Most at one point or another probably have heard of “The Federalists Papers”, in some capacity, but what is a Federalist or Federalism? How many who have heard of or read the Federalist Papers, also knew the opposite had been written, “The Anti-Federalist Papers” making the argument against the proposed Federal system of government? When many hear “Federal” they think singularly of the “Federal Government” in Washington, D.C., consisting of Congress, the President, The Supreme Court and all of their subordinate organizations. Merriam-Webster Dictionary defines Federalism as, “the distribution of power in an organization (as a government) between a central authority and the constituent units”, or simply as it applies to the United States, it is the separation of powers from the National [Federal] Government and those of the individual states. It is a system that keeps the sovereign power among the many [States in regards to the United States] while having a separate sovereign power of the whole. But why did the Drafters of the constitution not just choose to form one National Government, why did they choose a Federal system of Government instead?
The idea of Federalism appeared early in the Convention. Edmund Randolph submitted his Virginia Plan on May 29, 1787 outlining a new “National” Government. When asked by Mr. Wilson [the following day]if he wished to abolish the states, Randolph responded no, he did not wish to abolish the states, adding his submission was simply a shell of ideas, which at the time only addressed a National Government. Also on May 29th, Charles Pinckney of South Carolina submitted his proposed Constitution to the Convention [Note 1], which detailed a Federalist system, a National Government while the individual states reserved their own separate sovereignty amongst themselves.
First we need to look at how the United States Government was constructed before hand and what short comings it had to require a change to the current Constitution. From 1781 until 1789 [When the Constitution went into effect] the United States operated under the Articles of Confederation, as the name states a confederation of the States. This form of government relied heavily on State sovereignty, with a very weak United States Government at the center. The states controlled most of the power in the loose Union, States could lay its own taxes, duties and excises, make its own laws, and do most all of the things any one sovereign nation of the world could do. The Government of the United States was vested in one body, The Congress of the United States Assembled, a legislative body with no executive or courts. A president of the Congress was voted on and appointed by the Congress itself, but this President did not have true executive abilities as we know them today. The Congress could pass laws, and request monies from the individual States, but it had no power to enforce these, or to try those who broke them, the enforcement of the Laws of Congress was left up to the states to do. The Congress had no power to compel states to abide by any of its resolutions, hence a state could just choose to ignore what the Congress passed without consequence. But also the Government of the United States had no power to quell Insurrection or Rebellion, and this proved to be the fatal and final blow to the Articles of Confederation in the aftermath of Shay’s Rebellion in 1786-87.
Even before Shay’s Rebellion in Massachusetts the flaws of the Articles of Confederation were known, and a convention was called to consider what needed to be changed in the Articles, occurred in Annapolis in 1786, but attendance was so low it adjourned after only 4 days, resolving only to recommend another convention in the Spring of 1787 in Philadelphia [known as Constitution Convention of 1787 now]. It was known going into the Convention of 1787, that the Government of the United States needed to be strengthened if it was to survive, as well as the survival of the states themselves. The Convention was called to “Revise and Amend" the Articles of Confederation, but as we all know today it ended with our Constitution.
It was known certainly by most, if not all of the Delegates going into the Convention of 1787, the Government of the United States would need to be strengthened, but to what point was unknown. As mentioned both Randolph and Pinckney proposed plans before the Convention on May 29, 1787, with debate on the Virginia plan commencing on May 30, 1787 The debate began centered on the many points of Randolph’s Virginia Plan. It was noted early in the debates by Mr. Morris of the distinction between National and Federal, with the agreement being to have a National Government in a system where the States retain rights, this being a Federal System. It was important for most, though not all the Delegates, for the States to retain their sovereignty and power, but also have a Supreme Power [not Absolute, refer to John Locke post for this significance] of one from all. Very few delegates were willing to give up their states identity or ability to govern themselves in totality, and Federalism provided the ideal balance of the need of a strong National Government, while maintaining the States sovereignty.
SEPARATING THE POWERS
This concept of Federalism, eventual lead to the division of power between the two sets of powers, as well as checks on those powers. In the Constitution itself, the powers delegated to the Congress are found in Article I Section 8.
- The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
- To borrow Money on the credit of the United States;
- To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
- To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
- To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
- To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
- To establish Post Offices and post Roads;
- To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
- To constitute Tribunals inferior to the supreme Court;
- To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
- To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
- To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
- To provide and maintain a Navy;
- To make Rules for the Government and Regulation of the land and naval Forces;
- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
- To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
- To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And
- To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
These are the powers that are granted to Congress, powers a National Government needs to be able to conduct business, ensure tranquility and some uniformity among the states, provide for the common defense, a means to fund itself, and the power to effect all the powers into law, but the constitution also restricted Congress in certain aspects by clauses in Article I Section 9 of the Constitution.
In addition to Congress, the Constitution also prohibits the states themselves from doing certain things described in Article I Section 10.
- No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
- No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
- No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
These were powers specifically reserved for the Federal Government to control foreign affairs, or prohibited outright to both, in both Sections 9 & 10.
The Constitution establishes an Executive with the power to carry out the laws on Congress, and establish Foreign relations, a Supreme Court who is the final say of what law is, and the Constitution establishes itself as the Supreme Law of the Land, and also allows for the Federal Government to respond to insurrection or rebellion in Article II Section 8, and upon the request of a state in Article IV Section 4 as it could not in Shay’s Rebellion, and guarantees a Republican Form of Government in all States.
