Does the Constitution allow the states to check Federal power?

Posted on February 12, 2014. Filed under: 17th century America, Politics, The Founders, U.S. Constitution | Tags: , , , , |

Part 5 of our series on the Federalist debates that gave us our Constitution takes us up to the wrangle over whether that proposed document gave the states  any real power to check the power of the federal government. As we saw in part 3, the federal government was given unlimited power to tax the states by the draft Constitution, in the name of national security. Anti-Federalists, and even some Federalists, were uncomfortable with this power. The Federalist idea was that the federal government would only tax the states heavily during times of war, and even then it would be forced to put any tax measure up for renewal every two years, so that Congress would have a chance to remove an unfair tax.

But Anti-Federalists argued that relying on a branch of the federal government (Congress) to check the power of the federal government was illogical. Congress would have to vote to check its own power to tax, and why would it? Who gives up their power like that? It would be unlikely that Congress would be that self-disciplined and have that kind of integrity.

The Federalist shot back that Congress was made up of representatives of the states. So if “Congress” was committing a crime, it was really the states committing it, because the people voted for their Representatives, who then voted (at that time) for their Senators. Elect good members of Congress and you won’t have to worry about Congress hurting the states. What happened to your faith in “republican virtue”, Anti-Federalists? The common people you see as so virtuous and protective of liberty will elect their own people to Congress, so there won’t be a problem.

The Anti-Federalists repeated their argument that any representatives who had to travel to a faraway federal government would eventually, inevitably, become corrupt, and put their own power and glory ahead of the people’s liberties. And when that happens, the states are left with no way to check federal power with the Constitution we currently have.

The Federalists tried to swagger through this argument, saying that the state legislatures had many ways to check federal power. Now, this was and is not true—the Constitution does not give the states any power to block federal legislation. It was just another version of the “republican virtue” argument, and the Federalists knew it. When the Anti-Federalists pointed this out, the Federalists responded with a shocking argument, in Paper 46.

First, they said, members of Congress will always put the states first:

“It has been already proved that the members of the federal will be more dependent on the members of the State governments, than the latter will be on the former. It has appeared also, that the [interests] of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government… whilst it will rarely happen, that the members of the State governments will carry into the public councils a bias in favor of the general government. A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States. Every one knows that a great proportion of the errors committed by the State legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the State, to the particular and separate views of the counties or districts in which they reside. …For the same reason, [the] members of the federal legislature will be likely to attach themselves too much to local objects. …Measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests, and pursuits of the governments and people of the individual States.”

That is, just as members of state governments care more about getting benefits for their districts than they care about doing things for the good of the whole state, so members of the federal government will always be pushing their individual states’ wants and needs rather than trying to do good for the nation as a whole.

This is an odd argument for a Federalist to make: the Paper is saying that the federal government will never really benefit “national prosperity and happiness, but the prejudices, interests, and pursuits” of the states. So why have a federal government at all?

This question is begged as the Paper goes on:

“…should an [unfair] measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a [fair] measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.”

In other words, if the federal government passes a law the states don’t like, they can just refuse to obey it, and embarrass the government. This is hardly an argument that will convince the American people to vote Federalist. Again, why have the federal government if it cannot–even should not–control the states and make them obey federal law?

It only gets worse:

“But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity?”

Yes, the Federalist Paper is saying that if the federal government passed enough laws considered to be assaults on states’ rights and individual liberties, the states can just revolt. There can be a civil war, and the United States government can be overthrown as if it were a “foreign yoke”. (This argument, by the way, would be dredged up in 1860-1 by Southern states to justify secession, saying that it was legalized by the Constitution.)

So the power given to the states by the Constitution to check the federal government is resistance to and war on the federal government. This is hardly a system of checks and balances; it is a system of obedience or war. The Paper wraps up thus:

“The argument… may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people.

On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.” [emphasis added]

So the Anti-Federalists’ fears that the federal government will crush the state government is wrong—state governments will actually crush the federal government. How the federal government can be strong enough to hold the states together in a union, and represent them as a nation to the world, while being at the same time too weak to impose its own laws on the states for fear of civil war and disunion is a riddle.

The Federalists knew this. They tried in several Papers to address the problem that the states cannot check the federal government, but the truth was that in our Constitution they cannot, and secession and civil war are not sanctioned by the Constitution, while state obedience to federal law is sanctioned, and despite the protests to the contrary in Paper 46, if the states did try to secede the federal government would use military force to bring them back, as it did in 1861.

The Federalists wanted a strong central government, and they did not believe that it would inevitably become corrupted. They backed the radical experiment of federalism over the morass of confederation, and really did not have any way to prove to the American people that the federal experiment would work and the confederate experiment would not. They asked the American people to take it on faith that they could trust their federal government, and moved on, as we will, to their own vision of republican virtue.

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