definition of federalism essay

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Federalism is the theory or advocacy of federal principles for dividing powers between member units and common institutions. Unlike in a unitary state, sovereignty in federal political orders is non-centralized, often constitutionally, between at least two levels so that units at each level have final authority and can be self governing in some issue area. Citizens thus have political obligations to, or have their rights secured by, two authorities. The division of power between the member unit and center may vary, typically the center has powers regarding defense and foreign policy, but member units may also have international roles. The decision-making bodies of member units may also participate in central decision-making bodies. Much recent philosophical attention is spurred by renewed political interest in federalism and backlashes against particular instances, coupled with empirical findings concerning the requisite and legitimate basis for stability and trust among citizens in federal political orders. Philosophical contributions have addressed the dilemmas and opportunities facing Canada, Australia, Europe, Russia, Iraq, Nepal, Ethiopia and Nigeria, to mention just a few areas where federal arrangements are seen as interesting solutions to accommodate differences among populations divided by ethnic or cultural cleavages yet seeking a common, often democratic, political order.

1. Taxonomy

2.1 some global perspectives, 2.2 western contributions, 3.1 reasons for a federal order rather than separate states or secession, 3.2 reasons to prefer federal orders over a unitary state, 4.1 sovereignty or federalism, 4.2 issues of constitutional and institutional design, 4.3 sources of stability, 4.4 division of power, 4.5 distributive justice, 4.6 democratic theory, 4.7 politics of recognition, contemporary, other internet resources, related entries.

Much valuable scholarship explicates the central terms ‘federalism’, ‘federation’ and ‘federal systems’ (cf. Wheare 1964, King 1982, Elazar 1987, Elazar 1987a, Riker 1993, Watts 1998).

A federal political order is here taken to be “the genus of political organization that is marked by the combination of shared rule and self-rule” (Watts 1998, 120). Federalism is the descriptive theory or normative advocacy of such an order, including principles for dividing final authority between member units and the common institutions.

A federation is one species of such a federal order; other species are unions, confederations, leagues and decentralised unions—and hybrids such as the present European Union (Elazar 1987, Watts 1998). A federation in this sense involves a territorial division of power between constituent units—sometimes called ‘provinces’, ‘cantons’, possibly ‘cities’, or confusingly ‘states’—and a common government. This division of power is typically entrenched in a constitution which neither a member unit nor the common government can alter unilaterally. The member unit and the common government both have direct effect on the citizenry—the common government operates “on the individual citizens composing the nation” (Federalist Paper 39)—and the authorities of both are directly elected (Watts 1998, 121). In comparison, decentralized authority in unitary states can typically be revoked by the central legislature at will. Many multilevel forms of governance may also be revised by units at one level without consent by bodies at other levels. Such entrenchments notwithstanding, some centralization often occurs owing to the constitutional interpretations by a federal level court in charge of settling conflicts regarding the scopes of final legislative and/or judicial authority.

In contrast, ‘confederation’ has come to mean a political order with a weaker center than a federation, often dependent on the constituent units (Watts 1998, 121). Typically, in a confederation a) member units may legally exit, b) the center only exercises authority delegated by member units, c) the center is subject to member unit veto on many issues, d) center decisions bind member units but not citizens directly, e) the center lacks an independent fiscal or electoral base, and/or f) the member units do not cede authority permanently to the center. Confederations are often based on agreements for specific tasks, and the common government may be completely exercised by delegates of the member unit governments. Thus many would count as confederations the North American states during 1776–1787, Switzerland 1291–1847, and the present European Union—though it has several elements typical of federations.

In symmetric ( con ) federations the member units have the same bundles of powers, while in asymmetric ( con ) federations such as Russia, Canada, the European Union, Spain, or India the bundles may be different among member units; some member units may for instance have special rights regarding language or culture. Some asymmetric arrangements involve one smaller state and a larger, where the smaller partakes in governing the larger while retaining sovereignty on some issues (Elazar 1987, Watts 1998).

A helpful categorisation among federal arrangements concerns the relationship between the central unit, member units and individuals. If the decisions made centrally do not involve member units at all, we may speak of separate ( split or compact ) federalism. Some issues may be the responsibility of the central unit, others belonging to the member units, where citizens vote their representatives directly to both bodies (U.S. Constitution Art. II Section 1; cf. Dahl 2001). Federations can involve member units in central decision-making in at least two different ways in various forms of interlocking (or cooperative ) federalism. Member unit representatives can participate within central bodies—in cabinets or legislatures—( collective agency compositional arrangement). Or they constitute one central body that interacts with other central bodies, for instance where member unit government representatives form an Upper House with power to veto or postpone decisions by majority or qualified majority vote ( divided agency / relational arrangements). These legal arrangements give rise to varieties of multi-level governance: continuous negotiations among authorities at different territorial levels (Marks 1993, Hooghe and Marks 2003, Scharpf 1983). Responsiveness to individuals may benefit from interlocking federalism, but often at the cost of transparency and accountability.

