The Influence of the State and Federal Governments Compared
From the New York Packet.
Tuesday, January 29, 1788.

Author: James Madison

To the People of the State of New York:

RESUMING the subject of the last paper, I proceed to inquire whether the federal government or the State governments will have the advantage with regard to the predilection and support of the people. Notwithstanding the different modes in which they are appointed, we must consider both of them as substantially dependent on the great body of the citizens of the United States.

I assume this position here as it respects the first, reserving the proofs for another place. The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents. Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective States.

Into the administration of these a greater number of individuals will expect to rise. From the gift of these a greater number of offices and emoluments will flow. By the superintending care of these, all the more domestic and personal interests of the people will be regulated and provided for. With the affairs of these, the people will be more familiarly and minutely conversant. And with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments; on the side of these, therefore, the popular bias may well be expected most strongly to incline. Experience speaks the same language in this case. The federal administration, though hitherto very defective in comparison with what may be hoped under a better system, had, during the war, and particularly whilst the independent fund of paper emissions was in credit, an activity and importance as great as it can well have in any future circumstances whatever.

It was engaged, too, in a course of measures which had for their object the protection of everything that was dear, and the acquisition of everything that could be desirable to the people at large. It was, nevertheless, invariably found, after the transient enthusiasm for the early Congresses was over, that the attention and attachment of the people were turned anew to their own particular governments; that the federal council was at no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens. If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due; but even in that case the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered. The remaining points on which I propose to compare the federal and State governments, are the disposition and the faculty they may respectively possess, to resist and frustrate the measures of each other. It has been already proved that the members of the federal will be more dependent on the members of the State governments, than the latter will be on the former. It has appeared also, that the prepossessions of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government. So far as the disposition of each towards the other may be influenced by these causes, the State governments must clearly have the advantage.

But in a distinct and very important point of view, the advantage will lie on the same side. The prepossessions, which the members themselves will carry into the federal government, will generally be favorable to the States; whilst it will rarely happen, that the members of the State governments will carry into the public councils a bias in favor of the general government. A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States. Every one knows that a great proportion of the errors committed by the State legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the State, to the particular and separate views of the counties or districts in which they reside. And if they do not sufficiently enlarge their policy to embrace the collective welfare of their particular State, how can it be imagined that they will make the aggregate prosperity of the Union, and the dignity and respectability of its government, the objects of their affections and consultations? For the same reason that the members of the State legislatures will be unlikely to attach themselves sufficiently to national objects, the members of the federal legislature will be likely to attach themselves too much to local objects. The States will be to the latter what counties and towns are to the former. Measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests, and pursuits of the governments and people of the individual States. What is the spirit that has in general characterized the proceedings of Congress? A perusal of their journals, as well as the candid acknowledgments of such as have had a seat in that assembly, will inform us, that the members have but too frequently displayed the character, rather of partisans of their respective States, than of impartial guardians of a common interest; that where on one occasion improper sacrifices have been made of local considerations, to the aggrandizement of the federal government, the great interests of the nation have suffered on a hundred, from an undue attention to the local prejudices, interests, and views of the particular States. I mean not by these reflections to insinuate, that the new federal government will not embrace a more enlarged plan of policy than the existing government may have pursued; much less, that its views will be as confined as those of the State legislatures; but only that it will partake sufficiently of the spirit of both, to be disinclined to invade the rights of the individual States, or the preorgatives of their governments. The motives on the part of the State governments, to augment their prerogatives by defalcations from the federal government, will be overruled by no reciprocal predispositions in the members. Were it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments. If an act of a particular State, though unfriendly to the national government, be generally popular in that State and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty.

On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other.

The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter. The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.

Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it. The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people. On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.

PUBLIUS.

Federalist No. 46 – The Influence of the State and Federal Governments Compared – How is this relevant today?

Tomorrow, Virginia Attorney General Ken Cuccinelli will appear before U.S. District Court Judge Henry E. Hudson to argue against lawyers from the Obama Administration, who have filed a motion to dismiss Virginia’s challenge to the recently passed healthcare bill.

Cuccinelli will argue that the provision that forces citizens to purchase health insurance by 2014 or pay a fine, is in violation of the Commerce Clause of the U.S. Constitution, because it compels citizens to engage in commerce.

Virginia recently passed a law stating that Virginians do not have to purchase health insurance. Florida has filed a lawsuit similar to Virginia’s, and over 20 states have joined.

Cuccinelli is quoted in today’s Richmond Times Dispatch as follows, “”The Commerce Clause [of the U.S. Constitution] does not give the federal government the power to order you to buy a product.  We’re fighting to protect liberty as best as we can.”

The Richmond Times Dispatch article goes on to quote Governor McDonnell as saying that the healthcare legislation would cost Virginia an additional $1.5 billion in health care costs by 2022. One of the primary cost factors is the expansion of Medicaid.

As Madison predicted:

“On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.”

