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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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