The Founders, The Principle of Federalism, and the Constitution
The Founders, The Principle of Federalism, and the Constitution
The Declaration of Independence states that “Governments are instituted among Men, deriving their just powers from the consent of the governed.” This assertion means that good government is organized and built upon the consent of the people. The people give their consent to their representatives and make their will known through direct communication, voting, and a variety of civic activities. Federalism ensures that representatives listen to the people, know the popular will, and that they are responsive to the needs of the people.
Federalism is the principle of having different levels of government—national, state, and local—each with constitutionally defined powers. In a large republic, federalism represents a dialogue between national authority and local self-rule in states and communities.
When the Framers gathered in Philadelphia in the summer of 1787, they faced many challenges. One of the greatest challenge was how they would maintain a republic across a geographically large and diverse nation. Distance created a diversity of interests, needs, and problems that required government support in unique ways. To help overcome this challenge, the Framers developed the system of federalism.
In this system, each level of government exercises unique powers, but they also have concurrent, or shared, powers that they each can exercise. For instance, taxation is a concurrent power. Thus, federalism in a large republic provides for national power with some uniformity while preserving state and local self-government that is responsive to the common good among unique communities and allows for greater diversity.
James Madison notes in Federalist #39 that a discussion of federalism begins with an understanding that a republic is “a government which derives all its powers directly or indirectly from the great body of the people.” This is why federalism starts with strong local institutions, including local and state governments that are close to the people and the voluntary associations of civil society. Thus, the people can govern themselves freely and without intrusive government. But often, the nation confronts challenges that require uniformity in the exercise of powers such as in matters of interstate commerce, treaties, and defense. These are duties of a national government.
Under the Articles of Confederation, the states were sovereign, meaning they had most of the authority and powers of government. Article II of the Articles of Confederation states, “Each state retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States.” As a result, the Confederation was simply a league of friendship rather than a national union with a common purpose. The national government was weak and did not have sufficient powers to govern the nation effectively.
The Constitution strengthened the national government with powers such as declaring war, making treaties, and regulating interstate trade. But the Framers also ensured that the states retained many of their powers under the Articles of Confederation. While the exact relationship between the national and state governments was somewhat undetermined, they expected tensions and cooperation to shape the relations between the different levels of government over time.
Moreover, the principle of federalism was a key component of dividing power to limit the dangers of tyranny. Federalism divides the exercise of power much like the separation of powers between the branches and the division of powers in the two-house Congress. This tension helps to limit power and preserve the liberties of the people.
The Constitution has many examples of the federalism principle in its organization of United States government. First, the proposed Constitution itself had to be ratified by nine of the thirteen popular state ratifying conventions to become the supreme law of the land. The people gave their consent to the representatives in the conventions to ratify the proposed Constitution. Second, the Senate represents state interests in the national government because senators are elected statewide. Third, the Electoral College gives the states a powerful voice in presidential elections and makes sure that people in all areas of the country are represented when selecting the president. Fourth, the process of amending the Constitution requires the participation and approval of state legislatures or their conventions. Last, the Tenth Amendment of the Bill of Rights provides for a limited national government and preserving the power of the states. It 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.”
The Tenth Amendment is particularly important for securing federalism because it ensures that the states retain all powers not granted to the national government. For example, state and local governments hold power within their borders over public schools, public health, regulation of trade, law enforcement, and roads. At the same time, the Constitution provides limits on states. Article I, Section 10 of the Constitution prevents states from exercising the legitimate powers of the national government over treaties, coining money, regulating foreign trade, and war powers. The Constitution also addresses states directly in Article IV. For example, Section 1 protects the “full faith and credit” of each state, meaning that states must recognize each other’s legal documents, such as marriage licenses. The “privileges and immunities” clause of Section 2 mandates that citizens be treated equally under the law in the different states.
The states also have “police powers,” which include making laws for the health, safety, general welfare, and morals of the people. Such laws include that states set public school requirements for the education of responsible citizenship. State and local governments are closer to the people and can better respond to their needs with greater knowledge of their specific challenges compared with the national government.
The relationship between the national and state governments has changed greatly over the course of American history. Many debates over national laws and policies involved disagreements about the constitutional powers of the national government and those reserved to the states. Congress, the president, and state politicians deliberated on controversial issues such as infrastructure spending on roads and canals, slavery, protective tariffs, and a national bank. The secession crisis and Civil War posed arguably the greatest challenge to the republic and were rooted in questions about the relationship between the national government and the states. The Thirteenth, Fourteenth, and Fifteenth Amendments fundamentally altered the relationship of the federal government to the states by banning slavery within states, defining national citizenship, preventing states from violating rights, and protecting the right to vote of black males.
During the course of the twentieth and twenty-first centuries, the growth of the scale and scope of the national government and its bureaucracy vastly increased its control over the American economy and people’s lives. This trend shifted the balance of power under federalism toward much greater power in the national government. Over the past fifty years, many politicians have tried to devolve, or return, more power to the states to restore the balance of power under federalism.
There is a lot at stake in these debates about the balance of power in federalism. Recent decades have shown that federalism has a great deal of relevance on issues such as education standards, abortion, public health responses to a pandemic, immigration, marijuana laws, same-sex marriage, and gun control.
The principle of federalism is an important constitutional principle in the American system of self-government that is often overlooked or ignored. A proper understanding of federalism helps one to understand the purposes of republican government. It also helps to explain some of the messiness of the American constitutional system, since that messiness is often the result of the dynamic tension between the national government and the states. Most importantly, federalism provides a means of maintaining self-governance in a geographically broad, diverse country.