Several authors identify two quite distinct processes that lead to a federal political order (Friedrich 1968, Buchanan 1995, Stepan 1999 and others). Independent states may aggregate by ceding or pooling sovereign powers in certain domains for the sake of goods otherwise unattainable, such as security or economic prosperity. Such coming together federal political orders are typically arranged to constrain the center and prevent majorities from overriding a member unit. Examples include the present USA, Canada, Switzerland, and Australia. Holding together federal political orders develop from unitary states, as governments devolve authority to alleviate threats of unrest or secession by territorially clustered minorities. Such federal political orders often grant some member units particular domains of sovereignty e.g. over language and cultural rights in an asymmetric federation, while maintaining broad scope of action for the central government and majorities. Examples include India, Belgium and Spain.

In addition to territorially organized federal political orders, other interesting alternatives to unitary states occur when non-territorial member units are constituted by groups sharing ethnic, religious or other characteristics. These systems are sometimes referred to as ‘non-territorial’ federations. Karl Renner and Otto Bauer explored such arrangements for geographically dispersed cultural minorities, allowing them some cultural and “personal” autonomy without territorial self rule (Bauer 1903; Renner 1907; Bottomore and Goode 1978; cf. Tamir 1993 and Nimni 2005). Consociations consist of somewhat insulated groups in member units who in addition are represented in central institutions often governing by unanimity rather than by majority (Lijphart 1977).

2. History of Federalism

A wide-spread interest among political philosophers in topics concerning the centralised nation state have fuelled attention to historical contributions on unitary sovereignty. However, we can also identify a steady stream of contributions to the philosophy of federalism, also by those more well known for their arguments concerning centralised power (cf. Karmis and Norman 2005 for such readings). Much of the Western literature on federalism has focused on the unit of states. To underscore this bias, consider first some non-Western practices and theories of federal features.

We find federal modes of political organisation on many continents, and contributions to theories about federalism in written sources across philosophical traditions. A range of philosophical contributions underscore that federal perspectives can apply to a wide range of units other than the sovereign states central in European and U.S. thought.

The tribal organisation of the Māori in what is now New Zealand included family groups ( whanau ), who would work together and collaborate for defense as a clan ( hapū ). The tribe ( iwi ) would in turn operate as a federation among several hapū for common defense (Ballara 1998, 19).

Several extinct African societies had federal elements. Edward Wamala describes what we recognise as federal features in pre-14th century Ganda society, in what later became the kingdom of the Baganda, now part of Uganda. The power structures between the chief ( ssabataka ) and heads of tribes ( mutaka ) was one of primus inter pares . The tribes enjoyed immunity, in that the higher units should no usurp the responsibilities of the lower units of power but only promote the well-being of the lower units (Wamala 2004: 436–437)

Nahua (Aztek) culture illustrates multi-level federalism: Tlaxilacalli - badly translated and understood as “neighbourhoods” - would submit to the authority of the sovereign local polity, or altepetl , which then scaled up to autonomous mega-provinces ( huei altepetl ) and finally to the entire empire. At each level, submission was traded for autonomy, undercutting any attempt at direct centralising rule (Johnson 2017). In the 1428 triple alliance for military purposes among the three city-states ( altepeme ) of Tenochtitlan, Texcoco and Totoquihuatzin, each of these rules over their dependent altepetl without interference by the other two (Lockhart 1992).

The Confucian political philosopher Mencius (379–298 BC) laid out a three level ‘familial’ order (Chan 2003). The family had primary responsibility for those unable to care for themselves, and rulers should be the parents of the people. (Mencius 2003, 1B.13). When the family could not assist, the community network should provide support. Only when the community was unable would what we might call the state have an obligation to aid.

We find expressions of federalism in the third pillar of Islam: Obligatory charity in the form of zakat provided to certain needy persons outside one’s own household (Qur’an 9: 103). Every able Muslim must provide a fixed proportion of their net wealth—2.5%—to support others in need. The role of the state may vary when it comes to assess, collect and distribute zakat. In some states, the collection or distribution of zakat is the responsibility of civil society organisations or mosques. In other states, it is the government’s responsibility to either ensure that zakat is managed if Muslims fail to pay; or the whole system may be managed by the state (Bilo and Mechado 2018).

The sub-Saharan philosophy of Ubuntu has federal features that have also contributed to legal theory. The term ‘Ubuntu’ stems from the Nguni phrase “Umuntu ngumuntu ngabantu” meaning a person is a person through other persons. Ubuntu emphasises the harmonious relationships between persons as constitutive of the individual, underscoring compassion and commitment to one another’s growth (Mbiti 1969, Gädeke 2019, Metz 2011). The task of governments at various territorial levels is to promote harmonious flourishing and community of the constituent parts (Shutte 2001). Ubuntu was included in the epilogue of the 1993 Interim Constitution of South Africa, but not explicitly in its 1996 Constitution.

The confederacy among five (later six) Haudenosaunee (Iroquois) nations dates back to between the 12th and 15th century. The oral constitution—The Great Law of Peace—specified that each nation elected delegates, or sachems , who dealt with internal affairs. The confederacy’s Grand Council could not interfere with the internal affairs of each tribe, but would discuss particular matters of common concern such as war, peace, and treaty making. The Haudenosaunee practice of granting the member units immunity apparently influenced Benjamin Franklin’s and others’ call for a union among the English colonies (Fenton 1998). Iris Marion Young explored this tradition to develop a theory of federalism that would secure immunity and redress power imbalances (Young 2000; Levy 2008).