But the Constitution also provides checks on these powers. Not only does the Legislature, Executive and Judiciary have checks on one another, the Federal relationship between the National and States Governments also had checks of power as well, to ensure neither the National nor State government grew more powerful than the other, though as we will see some have been removed. It was this system that allows each State and the National Government to make its own laws independent of each other provided they do not intrude on the specific domain of another as described in the Constitution. This explains why laws vary from state to state and to the Federal Government itself, each having its own area of sovereignty, separate from the others. While the Constitution itself sets basic guidelines of the limits of laws, and what the boundaries are, and also provides for a Supreme Power (The Constitution and/or the Supreme Court) when conflicts among them arise.
STATE CHECKS OF THE FEDERAL POWER
THE SENATE:Where the House of Representatives is the People’s House [it is still referred to today as the People's House] that is all elected by the popular vote of the people of a state or district, the Senate was originally appointed by the Legislature of the States they Represent [Note 2]. This done to ensure the concerns of the State and State interest itself were part of the law making process in the Federal Government. By providing this, this was to ensure that the Federal Government could not burden the States as a whole or require an act of a State without those states themselves having an ability vote or influence directly the outcome of such a proposal, whether it be a law or act, a Treaty, or Judge or Justice appointment that may effect a few or many States.
THE ELECTION OF PRESIDENT: The electoral process we have is a result of the federalist system. By having votes for the President cast by Electors chosen by the people, a method was put in place to ensure the States themselves also had a direct role in the election of the President. The Legislatures of the States choose the manner in which the Electors are chosen, to be voted on by the people of the state [though not required to be voted on by the people, only the first election of President Washington in 1789 did not involve the people choosing the Electors]. This power gave the Legislature to ensure those who directly voted for the President as chosen by the people, met some requirements of their interest as well, provided they met the requirements states in Article II Section 2 of the Constitution.
AMENDMENTS: The National government itself cannot change the Constitution, it also requires the Consent of the States. Two-Thirds majorities in both House of Congress are required, in addition three-fourth of the States must also assent to this change. The States can give assent in two different manners, either by its legislature affirming [both house required to affirm if bicameral], or by a special Convention for the purpose of considering the Amendment itself [Note 3]. This is too prevent either the States of the National Government from being able to change the Constitution without the others consent that may change the power one has compared to or over the other.
TREATIES, JUSTICES and IMPEACHMENT: As mentioned the Senate was to be comprised of members chosen by the Legislatures of the states. The Senate, also had the responsibility of Ratifying treaties [two-thirds vote required], to confirm Federal Judges and Justices, and try the impeachment of Federal Officers [Impeachment occurs in the House of Representatives].. This ensured the States also had a considerable representative voice in the affirmation of these items, since each of these would have an effect on the states themselves in some manner.
FEDERAL CHECKS ON STATE POWER
SUPREME LAW: The Constitution is the Supreme Law, no state law may be in contrary to the Constitution or Federal Law,where joint jurisdiction exists. States may not make laws that negative a valid Federal Law, or is contrary to the Constitution itself.
AMENDMENTS: As noted with the States on the Federal Government the states cannot without the assent of Congress change the Constitution, to prevent the arbitrary transfer of power without the others consent.
DOMESTIC VIOLENCE: In the form of Insurrection of Rebellion, Article II Section 8, to be able to protect itself, and if a State request[Article IV Section 4] assistance from armed insurrection or domestic violence.
It may appear that the States have more checks than the Federal Government, which is somewhat true. But the Federal Government has the power of Supremacy, when the two laws conflict and jurisdiction exits legally for both on the same ground, Federal Law is Supreme to that of the States, which is in itself a very powerful check. The Checks the States possess are to ensure the Federal does not encroach on its legitimate power, while the Supremacy clause does the same for the Federal Government.
Moving to a Federal system from the Confederated system the United States operated under with the Article of Confederation was perhaps a Natural choice for the Delegates. The loose Confederation proved to be too weak to be effective in any manner what so ever, while the option to construct Centrist simply was not an option as very few were willing to part ways with the concept of sovereign states, and it would never have been ratified given how very difficult it was to ratify even this concept of Federalism.
Three three Branches of Government is how we divide power among one part of government, each with its own Checks and Balances as described by Montesquieu in his Spirit of Laws. Federalism is how we divide the power between different levels, the National and States Governments, under the concept the Government closest to you knows better how to govern for you.
Note 1: No record from the Convention of 1787 itself outlines Pinckney’s proposed Constitution, though Journals do reflect the fact he submitted one for consideration. The Draft used as his proposal was submitted by Pinckney himself in 1818 years after the Convention, when an attempt was being made to collect and preserve all information from the Convention itself by future President John Quincy Adams. The fact that limited records from the Convention details his proposals does call into question the accuracy of the Draft he submitted as to being the one actually proposed on May 29, 1787, though notes from James Wilson discovered in the early 1900’s tend to show much a what he submitted to be accurate.
Note 2: The 17th Amendment, ratified in 1913 changed to selection of Senators from appointments by the Legislatures of the State to a popular vote by the people of the state.
Note 3: No amendment has been ratified using a Convention of the States, the manner of of this may occur is only speculation, since the only precedent of a Convention is that of the 1787 Convention itself. It is unknown if States would call for their own Conventions on an individual basis, either by an act of Law, or Popular vote to convene a Convention, or if all of the States would convene a collective Convention for debate and ratification of the proposed amendment.
Originalism is more than just one type of interpretation or Jurisprudence in regards to the Constitution. There are three main types of Originalists, Original Intent, Original Meaning, and Constructionist [textualist]. All of do have common threads, with perhaps the most important one being, the Constitution is a document of limits on the Government and is designed to protect the “inalienable rights” [Natural Rights according to Locke and Montesquieu], and it is the Judges and Justices job to determine what Law is, not what Law should be. The methods of determining what Law is is done differently depending on the type of Originalist one may be.
