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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



These first ten amendments became known as the Bill of Rights, and they provided protection of liberties from encroachment by the federal government. Although time does not warrant a discussion on the entire Bill of Rights — as important as they are — the focus will only be on the relationship to the states. First, it is important to understand that the Bill of Rights only applied to the federal government. The First Amendment states that “Congress shall make no law,” and it was quite some time before the Supreme Court began the process of “incorporating” the Bill of Rights to the states through the 14th Amendment. For example, it is only recently that the Supreme Court has incorporated the Second Amendment — the right to keep and bear arms — to the states. “The purpose of the Bill of Rights — stated by both the Federalists and the Anti-Federalists — was to limit the federal government, not the states,” stated Spalding.[95]


In regard to federalism, the Tenth Amendment of the Constitution provides further limitations on the federal government, and the language of the Amendment is very similar to Madison’s reasoning in Federalist Paper No. 45. The Tenth Amendment states:


The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.[96]


James McClellan argued that the Tenth Amendment “was probably the one most eagerly desired by the various State conventions and State legislatures that had demanded the addition of a bill of rights to the Constitution.”[97] The purpose of the Tenth Amendment was to “lay such fears to rest” that the Constitution granted so much power to the national government that the states would eventually be destroyed. As McClellan wrote:


This amendment was simply a declaration that ‘the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’ The Federalists maintained that the Framers at Philadelphia had meant from the first that all powers not specifically assigned to the Federal government were reserved to the States or the people of the States. The amendment declares that powers are reserved ‘to the States respectively, or to the people,’ meaning they are to be left in their original state. It should be noted that the Tenth Amendment does not say that powers not expressly delegated to the United States are reserved to the States. The authors of the Bill of Rights considered and specifically rejected such a statement. They believed that an amendment limiting the national government to its expressed powers would have seriously weakened it.[98]


The Tenth Amendment is an extension of the principle of enumerated powers, because “power was delegated by the people, enumerated in the Constitution, and thus limited.”[99]


Roger Pilon argues that “powers are legitimate if and only if they have been delegated by the people and enumerated in the document through which the people constitute themselves as a political entity, their constitution. Thus, the doctrine of enumerated powers.”[100] Pilon notes that the principle of enumerated powers is contained both in the Preamble (“We the People”) of the Constitution and in the Tenth Amendment.[101] As Pilon states:


Finally, in the Tenth Amendment, the final documentary evidence of the Framers’ plan, we discover the doctrine of enumerated powers in its most explicit formulation…That final statement makes it clear beyond doubt that power is divided: some has been delegated to the federal government, as enumerated in the Constitution; the rest is reserved to the states — or to the people, never having been delegated to either level of government. In sum, the federal Constitution creates a government of delegated, enumerated, and thus limited powers.[102]


Although more attention is given to the Tenth Amendment in regard to federalism, the Ninth Amendment also applies to limiting the role of the federal government. The Ninth Amendment states:


The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.[103]


In describing the intent of the Ninth Amendment, James McClellan stated:


The Ninth Amendment was designed to quiet the fears of Anti-Federalists who contended that, under the new Constitution, the Federal government would have the power to trample on the liberties of the people because it would have jurisdiction over any right that was not explicitly protected against Federal abridgement and reserved to the States. They argued in particular that there was an implied exclusion of trial by jury in civil cases because the Constitution made reference to it only in criminal cases.[104]


This was one reason why the Federalists had argued against a bill of rights, because the question occurs of what happens when a “right” is not directly mentioned in the Constitution. The Ninth Amendment attempts to solve this problem. This also creates a problem because of the broad language used in the Ninth Amendment, but as McClellan argued, “this amendment is much misunderstood today, and it is sometimes thought to be a source of new rights, such as the ‘right to privacy’…”[105] “It should be kept in mind, however, that the original purpose of this amendment was to limit the powers of the federal government, not to expand them,” stated McClellan.[106]


In summarizing the significance of the Ninth and Tenth Amendments, Matthew Spalding argues:


The Ninth and Tenth Amendments briefly encapsulate the twofold theory of the Constitution: The purpose of the Constitution is to protect rights that stem not from the government but from people themselves, and the powers of the national government are limited to those delegated to it by the people in the Constitution. They also address the confusion (which was Madison’s concern) that may arise in misreading other amendments to imply unlimited federal powers. While the Ninth Amendment notes that the listing of rights in the Constitution does not deny or disparage others retained by the people, the Tenth Amendment states explicitly that all government powers except for those specific powers that are granted by the Constitution to the federal government belong to the states or the people.[107]