Aristotle (384–322 BC) provides an early Western example of federal thought, where some of the member units are not political. The tasks of households and villages is to secure individuals’ necessities of life. The city-state ( polis ) is a self-sufficient community of such households, clans and villages, for protection and fulfilment (Politics, III.9, 1280b).

Several of the early European contributors to federalist thought explored the rationale and weaknesses of centralised states as they emerged and developed in the 17th and 18th century. Johannes Althusius (1557–1630) is often regarded as the father of modern federalist thought. He argued in Politica Methodice Digesta (Althusius 1603) for autonomy of his city Emden, both against its Lutheran provincial Lord and against the Catholic Emperor. Althusius was strongly influenced by French Huguenots and Calvinism. As a permanent minority in several states, Calvinists developed a doctrine of resistance as the right and duty of “natural leaders” to resist tyranny. Orthodox Calvinists insisted on sovereignty in the social circles subordinate only to God’s laws. The French Protestant Huguenots developed a theory of legitimacy further, presented 1579 by an author with the telling pseudonym “Junius Brutus” in Vindiciae Contra Tyrannos . The people, regarded as a corporate body in territorial hierarchical communities, has a God-granted right to resist rulers without rightful claim. Rejecting theocracy, Althusius developed a non-sectarian, non-religious contractualist political theory of federations that prohibited state intervention even for purposes of promoting the right faith. Accommodation of dissent and diversity prevailed over any interest in subordinating political powers to religion or vice versa.

Since humans are fundamentally dependent on others for the reliable provision of requirements of a comfortable and holy life, we require communities and associations that are both instrumentally and intrinsically important for supporting [ subsidia ] our needs. Althusius, like Aristotle, included non-political units in his federal theory. Families, guilds, cities, provinces, states and other associations owe their legitimacy and claims to political power to their various roles in enabling a holy life, rather than to individuals’ interest in autonomy. Each association claims autonomy within its own sphere against intervention by other associations. Borrowing a term originally used for the alliance between God and men, Althusius holds that associations enter into secular agreements— pactum foederis —to live together in mutual benevolence.

Several early contributors explored what we may now regard as various species of federal political orders, partly with an eye to resolving inter-state conflicts.

Ludolph Hugo (ca. 1630–1704) was the first to distinguish confederations based on alliances, decentralized unitary states such as the Roman Empire, and federations, characterized by ‘double governments’ with territorial division of powers, in De Statu Regionum Germanie (1661) (cf. Elazar 1998; Riley 1976).

A recurring concern was tensions between federalism and conceptions of sovereignty. Samuel Pufendorf (1632–1684) maintained that sovereign states could at most “agree to intertwine for all time” in a confederation deciding by unanimity. Move to majority rule turned the legal order into an ‘irregular system’ closer to a state. If sovereignty is a unique site of final and independent authority, federations are no more than voluntary treaties among fundamentally independent states, argued Emmerik Vattel (1714–1767). Later thinkers challenged this understanding of sovereignty, in debates continuing to this day concerning the European Union. (MacCormick 1999, Schütze 2009).

In The Spirit of Laws (1748) Charles de Secondat, Baron de Montesquieu (1689–1755) argued for confederal arrangements as combining the best of small and large political units, without the disadvantages of either. On the one hand they could provide the advantages of small states such as republican participation and liberty understood as non-domination—that is, security against abuse of power. At the same time confederal orders secure the benefits of larger states such as military security, without the risks of small and large states. A ‘confederate republic’ with separation of powers allows sufficient homogeneity and identification within sufficiently small member units. The member units in turn pool powers sufficient to secure external security, reserving the right to secede (Book 9, 1). Member units serve as checks on each other, since other member units may intervene to quell insurrection and power abuse in one member unit. These themes reoccur in later contributions, up to and including discussions concerning the European Union (cf. Levy 2004, 2005, 2007).

David Hume (1711–1776) disagreed with Montesquieu that smaller size is better. Instead, “in a large democracy … there is compass and room enough to refine the democracy.” In “Idea of a Perfect Commonwealth” (Hume 1752) Hume recommended a federal arrangement for deliberation of laws involving both member unit and central legislatures. Member units enjoy several powers and partake in central decisions, but their laws and court judgments can always be overruled by the central bodies, hence it seems that Hume’s model is not federal as the term is used here. He held that such a numerous and geographically large system would do better than small cities in preventing decisions based on “intrigue, prejudice or passion” against the public interest.

Several 18th century peace plans for Europe recommended confederal arrangements. The 1713 Peace Plan of Abbé Charles de Saint-Pierre (1658–1743) would allow intervention in member units to quell rebellion and wars on non-members to force them to join an established confederation, and required unanimity for changes to the agreement.

Jean-Jacques Rousseau (1712–1778) presented and critiqued Saint-Pierre’s proposal, listing several conditions including that all major powers must be members, that the joint legislation must be binding, that the joint forces must be stronger than any single state, and that secession must be illegal. Again, unanimity was required for changes to the agreement.

