Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Having examined various powers granted to Congress, Madison in Federalist 45 invites the audience to step back from the particular tiles to gaze at the whole mosaic of the Constitution. But, is he presenting the creation from a proper angle? Or, is the Constitution modern art, where the meaning is created by the viewer? One certainly gets that sense reading some Supreme Court justices’ opinions.

Madison’s conclusion that even the mass of federal powers will not be dangerous to the authority left in the several states is astonishing from our vantage in the light of experience, but understandable from his. He discounts “the supposition, that the operation of the federal government will by degrees prove fatal to the state governments….I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first….” He grounds his judgment on four supports, loyalty from the people to the more local government; states as critical constituent parts of the national government but not the reverse; fewer federal bureaucrats than state officials; and the limited number and scope of federal powers.

As to the first, loyalty to local government may indeed be more natural. But such loyalty depends on personal relationships and bonds of community, a concept that has limits. In the 1790 census, the largest city, New York, had 33,000 inhabitants. There were only five cities with more than 10,000 inhabitants. Today, the average Congressional district has nearly 700,000 residents, almost the 1790 population of Virginia, by far the largest state then. Under classic republicanism, the size of political community is a key factor for its success. Aristotle postulated that the citizens “be of such a number that they know each other’s personal qualities and thus can elect their officials and judge their fellows in a court of law sensibly.” Plato fixed the ideal number of citizens at 5040 adult males, or about 30,000 to 50,000 residents if women, children, aliens, and slaves are included. Perhaps not coincidentally, the Constitution fixed the initial size of Congressional districts at 30,000 residents, a number that Federalist 57 asserts would produce about five or six thousand voters.

When today’s average state assembly district in California is larger than all but one of the states in the union in 1790, the notion of community with its interacting social, religious, economic, and political relationships has long since been stretched beyond reality. Basing loyalty to governments, local or national, on distinctions between current orders of representational magnitude is doomed to fail. They lie beyond the easy grasp of human comprehension. Everyone understands the difference between ten dollars and a thousand dollars. But the difference between ten billion and a trillion dollars is the difference between a lot and a lot more, too abstract to be meaningful, though the difference in each set between the larger and the smaller amount is of the same order of magnitude. Distinctions of loyalty to government on that scale become impossible, too, at least in the sense of the civic republicanism that Madison treasures. Loyalty becomes an abstraction, not a republican reality that affects our concrete actions.

Regarding the second point, the states indeed are critical components of the federal structure but not vice versa, just as he describes (excepting the election of Senators). But there is a great difference between the formal structure and the political reality. The Framers failed to anticipate the growth of modern political parties. Those parties have taken on much of the role Madison assigns to the states in influencing the selection of federal officials. Thus, the latter are far more independent of state officials than Madison asserts.

Conversely, it is true that the federal government has no direct formal role in the selection of local officials, though the Supreme Court’s reapportionment decisions and U.S. Department of Justice supervision of local elections under the Voting Rights Act throw even that in doubt. As a matter of policy, however, state and local officials are increasingly dependent on federal officials and agencies. One need only recall, among many examples, the state officials deploying, hat in hand, to Washington for federal money to cover state budget deficits (caused in part by heavy federal taxation that dries up sources for state revenues); the aftermath of Hurricane Katrina where state and local officials waited, figuratively paralyzed, for federal rescue; and California state officials’ generally unsuccessful pleading with members of Congress and federal agencies to divert enough water from protecting the habitat of the Delta Smelt bait fish to allow tens of thousands of farmers to make a living.

Not much need be said about Madison’s point that the far lower number of federal officials than state or local officials would preserve greater influence for the latter. It is particularly unfortunate that he seeks to assure the reader by stating that for every federal tax collector in a district there would be thirty or forty state bureaucrats. Judged by the size of government budgets as a portion of Gross Domestic Product, it is true that the state and local governments take up nearly as much as does the national government. But all have metastasized, with state and local spending in the last century going from 5% to 20% of GDP, and federal outlays increasing by an order of magnitude from 2.5% to 25%. This looks more like the “multitude of New Offices” created, and the “swarms of Officers [sent] to harass our people and eat out their substance,” about which Americans fulminated against King George in the Declaration of Independence.

Madison’s final point about the respective functions of the different governments also has not turned out as envisioned. True, the federal government still attends to the matters he describes, and the states control most ordinary matters that affect people’s lives. The rub is in the ever more intrusive role the federal government is assuming in matters that also affect one’s daily life. The health care reform debate, the news reports about the parlous fiscal state of numerous other social programs, and the parade of additional planned regulations, are too vivid and recent to require recounting in detail.

Madison is too serious a political thinker to be accused of flimflam. Though one has one’s doubts about Hamilton, most Federalists likely believed genuinely that the opponents were unduly alarmist in their visions of an increasingly dominant national government. Regrettably, political history, especially during the last eighty years, has not placed the constitutional mosaic laid out in Federalist 45 in a flattering light.

Tuesday, June 29th, 2010

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is


0 replies

Join the discussion! Post your comments below.

Your feedback and insights are welcome.
Feel free to contribute!

Leave a Reply

Your email address will not be published. Required fields are marked *