The Twenty-First Century Still Needs Federalism

Yesterday was my last full day as a resident of Chicago, Illinois.  I leave today for the freer, warmer, better-armed, more deliciously beef-filled pastures of Texas.  Texas will be my fifth jurisdiction since turning age eighteen—I have also lived in New York, North Carolina, and Washington, D.C.—and, with an oversized cowboy boot collection, excessive Gadsden Flag paraphernalia, and a planned upcoming trip to the local Daniel Defense FFL, I hope to stay for awhile.

With the presidential race currently contested by one would-be despotic constitutional ignoramus and one pathologically lying should-be felon, my opting to move from one of America’s iconic blue states to one of America’s iconic red states is as good an excuse as any to stress the enduring importance of Founding-era concerns regarding the timeless subsidiarity principle and one of the constitutional Framers’ unique contributions to political thought: America’s federalist constitutional structure of dual sovereignty.

When the Constitution’s eventual Framers met in Philadelphia in 1787, they initially intended merely to amend the toothless Articles of Confederation—even if it became clear relatively early on in the process that the Philadelphia Convention would produce a fundamentally new governmental charter with a distinct design.  Once the Constitution was drafted and the subsequent public relations campaign to get the States to ratify the charter—a campaign which most famously took the form of The Federalist, with staunch pushback from the Anti-Federalists—had commenced, two key structural hallmarks became evident: the tripartite separation of powers, and federalism.  The former was largely inherited from the intellectual legacy of the Frenchman Montesquieu; it was the latter that was a distinctly American innovation.  The uniqueness of American federalism lay in the trueness of its establishing dual spheres of governmental sovereignty where most quotidian power would be retained by the States, but under which the National Government would be delegated discrete powers and would indubitably be superior under the Supremacy Clause of Article VI.  Thus, American federalism would certainly not be (lower-case “c”) confederate—that, of course, was a chief problem of the Articles—but it was also intended to be very far from a purer nationalism.

James Madison, as he was wont to do, described this system of dual sovereignty quite eloquently.  Here he was, in The Federalist No. 39:

Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.  In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution…

But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers.  The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government.  Among a people consolidated into one nation, this supremacy is completely vested in the national legislature.  Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures.  In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure.  In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere.  In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects

The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both.

The delicate balance between federalism and nationalism of which Madison spoke is itself closely related to the inherent tension between a government simultaneously both based in Lockean “consent of the governed” democratic principles and concerned with counter-majoritarian republican principles—Madison most famously discussed the latter when he spoke of societal “faction” in The Federalist No. 10.  The original distinction between methods of election for the National Government’s bicameralism, subsequently disrupted by the unfortunate Seventeenth Amendment—under which the Senate would be elected in republican fashion by the quasi-sovereign States’ legislatures, but the House would be elected in democratic fashion by the plebiscite—was itself symptomatic of this inherent tension.  And as it pertains to The Federalist No. 39, I think Wikipedia actually gets it largely right when it summarizes that Madison argued for “a democratic republic in which the principles are republican but the legitimacy is democratic.”

It is once again crucial to remember the background context of 1787: the hitherto largely sovereign confederate States met to agree over which specific powers to delegate to the new National Government.  It was always intended that the States would retain residuary power so that they might serve, as Justice Louis Brandeis would memorably phrase it a near-century and a half later in the 1932 U.S. Supreme Court case of New State Ice Co. v. Liebmann, as “laboratories of democracy.”  The very structure of the unamended Constitution—perhaps best encapsulated by the carefully worded vesting clauses of Articles I, II, and III—already made this clear, but the Ninth and Tenth Amendments were still drafted as rules of construction to assuage Anti-Federalist concerns and explicitly assure the polity of the retention of State sovereignty over most areas of daily life.

Here was Madison, once again, in a famous excerpt from The Federalist No. 45:

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.

Today, of course, the state of federalism is rather in shambles.  Post-Theodore Roosevelt/Woodrow Wilson progressives completely pervert the Declaration of Independence’s natural rights-based normative undergird and adhere to a textually/structurally untenable Commerce Clause jurisprudence so as to justify the nationalization of nearly everything that the Framers once intended to be left to the States.  At the same time, some principled libertarians and moderate conservatives alike accede to a Radical Republican vision of the 39th Congress of 1865-167, under which the Fourteenth Amendment effectively accomplishes much of the same nationalization, especially of the social agenda—but this vision, while finding non-negligible support in the historical record, itself suffers from the reality that Fourteenth Amendment lead draftsman John Bingham was very much a moderate/non-Radical Republican, as well as the basic reality that the Fourteenth Amendment was contemporaneously understood by many as a Reconstruction compromise provision between the pro-National Government Radicals and congressional conservatives (of both parties) more concerned with states’ rights.

And so the burden once again falls to us, as constitutional conservatives, to defend the integrity of the republic’s incipient federalist structure, and the enduring need for that structure in the twenty-first century.  Some nationally prominent conservatives today, such as Ted Cruz, Mike Lee, and Rick Perry, are very passionate about defending federalism.  Others are less committed.  Mitt Romney, in my judgment, made a terrible error in the 2012 presidential election by not attempting to differentiate Romneycare from Obamacare on federalism grounds.  And as for Donald Trump…well, yeah.  No need to even say anything more on that front.

The reality is that federalism still matters a lot.  There is still an enduring need for the States as quasi-sovereign “laboratories of democracy.”  As Brexit recently demonstrated across the pond, people still care a lot about subsidiarity and self-governance at the most local level possible under the circumstances.  The Framers got it right when they decided to delegate truly limited powers to the National Government and retain residuary powers in the States.  As Professor Richard Duncan of the University of Nebraska College of Law wrote in 2012,

…federalism recognizes that Americans do not all think alike, and thus each American is given the right to become a citizen of any one of the 50 states.  We each get to choose among 50 different concepts of liberty and polity.  If you live in Nebraska and like Big Government, high taxes, and same-sex marriage, you can seek refuge in a state like Massachusetts that is a better fit for your idea of the good life.  And if I live in Massachusetts (as I once did) and I prefer smaller government, more individual responsibility, and traditional marriage and family, I can flee Massachusetts and seek refuge in a state like Nebraska that is a perfect fit for someone like me.  Each of us has 50 choices of states with different notions of the good life.

To be sure, we constitutional conservatives of the Resistance currently have a lot on our plate.  We must save the conservative movement from “alt-right” Trumpism and lead traditional conservatism out of Babylonian exile to its rightful home in Jerusalem.  But, in doing so, we must not forget about the imperative of arguing on behalf of the unique contribution to political thought that is American federalism.  As I hit the road and flee the land of Rahm Emanuel for the land of Greg Abbott, I know it is on my mind.

About the author

Josh Hammer

Texas-based conservative activist. Sen. Mike Lee/#CruzCrew alum. Constitution, free enterprise, liberty, sovereignty, moral clarity, counter-jihadism. Follow me on Twitter at @josh_hammer.

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