Immanuel Kant (1724–1804) defended a confederation for peace in On Perpetual Peace (1796). His Second Definite Article of a Perpetual Peace holds that the right of nations shall be based on a pacific federation among free states rather than a peace treaty or an international state: “This federation does not aim to acquire any power like that of a state, but merely to preserve and secure the freedom of each state in itself, along with that of the other confederated states, although this does not mean that they need to submit to public laws and to a coercive power which enforces them, as do men in a state of nature.”

The discussions surrounding the U.S. Constitutional Convention of 1787 marks a clear development in federal thought, also as regards the tensions between unitary sovereignty and divided authority. One central feature is that federations were seen as uniting not only member units as in confederations, but also the citizenry directly.

The Articles of Confederation of 1781 among the 13 American states fighting British rule had established a center too weak for law enforcement, defense and for securing interstate commerce. What has become known as the U.S. Constitutional Convention met May 25–September 17, 1787. It was explicitly restricted to revise the Articles, but ended up recommending more fundamental changes. The proposed constitution prompted widespread debate and arguments addressing the benefits and risks of federalism versus confederal arrangements, leading eventually to the Constitution that took effect in 1789.

The “Anti-federalists” were fearful of undue centralization. They worried that the powers of central authorities were not sufficiently constrained e.g., by a bill of rights (John DeWitt 1787) that was eventually ratified in 1791. They also feared that the center might gradually usurp the member units’ powers. Citing Montesquieu, another pseudonymous ‘Brutus’ doubted whether a republic of such geographical size with so many inhabitants with conflicting interests could avoid tyranny and would allow common deliberation and decision based on local knowledge (Brutus (Robert Yates?) 1787).

In The Federalist Papers , James Madison (1751–1836), Alexander Hamilton (1755–1804) and John Jay (1745–1829) argued vigorously for the suggested model of interlocking federal arrangements (Federalist 10, 45, 51, 62). Madison and Hamilton agreed with Hume that the risk of tyranny by passionate majorities was reduced in larger republics where member units of shared interest could and would check each other: “A rage for paper money, for an abolition of debts, for an equal division of property, or for any improper or wicked project, will be less likely to pervade the whole body of the Union than a particular member of it.” (Federalist 10). Splitting sovereignty between member unit and center would also protect individuals’ rights against abuse by authorities at either level, or so believed Hamilton, quoting Montesquieu at length to this effect (Federalist 9).

Noting the problems of allocating powers correctly, Madison supported placing some authority with member units since they would be best fit to address “local circumstances and lesser interests” otherwise neglected by the center (Federalist 37).

Madison and Hamilton urged centralized powers of defense and interstate commerce (Federalist 11, 23), and argued for the need to solve coordination and assurance problems of partial compliance, through two new means: Centralized enforcement and direct applicability of central decisions to individuals (Federalist 16, also noted by Tocqueville 1835–40). They were wary of granting member units veto power typical of confederal arrangements, since that would render the center weak and cause “tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.” (Madison and Hamilton, Federalist 22; and cf. 20).

They were particularly concerned to address worries of undue centralization, arguing that such worries should be addressed not by constraining the extent of power in the relevant fields, such as defense, but instead by the composition of the central authority (Federalist 31). They also claimed that the people would maintain stronger “affection, esteem, and reverence” towards the member unit government owing to its public visibility in the day-to-day administration of criminal and civil justice (Federalist 17).

John Stuart Mill (1806–1873), in chapter 17 of Considerations on Representative Government (1861), recommended federations among “portions of mankind” not disposed to live under a common government, to prevent wars among themselves and protect against aggression. He would also allow the center sufficient powers so as to ensure all benefits of union—including powers to prevent frontier duties to facilitate commerce. He listed three necessary conditions for a federation: sufficient mutual sympathy “of race, language, religion, and, above all, of political institutions, as conducing most to a feeling of identity of political interest”; no member unit so powerful as to not require union for defense nor tempt unduly to secession; and rough equality of strength among member units to prevent internal domination by one or two. Mill also claimed among the benefits of federations that they reduce the number of weak states hence reduce temptation to aggression, ending wars and restrictions on commence among member units; and that federations are less aggressive, only using their power defensively. Further benefits from federations—and from decentralized authority in general—might include learning from ‘experiments in living’.

Pierre-Joseph Proudhon (1809–1865), in Du Principe fédératif (1863) defended federalism as the best way to retain individual liberty within ‘natural’ communities such as families and guilds who enter pacts among themselves for necessary and specific purposes. The state is only one of several non-sovereign agents in charge of coordinating, without final authority.

While Proudhon was wary of centralisation, authors such as Harold Laski warned of ‘The Obsolesence of Federalism’ (1939). The important problems, such as those wrought by ‘giant capitalism,’ require more centralised responses than federal arrangements can muster.

Philosophical reflections on federalism were invigorated during and after the Second World War, for several reasons. Altiero Spinelli and Ernesto Rossi called for a European federal state in the Ventotene Manifesto , published 1944. They condemned totalitarian, centralised states and the never ending conflicts among them. Instead there should be enough shared control over military and economic power, yet “each State will retain the autonomy it needs for a plastic articulation and development of political life according to the particular characteristics of the various peoples.” Many explain and justify the European Union along precisely these lines, while others are more critical.

