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A recurrent theme during the debates in 1787 and 1788 over adoption of the Constitution was the structural incompatibility of “confederation” with “consolidation.” The latter was the feared absorption of the states into a unitary general government, so that they ceased to be sovereign members of a “union.” As counties or districts were consolidated within a state, so states would be in the United States.

The Articles of Confederation had guarded against that. In addition to laying out a number of substantive powers and the detailed means by which those powers were to be exercised, they carefully delineated the boundary between the states and the Congress: “Each state retains its sovereignty…, and every Power [sic]…, which is not by this confederation expressly delegated to the United States, in Congress assembled.” Moreover, under the Articles, Congress acted as a true “federal head” on the corpus of the states. Not only did the states have equal voting rights, but Congress acted on the states, not on the citizens directly. The last was the constitutional role of the state legislatures. Thus, under Article VIII of the Confederation, all charges assessed by Congress were to be paid by the states in prescribed proportion, and the “taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several states ….”

By contrast, the new Constitution allowed Congress to bypass the state legislatures and act directly on the people through the powers laid out in Article I, Section 8, including the power to control its own sources of revenue by taxation. More ominously, clause 18 of that section gave Congress the power to make all laws “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.” If that were not enough, Article VI of that document declared that, among other types of law, the statutes of Congress would be the supreme law of the land, and thereby override any state laws that Congress might deem contrary to the exercise of its own powers.

Both the “sweeping” or “elastic” clause (the aforementioned “necessary and proper clause”) and the “supremacy clause” drew the alarm of the Constitution’s opponents. Jefferson, writing to Senator Edward Livingston in 1800, illustrated their concerns, which had not disappeared with the document’s adoption. Congress had recently chartered a mining company.  Jefferson sarcastically compared this action to a popular nursery rhyme: “Congress are authorized to defend the nation. Ships are necessary for defense; copper is necessary for ships; mines, necessary for copper; a company necessary to work the mines; and who can doubt this reasoning who has ever played at ‘This is the House that Jack Built’?”

Even the preamble of the Constitution drew criticism. In passionate speeches to the Virginia ratifying convention in June, 1788, Patrick Henry drew a stark distinction: Had the preamble spoken of “we [sic] the States,” it would have been a confederation. Rather, it spoke of “We, the people, instead of the States of America,” a clear designation of a consolidated government. Henry saw that type of government as a grave threat to basic liberty. He specifically cited the “relinquishment of the trial by jury, and the liberty of the press” as well as threats to the states’ maintenance of their militias.

Attacking from another direction, he denounced Congress’s new power to tax the people directly, another feature of consolidated government, which replaced the Confederation’s system of assessments collected by the states for the federal head. In colorful language, he described the pathology of the new system: “In this scheme of energetic Government, the people will find two sets of tax-gatherers–the State and the Federal Sheriffs….The Federal Sheriff may…ruin you with impunity….Have you any sufficient decided means of preventing him from sucking your blood by speculations, commissions, and fees? Thus thousands of your people will be most shamefully robbed: Our State Sheriffs, those unfeeling blood-suckers, have, under the watchful eye of our Legislature, committed the most horrid and barbarous ravages on our people ….If Sheriffs thus immediately under the eye of our State Legislature and Judiciary, have dared to commit these outrages, what would they not have done if their masters had been at Philadelphia or New York?”

Henry charged, the defenders of the Constitution also were mistaken when they asserted that the federal and state governments would exercise their respective powers as in a “parallel line,” with each confined to its proper objects. Rather, there was no clear line drawn generally in the Constitution between the two levels of government. Even when a specific line was drawn, no mechanism existed to prevent one sovereignty from encroaching on the other. Inevitably, Henry argued, the more powerful general government must necessarily subvert the state governments. Hence, the “necessity of a Bill of Rights appear [sic] to me to be greater in this Government, than ever it was in any Government before.” Indeed, Henry rhetorically preferred the English structure, with its Bill of Rights to limit the King, to the proposed American Constitution that lacked such a document.

The structure of checks and balances among the branches of government and the split sovereignty of the Constitution’s version of federalism were, as Madison and other supporters had insisted, the bulwark to constrain the general government and to protect the people’s rights against arbitrary power. Henry represented the views of many in the various state conventions and, indeed, in the Philadelphia drafting convention, that their plasticity and permeability made such political measures insufficient. Henry’s fellow-Virginian, George Mason, instrumental in forming the Constitution in Philadelphia, left that convention before the final vote, due to that body’s refusal to include a bill of rights. Several other delegates departed for similar reasons. These critics insisted that a firm and clear enumeration of limits on the general government was needed, just as Virginia and some other states had in their own constitutions.

