Does the Constitution allow the states to check Federal power?

Posted on February 12, 2014. Filed under: 17th century America, Politics, The Founders, U.S. Constitution | Tags: , , , , |

Part 5 of our series on the Federalist debates that gave us our Constitution takes us up to the wrangle over whether that proposed document gave the states  any real power to check the power of the federal government. As we saw in part 3, the federal government was given unlimited power to tax the states by the draft Constitution, in the name of national security. Anti-Federalists, and even some Federalists, were uncomfortable with this power. The Federalist idea was that the federal government would only tax the states heavily during times of war, and even then it would be forced to put any tax measure up for renewal every two years, so that Congress would have a chance to remove an unfair tax.

But Anti-Federalists argued that relying on a branch of the federal government (Congress) to check the power of the federal government was illogical. Congress would have to vote to check its own power to tax, and why would it? Who gives up their power like that? It would be unlikely that Congress would be that self-disciplined and have that kind of integrity.

The Federalist shot back that Congress was made up of representatives of the states. So if “Congress” was committing a crime, it was really the states committing it, because the people voted for their Representatives, who then voted (at that time) for their Senators. Elect good members of Congress and you won’t have to worry about Congress hurting the states. What happened to your faith in “republican virtue”, Anti-Federalists? The common people you see as so virtuous and protective of liberty will elect their own people to Congress, so there won’t be a problem.

The Anti-Federalists repeated their argument that any representatives who had to travel to a faraway federal government would eventually, inevitably, become corrupt, and put their own power and glory ahead of the people’s liberties. And when that happens, the states are left with no way to check federal power with the Constitution we currently have.

The Federalists tried to swagger through this argument, saying that the state legislatures had many ways to check federal power. Now, this was and is not true—the Constitution does not give the states any power to block federal legislation. It was just another version of the “republican virtue” argument, and the Federalists knew it. When the Anti-Federalists pointed this out, the Federalists responded with a shocking argument, in Paper 46.

First, they said, members of Congress will always put the states first:

“It has been already proved that the members of the federal will be more dependent on the members of the State governments, than the latter will be on the former. It has appeared also, that the [interests] of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government… whilst it will rarely happen, that the members of the State governments will carry into the public councils a bias in favor of the general government. A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States. Every one knows that a great proportion of the errors committed by the State legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the State, to the particular and separate views of the counties or districts in which they reside. …For the same reason, [the] members of the federal legislature will be likely to attach themselves too much to local objects. …Measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests, and pursuits of the governments and people of the individual States.”

That is, just as members of state governments care more about getting benefits for their districts than they care about doing things for the good of the whole state, so members of the federal government will always be pushing their individual states’ wants and needs rather than trying to do good for the nation as a whole.

This is an odd argument for a Federalist to make: the Paper is saying that the federal government will never really benefit “national prosperity and happiness, but the prejudices, interests, and pursuits” of the states. So why have a federal government at all?

This question is begged as the Paper goes on:


In other words, if the federal government passes a law the states don’t like, they can just refuse to obey it, and embarrass the government. This is hardly an argument that will convince the American people to vote Federalist. Again, why have the federal government if it cannot–even should not–control the states and make them obey federal law?

It only gets worse:


Yes, the Federalist Paper is saying that if the federal government passed enough laws considered to be assaults on states’ rights and individual liberties, the states can just revolt. There can be a civil war, and the United States government can be overthrown as if it were a “foreign yoke”. (This argument, by the way, would be dredged up in 1860-1 by Southern states to justify secession, saying that it was legalized by the Constitution.)

So the power given to the states by the Constitution to check the federal government is resistance to and war on the federal government. This is hardly a system of checks and balances; it is a system of obedience or war. The Paper wraps up thus:



So the Anti-Federalists’ fears that the federal government will crush the state government is wrong—state governments will actually crush the federal government. How the federal government can be strong enough to hold the states together in a union, and represent them as a nation to the world, while being at the same time too weak to impose its own laws on the states for fear of civil war and disunion is a riddle.

The Federalists knew this. They tried in several Papers to address the problem that the states cannot check the federal government, but the truth was that in our Constitution they cannot, and secession and civil war are not sanctioned by the Constitution, while state obedience to federal law is sanctioned, and despite the protests to the contrary in Paper 46, if the states did try to secede the federal government would use military force to bring them back, as it did in 1861.

The Federalists wanted a strong central government, and they did not believe that it would inevitably become corrupted. They backed the radical experiment of federalism over the morass of confederation, and really did not have any way to prove to the American people that the federal experiment would work and the confederate experiment would not. They asked the American people to take it on faith that they could trust their federal government, and moved on, as we will, to their own vision of republican virtue.

Read Full Post | Make a Comment ( None so far )

The Federalists on Unlimited National Security

Posted on January 29, 2014. Filed under: American history, Politics, The Founders, U.S. Constitution | Tags: , , , , , |


The Federalists replied by completely ignoring the whole argument as rearranging deck chairs on the Titanic. Their response focused on foreign policy and national security. A strong central government was absolutely essential to national security, they said—there’s no point worrying about domestic citizen virtue if the United States has been destroyed by a weak foreign policy and national defense. To survive in the world, the US had to be able to negotiate treaties in good faith; other nations had to believe the US would obey international law and live up to the terms of those treaties. For that to happen, the US had to have a strong federal government that could make sure the states lived up to the terms of the treaties. Without this mechanism for good faith negotiating, the US would open itself to invasion and dissolution.
















Next time we’ll see how this argument led to charges of trying to destroy the union being made by both sides.