Hannah Arendt (1906–1975) traced both totalitarianism and industrialized mass murder to flaws in the sovereign nation-state model. Skeptical both of liberal internationalism and political realism, she instead urged a Republican federal model or ideal type wherein “the federated units mutually check and control their powers” (Arendt 1972).

The exit of colonial powers also left multi-ethnic states that required creative solutions to combine self rule and shared rule (Karmis and Norman 2005). In addition, globalisation has prompted not only integration and harmonisation, but also—partly in response—explorations of ways to still maintain some local self rule (Watts 1998).

Developments of the European Union and backlash against its particular forms of political and legal integration is one major cause of renewed attention to the philosophy of federalism. Recent philosophical discussions have addressed several issues, including centrally the reasons for federalism, and attention to the sources of stability and instability; the legitimate division of power between member unit and center; distributive justice, challenges to received democratic theory, and concerns about the politics of recognition.

3. Reasons for Federalism

Many arguments for federalism have traditionally been put in terms of promoting various forms of liberty in the form of non-domination, immunity or enhanced opportunity sets (Elazar 1987a). When considering reasons offered in the literature for federal political orders, many appear to be in favor of decentralization without requiring constitutional entrenchment of split authority. Two sets of arguments can be distinguished: Arguments favoring federal orders compared with secession and completely independent sovereign states; and arguments supporting federal arrangements rather than a (further) centralized unitary state. They occur in different forms and from different starting points, in defense of ‘coming together’ federalism, and in favor of ‘holding together’ federalism.

There are several suggested reasons for a federal order rather than separate states or secession.

Federations can facilitate some objectives of sovereign states, such as credible commitments, certain kinds of coordination to secure ‘public goods’ of various sorts, and to control externalities that affect other parties, by transferring some powers to a common body. Since cooperation in some areas can ‘spill over’ and create demands for further coordination in other sectors, federations often exhibit creeping centralisation. Note that several of these objectives require getting the allocation of competences and veto points right within the federal order. For some complex common objectives such as environmental problems, federal features otherwise risk becoming part of the problem (Adler 2005, Dalmazzone 2006).

Federations may foster peace, in the senses of preventing wars and preventing fears of war, in several ways. States can join a (con)federation to become jointly powerful enough to dissuade external aggressors, and/or to prevent aggressive and preemptive wars among themselves. The European federalists Altieri Spinelli, Ernesto Rossi and Eugenio Colorni argued the latter in the 1941 Ventotene Manifesto: Only a European federation could prevent war between totalitarian, aggressive states. Such arguments assume, of course, that the (con)federation will not become more aggressive than each state separately, a point Mill argued.

Federations can promote economic prosperity by removing internal barriers to trade, through economies of scale, by establishing and maintaining inter-member unit trade agreements, or by becoming a sufficiently large global player to affect international trade regimes (for the latter regarding the EU, cf. Keohane and Nye 2001, 260).

Federal arrangements may protect individuals against political authorities by constraining state sovereignty, placing some powers with the center. By entrusting the center with authority to intervene in member units, the federal arrangements can protect minorities’ human rights against member unit authorities (Federalist, Watts 1999). Such arguments assume, of course, that abuse by the center is less likely.

Federal arrangements may enhance the political influence of formerly sovereign governments, both by facilitating coordination, and—particularly for small states—by giving these member units influence or even veto over policy making, rather than remaining mere policy takers.

Federal political orders can be preferred as the appropriate form of nested organizations, for instance in ‘organic’ conceptions of the political and social order. The federation may promote cooperation, justice or other values among and within member units as well as among and within their constituent units, for instance by monitoring, legislating, enforcing or funding agreements, human rights, immunity from interference, or development. Starting with the family, each larger unit responsible for facilitating the flourishing of member units and securing common goods beyond their reach without a common authority. Such arguments have been offered by such otherwise divergent authors as Althusius, the Catholic traditions of subsidiarity as expressed by popes Leo XIII (1891) and Pius XI (1931), and Proudhon.

There are several arguments that may apply in favor of federal orders over a unitary state. Among the challenges for some of these arguments is how to allocate authority when there are conflicting claims to provide different benefits for partly overlapping groups; and how to construct overrides in cases of emergencies such as pandemics (Steytler 2021). Who has the power to decide what are exceptions is important, even if we may disagree with Schmitt that it defines who is sovereign (Schmitt 1985).

Federal arrangements may protect against central authorities by securing immunity and non-domination for minority groups or nations. Constitutional allocation of powers to a member unit protects individuals from the center, while interlocking arrangements provide influence on central decisions via member unit bodies (Madison, Hume, Goodin 1996). Member units may thus check central authorities and prevent undue action contrary to the will of minorities: “A great democracy must either sacrifice self-government to unity or preserve it by federalism. The coexistence of several nations under the same State is a test, as well as the best security of its freedom … The combination of different nations in one State is as necessary a condition of civilized life as the combination of men in society” (Acton 1907, 277).

