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September 2014 Policy Study, Number 14-4

   

A Citizens Introduction to Federalism: Federalism and the Future of Constitutional Government

   

Part III: The Structures of the Constitution: Federalism

   

 

The Framers understood that the principle of limited government was vital to protecting liberty. This was a major concern for the delegates who drafted the Constitution. The national government must be limited, and that is why a written Constitution and the principles of separation of powers and checks and balances were so important. The states were also concerned that the proposed Constitution limited the powers of the national government so that they could protect their sovereignty. The design to protect the sovereignty of the states became known as federalism.  James McClellan argued that “federalism requires a written Constitution.”[56] As McClellan wrote:

 

there must be a fundamental law delineating the two spheres of authority, lest neither sphere will know the limit of its powers. If the central government acquires too much power, it may swallow up the weaker states, creating a unitary form of government. If, on the other hand, the state governments become too powerful, the union may be reduced to a league or confederation, or be abolished altogether.[57]

 

During both the debates during the Constitutional Convention and over ratification of the Constitution, the idea of limited government and the role of the states were debated by both advocates and opponents to the Constitution. The debates at the convention saw large and small states disagreeing on representation, which was eventually resolved with the Connecticut Compromise, but states were also concerned with the Constitution granting too much power to the national government.

 

In Why States? The Challenge of Federalism, political scientist Eugene Hickok describes the concern that delegates had in protecting the states:

 

The great irony in this, of course, is that the states meant everything in the late 18th century. The men who gathered in Philadelphia to consider changes to the Articles of Confederation, an alliance among the states, came as delegates from their states to act on behalf of their states.[58]

 

The solution to this problem came with the idea of federalism. Federalism, just as with separation of powers and checks and balances, is a fundamental principle built into the Constitution to not only limit government, but to protect the states and the people respectively. It is important to remember that the Framers were both students of history and political theory. They understood the dangers of both a pure democracy and unitary government. In addition, the Framers understood that the Articles of Confederation or the confederal system was not working. The New Jersey Plan, although only offering to amend the Articles, demonstrated that the Confederation Congress need more power.

 

The Founders then designed a new system which became federalism:

 

The Founders devised an alternative system, what Madison called a ‘compound republic’ and what is known today as federalism. The new arrangement consisted of a division between the central (or ‘national’ or ‘federal’) government and the states in which the existence and viability were Constitutionally sanctioned.[59]

 

In framing the Constitution, the Founding Fathers were confronted with a number of issues that caused both disagreement and concern. This not only included the issue of representation, but also sectional differences over slavery, how we should elect the executive (President), and how to best protect fundamental liberties. The issue of federalism or “what came to be called federalism was at the heart of it all.”[60] As Hickok argues:

 

The Constitution that emerged from Philadelphia in 1787 was debated in conventions in each state and was subject to ratification by the states. And much of the debate, deliberation, and conversation that took place during that summer in Philadelphia and during each state’s ratifying convention revolved around trying to understand the relationship that would emerge between the proposed central government and the governments of the several states.[61]

 

The unwritten structures of the Constitution — rule of law, separation of powers, checks and balances, and federalism — are supported by the powers specifically granted to the national government. One of the important purposes of a written Constitution is that the powers of government are stated within the document:

 

The national government while strong was also limited. The Constitution withholds power in two ways: by specific prohibitions — for example, no ex post facto laws or no taxes on exports; and by the general idea that the national government is one of enumerated powers — that is, that the government does not possess any and all powers, but only those powers granted to it (which, to be sure, are rather broad).[62]

 

The Constitution in Article 1, Section 8, lists the enumerated powers of our national government. Some of Congress’s enumerated powers include the power to provide for the common defense, to tax, to regulate commerce with foreign nations and the states, to borrow money, to coin money, to declare war, to establish post offices, and to establish courts, among others.[63]

 

Matthew Spalding describes the nature of the enumerated powers of Congress:

 

The diverse powers granted to Congress at first seem rather disorganized, ranging from clearly momentous (to declare war) to the seemingly minute (to fix weights and measures). But upon reflection, an underlying pattern emerges based on the distinction between key functions assigned to the national government and those left to the state governments. The two most important functions concern the nation’s security (such as the powers to maintain national defense) and the national economy (such as the power to tax or to regulate interstate commerce). And as might be expected, many of the powers complement each other in supporting those functions: The power to regulate interstate commerce, for instance, is consistent with the power to control currency, which is supported in turn by the power to punish counterfeiting and to establish standards for weights and measures. How can an economy function without a common currency?[64]

 

“While the federal government’s powers are limited, the powers granted are complete. The objective was to create an energetic government that could effectively accomplish its purposes,” noted Spalding.[65] This was the original goal of the Framers in drafting a new government which could handle the complex problems of the nation which the Articles of Confederation could not address.

