The Hollowing Out of American Federalism

[An excellent and instructive article. Ice]

by Lawrence A. Hunter Ph.D.

What Is The Federal System Of Government?

Many people mistakenly equate “Federalism” with decentralization. A federal system is certainly a decentralized system but it is also much more. The defining characteristics of federalism are:

(i) Two constitutionally established, concurrent orders or levels of government, one consisting of fundamental units of governance (called “states”), the other consisting of a national government encompassing all the people who live in the states;

(ii) The sovereign people cede limited and specific powers to the national government, reserving respectively to their states the remainder of the powers they choose to delegate to government;

(iii) Each governing order or level of government is autonomous, free of the other to act within its own realm, the only exception being that acts of the national government are supreme to those of the states when those acts come into conflict in areas where both governments’ delegated authority overlap/intersect; and

(iv) The governments at each level are accountable to their respective electorates and in certain instances to each other as provided for in the constitution.

Before the term “states’ rights” became contaminated by its identification with the efforts of some states to perpetuate slavery and later racial segregation, “states’ rights” concisely described the states’ legal and political autonomy although the term always constituted a shorthand reference to states’ constitutional and political autonomy vis-à-vis the national government as opposed to natural rights, which only individuals possess.

What Was The Purpose Of The Federal System Of Government?

To protect the rights of individuals. The Founding Fathers distrusted power in the hands of any level of government, state or national. As Thomas Jefferson’s biographer Dumas Malone pointed out, Jefferson never supported states’ rights for their own sake, “but to safeguard the freedom of individuals,” which he, along with the rest of the Founding Generation believed would suffer in a consolidated nation no matter how decentralized the administration of the consolidated government happened to be. Hence, in drafting the Kentucky Resolves for instance (see here and here ), Jefferson identified the states as the primary depositories of power and the proper entities of resistance against an encroaching national government.

Although the Founding Fathers well understood that the federal form of government was no absolute bar against either state or national tyranny, they believed it to be a practical check on the national government (especially when combined with constitutional separation of powers) and at the same time a guarantee that safe havens would always exist to which people could flee from an oppressive state government. William Watkins, Jr. puts it this way: “Though some states might abuse power, Jefferson reasoned that not all would fall under the spell of tyranny. But with a consolidated and abusive national government, all would suffer the same tyranny; there would be no islands of peace.” (See The Kentucky and Virginia Resolutions

How Was The Integrity Of The Federal System Of Government To Be Preserved?

Of all people, even the great Federalist consolidator and centralizer Alexander Hamilton understood the delicate balance in the basic architecture of the U.S. Constitution. According to Hamilton in Federalist # 28, it is an “axiom in our political system that the state governments will in all possible contingencies afford complete security against invasions of the public liberty by the national authority.”

Hamilton went on to postulate that should the national government pose a danger, the states could “at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different states; and unite their common forces for the protection of their common liberty.” In other words, the primary means of defense against a grasping and encroaching national government was to be truculent state governments that took action singly and in concert to actively defy national government actions they considered to be in violation of the Constitution.

In a federal system, no government or branch of government was to be the judge of its own cause. (As John Taylor wrote much later, “a jurisdiction limited by its own will is an unlimited jurisdiction.”) The boundaries and limits of governmental authority were to be hammered out through a perpetual struggle among the separate branches of government and between the states and the national government. Watkins again succinctly states Jefferson’s and Madison’s understanding of how the boundaries of authority in a federal system were to be delineated:

“Jefferson proclaimed in the [Kentucky] resolution that ‘each party [to the federal compact] has an equal right to judge for itself, as well of infractions as of the mode and measures of redress.’ For Jefferson, the people acting through their states—the authentic organs of government—were the final arbiters of constitutional interpretation. Jefferson feared that giving the federal government the exclusive power to interpret the Constitution through the Supreme Court would lead to arbitrary government.”

Please read the rest of this excellent article HERE