom.

The ultimate safeguard of liberty, under this interpretation, lay not in the tripartite division of federal powers, nor in the guarantees of free speech and free press, but in the aggregate limitation of the national power as a whole, implicit in the federal union. According to the theory and experience of the Founders, and of their British forebears, power could not be checked (in Madison’s phrase) by “parchment barriers.” It could be checked only by an equal and opposite power. The single ready source of such power outside the Federal government was the power of the states; unless that power were effectively husbanded and employed, there could ultimately be no restraint upon what the government might or might not do should its three branches become united in despotic intention.

It will be readily seen that this logic, if carried far enough, must result in the cul de sacof secession, and thus in the dismemberment of the Union itself. Because it goes beyond the Constitution and beyond federalism it can properly be settled in terms of neither; the answer when the dispute reaches this stage must be the test of arms—precisely the test which precipitated the Civil War. But the fact that the doctrine cannot find its resolution in terms of the Constitution should not blind us to the fact that it is implicit inthe Constitution, and—as Dicey suggests—implicit in the nature of federal union. By the Constitution, a boundary line is drawn around the powers of the Federal government; but suppose the legislature, the President, and the courts mutually determine to carry Federal authority across that line. How can it be repelled?

Insofar as this problem was considered at all by the drafters of the Constitution, it seems evident they envisioned some kind of concerted action by the states, even military action. Hamilton says in Federalist 28: “It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretences so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different states, and unite their common forces for the protection of their common liberty.”55

In 1798, when the Adams administration handed down the Alien and Sedition laws, the problem became all too real. Adams signed a law which made it a crime to engage in political opposition—as tyrannical a measure as ever enacted in America. Newspapers were closed and political dissidents sent to jail. Congress, President and judiciary joined in assenting to this siege of despotism. The balance of powers was not doing the job.

Jefferson turned to the more primeval safeguard of popular liberties, the reserved powers of the states. In the Kentucky Resolutions, he stated the first principles of liberty under the American system:

It would be adangerous delusion were aconfidence in the men of our choice to silence our fears for the safety of our rights; . . . confidence is everywhere the parent of despotism—free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions to bind down those whom we are obliged to trust with power; . . . our Constitution has accordingly fixed the limits to which, and no further, our confidence may go, and let the honest advocate of confidence read the Alien and Sedition acts and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits. Let him say what the government is, if it be not atyranny, which the men of our choice have conferred on our President, and the President of our choice assented to. . . . In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.

Authority for the Alien and Sedition acts, Jefferson said, was denied the Federal Government by the nature of the union, and by the Tenth Amendment. The answer sought was for state legislatures to declare the acts void, to refuse to enforce them, and to petition for their repeal. The language of the Kentucky Resolutions continues:

. . . this Commonwealth does therefore call on its co-states for an expression of their sentiments on the acts concerning Aliens, and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorized by the Federal Compact. And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited government, whether general or particular, and that the rights and liberties of their co-states will be exposed to no dangers by remaining embarked on a common bottom with their own: That they will concur with this Commonwealth in considering the said acts asso palpably against the Constitution as to amount to an undisguised declaration, that the Compact is not meant to be the measure of the powers the General Government, but that it will proceed in the exercise over these states of all powers whatsoever; That they will view this as seizing the rights of the states and consolidating them in the hands of the General Government with a power assumed to bind the states (not merely in cases made federal) but in all cases whatsoever, by laws made, not with their consent, but by others against their consent: That this would be to surrender the form of Government we have chosen, and to live under one deriving its powers from its own will, and not from our authority; and that the co-states recurring to their natural right in cases not made federal, will concur in declaring these acts void and of no force, and will eachunite with this Commonwealth in requesting their repeal at the next session of Congress.56

Madison gave utterance to similar sentiments in the Virginia resolutions and his Report of 1799. He noted, as he had in The Federalist, that the rule of construction clearly understood to prevail under the Articles of Confederation also prevailed under the new Constitution.57 He deplored the fact that “indications have appeared of a design to expound certain general phrases (which having been copies from the very limited grant of powers in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect of the particular enumeration which necessarily explains and limits the general phrases.”58 He added that “in all the co-temporary discussions and comments, which the Constitution underwent, it was constantly justified and recommended on the ground, that the powers not given to the government were withheld from it; and that if any doubt could have existed on this subject, under the original text of the Constitution, it is removed as far as words could remove it, by the [Tenth] Amendment, now a part of the Constitution, which expressly declares ‘that 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.’”59 On this subject, there could hardly have been a better authority, since Madison had been both the moving force behind the creation of the new government (and a big-state man, at that), and the principal exponent of its virtues in the battle for ratification, in which he and his fellow Federalists of that day hammered home this very rule of construction.


