'PARTLY FEDERAL, PARTLY NATIONAL': THE FOUNDERS' MIDDLE COURSE.

• Author: McConnell, Michael

INTRODUCTION

I'd like to begin with a comment on Professor John Mikhail being here, because I think many of you in the room probably don't know him. He's not one of us--I think that's fair to say--but he is one of the five or six scholars around the country with the most comprehensive knowledge of the Founding. I've attended conferences with Professor Mikhail, especially the originalism conference in San Diego, for several years now. I invariably learned enormous amounts from him, even when I didn't necessarily agree with the conclusions that he reached. I open this way for two reasons that I think are actually important.

The first is that this says something about originalism: that originalism is a method for determining truths about the constitution. It is not an ideology, and it is not merely a tool for lawyers to get to the results that they want. That Professor Mikhail can be as erudite and thoughtful a scholar in the originalist mode as he is, and be as far from many of us in the room as he is, is evidence of that, and I think that's a wonderful thing. The second, which might be more important, is that we live in a time when people are not talking to each other. There are significant scholars in law schools who ought to be ashamed of themselves, because they would not come to this room, and they have given up on the idea that one should engage those with whom one disagrees on a scholarly plain. So, I am very happy to be able to be here on a platform with Professor Mikhail, who exemplifies an older spirit of scholarship.

1. THE FEDERALISTS AND THEIR OPPONENTS

   Now, a slight criticism about the panel: I actually think we need to have three people up here because there really were three positions at the time of the Framing. There were the consolidationists, perhaps including James Wilson and Gouverneur Morris, with whom Professor Mikhail associates himself. (1) There were also the confederationists: those who wanted almost all serious power to be in the state level and for the national government not to be national in character really at all. Their ideal was to have some kind of souped-up version of the Articles of Confederation. (2) The federalists, though, rejected both of those extreme alternatives.

   We would need a confederationist here to have the full range of alternatives, because I'm not going to defend that position. There are people today who believe that the confederationists prevailed in their pursuit of a very strong states' rights position. (3) The confederationist argument is heard infrequently in law schools, but it certainly is something that one hears around the country. It's a real, serious position, but it is no more true than the consolidationist position that the federalists also rejected.

   The truth, according to Madison, is that our Founders charted a middle course, creating a constitution that was partly national and partly federal. (4) Now, it wasn't just a silly, compromised, mushy-middle thing. They had a coherent theory of government, which did create a very powerful national government, but it was not one of--to quote the debate topic today-plenary power. The Constitution did not impart to the new national government what Professor Mikhail persistently refers to as a general welfare power. That was specifically rejected, (5) and the fact that the supporters and ratifiers of the Constitution went to the people and defended it on this ground--which Professor Mikhail concedes--is not something that we should dismiss. The Constitution gets its authority not from the men who designed it in Philadelphia, but from the people who ratified it in the thirteen states. (6)

   Therefore, it really matters what the people thought and what they were told. Consequently, I believe that the Constitution creates a partially federal, partially national government. The way Madison described it was, "the powers delegated by the proposed Constitution to the federal government are few and defined," and those left to the state governments are "numerous and indefinite." (7) Professor Mikhail takes a position along with the consolidationists: that the powers delegated to the federal government are unlimited and undefined, (8) and those left to the states are whatever pittance is left when the federal government exercises its unlimited plenary authority.

   To be more specific, again quoting from Madison, the federal powers "will be exercised principally on external objects, as war, peace, negotiation," foreign commerce and taxation. (9) Madison then says, "[t]he 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." (10) That means ordinary administration of justice, criminal law, property and contract law, tort, family law, and the basic infrastructure of ordinary life.

   Most Americans in the early years of the republic would never have occasion to encounter an officer of the federal government outside the port cities, where international commerce was taking place. The federal courts were the only institution of the national government that truly penetrated the interior. (11) Now, that is not how it eventually turned out. Look around; that is not the republic that we have today. Today, the United States resembles the consolidated union that the Anti-Federalists warned about, although I don't think we're all the way there.

   When you look at what States do today, their continuing importance to the political dynamic of the United States is apparent--our national structure continues to have substantial federal, non-national elements. (12) Still, we're a lot closer to a consolidated republic than we were at the beginning. Now, why has that happened? I think a fair summary of Professor Mikhail's position is that plenary federal authority was intentionally baked into the cake from the beginning and then sold to the American people with false advertising. But I don't think that's how it happened. I think it happened because of a series of changes between the Founding and today.

2. CAUSES OF THE MOVE TOWARD A CONSOLIDATIONIST CONSTITUTION

   Most importantly, the people made a deliberate decision to eliminate the key protection of State interests in the original Constitution: the Seventeenth Amendment. (13) The original idea was that each branch, including the States, had a check on all the others. The State's check on the federal government was the Senate because the State legislatures chose the Senators. (14) The federal government could not enact any law without the agreement of a majority vote of the Representatives of the State legislatures. (15)

   It's difficult to think of a more effective way to protect the interests of the States against a consolidated national government. But we, the people, in our wisdom, eliminated that check. Consequently, our Constitution is without a...