More specifically, federal arrangements can accommodate minority nations who aspire to self determination, political expressions of their sense of shared identity and belonging, and the preservation of their culture, language or religion (Carla 2012). Such autonomy and immunity arrangements are clearly preferable to the political conflicts that might result from such groups’ attempts at secession. Central authorities may respond with human rights abuses, civil wars or ethnic cleansing to prevent such secessionist movements.

Federal orders may increase the opportunities for citizen participation in public decision-making; through deliberation and offices in both member unit and central bodies that ensures character formation through political participation among more citizens (Mill 1861, ch. 15).

Federal orders may facilitate learning by fostering alternative solutions to similar problems and sharing lessons from such a laboratory of ‘experiments in living’ (Rose-Ackerman 1980).

Federations may facilitate efficient preference maximization more generally, as formalized in the literature on economic and fiscal federalism—though many such arguments support decentralization rather than federalism proper. Research on ‘fiscal federalism’ addresses the optimal allocation of authority, typically recommending central redistribution but local provision of public goods. Federal arrangements may allow more optimal matching of the authority to create public goods to specific affected subsets of the populations. If individuals’ preferences vary systematically by territory according to external or internal parameters such as geography or shared tastes and values, federal—or decentralized—arrangements that allow local variation may be well suited for several reasons. Local decisions prevent overload of centralised decision-making, and local decision-makers may also have a better grasp of affected preferences and alternatives, making for better service than would be provided by a central government that tends to ignore local preference variations (Smith 1776, 680). Granting powers to population subsets that share preferences regarding public services may also increase efficiency by allowing these subsets to create such ‘internalities’ and ‘club goods’ at costs borne only by them (Musgrave 1959, 179–80, Olson 1969, Oates’ 1972 ‘Decentralization Theorem’).

Federal arrangements can also shelter territorially based groups with preferences that diverge from the majority population, such as ethnic or cultural minorities, so that they are not subject to majority decisions severely or systematically contrary to their preferences. Non-unitary arrangements may thus minimize coercion and be responsive to as many citizens as possible (Mill 1861 ch. 15, Elazar 1968; Lijphart 1999). Such considerations of economic efficiency and majority decisions may favor federal solutions, with “only indivisibilities, economies of scale, externalities, and strategic requirements … acceptable as efficiency arguments in favor of allocating powers to higher levels of government” (Padou-Schioppa 1995, 155).

Federal arrangements may not only protect existing clusters of individuals with shared values or preferences, but may also promote mobility and hence territorial clustering of individuals with similar preferences. Member unit autonomy to experiment may foster competition for individuals who are free to move where their preferences are best met. Such mobility towards member units with like-minded individuals may add to the benefits of local autonomy over the provision of public services—absent economies of scale and externalities (Tiebout 1956, Buchanan 2001)—though the result may be that those with costly needs and who are less mobile are left worse off.

4. Further Philosophical Issues

Much recent attention has focused on philosophical issues arising from empirical findings concerning federalism (for an overview of such empirical research, cf. Burris 2015), and has been spurred by quite different dilemmas facing—inter alia—Canada, Australia, Nepal, Ethiopia, several European states and the European Union.

The tensions between sovereignty and federalism still pose puzzles, reflected in ‘international’ and ‘national’ understandings of the latter (Schütze 2009). If sovereignty is a unique site of final and independent authority, federal orders cannot be sovereign, since no one has the ‘last word’ on all political matters (Friedrich 1968), and “authority and power are dispersed among a network of arenas” (Elazar 1994, xiii). Another tradition, including Madison (Federalist Paper 39), and more recently Beaud (2009) and Schütze (2009), seeks to square the circle allowing dual sovereignty. Several contributions to the political and legal theory of the European Union resolve these issues in different directions (Bellamy 2019; Schütze 2020).

Federal political orders require attention to several constitutional and other institutional issues. The great variation and how the features interact require careful comparative studies to understand their impact on law and politics (Palermo and Kössler 2017). The design of federal orders raise peculiar and intriguing issues of normative political theory (Watts 1998; Norman 2006).

Composition: How to determine the boundaries of the member units, e.g., along geographical, ethnic or cultural lines; whether establishment of new member units from old should require constitutional changes, whether to allow secession and if so how, etc.

Distribution of Power: The allocation of legislative, executive, judicial and constitution-amending power between the member units and the central institutions. In asymmetric arrangements some of these may differ among member units.

Power Sharing: The form of influence by member units in central decision-making bodies within the interlocking political systems.

These tasks must be resolved taking due account of several important considerations noted below.

As political orders go, federal political arrangements pose peculiar problems concerning stability and trust. Federations tend to drift toward disintegration in the form of secession, or toward centralization in the direction of a unitary state.

Such instability should come as no surprise given the tensions typically giving rise to federal political orders in the first place, such as tensions between majority and minority national communities in multinational federations. Federal political orders are therefore often marked by a high level of ‘constitutional contestation’. The details of their constitutions and other institutions may affect these conflicts and their outcomes in drastic ways. Political parties often disagree on constitutional issues regarding the appropriate areas of member unit autonomy, the forms of cooperation and how to prevent fragmentation. Such sampling bias among states that federalize to hold together makes it difficult to assess often heard claims that federal responses such as granting some local autonomy perpetuate cleavages and fuel rather than quell secessionist movements. Some nevertheless argue that democratic, interlocking federations alleviate such tendencies (Simeon 1998, Simeon and Conway 2001, Linz 1997; cf. McKay 2001, Filippov, Ordeshook and Shvetsova 2004).