Read Full Post | Make a Comment ( None so far )

Virtuous Republicanism and the Federalist Debates

Posted on January 21, 2014. Filed under: American history, Politics, The Founders, U.S. Constitution | Tags: , , , , |

In part 2 of our series on the Federalist debates, we look at the pros and cons of a strong federal government as argued at the time.













Read Full Post | Make a Comment ( None so far )

Federalists, Anti-Federalists, and the Debate over the Constitution

Posted on January 16, 2014. Filed under: American history, Politics, The Founders, U.S. Constitution | Tags: , , , , , |

Hello and welcome to our series on the Federalist debates. We have to admit that this is a topic we’ve avoided for a long time here on the HP; somehow these impassioned, immediate debates over the very nature of our founding principles, carried out with and for the general public, have failed to capture the imagination. Part of this, perhaps, is because the Federalist debates are one of the worst-taught areas of U.S. history in American schools. You’re told there was a debate over whether to have a strong federal government, the Anti-Federalists are represented as idiots fighting an obviously good idea, and you’re sat down to read a laboriously expressed Federalist Paper or two, and that’s that. The debates seem pointless, and the Papers seem unreadable.

The debates weren’t pointless, however, and the Anti-Federalists weren’t idiots. The Papers can be dense: classical references; long, semi-historical digressions; sentences that are a full paragraph long, using more semi-colons than even the HP would dare. But generally when they have a point to make they hammer it home with minimal rhetoric and maximum good sense. So we’re going to quote from some of the Papers in this series, to make our own points. (We are also indebted to the powerhouse lectures on the Federalist debates of Dr. Thomas Pangle, UT Austin, for the flow of our series.)

We do this because Americans in the 21st century are still having the Federalist debates. The questions the anti-Federalists raised are still valid today, and not just for that minority of Americans who want to dismantle the federal government completely. The questions the anti-Federalists raised, and the answers the Federalists gave, are eerily modern, and the most eerie part is that Federalists like Hamilton explicitly stated in 1787 that they were thinking forward hundreds of years, trying in vain to fully anticipate the problems the nation would face centuries after them, and trying to build in protections for the government and liberties for the people to preserve freedom in the face of threats they could not even imagine. As Hamilton put it, in Papers 23 and 34 (the capital letters are his, not ours):


These remarkable statements not only anticipate cyber-age threats no one could have dreamed of even 40 years ago, let alone 227 years ago; they also describe an argument about government power that is whipsawing American society today as we face the reality of NSA surveillance.

But that’s leaping ahead. Let’s start this series with a quick update to refresh the collective memory:

The Articles of Confederation adopted during the Revolutionary War by the Continental Congress established, as the name says, a confederacy: a league of friendship between sovereign political entities—in this case, the 13 states. The federal government, which consisted of a single-house Congress, did not impinge on the sovereignty of these states very much: it was authorized to handle foreign policy, national defense, disputes between states, interstate commerce, and legislating for new territories under U.S. control but not yet organized into states.

There was general concern that the states were headed for disputes that the weak federal government would not be able to resolve. Populist state governments were making zealous proclamations/warnings about maintaining their sovereignty, and it seemed increasingly likely that if the U.S. did face an external threat, like war with Britain or Spain, the federal government would be powerless to stop each individual state from going its own way—making separate peace treaties, or joining blocs of states that followed different policies, or refusing to pay federal taxes needed to levy an army in favor of prepping its own militia to defend its own borders and nothing else.

James Madison of Virginia and Alexander Hamilton of New York were the main leaders of a convention called to revise and edit the Articles of Confederation in the summer of 1787 in Philadelphia. The delegates to the convention met in secret, which worried many Americans, who were afraid they would make and pass substantial changes to the government without public input, and present the new Articles as a done deal after the fact. Those fears were realized in part when the delegates decided not to revise the Articles but to scrap them completely and write a new document. But fears that the new document would be railroaded through were not realized.

This is one of the amazing facts about the Constitution: the finished document was not referred back to the existing Congress for approval (many Americans think that members of Congress met at the convention, but while some delegates were also members of Congress, most were not; they were specially appointed by their states to go to the convention). The new Constitution was also not sent to the state governments for ratification. Instead, the proposed Constitution was sent directly to special conventions set up in each state and made up of delegates elected directly by the people. The Founders’ faith in the people, and their dedication to creating a republic where the people ruled, was unprecedented in western history. As the first Federalist Paper put it:


In other words, the American people will decide what system of government they will have because they have earned that right, “by their conduct and example”. A people so devoted to liberty, as proved by their conduct in fighting the Revolutionary War, must be “capable of establishing good government from reflection and choice.”

And so the debates in the special conventions began, and the Anti-Federalists and Federalists began their writing campaign to instruct and sway the people. The Federalist Papers, as well as the many documents written by the Anti-Federalists (they have no one unifying name) were published in newspapers and broadsides from October 1787 through August 1788, as the state ratifying conventions met, to educate the people about the issues at stake so they could influence their state conventions. It was a remarkable campaign on both sides to impact a vote not with lies, scandal, rumors, or personal attacks, but with logic, reason, examples, and thoughtful questions. Passions ran high, to be sure, but the passion was for the truth, and the best form of government, not for personal or party gain.

We won’t address every issue canvassed during the campaign to ratify or reject the Constitution, but we will look at those which are most pertinent to us today, in our “remote futurity”, so that we can call upon the Founders once again to help us decide our important issues of good government.

Next time: the pros and cons of big government

Read Full Post | Make a Comment ( None so far )

Liked it here?
Why not try sites on the blogroll...