Federalism, History of

• Author: Harry N. Scheiber
• Pages: 997-1003

Page 997

Reflecting on the achievements of the CONSTITUTIONAL CONVENTION, JAMES MADISON, wrote in 1831 that the Framers had lacked even "technical terms or phrases" to describe accurately the governmental system they designed. Prior to 1787, the term "federal" had been used to signify confederation, a system in which SOVEREIGNTY remained with the constituent states that ceded certain elements of authority to a central government?and in which the central authority's legislature merely could propose measures to the states for approval. By contrast, in what was known as "consolidated" government, typical of the modern European nation-state, the central authority was the repository of sovereignty and the power of the locally based units of government depended entirely upon it. The Founders departed from all the historical precedents in both these modes, Madison declared, to produce a system that was "a novelty and a compound." It is this system that we know as American federalism, with its combination of features associated with both the consolidated (or unitary) nation-state and the old-style confederational form of government.

Nearly two centuries of colonial history in North America had afforded only rare examples of cooperation and coordination that presaged even in a remote way the system devised in 1787. In 1643, Plymouth, Massachusetts, Connecticut, and New Haven formed a league called the United Colonies of New England. Commissioners appointed by the four governments dealt with boundary questions, missions to the Indians, and even coordination of military operations in the Indian war of 1675?1676; but the organization soon faded into obscurity. The only serious effort at united action after that time and involving surrender of any colonial powers was the abortive Albany Plan of Union of 1754. Designed by BENJAMIN FRANKLIN and THOMAS HUTCHINSON, the plan would have created a council of the colonies and an executive appointed by the Crown. In addition to being empowered to declare war, conclude treaties with the Indian nations, and regulate territories outside the existing colonial boundaries, the council would have been given authority to impose taxes. But the plan foundered, with not a single colonial assembly giving assent to the proposal.

Certain qualities of the British colonial system itself had foreshadowed American federalism. Although formal authority remained squarely in the hands of the British government, still the colonies were given significant latitude in governing their own affairs. The sudden centralization of power after 1763, when the British decided to tighten the reins and impose new taxes and administrative reforms, precipitated the Revolutionary crisis. Even the exigencies of newly declared independence and armed conflict with Britain had not induced the American states, however, to surrender claims to sovereignty in the interest of national unity. Indeed, the ARTICLES OF CONFEDERATION specifically provided that each state would retain "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."

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Article III, moreover, described the government only as "a firm league of friendship." The notorious weaknesses of government under the Articles, leading to demands for basic reform by 1786?1787, derived from precisely this perpetuation of the states' prerogatives.

What the Convention sought to create in 1787 was a system in which some measure of sovereignty would be retained for the states; but the national government would be given powers ample enough to govern effectively, operate directly upon the citizens, and establish the nation as a credible presence in international affairs. The continued existence of the states as separate legal entities was an essential component of the original understanding embodied in the Constitution. Structural features that assured the states of great influence included the system of REPRESENTATION in Congress (including equal representation for each state in the Senate), the AMENDING PROCESS, and the voting by state in the House of Representatives in presidential elections not resolved in the ELECTORAL COLLEGE.

Equally important was the concept of enumerated powers. The jurisdiction of the proposed national government, wrote Madison in THE FEDERALIST #39, extended "to certain enumerated objects only, and [left] to the several states a residuary and inviolable sovereignty over all other objects." The "general principle" underlying enumeration of the central government's powers, as JAMES WILSON later wrote, was "that whatever object was confined in its nature and operation to a particular State ought to be subject to the separate government of the States; but whatever in its nature and operation extended beyond a particular State, ought to be comprehended within the federal jurisdiction." On this principle was designed Article I, section 8, with its enumeration of the specific powers of Congress, including control over foreign and INTERSTATE COMMERCE, coinage, and the military and naval forces; the power to establish roads and post offices, inferior federal courts, and an organized militia; and authority as well to declare war and conclude treaties, to create a federal district as the seat of government, and to govern TERRITORIES and regulate property of the United States. Specific limitations were also embraced in the original document of 1787: the prohibition against import and export taxes, grants of TITLES OF NOBILITY, BILLS OF ATTAINDER, suspension of HABEAS CORPUS except during rebellions or invasions, or congressional interference with the slave trade for a period of twenty years. Demarcating the boundaries of the states' authority were provisions in Article I, section 10, that prohibited the states from enactment of EX POST FACTO LAWS, bills of attainder, or laws impairing the OBLIGATION OF CONTRACT. The Constitution also forbade the states from entering into treaties or imposing duties or tonnage fees without permission of Congress.

The seeds of controversy over the proper reach of the bounds of national power were to be found, however, in the GENERAL WELFARE CLAUSE and in the NECESSARY AND PROPER CLAUSE. Article VI, moreover, included the SUPREMACY CLAUSE, holding that all laws and treaties made under the Constitution "shall be the supreme Law of the Land." Opponents of the Constitution cited all these provisions as evidence that the Constitution could easily justify a dangerous centralization of power, overwhelming the states and rendering their alleged residual sovereignty a nugatory matter. A new tyranny, according to this view, could easily be the result of consolidated, unitary government.

Anticipating exactly such objections, the Framers built into the federal design a guarantee of a REPUBLICAN FORM OF GOVERNMENT to each state. The PRIVILEGES AND IMMUNITIES, and extradition provisions further buttressed state authority. The most important consequence of concern about the centralization of power and potential tyranny, however, was the movement for a BILL OF RIGHTS. The first nine amendments, together with the original provisions of the Constitution prohibiting the states from enacting bills of attainder or abrogating contracts, represented an effort to establish national ideals of justice?defining boundaries beyond which government must respect the rights of individual citizens. The Bill of Rights served to reinforce federalism itself as a bulwark of defense for liberty against concentrated governmental power.

What values were intended to be served by this new system of federalism, a system described by a New York judge in 1819 as a "complex and peculiar structure" that permitted the states and the national government to move "in different spheres but occupying the same territorial space, operating upon and for the benefit of the same people"? The first value, designed to protect liberty and to give republican principles full play, was maintenance of government "close to the people." The champions of the Constitution contended that by giving a continuing?and vital?role to the states, popular oversight of governmental operations would be effective and there would be a high degree of participation in public affairs. These same contentions have been heard ever since in the arguments for a federal division of powers in American government.

A second value given a high place in the rationale for federalism was diversity itself. Regional differences in cultural values and local preferences on matters of law and policy would be permitted and find expression when important powers of government remained with the states. Providing in this manner for diversity meant, as Justice LOUIS D. BRANDEIS argued in NEW STATE ICE COMPANY V. LIEBMANN (1932), that "a single courageous state may, if its citizens choose, serve as a...