The Decline of Federalism, Part I

(Read part II here)

When conservatives look to Washington to enact every part of their agenda, they are unwittingly kicking the supports -all fifty of them- out from under conservatism itself. How far we have come from our Founders’ vision of a republic where “The powers delegated…to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." If the states are closest to the people, it is only in their legislatures that most issues can be properly and effectively settled. "When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power,” Jefferson warned, “it will render powerless the checks provided of one government on another, and will become as…oppressive as the government from which we separated." The most pressing public policy issue of our day is the decline of “federalism,” that is, the dispersal of power between states and the nation. Indeed, our “Federal” government’s increasing lack of federalism is at the heart of every other struggle our nation faces today.

To the Founders, the states were indispensable bastions of freedom. The people identified themselves as Virginians or New Yorkers, not Americans. They were represented in their state capitals by men whom they knew, and who knew their concerns, often personally. The states also maintained a healthy competition with each other in their rich diversity of tradition and law. “For these reasons, the states seemed the more appropriate locus for government authority. Only by maintaining the sovereignty of the states could republican government flourish.” To that end, but also to impel cooperation among the states, the Constitution created a Federal government that could act decisively in its own sphere of power, but one that would “owe its existence more or less to the favor of the State governments….” This dependency was another piece in the elaborate machinery of checks and balances that the Founders planted in our nation at its inception, ensuring that Washington’s reach would remain limited.

Almost immediately after the ratification of the Constitution, this novel idea of a “federal” government of “dual sovereignties” -a national government with a few defined powers, the others being retained by the states or people- aroused fierce controversy. James Madison had made it quite clear in Federalist #39 that “The proposed Constitution…is…neither a national nor a [confederal] Constitution, but a composition of both….” but finding this middle ground of “federalism” proved difficult for the young nation. As early as 1798, when the dubiously constitutional Alien and Sedition Acts were passed, parties emerged that erroneously claimed that the government was one or the other. The disagreement revolved around whether an act of Congress that was unconstitutional was binding on the states. The implications were profound.

In response to the Alien and Sedition Acts, men like Jefferson and Madison argued that, had the United States been founded as a national government whose decisions were binding on the states even if unconstitutional, then “…that would have made its discretion, and not the Constitution, the measure of its powers….” In effect, Congress could acquire new powers without fear if it was accountable only to its own Supreme Court, and not the states. To that end, it was argued, each state reserved “an equal right to judge for itself, as well of infractions as of the…measure of redress” –i.e. the right to “nullify,” or refuse to enforce, an unconstitutional Federal act.

Although Daniel Webster had used this theory of nullification to oppose the draft, and the Hartford Convention had drawn from it to encourage New England’s secession, no one put it into practice until 1828. A Federal tariff passed that year was refused enforcement by South Carolina on grounds of unconstitutionality. Taking up Jefferson’s mantle, Vice President John C. Calhoun defended this act of nullification, contending that “The Government is one of specific powers, and it can only exercise those powers expressly granted…all others being reserved to the States….” Nullification was seemingly discredited when President Jackson threatened to send troops into South Carolina, and the state backed down. The more vital issue of state sovereignty became guilty by association. It now appeared to be simple Southern feather-ruffling. This did not bode well for federalism, hinging as it did on the concept of states’ independence in their own sphere. If the Federal government could intrude into that sphere to force acceptance of its will, did the states retain any freedom in reality? 


TO BE CONTINUED