And:

“They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other.”

Throughout the Federalist Papers, the above themes surface again and again.  The ultimate authority of the government derives from the people.  If the federal government oversteps its bounds, the people will sound the alarm, and the states will rise to defend their rights.

For many years, and for various reasons the people and the states have let the federal government slowly encroach.  But the people are awake, and are awakening the states.  The alarm is sounding.

Tomorrow, Cuccinelli’s court appearance is an important step in guiding our country back to the path of liberty, and back to the constitutional structure envisioned by our founding fathers.

AND Thank you to David Kopel! I LOVED the breakdown of how many state, federal, local employees there are, and how many military! Last night when I read Madison’s statement in Federalist 45 that fewer people will be federal employees than state employees, I immediately began trying to find those numbers, and finally gave up, because it was so late.  I was happy to read your essay this morning and see that you had them.

Thank you to all those who commented today, and thank you to our founder and co-chair Janine Turner for her great press appearances today on Laura Ingraham and Megyn Kelly!  I believe it was Chris Wallace who said Janine is spreading the word like a modern day Paul Revere.  I could not think of a better description. All of you who are participating in this blog, and in the Constituting America effort are great patriots, and our founding fathers would be proud.

Good night and God Bless!

Cathy Gillespie

Thursday, July 1st, 2010

Republic For Which It Stands

The states will sound the general alarm
And the people with sufficient storm
Will rally against all usurpation
That Federal forms against the norm

The genius of the people reign
And will forever be the mindful stance
Fervor will forsake the season
And be quieted by right circumstance

The Federal will know its place
And knowledge will be the armor
The people wear to venture forth
Reasoned passion is the banner

They know their rights, stand by law
The branches right all wrongs
With checks they witness righteous measures
And balance out the demigods

Hail the unity, Hail the purpose
Hail the mighty temperate pride
Raise the calling for all posterity
Deny not your inherent stride

Be the voice, be the vote
Continue your living legacy
Be the evergreen of scene
Ring true the blessed liberty

Janine Turner

Thursday, July 1st, 2010

Guest Essayist: David B. Kopel, Research Director at the Independence Institute, and Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law

Federalist 46 continues Madison’s arguments that the federal government could never dominate or obliterate the states. He sketches out possible scenarios of federal over-reaching, and explains why the states would prevail in every case. Addressing the worst-case scenario, Madison assures his readers that a tyrannical President with a powerful army could never impose his rule on America, because the entire American population possesses firearms.

Federalist 46 is important today because it is instructive about the right to keep and bear arms as the ultimate safeguard of civic freedom, and because of the growing trend of state resistance to the federal exercise power on intrastate activities, such as the use of medical marijuana, or other health care choices.

Madison begins by reminding readers of first principles. The federal and state governments are both servants of the same master—namely the people. Opponents of the Constitution act as if the federal and state governments were uncontrollable entities who would be at war with each other. To the contrary, both governments are mere agents of the people, who are the supreme controlling power. The people choose to use their federal and state agents for different purposes. So there is no reason to think that the people will allow their two agents to fight with each other, or to interfere with each other.

The people, who are the ultimate deciders, will be much more attached to the state governments, Madison predicts. For one thing, there will be many more state employees than federal employees. Not only the individual employees, but their family, friends, social networks, and so on, will therefore inevitably have more affection for their close-at-hand state employer than the distant, small federal government.

Madison’s prediction is still true. Beginning with New Deal, the federal government began to grow enormously, but state and local governments also grew rapidly. As of 2008-2009, there were about 3.8 million state government employees, plus 11 million local government employees.  This compares to 2.8 million federal civilian employees, plus approximately 1.5 million active duty U.S. military. So today, the number of state/local employees outnumbers federal employees by about 4:1. To the extent that employment promotes loyalty, Madison remains generally right that the states have the advantage.

Then there’s practical experience. Madison reminds his readers that even when the Continental Congress was fighting the Revolutionary War, a task of supreme importance to everyone’s freedom, people generally liked their state governments better. Except for a brief period early in the war, the national government was at “no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens.”

But from Teddy Roosevelt to Barack Obama, many Presidents over the last century have worked assiduously to build an idolatrous cult of personality  around themselves. Over the last century, some men—including Calvin Coolidge and Ronald Reagan–have led successful political careers by resisting proposed enlargements of federal power. But many more politicians have built careers by promising that the federal government will do ever-more in taking care of the American people as a de facto parent.

Given the advantages currently possessed the by state governments, Madison continues, the people would only transfer their loyalty to the federal government if the federal government were manifestly better and more capable. And if so, there’s nothing wrong with the people giving their confidence where it is most due. Even then, the states would have little to fear, “because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.”

The nineteen-sixties were a time when Madison’s prediction about a transfer of affections proved prescient. At the time, the federal government was indeed far more competent and vigorous, and far less corrupt, than many state governments. National trust in the federal government rose to levels never since achieved. One reason for post-sixties decline is that as the federal government has tried to do almost everything, it has become less competent at carrying out its core functions. As Madison knew, only with a certain sphere can federal power be advantageously administered.