Based upon the Tenth Amendment, enumerated powers, and federalism, the Constitution left the states with wide latitude of policy independence. This created what is often called “dual federalism,” where both the federal government and state governments have separate sovereign spheres. The Constitution does place some requirements on states such as each shall have a republican form of government, and states are prohibited from engaging in policies in certain areas such as foreign policy and the ability to coin their own money. Nevertheless, states do hold considerable reserved powers based upon the Tenth Amendment.


The reserved powers or “police powers” of a state allow states to legislate in regard to health, safety, morals, and general welfare within the respective state. For example, a state can regulate commerce within its state geographic boundary (intrastate commerce) and it is responsible for a variety of policy areas such as education and transportation. Although the Constitution provides some guidelines for elections, the states administer elections. The states can also levy taxes, just as the federal government can levy taxes — this is a concurrent power or a shared power that both the federal and state governments have. Other examples include borrowing money and establishing a court system. The states can establish their own state court systems, just as Congress established the federal judiciary.


The states also have a role to play in amending the Constitution. A constitutional amendment can be proposed by a two-thirds vote in both the House of Representatives and the Senate and a constitutional convention can be called if two-thirds of state Legislatures agree — this is referred to as an Article V convention. In regard to ratification, an amendment must be approved by three-fourths of state Legislatures or by three-fourths of conventions called in the states to consider an amendment.


Perhaps one of the most inventive and clever designs by the Framers is the Electoral College. Rejecting the direct popular election of the President, the Framers of the Constitution looked to a more improved way to select a President by ensuring the protection of the states and providing every citizen with an equal vote. Gary L. Gregg, a political scientist and editor of Securing Democracy: Why We Have an Electoral College, wrote:


They [Framers] were convinced it would not be conducive to our common good to confine the political system to a simple and single formula of direct democracy. Rather, they established a complex system anchored to the more solid and varied foundations of a federative republic. As James Madison explained so clearly in Federalist 39, our Constitution is like a table with one leg upon the national community of individuals, a second upon the states directly as vital political entities, and yet a third upon a compound bond between the two.[108]


Gregg also argues that the design of the Electoral College reflects the greater role states played during the formation of the Constitution, which provides further evidence of the Founders’ commitment to federalism:


The Constitution itself was ratified by the votes of the states as sovereign states, not by a national referendum. Indeed, the ratification process was so constructed as to forbid any majority of states from binding the minority who did not freely choose to enter the new compact. Representation in the lower house of Congress was to be distributed according to population on a roughly one-man, one-vote proportional basis. But in the Senate, the states would exist as equal political entities, no matter their size in geography or population. The central government would act with power to compel individuals directly, but the states were to retain considerable authority over most functions of government, which adds another federal aspect for balance.[109]


The states would have a key role in the election of the President via the Electoral College. Perhaps the Electoral College and federalism are two of the most misunderstood components of American government today, partly because both are being undermined by the growth of big government and progressive democracy. Although the Electoral College is unfairly attacked as being both “undemocratic” and “out of date,” the process is actually fairer than if the Constitution had called for a direct election of the President.


As the Framers came to a compromise over representation in Congress with the House of Representatives based on population and the Senate based upon equality, the Electoral College provides the same protection to small states. Under the Electoral College the number of electors each state receives is based on the total number of Representatives and Senators. The Electoral College provides fair representation to small states: otherwise, just as with today, large states would dominate the election of the President. To summarize how the Electoral College works:


Mirroring the system as a whole, the presidential selection process was to be compound — both national and federal. The distribution of electors would partly be based on population (representation in the house) and partly on the states as autonomous political units (representation in the Senate). The system would be fair to both large states and small states, more populated regions and more rural communities. The process of selecting electors would occur separately in each state (and the method was left up to the people of the states to choose), and these electors would meet and deliberate within their own states. If the vote of the electors failed to resolve upon a single candidate, the more directly elected House would choose the president; however, House members would vote as single state delegations, adding yet another federal balance.[110]


A brief survey of the structures of the Constitution and the Framers’ design of federalism demonstrates that not only does the Constitution limit the power of the national/federal government, but the states play an integral part within the American constitutional system.




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