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How to Keep the Founders’ Intentions for “We the People” Who Are in Charge of Their Own Governing
The first mention of the United States in an official document is found in the Declaration of Independence. The thirteen colonies that declared their separation from England became thirteen “free and independent States.”
As a practical matter, these states were always united, if perhaps at first only in war against the British. By 1781, these united states had entered into The Articles of Confederation and Perpetual Union, commonly called the Articles. The Articles provided that “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, in Congress assembled.”
But the powers delegated to the United States in Congress were not insubstantial. Under the Articles, the power over foreign policy and the laying of imposts and duties, and responsibility for determining war and peace, resided in the national government. In time, however, the inability of the Articles to deal with a failing economy and serious governance problems led to the calling of a constitutional convention.
The Articles provided that the compact could be altered only with the consent of Congress and confirmation “by the legislatures of every State.” The impracticality of this rule led to the proposal that the new Constitution be effective, with respect to ratifying states only, when ratified by conventions held in just nine states. The new Constitution thus was never approved by the unanimous mechanism described in the Articles. The rights of states embodied in the provisions requiring unanimity were cast aside for the sake of “The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional [under the Articles] limits.” Federalist 38.
The Constitution established a new relationship among the states. No longer were the states held together in perpetual union as a compact of states; rather “We the People of the United States” formed a government directly as a compact of a people. A confederation of independent states no more, the government was to be –
“partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.” Federalist 39.
Almost immediately following ratification of the Constitution, the nation adopted the Bill of Rights as the first ten amendments to the Constitution. The Tenth Amendment to the Constitution provided 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.” As the powers delegated to the United States were listed in the enumerated powers of Article I and related largely to defense, interstate and international commerce, coinage, bankruptcy, and citizenship, the Constitution left to the states “police powers” to look after the health, safety and welfare of the people of the United States.
The dispersal of these very important police powers concerned more than the simple preservation of the status quo in place under the Articles of Confederation. The dispersal of police power had an important philosophic idea underlying it, based on the nature of human society. A republic, in which the people govern themselves, requires a body of people closely familiar with one another. With a smaller territory, the people of a republic could be familiar with and attached to the customs and habits of the people, and make sound policies and laws suited to their way of life and economic livelihood.
Indeed, opponents of the Constitution had cited “Montesquieu on the necessity of a contracted territory for a republican government.” Federalist 9. A large territory, Montesquieu had supposed, encouraged a monarchy, as monarchies were more adept at communications over distance and operate on principles that do not require thorough familiarity with the governed (rather they require familiarity with a small body of subordinate princes). The Constitution resolved these issues by creating a federal republic, where local rule prevailed in areas touching the daily lives of the people.
The power of the states to make different policies and laws suited to their way of life and industry had what one might call a beneficial “knock-on effect.” James Madison observed that the federal republic would take in a large number of different interests – obviously in no small part on account of the independent police powers of the states to shape the citizenry – which would have the effect at the national level of cancelling out narrow selfish interests. He wrote:
“Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.” Federalist 10.
In the Twenty-First Century, this model has been partly abandoned. Not only has American society adopted practices that homogenize its culture, such as national television, newspapers, radio, and a largely uniform way of higher education – universities are homogenized by, among other things, the competition for national rankings prepared by U.S. News and World Report – the national government has also increasingly absorbed the traditional police powers of the states through expansive readings of the commerce clause and of “substantive due process,” circumscribing the role states play in shaping the character of their citizens through policies and laws.
In today’s climate of identity politics, the resulting uniformity of laws and culture may not seem like a threat. But consider perhaps that a uniform national culture – identity politics itself – may already exist and that a common national motive for a majority to invade the rights of a minority may be gathering. In this light, it may be time for states to once again jealously protect their rights and to exercise with renewed vitality their police powers to shape diverse interests for the common benefit of the United States.
Eric Wise is an attorney practicing in New York.
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