Many authors note that the challenges of stability must be addressed not only by institutional design, but also by ensuring that citizens have an ‘overarching loyalty’ or ‘federal spirit’ to the federation as whole in addition to loyalty toward their own member unit (Franck 1968, Linz 1997, Burgess 2012). The legitimate bases, content and division of such a public dual allegiance are central topics of political philosophies of federalism (Norman 1995a, Choudhry 2001). Some accept (limited) appeals to considerations such as shared history, practices, culture, or ethnicity for delineating member units and placing certain powers with them, even if such ‘communitarian’ features are regarded as more problematic bases for (unitary) political orders (Kymlicka 1995, Habermas 1996, 500). Debates about the existence of a ‘European demos’ and the need for a common ‘European identity’ merit more careful scrutiny (Habermas 1992). The appropriate consideration that voters and their member unit politicians should give to the interests of others in the federation in interlocking arrangements must be clarified if the notion of citizen of two commonwealths is to be coherent and durable. Several of these challenges are especially acute for ‘ethnic federalism’ when the member units are delineated along ethnic lines: Any ‘internal minorities’ of other ethnicity risk persecution, the prospects of an overarching loyalty are dimmer, and ethnic nationalism may fuel secessionist movements (Selassie 2003)

Another and related central philosophical topic is the critical assessment of alleged grounds for federal arrangements in general, and the division of power between member units and central bodies in particular, indicated in the preceding sections. Recent contributions include Knop et al . 1995, Kymlicka 2001, Kymlicka and Norman 2000, Nicolaidis and Howse 2001, Norman 2006. Among the important issues, especially due to the risks of instability, are:

How the powers should be allocated, given that they should be used—but may be abused—by political entrepreneurs at several levels to affect their claims. The concerns about stability require careful attention to the impact of these powers on the ability to create and maintain ‘dual loyalties’ among the citizenry.

How to ensure that neither member units nor the central authorities overstep their jurisdiction. As Mill noted, “the power to decide between them in any case of dispute should not reside in either of the governments, or in any functionary subject to it, but in an umpire independent of both.” (1861) Such a court must be sufficiently independent, yet not utterly unaccountable. Many scholars seem to detect a centralising tendency among such courts (Watts 1998).

How to maintain sufficient democratic control over central bodies when these are composed by representatives of the executive branch of member units? The chains of accountability may be too long for adequate responsiveness. This is part of the core concerns about a ‘democratic deficit’ in the European Union (Watts 1998, Føllesdal and Hix 2006).

Who shall have the authority to revise the constitutionally embedded division of power? Some hold that a significant shift in national sovereignty occurs when such changes may occur without the unanimity characteristic of treaties.

The “Principle of Subsidiarity” has often been used to guide the decisions about allocation of power. This principle has recently received attention owing to its inclusion in European Union treaties. It holds that authority should rest with the member units unless allocating them to a central unit would ensure higher comparative efficiency or effectiveness in achieving certain goals. This principle can be specified in several ways, for instance concerning which units are included, which goals are to be achieved, and who has the authority to apply it. The principle has multiple pedigrees, and came to recent political prominence largely through its role in quelling fears of centralization in Europe—a contested role which the principle has not quite filled (Fleiner and Schmitt 1996, Burgess and Gagnon 1993, Føllesdal 1998).

Regarding distributive justice, federal political orders must manage tensions between ensuring member unit autonomy and securing the requisite redistribution within and among the member units. Indeed, the Federalists regarded federal arrangements as an important safeguard against “the equal division of property” (Federalist 10). The political scientists Linz and Stepan may be seen as finding support for the Federalists’ hypothesis: Compared to unitary states in the OECD, the ‘coming together’ federations tend to have higher child poverty rate in solo mother households and a higher percentage of population over-sixty living in poverty. Linz and Stepan explain this inequality as stemming from the ‘demos constraining’ arrangements of these federations, seeking to protect individuals and member units from central authorities, combined with a weak party system. By comparison, the Constitution of Germany (not a ‘coming together’ federation) explicitly requires equalization of living conditions among the member units (Art. 72.2). Presbey argues that ethnic federalism further exacerbates unfair distribution of resources among individuals of different ethnic groups in Africa (Presbey 2003). Normative arguments may also support some distributive significance of federal arrangements, for instance owing to trade-offs between member unit autonomy and redistributive claims among member units (Føllesdal 2001), or the relevance of a shared ‘identity‘ (Grégoire and Jewkes 2015, de Schutter 2011). A central normative issue is to what extent a shared culture and bonds among citizens within a historically sovereign state reduce the claims on redistribution among the member units.

Federalism may increase citizens’ control over matters important to them but also raises several challenges to democratic theory, especially as developed for unitary states. Federal arrangements are often more complex, thereby challenging standards of transparency, accountability and public deliberation (Habermas 2001). The restricted political agendas of each center of authority also require defense (Dahl 1983; Braybrooke 1983). One of several sets of issues concern the standing of member units. Challenging puzzles concern federal orders where some or all units are not internally democratic (for further issues, cf., Norman 2006, 144–150).

