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September 2014 Policy Study, Number 14-4

   

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

   

Part IV: Federalism and the American Founding

   

 

The Framers not only had to come to a consensus and compromise on the Constitution, but they also had to get nine of the thirteen states to ratify the Constitution. The ratification debates over the Constitution took place during the fall of 1787. Because of the “rules of the Constitution, Congress sent the document to the states to be ratified not by state legislatures but by conventions that were elected by the people of each state.”[76] The Framers understood the delicate situation of the proposed new Constitution and that it needed legitimacy through the approval of the people through the ratifying conventions. By June 1788 the ninth state ratified the Constitution and “Congress passed a resolution to make the new Constitution operative, and set dates for choosing presidential electors and the opening session of the new Congress.”[77]

 

The debates during the Constitutional Convention and the debates during the various ratifying conventions were very difficult and complex. George Washington, who endorsed the Constitution, “thought that it was ‘little short of a miracle’ that the delegates had agreed on a new Constitution.”[78] The debates over ratification were just as difficult, or even more difficult, than those of the convention. The Federalists who supported the Constitution and the new stronger national government rallied to the Constitution. James Madison, Alexander Hamilton, and John Jay under the name Publius wrote 85 essays, which were published in New York in defense of the Constitution. The Federalist Papers became the primary text on the Constitution. Publius (the Roman name used by the authors) not only wrote about why the nation needed the Constitution, but Madison, Hamilton, and Jay explained in detail how the Constitution would work. This is still considered to be the best political writing in American history and The Federalist Papers are still used by citizens and scholars of the Constitution. In describing the impact of The Federalist Papers, Matthew Spalding wrote:

 

In recommending The Federalist, George Washington wrote that its authors ‘have thrown a new light upon the science of government, they have given the rights of man a full and fair discussion, and explained them in so clear and forcible manner, as cannot fail to make a lasting impression.’ Thomas Jefferson claimed the work was, simply, ‘the best commentary on the principles of government which ever was written.’[79]

 

While the Federalists were defending the Constitution, a group of noted individuals such as Patrick Henry and George Mason argued against the Constitution. The Anti-Federalists were concerned that the Constitution granted too much power to the national government, which would eventually create tyranny. The Anti-Federalists agreed with the Federalists that the Articles of Confederation were too weak, but they favored amending the Articles rather than replacing them with the new Constitution.[80] “Above all, the Anti-Federalists opposed any fundamental change in the existing relationship between the Confederation government and the States.”[81]

 

The Anti-Federalists in a series of letters argued that the Constitution drifted away from the principles of the American Revolution. The Constitution, according to the Anti-Federalists, created a powerful national government that was far away from the people, and a distant government was prone to corruption.

Anti-Federalists believed that the people should be close to their government to hold it accountable. This translated into a preference for the sovereignty of state governments:

 

As the Anti-Federalists feared, with a large republic comes anonymity and oligarchy. As the republic becomes larger, each individual becomes less significant and incentives to participate in governmental processes wane. The moral quality of human conduct likewise declines when personal relationships are replaced by impersonal and formal relationships.[82]

 

James McClellan notes that the Anti-Federalists “were strong advocates of States’ Rights who believed that self-government, independence, and individual liberty were best protected at the local level.”[83] Patrick Henry’s opposition to Virginia ratifying the Constitution illustrates this point:

 

‘We drew the spirit of liberty from our British ancestors,’ Patrick Henry told the delegates of the Virginia ratifying convention, and ‘by that spirit we have triumphed over every difficulty. But now, Sir, the American spirit, assisted by the ropes and chains of consolidation, is about to convert this country to a powerful and mighty empire. If you make citizens of this country agree to become the subjects of one great consolidated empire of America, your government will not have sufficient energy to keep them together. Such a government is incompatible with the genius of republicanism. There will be no checks, no real balances in this government.’[84]

 

The Anti-Federalists also saw the Constitution creating a powerful Congress that had the ability to tax, a powerful executive that may abuse power just as with the original “brute” King George III, and a powerful judiciary system that could destroy the sovereignty of the states. A significant concern for the Anti-Federalists was their belief that the Constitution did not do enough to secure fundamental liberties, and individuals such as George Mason began calling for a “Bill of Rights” for the protection of fundamental liberties. Federalists, in general, opposed this idea because they argued that not only was it problematic to list all liberties, because what happens if something should be left out, but the Constitution itself was a bill of rights because it created a government of limited powers.