The objections voiced by Henry and others in the several state conventions, caused many of those bodies to submit lists of proposed amendments to the Constitution along with their votes to approve the charter itself. Consistently, these proposals sought to establish a clear line between the two sovereignties’ legislative powers. However, a nuanced, but substantively essential, difference in the language emerged between submissions from states that approved the Constitution early, contrasted with actions by later conventions. Between December 12, 1787, and June 21, 1788, the proposals from Pennsylvania, Massachusetts, Maryland, South Carolina, and New Hampshire, all contained variations on the following language: “That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several states to be by them exercised.” [Emphasis added.] (Massachusetts). That formulation approximated that in the Articles of Confederation. Thereafter, the three states that sent such proposals framed them without the word “expressly.”

The verbal difference illustrated a shift in the federal nature of the two sovereignties and was clearly understood. This shift was reflected in Madison’s language in what became the Tenth Amendment. His initial proposal in the First Congress read, “The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the states respectively.” When an amendment to this language was proposed on the floor of the House to insert “expressly” [delegated], Madison referred to the extensive debate in the Virginia convention. There, he had opposed such an addition as inconsistent with the structural change in the respective constitutional positions of the states and the general government in the new Constitution. He saw the proposed change to his draft as returning the government to the Articles of Confederation. Madison prevailed; the eventual Tenth Amendment did not include this critical adverb. Years later, in McCulloch v. Maryland, Chief Justice Marshall used this textual difference between the two charters to demonstrate the shift in sovereignty and to sustain his broad reading of the general government’s legislative powers.

Still, it would be historically incorrect to say that the principal objective of the Bill of Rights was to protect the states’ power to legislate. Rather, as reflected in the first eight amendments, the objective was to protect expressly the rights of the people from intrusion by the general government into their liberty. Even Henry spent considerable oratory emphasizing the threat the general government posed directly to the rights of the people. If it was necessary for the people’s liberty to have clear limitations against the state government in the Virginia constitution, how much more were they required against the general government?

The Bill of Rights only applied to the general government, not the states, as the Supreme Court affirmed in 1833, in Barron v. City of Baltimore. Protection of state authority to legislate was, to be sure, an incidental aspect of the project. For example, the First Amendment’s Establishment Clause sheltered the continued existence of established state churches. As well, the Second Amendment protected the states’ ability to sustain a militia in the event the federal government used its powers to frustrate the formal state governments’ control over that body. But that amendment did so by recognizing the right of the people, individually, to keep and bear arms, and to organize themselves into militias outside the corporate state governments, if needed.

Moreover, to the extent that the Bill of Rights protected the states’ legislative powers, this was not an unalloyed blessing for individuals. For example, Thomas Jefferson and other Republicans of the time denounced John Adams and the Federalist Party for passage of the Sedition Act of 1798. They claimed the statute violated the First Amendment and exceeded Congress’s legislative powers. At the same time, Jefferson encouraged his political allies in states that they controlled to prosecute Federalist editors under state anti-sedition laws. It was not until the Supreme Court in the 20th century began to incorporate Bill of Rights protections into the due process clause of the Fourteenth Amendment and apply them to the states, that states were prevented from curtailing individual rights beyond what the federal government could do.

Unfortunately, the fears of Henry and other skeptics about the reach of federal power and the erosion of state sovereignty have come true. From a constitutional perspective, the Tenth Amendment is a shadow of what it represented at the time of the ratification debates. If Congress acts directly on individuals under the broad reach of the commerce power, the Tenth Amendment is no real barrier. Only if Congress, instead of legislating directly, seeks to “commandeer” the states into adopting federal policies or administering federal laws is there a violation of the states’ residual sovereignty. Even that obstacle is easily evaded, if Congress attaches the states’ compliance with prescribed federal policies as a condition of receiving federal funds. Yet, as the American people have come to experience, states and localities still legislate vigorously, much more than during the Republic’s early years despite the erosion of their constitutional sovereignty. However, their ability to do so is primarily a function of practicality. It is simply too inefficient to have most local matters administered by federal officers and bureaucrats.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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3 replies
  1. barb Zack
    barb Zack says:

    This country is in the fight of our lives. Democrats are no longer hiding their socialist tendencies, instead proudly proclaiming them. If we do not learn our Country’s proud Constitutional heritage and history, how can we EVER expect to fight the Dems. If we don’t start now, it will be all over in 2020.

    Reply
  2. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you Professor for another excellent essay.

    I am thankful Henry and others insisted on a BoRs to the Constitution. Although Madison rejected most of Henry’s arguments during the Virginia state ratifying convention he took the conversation serious and made a BoRs the first priority only superseded by the need to establish rules for governing. As noted in the essay Madison thought the very structure of the Constitution made it obvious that the Federal government could not exercise rights over States or individuals unless given the right to do so.

