Federalism and Shared Powers

AuthorLouis Fisher
Pages1010-1013

Page 1010

FEDERALISM and SEPARATION OF POWERS are the two principal techniques in America for dividing political power. Federalism allocates power between the national government and the states; separation of powers distributes power among three branches of the national government and within each of the state governments. Although these divisions of power characterize national and state government, many essential functions of government are shared. Justice ROBERT H. JACKSON deftly noted in YOUNGSTOWN SHEET & TUBE CO. V. SAWYER (1952), "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Jackson directed his observation to the doctrine of separation of powers, but it applies equally well to federalism.

Independence from England in 1776 left the thirteen American states without a central government. Under the ARTICLES OF CONFEDERATION, drafted in 1777 but not ratified until 1781, each state retained "its sovereignty, freedom and independence," with the exception of a few powers expressly delegated to the national government. Various attempts were made over the years to bring a measure of effectiveness to the Confederation, but it was finally agreed after the ANNAPOLIS CONVENTION in 1786 to meet in Philadelphia the following year "to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union."

The delegates at Philadelphia rejected MONTESQUIEU'S theory that republican government could function only in small countries. He had argued that as a country increased in size, popular control must be surrendered, requiring aristocracies for moderate-sized countries and monarchies for large countries. JAMES MADISON, in THE FEDERALIST #10, made precisely the opposite argument: that republican

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government was more likely the larger the territory. In a small territory, a dominant faction could gain control. "Extend the sphere," Madison reasoned, "and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens."

Critics of the 1787 Constitution claimed that it promoted a national or consolidated form of government instead of preserving the independence of the states. An exceptionally blunt challenge came from the Virginia ratification convention, where PATRICK HENRY attacked the opening words of the Constitution: "What right had they to say, We, the people? ? Who authorized them to speak the language of, We, the people, instead of, We, the states?" Madison answered these critiques in Federalist #39, pointing out that the Constitution contained features of a national character but also vested some power directly in the states. The proposed Constitution, he said, "is, in strictness, neither a national nor a federal Constitution, but a composition of both." By "federal" Madison meant con federal: a confederation of sovereign states, such as existed under the Articles of Confederation.

The Philadelphia Convention wrestled with two rival proposals. The VIRGINIA PLAN called for a strong central government, while the NEW JERSEY PLAN advocated a confederation with few national powers. The latter attracted little support. The GREAT COMPROMISE, promoted by OLIVER ELLSWORTH of Connecticut, combined two antagonistic ideas: representation by population in the HOUSE OF REPRESENTATIVES and equal voting power for each state in the SENATE. He explained to the Convention on...

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