 

The enumerated powers under Article 1, Section 8, are also broad. Congress not only has the power to provide for the common defense, but also provide for the “general welfare of the United States.”[66] Congress also has the power:

 

To make all Laws which shall be necessary and proper for carrying into Execution the forgoing Powers, and all other Powers vested in this Constitution in the Government of the United States, or in any Department or Officer thereof.[67]

 

Both the General Welfare clause and the Necessary and Proper clause are very broad, and these two clauses along with the commerce clause became a source of debate not only in the aftermath of the ratification of the Constitution, but also throughout our history onto even today. During the constitutional debates of the early republic James Madison, Thomas Jefferson, Alexander Hamilton, and others debated the interpretation of the enumerated powers over such issues as whether or not Congress could charter a national bank. Supreme Court Justice Joseph Story, who wrote Commentaries on the Constitution, argued that the Necessary and Proper clause “neither enlarges any power specifically granted; nor is it a grant of any new power to Congress.”[68]

 

The Necessary and Proper clause opens the door to the implied powers of Congress, which are powers not clearly stated in the Constitution. Alexander Hamilton argued during the debates over the chartering of the Bank of the United States that even though Congress did not specifically have an enumerated power to charter a bank, that power was implied based upon the powers that were enumerated in Article 1, Section 8. The use of implied powers by Congress continues to bring debate over the proper scope of Congressional power. It is important to remember, as James McClellan argued, that “the clause does not give Congress the implied power to make laws for any purpose whatever — only for the purpose of executing its enumerated powers…”[69]

 

The Constitution also provides inherent powers to the national government:

 

It should also be noted that each house of Congress possesses additional powers that are not always clearly specified in the Constitution. These are powers inherited from the English Parliament and the early State legislatures, and thus are called ‘inherited’ powers. Under certain circumstances, for example, each house can exclude persons from its membership. Other important inherited powers include the power to conduct investigations, to subpoena witnesses, and to judge the qualifications of members.[70]

 

Another example of the use of inherent powers was land acquisition, which was a controversial issue because of the constitutional questions involved and the question of slavery expanding further west. In 1803 Thomas Jefferson seized on the opportunity to make the Louisiana Purchase — probably the best real-estate deal in history — but it also caused a dilemma for Jefferson because the Constitution stated nothing about purchasing new territory. Jefferson, who believed in a literal or “strict” interpretation of the Constitution, eventually decided to purchase the territory in the national interest. Although nothing was specifically mentioned in the Constitution, Congress did have rules for statehood under the Northwest Ordinance of 1787 and the requirement that all future states would not only be equal when they joined the Union, but every state must have a republican form of government. 

 

The purpose of enumerated powers in the Constitution, just as separation of powers, checks and balances, and federalism, is to limit the power of the national government. Roger Pilon, Director of the Cato Institute’s Center for Constitutional Studies, wrote:

 

But it was the doctrine of enumerated powers that was meant to constitute the principal defense against overweening government. Since all power began with the people, the people could limit their government simply by giving it, through the Constitution, only certain of their powers. That, precisely, is what they did, through enumeration, thus making it clear that the government had only such powers as were found in the document.[71]

 

“The idea, plainly, was to limit government from the outset by limiting the things it could do, almost all of which, as Article 1, Section 8, of the Constitution indicates, relate to securing rights,” noted Pilon.[72]

 

While the national government was limited under the Constitution by the enumerated powers, the Framers did draft into the Constitution language that declares that the Constitution is the supreme law of the land. The Constitution in Article VI contained the Supremacy Clause, which “establishes the supremacy of the Constitution over all federal laws, state constitutions, and state laws.”[73] Under the Supremacy Clause, the Constitution is the supreme law of the land and state governments cannot supersede the Constitution. Article VI of the Constitution reads:

 

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.[74]

 

The Supremacy Clause of the Constitution, although defended by Madison and the other Federalists, was also “viewed with suspicion by Samuel Adams of Massachusetts, by Patrick Henry of Virginia, and many other American leaders.”[75] The reason for this suspicion was the fear and distrust they had for a large central government that could not only trample on liberties, but also swallow up the states. This was a major concern of Patrick Henry and other Anti-Federalists who opposed the Constitution because they believed it created an all-powerful central government.

 

   

 

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