Having founded republican regimes in America, regimes animated by respect for the laws of Nature and of Nature’s God as enunciated in their Declaration of Independence from the British monarchy, the Founders remained vexed at the confederal form of the American state–the relations among the several states in the confederation and the relationship between the weak federal government and those states, relationships framed in the Articles of Confederation. True to its title, The Federalist centrally addresses this question—literally so. James Madison, scribe of the Constitutional Convention and one of the principal designers of the new Constitution itself, wrote the forty-third or central number of the collection, as well as the six preceding essays and the fifteen subsequent. The core of the book belongs to him, and his topic throughout the series is the character of American federalism as the Constitution would now constitute it.

Madison begins by identifying the need to balance government energy with stability, both in defense of liberty—a natural right—and “the republican form”—the regime which emanates from that right. Liberty and the regime of liberty require energy for self-defense and for execution of the laws enacted by the regime; liberty and republicanism also require stability in order establish the “national character” and to fortify the confidence of the people in their new regime. “The task of marking the proper line of partition between the authority of the general and that of the State governments” proved arduous, given the rightful jealousy of the citizens of each state as they guarded their right and power to govern themselves, a jealousy that nonetheless needed to be balanced by considerations of public safety and economic prosperity, threatened by factionalism within and among the states under the Articles of Confederation. Natural rights are one thing, but they can never be secured without due consideration of  “the infirmities and depravities of the human character,” evils that undermine popular governments no less than monarchies and oligarchies.

Madison assures his readers that the form of the “general” or federal government remains “strictly republican.” “No other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom to rest all our political experiments on the capacity of mankind for self-government.” Such a government will derive “all its powers directly or indirectly from the great body of the people” and not “from an inconsiderable proportion or a favored class of it.” Each of the three branches of the newly-designed federal government does indeed meet that criterion; they all pass the ‘regime’ test.

But what about the ‘state’ test? Does the federal government possess the needed energy, the requisite power, truly to govern? Without a strong federal union, America will become another Europe, full of small and medium-sized states armed against one another, their liberties “crushed between standing armies and perpetual taxes,” their prosperity shackled by high tariff walls. At the same time, does its structure limit but also focus that energy in a way that does not consolidate the states into one amorphous mass, compromising the rights of citizens to govern their own lives as they really live them—in towns and counties within states? Self-governing citizens must never be reduced to spectators, gazing at the actions of ‘statesmen’ far above and beyond their control.

After reaffirming, in the central, forty-third Federalist, “the great principle of self preservation” and “the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim,” Madison turns to the restrictions of the authorities of the American states enunciated in the new Constitution—restrictions imposed precisely because those states had failed adequately to secure the natural rights identified in the Declaration of Independence and vindicated in the war for independence and the revolution the war advanced. Among other things, the states shall not enter into treaties, coin money, impair the obligation of contracts, or grant the titles of nobility (changing themselves into aristocracies). But would these restrictions weaken the states too much. Of particular concern to critics were the Constitution’s clauses granting the federal government the power “to make all laws which shall be necessary and proper for carrying into execution” its enumerated powers to set foreign and domestic policies for the American government as a whole, and the designation of the laws enacted by those powers as “the supreme law of the land.”

There is no way of defining one’s way out of that concern. What are “necessary and proper” laws? And if the “supreme law of the land” isn’t lodged in the general government, where would it be lodged, if not in the states, which had misused their supremacy? In Federalist 45, Madison writes, “Were the plan of the [Constitutional] convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.”

Madison then shows how the Framers solved the problem. Although the States were indeed stripped of their sovereign powers—treaty-making, coinage, regime change, and so on—unlike the general government they would form “constituent and essential parts” of that government. By establishing the Electoral College, the Framers required state-by-state election of presidents; each voting district for House of Representatives remained entirely within the boundaries of a state, with no interstate districts; and the United States senators would be elected by state legislatures, with each state sending two senators, regardless of its size.

Further, the administrative or bureaucratic side of government would favor the states. There would be far more state employees than federal employees. This remains true even to this day, with the vastly expanded federal bureaucracy now in place, although of course it is much less true than it was in the first 150 years of American constitutional government. The causes of that shift of power have everything to do with the partial abandonment of our constitutional scruples, beginning in the twentieth century, rather than to the Constitution itself.

Fundamentally, “the powers delegated by the proposed Constitution to the federal government are few and defined,” whereas “those which are to remain in the State governments are numerous and indefinite.” Moreover, the federal government’s powers largely concern external matters; the day-to-day concerns of most citizens—their “lives, liberties, and properties”—will continue to find redress from the local, county, and state governments.

As Madison tough-mindedly remarks in a subsequent paper, the new Constitution puts the states to the test. If the sovereign American 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.” The stronger federal government set down in the new Constitution will inaugurate a kind of competition in good government, breaking the states’ monopolies.

In all this, as Madison writes in the forty-ninth Federalist, the Framers have structured the new federal government and the American system of governments overall in such a way as to secure natural rights while minimizing the infirmities and depravities of the human nature all persons share. Not the passions but the reason of the American public should “sit in judgment” of the government: “It is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.” “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form,” and so does federalism, rightly understood. If such were not the case, “the inference would be that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.”

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

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2 replies
  1. Barb Zack
    Barb Zack says:

    Self-governing citizens must never be reduced to spectators, gazing at the actions of ‘statesmen’ far above and beyond their control”. Is this what we have been reduced to? By either laziness, apathy or design. Are we past the point of no return? I hope not. But we do not have much time left.. We MUST resolve to learn our history and fight with every fiber in our beings to regain our Constitutional Republic!

  2. Publius Senex Dassault
    Publius Senex Dassault says:

    The paragraph on State’s test interesting. Would America become another Europe with liberties crushed and prosperity shackled? Great point eloquently stated. With the advantage of two plus centuries we know the answer to both is a definitive no.

    Have the States been consolidated into a amorphous mass? Images of an amoeba, “The Blob”, or “The Borg” quickly grabs my imagination. The answers appears to me to be less definitive than the former. I think this 90 day series is poignant for this very reason. While we may not be a totality amorphous, our current status would seem to be more so than many would prefer.

    Public discussions on numerous topics finds its underpinnings in this regime. A recent apropos eventis New York State/city rejected giving Amazon tax credits for building HQ2 there. Thus evidence that State and local rights are still preserved. But part of the public discussion accompanying this event is squarely about State/local rights. Some are using this event to propose a National prohibition, akin to Europe’s, against any local/State from offering incentives to bring jobs, prosperity, traffic jams, more taxes, better, but more infrastructure, dislocation of poor, etc. Undeniably such things have many positive and negative implications. But the State/locals have the right to decide.

    But is it the Federal government’s responsibility to regulate this activity? If it is then it is right as some assert, then the US Gov’t is right to set State and local taxes – to ensure level playing fields. Right to veto Amazon going to NYC because Nashville, Omaha, Tucsan deserves a major corporation. Right to . Amazon would then approach the US Gov’t with a request for approval to build HQ2 and where such may be located. At its core the proponents are advocating an even stronger General government and a truly, wholly amorphous society.

    This 90 day series is timely.



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