Was our governmental system designed to allow for 583 elite few in one city rule a nation of 314 million? Or have one law fit every person or situation for that nation of 314 million? Well, to answer that question, let’s start with the separation of powers. We all remember learning the balance of powers relating to the federal government, that diagram showing the delineation of power between the Executive, Legislative and Judicial Branches and how each branch is supposed to check the other. But, did you know there is another separation of power diagram between the Federal and the State governments? One that was devised under the Constitution and explained in detail to the people of the states before ratification.
It was the concern over this balance of power and the preservation of local self-government that was the entire argument between the Federalists and the Anti-Federalists and it was this balance of power that was central to the State Ratifying Conventions. The term came to be known as Dual Federalism.
After the Revolutionary war was over, it was pointed out that the primary flaw found in the articles of confederation was a lack of power by the general government, of the time, to tax for the needs of national issues. In particular the difficulty in raising the money to fund the revolutionary war. So, it was at this time that the Constitution began to be crafted in Philadelphia, Pennsylvania from May 25 – September 17, 1787.
It then went out to the states for them to decide if they would ratify this new constitution or just stick with the Articles of Confederation. It was in these ratifying conventions that the people expressed their worry about the proposed new government.
In the New York Ratifying Convention Melancton Smith, one of the most important Anti-federalists stated:
“I think that one body cannot possibly legislate for the whole. Can the legislature frame a system of taxation that will operate with uniform advantages? Can they carry any system into execution? Will it not give occasion for an innumerable swarm of officers, to infest our country and consume our substance? People will be subject to impositions [taxes] which they cannot support, and of which their complaints can never reach the government…It is not possible to collect a set of representatives who are acquainted with all parts of the continent. Can you find men in Georgia who are acquainted with the situation of New Hampshire, who know what taxes will best suit the inhabitants, and how much they are able to bear? Can the best men make laws for the people of whom they are entirely ignorant? Sir, we have no reason to hold our state governments in contempt, or to suppose them incapable of acting wisely.” ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Vol. 2, Pg. 334 – 335
John Williams stated his beliefs and his fears in the New York Ratifying Convention by stating:
“The idea that Congress ought to have unlimited powers is entirely novel. I never heard it till the meeting of this Convention. The general government once called on the states to invest them with the command of funds adequate to the exigencies of the Union; but they did not ask to command all the resources of the states. They did not wish to have a control over all the property of the people. If we now give them this control, we may as well give up the state governments with it.” ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Vol. 2, Pg. 335
James Monroe, who would one day be the 5th President of the United States, stated in the Virginia ratifying convention:
“Are there not a thousand circumstances showing clearly that there can be no law that can be uniform in its operation throughout the United States” ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 3 page 21
James Madison stated in the National Convention in Philadelphia that:
“The General Government could not extend its care to all the minute objects which fall within the cognizance of the local jurisdictions.” ~ Farrand, Max:. The Records of the Federal Convention 1787 (New Haven, Yale University Press, 1911). Volume 1, Page 357
So, it was generally conceded that this new government would not be able to handle running the affairs of the country. More importantly, the people did not want the new government to run the affairs of their individual states. So, it was that the explanation of where the delineation of power between the states and the federal government had to be made to allay the people’s fears. When giving his explanation of how the federal government was to function and not swallow up the people by taking over their state government’s authority, Alexander Hamilton explained the powers thusly:
”The laws of the United States are supreme, as to all their proper constitutional objects; the laws of the states are supreme in the same way…
He fleshed this out:
“…the states have certain independent powers, in which their laws are supreme; for example, in making and executing laws concerning the punishment of certain crimes, such as murder, theft, etc. the states cannot be controlled…”
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The only area of overlap into the state’s power, would be some taxing power that the new government would receive to carry out its duties. The reason this discussion was so heated and important was because as chief justice John Marshall stated: “the power to tax involves the power to destroy” and that is exactly what the people feared. The destruction of local control through their state governments. At the end of his explanation of how the powers would function, Hamilton made it very clear to the committee that the new federal government would NEVER unseat the states as the center of power for their citizenry when he stated:
“…it must be utterly repugnant to this Constitution to subvert the state governments, or oppress the people.” ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 2 page 356
So, where was the line between the state and the federal government? How would the people know when the new federal government had gone too far? Well, James Wilson answered that question when he stated in the New York Ratifying Convention that:
“They found themselves embarrassed with another, of peculiar delicacy and importance…of drawing a proper line between the national government and the governments of the several states. It was easy to discover a proper and satisfactory principle on the subject. Whatever object of government is confined, in its operation and effects, within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends, in its operation or effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States…
And that seems like a pretty easy concept for people to grasp. One that the politicians should be able to handle when dealing with legislation concerning the citizenry. If it’s within our own borders, it’s the states jurisdiction and if it’s not, then the federal government can have a say. But, Wilson did caution that,
“though this principle be sound and satisfactory, its application to particular cases would be accompanied with much difficulty, because, in its application, room must be allowed for great discretionary latitude of construction of the principle.” ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Vol. 2, Pg. 424
So, Wilson was cautioning that there would have to be a little give and take on the part of everyone and consider the good of the union when making decisions on the federal governments taxing power. He continued:
“In order to lessen or remove the difficulty arising from discretionary construction on this subject, an enumeration of particular instances [Powers], in which the application of the principle ought to take place, has been attempted with much industry and care.” ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Vol. 2, Pg. 424
In other words, the framers had worked very hard to enumerate the powers (if a power was not mentioned, it was not given) of this new federal government . He cautioned that
“It is only in mathematical science that a line can be described with mathematical precision.”
“But…upon the strictest investigation, the enumeration will be found to be safe and unexceptionable, and accurate, too, in as great a degree as accuracy can be expected in a subject of this nature.” ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Vol. 2, Pg. 424
This understanding of how the union was to function ran throughout the state ratifying conventions. Robert Livingston said in the New York Ratifying Convention:
”We have thirteen distinct governments … the states, and the United States, have distinct objects. They are both supreme. As to national objects the latter is supreme; as to internal and domestic objects, the former.” ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 2 page 385
In Federalist Number 45, James Madison wrote:
“The powers delegated in the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
Judge Edmund Pendleton, explained in the Virginia Ratifying Convention that:
“The two governments act in different manners, and for different purposes, the general government in great national concerns, in which we are interested in common with other members of the Union; the state legislature in our mere local concerns… They can no more clash than two parallel lines can meet.” ~ Wood, G. S. The Creation of the American Republic 1776-1787 (Chapel Hill, University of North Carolina Press, 1969). Pg 529
Alexander Hamilton assured the Ratifiers in Federalist No. 32 that:
“the State governments would clearly retain all the rights of sovereignty which they before had, and which were not exclusively delegated to the United States. This exclusive delegation, or rather alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant.”
Madison stated in Federalist No. 39 that the jurisdiction of the proposed government
“extends to certain enumerated objects only, and leaves to the States a residuary and inviolable sovereignty over all other objects,”
And he added in Federalist No. 40 that the Constitution regards the States
“as distinct and independent sovereigns.”
And the quotes and sentiments of what the will of the conventions were went on and on and on.
So, when someone explains that the Constitution was set up as to put the Federal Government over the states in all things concerning the people, you can smile and be assured that that person has no idea what they’re talking about.
Information for this article was gathered from the sources linked in the article above as well as the book: Federalism: The Founders’ Design by Raoul Berger