The General Welfare

We come now to the practical fate of states’ rights in the intervening century and a half. And when we do so, the most obvious fact which confronts us is that the outlines of the American system we have sketched above are nowadays barely visible. The fundamental emphases have been reversed; the standing rule concerning uncertain areas of power is no longer that the central government is denied what is not granted; it is instead deemed to possess what is not denied. The gray areas are no longer left to the authority of the states, but are ceded to the authority of Washington. The central government’s powers are no longer “few and defined,” but, as the state governments’ powers were intended to be, “numerous and indefinite.” Although the point is hardly in dispute, we may invoke the authority of Prof. Edward S. Corwin by way of illustration: “In general terms, our system has lost its resiliency and what was once vaunted as a Constitution of Rights, both state and private, has been replaced by a Constitution of Powers. More specifically, the Federal System has shifted base in the direction of a consolidated national power, while within the National Government itself an increased flow of power in the direction of the President has ensued.”60 It is not our province here to trace the various causes of this transformation; but it is necessary to take note of certain devices used in bringing it about.

These consist primarily in phrases seized from the body of the Constitution, subjected to centralizing construction apart from the rest of the document, and then imputed to the men who wrote it. As it happens, these same devices were brought forward in the early days of the Republic, and effectively answered at the time. The Founders were so far from accepting these verbal escape hatches that they anticipated and refuted them—a fact which has not, however, prevented modern-day centralists from resorting to them repeatedly.

The apertures through which most centralizing legislation has been thrust in the past three decades are the clauses which appear in Article I, Section 8, of the Constitution, wherein Congress is given power to lay and collect taxes to “provide for the common defence and general welfare of the United States,” and “to regulate commerce among the several states,” and “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers . . .” It is nowadays argued that, under the general welfare clause, for example, Congress may enact all sorts of public subsidies and controls, engage in business enterprises, conduct vast programs of Federal aid, dispense medical services, build housing, and whatnot. Under the commerce clause, it is deemed to have power to set wages and hours, regulate businesses, fix prices, establish regulations, control rents, etc. Indeed, the power of the Federal government to do all of this and more is today taken so much for granted that the last argument anyone raises concerning any of them is to suggest that they are not constitutional. The all-conquering potency of “general welfare” and “commerce” is part of our jurisprudence, and of our folklore.

It would be hard to conceive of anything more directly opposed to the intention of the Founders. While it apparently never occurred to the men of ’87 that the commerce clause could be carried to such lengths, certain opponents of the Constitution raised both the “general welfare” and “necessary and proper” issues. The matter was thoroughly discussed and, it seemed at the time, conclusively settled. Moreover, Madison had occasion in later years to comment upon it further, so that we have rather extensive commentary on the subject from the Father of the Constitution himself, who had given long personal consideration to every phrase in the document, and who knew better than anyone else what the language emerging from the convention did or did not mean.

The fundamental point at issue concerning the “general welfare” clause is whether it was intended to be a separate grant of power, distinct from other grants contained in the Constitution, or whether it was intended to suggest the purpose of the specific powers which were listed below it. If the first interpretation is correct, then the vast powers imputed to the federal government under this phrase are legitimate; if the second is correct, then they are illegitimate.

As in most matters involving the legal and constitutional ideas of the Founders, a glance at British experience will prove enlightening. One of the great endeavors of Englishmen in their centuries-long struggle to impose limits upon arbitrary power had been to insure that money granted the Crown could not be used for special and partial purposes, to the favor of one group and the detriment of another. The corollary of the principle that the king could levy taxes only with the consent of the whole realm was that the purposes for which they were spent should be for the good of the whole realm. Each was an essential aspect of the rule of law. Among the great principles of British liberty, Professor Stimson tells us, is “that the object of all levies, the end for which all moneys are raised by law, must be the general good of the people, that is, the good of the people, not of any one person, even the king, nor of any particular class, such as the nobles or the merchants.”61

In this sense, it will be seen that the “general welfare” concept is in fact a limitation upon the taxing and spending power; the purposes must be for the good of the polity at large, not simply to benefit some segment of it. Far from conferring unlimited authority through a general grant of power, it seeks to insure that particular grants will be used only for general purposes. That this meaning of the phrase was accepted by the Founders may be readily established.

To begin with, it should be reiterated that the phrase “general welfare” occurred in the text of the Articles of Confederation; yet no one would have dreamed that the phrase conferred upon the Confederation unlimited power to do whatever it wished. When controversy on the point first arose, Madison observed:

. . . the language used by the convention is acopy from the Articles of Confederation. The objects of the union among the states, as described in article third, are, “their common defence, security of their liberties, and mutual and general welfare.” The terms of article eighth are still more identical: “All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of acommon treasury,” etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress apower to legislate in all cases whatsoever. 62

The existing Congress under the Confederation of course did notpossess such power; if it had, the Philadelphia Convention would not have been necessary. Madison’s point was that the new Congress would have no such power either. The “general welfare” phrase was not an omnibus grant, but a statement of the purposes for which specific grants of power were to be used.

Serving in the first Congress, Madison again scored the devi