    Madison’s change of heart is a credit to his ability to discuss and to “politic” in the best sense of the word. Although he feared the BoRs issue would sway non ratification he also became convinced the BoR was of utmost importance and demanded that it be given top priority in the first Congress, much to the chagrin of other Congressman.

    Our Founders were an amazing group of people who foresaw so many potential problems and for the most part gave us a system of government that has checked most of the abuses and slowed their degradation. But alas, they have been degraded over the centuries.

    May the continued education by groups like CA further retard the dismantling of our Federal system and perhaps even reverse the tide.

    PSD

    Reply
  3. Scott D Hatch
    Scott D Hatch says:

    God where do I start. A the beginning I supose. “We the People” This essay starts with a somewhat rare explanation of those first words of the Preamble. Not many people who revere the Constitution understand the diference between We the People and We the States. One must consider that the states sent delegates to the Convention. Upon arival they voted to conduct the convention in secrecy. The delegates decided that their work would be futile if they were reporting back to the states and if their work was covered by the media. Pressures from outside the convention would cause the failure of the convention.

    So in secrecy and in isolation from the states the convention began to do it’s work. Out of that isolation came a constitution that begins with the sentence We the People of the united states. The second sentence is “In order to form a more perfect union” In modern times we think of the Union forces in the Civil war and that memory defines our thinking on the word union. But in the context of the constitution, the proximity to the words we the people sets the context for who the union refers to. The envisioned Union in the preamble is a union between the people. The Constitution was drafted by persons who recognized we were divergent and diverse. They developed a governmnet that strove to create a more perfect union between sub sets of we the people.

    I believe it is important to understand the men as much as the documents. Madison was a governmental structures geek. As a very young boy he was studying ancient cultures and how they governed themselves. At the time it was widely considdered that Republics could only exist on very limited scales and in mostly homogeneous situations. Madison was the first political theorist to put forth the notion that a truely sustainable Republic could only work on a massive scale and over a large geographc area. He turned the political science world upside down by aplying statistics to Republican theory. In a small scale two divergent factions will always develope and they will fight until one side gets the upper hand and subjugates the other. Madison theorized that on a massive scale a large number of factions would develope and the chances of any single faction subjugating the totallity of the other factions was lower. He was corect unfortunately under our two party system the consolidation of the base has over time consolidated a multitude of factions into two factions. We now face what madison corectly defined as the point of failure for Republics. When two factions work towards the subjugation of each other.

    To further understand the essay presented above we must recognoze that some of our founding fathers and Framers of the constitution felt themselves to be citizens of their states first and citizens of the nation second. By example Jeferson was a Virginian first and an American second. On the other hand Hamilton was an American first and a New Yorker second. It is not a surprise that a more perfect union between peoples with these divergent loyaltes was a chalenge to establish.

    I could go on all day but I want to conclude with one observation. The Articles of Federation were failing us. When Madison and Hamilton first discussed the need for a Constitutional convention they did so whle the Nation was in crissis. It was a crissis of the Articles failings. In concept a very loose federation was apealing to persons who were subjects under an opresive crown. However the Articles barely lasted a decade before the weakness almost killed the nation. I think that is a very important lesson for this group to understand. It has taken over 200 years for the predictions of Patric Henry to come true. Compare that to 10 years for Madisons theory on republics to come true. It is very clear when looked at from that context that a strong federal government has out performed a weak one.

    I know I said I would conclude with the last paragraph but one more is realy needed to tie this all together. In the begining of our second government Washington faced a dilema. He needed to draw the two dominate factions together so he put Jefferson in a Secretary of state. Giving himself a Virginian first as part of his inner circle. He made Hamilton his secretary of the Treasury giving himself an American first advocate to ballance Jeferson. In the end Washington followed Hamiltons advice more than Jefersons. Hamilton was the man who could pull together a nation from nothing. Washington once said that the nation would not survive Hamiltons death. Under Washington and Adams the National government was pulled together and made viable. But the force needed to pull us together was a stronger force than was needed to keep us together. After Washington and Hamilton pulled us together, Adams kept that strong force in efect two long. The National Government became two strong. This was the perfect time for the Jeferson adminisration to step in and introduce the states rights as a counter measure to the Federal govt. I believe we needed an over bearing Washington and Hamilton team to pull us together and then we needed Jeferson to loosen the bonds once our connections were tangable without such force. The sequence was crucial to America become sustainable for the last 200+ years. Each man had a role to play and they each played their role in the proper time and we survived our birth. Now 200+ years later we need to break up the consolidated two faction political dynamic that has developed. We need to return to Madisons vison for a diversity of factions that bypasses the faliure point of republics. By returning to a stronger set of states we make a step in the right direction. State governments gaining leverage will create the situation where the two factions will need to break up their base and deconsolidate. Madison was a fricken genious. We need to learn from his theories on Republics or we will fail in the end.

    Reply

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