Another power advantage of the states is that persons who are elected to serve in the federal government will still retain some disposition towards particular state and local interests. In contrast, hardly any state or local officials will have a bias to favor federal interests over state and local interests.

Absolutely true, to this very day.

Suppose one side or the other goes too far? Again, Madison writes, the advantage lies with the states. If a state is inclined to infringe on the federal sphere, the state actions would presumably be popular with the people of the state, and would immediately be carried into effect by the state government employees. The federal government would have no practical means to overcome the states, except by the use of force, which would always be viewed with reluctance.

Conversely, if the federal government goes too far, the state’s people and government would refuse to cooperate, and could obstruct federal actions. If a large, resistant state were joined by its neighbors, it would be nearly impossible for the federal government to prevail.

This analysis proved accurate for a long time. Whether in a good cause (such as resisting federal implementation of the Fugitive Slave Act) or in a bad cause (resisting the Supreme Court’s desegregation orders from Brown v. Board of Education), state governments with strong popular support have often been able to frustrate locally-unpopular exercises of federal power.

But one major change upset the Madisonian balance. In the 1936 case United States v. Butler,  the Supreme Court said that Congress could use its spending powers for purposes that had nothing to do with the enumerated powers which had been granted to Congress (such as the power to raise armies, set up post offices, and so on). Accordingly, Congress quickly started doling out money to state governments.

The result was to make the state governments into de facto wards of their federal sugar daddy. Whenever Congress tugged the purse strings, the states danced.

So Southern state government resistance to school desegregation did not end because of a few instances in which the President sent in federal troops to enforce court orders. As Madison expected use of military force was still a last resort. Formal southern resistance ended when Congress’s Civil Rights Act of 1964 cut off federal education money to segregated schools. A good result, although not all subsequent federal threats of withholding money would be for such benign purposes.

What about a worst-case scenario, in which a federal tyrant attempted to use the federal standing army to impose a national dictatorship? Madison derided the possibility, since the people would never consent to the long-term build-up of a powerful military establishment. Here, Madison was correct for about a century and a half. After the Civil War and World War I, the large federal military was quickly demobilized, and the standing army shrunk to a size appropriate for a mid-level European power, or less.

But the aftermath of World War II did not go as planned. The Soviet Union, rather than becoming a global partner in peace and stability, emerged as an aggressive superpower intent on taking over wherever possible, and seeking the ultimate destruction of the United States. In the resulting Cold War, the United States by necessity grew used to a large, permanent standing army.

Madison continued his hypothetical: the largest possible federal army could not constitute more than one percent of the total population. This is indeed the size of the current federal military, counting active duty plus reserves. But with conscription, the federal army could be much larger than that. In 1945, the U.S. military constituted 6% of the total population. (8 of 132 million.) Today, that would mean a military of about 18 million.

Against this federal army, Madison said, would be essentially the entire able-bodied male population, with their own guns, and organized into militias directed by the state governments. This huge force could never be conquered by the much smaller federal army:

To these [federal soldiers] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.

The crucial reason why America was free and Europe was not that Americans had guns and state governments. The combination of the two would be sufficient to demolish any national tyrant:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

Fortunately, we have never had to see whether Madison was right that a federal tyrant with a standing army could be defeated by the people. We do know that in other places (e.g., Israel fighting for independence from Great Britain in 1946-47) armed popular forces have been able to drive out very strong armies. Of course the modern availability of nuclear weapons would give an American tyrant weapons which armed civilians could never defeat. But the use of nuclear weapons against Americans might well cause an outraged U.S. military to depose the tyrant itself.

In any case, we do know that Madison was right then and now about “the advantage of being armed, which the Americans possess over the people of almost every other nation.” In the twentieth century, monsters such as Hitler, Stalin, Mao, and Pol Pot took advantage of victim disarmament in order to murder millions.

Federalist 46 also shows the error of the notion that James Madison, the author of the Second Amendment, imagined that any individual could decide that the federal government was tyrannical, and then resort to violence. To the contrary, Madison envisioned that, in the very unlikely event that forcible resistance were necessary, it would be led by the states. Federalist 46 is an important corrective to persons (including gun prohibitionists who like to conjure up extreme scenarios) who imagine that a strong interpretation of the Second Amendment must lead to the legal authorization of anti-government violence by stray individuals.

Madison has been proven correct in regarding mass national armed resistance to federal tyranny as a very unlikely possibility. He was also right in a much broader sense, in that the American system of federalism, which many powers retained by state governments, and the American gun culture, with its associated spirit of self-reliance and responsibility, have helped form the freedom-loving American national character which has prevented the federal government from degenerating into despotism.

Wednesday, June 30th, 2010

David B. Kopel is Research Director at the Independence Institute, in Colorado, and is Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law. www.davekopel.org