 

The Federalist Papers responded to most of the arguments made by the Anti-Federalists. James Madison in Federalist No. 10 defended the Constitution by arguing that the new government would be able to counteract ambition and factions. As James McClellan described Madison’s argument:

 

The solution, argued Madison in Federalist 10, was the extended commercial republic proposed by the Constitution. A loosely knit confederation of small republics was neither desirable nor possible. Small republics might even pose a threat to liberty because they were governed by single-minded majority factions that are difficult to control. Such factions tend to be overbearing, and even tyrannical. They become intolerant of the rights of wealthy property owners, small religious sects, and other minority groups because they have few differences among themselves. The system of representation adopted by the Framers was preferable, said Madison, because it established a large commercial republic in which majority factions would represent diverse populations with different interests.[85]

 

“The federal government, in other words, would have a conservative, moderating influence on the affairs of the people, checking the radical elements in the States — like Daniel Shays,” stated McClellan.[86] This turned out to be correct, because during the administration of President George Washington the Constitution was tested when farmers in Pennsylvania rebelled in protest of the excise tax on whiskey. The Whiskey Rebellion, unlike Shays’ Rebellion, was successfully resolved by the Washington administration acting under the Constitution.

 

In order to calm the Anti-Federalist fears that the Constitution would create a powerful central government that would swallow up the states, the Federalists tried to reassure that the Constitution was a document of limited enumerated powers which also protected state sovereignty.  The solution to calm the fears of the Anti-Federalists was federalism:

 

The first step in gaining public support for the proposed Constitution was to explain and justify the redistribution of power crafted by the Framers. The American system of federalism, unprecedented in the history of nations, was a unique arrangement that seemed foreign to some and unworkable to others. What was the nature of this new union? If sovereignty was to be divided between the general or federal government and the States, who had ultimate authority to govern? These were difficult questions, but the authors of The Federalist answered them with consummate skill.[87]

 

The Federalists argued that the states “had not been reduced to provinces” under the Constitution.[88] James McClellan summarized the Federalist argument in this regard:

 

The nature of the union, explained Madison, was neither wholly national nor wholly federal, but contained both national and federal elements. Regarding the basic foundation of government, it was federal because the Constitution must be ratified by the several States. With respect to the legislature, the new Union was partly national and partly federal, one house resting on a national and the other a federal basis. The presidency was also partly national and partly federal, since the electoral vote was distributed partly in accordance with the principle of State equality, and partly according to population.[89]

 

Perhaps the best assurance given was by James Madison in Federalist Paper No. 45, which describes federalism:

 

The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the state governments, are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several states will extend to all 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.[90]

 

Alexander Hamilton argued during the New York ratifying convention that federalism:

 

forms a double security for the people. If one encroaches on their rights they will find powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by a certain rivalship, which will ever subsist between them.[91]

 

The Federalists argued that the principle of federalism was paramount to limited government, as Matthew Spalding explained:

 

Keep in mind that the United States Constitution is but one aspect of constitutional government in the United States. There are fifty state governments, each with their own constitutions, and they are key components of our ‘compound republic.’ Although national powers are clearly enhanced by the Constitution, the federal government was to exercise only delegated [enumerated] powers, the remainder being reserved to the people or the states as defined in their constitutions. The federal government was not supposed to hold all, or even most, power.[92]

 

The Federalists would eventually win the debate, as the Constitution was ratified in 1788 by the ninth state, New Hampshire (while Rhode Island became the last state to ratify in 1790), but part of their victory rested in the assurance of the first Congress passing a Bill of Rights.

 

The protection of liberties was an essential concern for the Anti-Federalists, and many state constitutions, if not all, had some form of protection of liberties written into their constitutions. In March of 1789, James Madison, who was serving as a Representative from Virginia, helped draft a Bill of Rights, which was “based largely on George Mason’s Declaration of Rights written for the Virginia Constitution of 1776.”[93] Although seventeen amendments were introduced, the Congress passed only twelve and by December 15, 1791, “three-fourths of the states had ratified ten amendments.”[94]

 

   

 

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