The power that member units wield in federations often restricts or violates majority rule, in ways that merit careful scrutiny. Democratic theory has long been concerned with how to prevent domination of minorities, and many federal political orders do so by granting member units some influence over common decisions. Federal political orders typically influence individuals’ political influence by skewing their voting weight in favor of citizens of small member units, or by granting member unit representatives veto rights on central decisions. Minorities thus exercise control in apparent violation of principles of political equality and one-person-one-vote—more so when member units are of different size. These features raises fundamental normative questions concerning why member units should matter for the allocation of political power among individuals who live in different member units. Some of these puzzles are addressed in terms of ‘demoicracy’, especially regarding the European Union (van Parijs 1997, Nicolaidis 2012, Schütze 2020). Thus theorists disagree about whether every EU member state should maintain sovereignty in the sense of enjoying a veto for all decisions (Bellamy 2019, Cheneval et al 2015).

Many federal political orders accommodate minority groups in two ways discussed above: both through a division of power, and by granting them influence over common decisions. These measures of identity politics can be valuable ways to give public acknowledgment and recognition to groups and their members, sometimes on the very basis of previous domination. But identity politics also create challenges (Gutman 1994), especially in federal arrangements that face greater risks of instability and must maintain citizens’ dual political loyalties. Self-government arrangements may threaten the federal political order: “demands for self-government reflect a desire to weaken the bonds with the larger community and, indeed, question its very nature, authority and permanence” (Kymlicka and Norman 1994, 375). The emphasis on “recognition and institutionalization of difference could undermine the conditions that make a sense of common identification and thus mutuality possible” (Carens 2000, 193).

Federations are often thought to be sui generis , one-of-a-kind deviations from the ideal-type unitary sovereign state familiar from the Westphalian world order. Indeed, every federation may well be federal in its very own way, and not easy to summarize and assess as an ideal-type political order. Yet the phenomenon of non-unitary sovereignty is not new, and federal accommodation of differences may well be better than the alternatives. When and why this is so has long been the subject of philosophical, theoretical and normative analysis and reflection. Such public arguments may themselves contribute to develop the overarching loyalty required among citizens of stable, legitimate federations, who must understand themselves as members of two commonwealths.

Several of the historical writings—those marked ‘*’ below and others—are reprinted in part or full in Theories of Federalism: A Reader , Dimitrios Karmis and Wayne Norman (eds.), New York: Palgrave, 2005.

Brutus, Junius (Philippe Duplessis-Mornay?), 1579, Vindiciae contra tyrannos , George Garnett (transl. and ed.), Cambridge: Cambridge University Press, 1994.
*Althusius, Johannes, 1603, Politica Methodice Digesta , Frederick S. Carney (transl.), Daniel J. Elazar (introd.), Indianapolis: Liberty Press, 1995.
Arendt, Hannah, 1972, “Thoughts on Politics and Revolution,” in Crises of the Republic , New York: Harcourt Brace, 199–233.
Hugo, Ludolph, 1661, De Statu Regionum Germaniae. Helmstadt: Sumptibus Hammianis.
Saint-Pierre, Abbé Charles, 1713, Projet pour rendre la paix perpêtuelle en Europe (Project to make peace perpetual in Europe), Paris: Fayard, 1986.
*Montesquieu, Baron de, 1748, The Spirit of Laws , Amherst, NY: Prometheus Books, 2002.
*Rousseau, Jean-Jacques, 1761, A Lasting Peace Through the Federation of Europe , C.E. Vaughan (trans.), London: Constable, 1917.
*–––, 1761, “Summary and Critique of Abbé Saint-Pierre’s Project for Perpetual Peace,” in Grace G. Roosevelt (ed.), Reading Rousseau in the Nuclear Age , Philadelphia: Temple University Press, 1990.
Hume, David, 1752, “Idea of a Perfect Commonwealth,” in T.H. Green and T.H. Grose (eds.), Essays moral, political and literary , London: Longmans, Green, 1882
Smith, Adam, 1776, An Inquiry into the Nature and Causes of the Wealth of Nations , London: Dent, 1954.
Storing, Herbert, and Murray Dry (eds.), 1981, The Complete Anti-Federalist (7 Volumes), Chicago: University of Chicago Press.
*Hamilton, Alexander, James Madison, and John Jay, 1787–88, The Federalist Papers , Jacob E. Cooke (ed.), Middletown, CT: Wesleyan University Press, 1961.
Kant, Immanuel, 1784, “An Answer to the Question: ‘What Is Enlightenment?’” in Hans Reiss (ed.), Kant’s Political Writings , Cambridge: Cambridge University Press, 1970, 54–60.
*–––, 1796, “Perpetual Peace: A Philosophical Sketch,” in Hans Reiss (ed.), Kant’s Political Writings , Cambridge: Cambridge University Press, 1970, 93–130.
*de Tocqueville, Alexis, 1835–40, Democracy in America , P. Bradley (ed.), New York: Vintage, 1945 [ Text available online ].
*Mill, John Stuart, 1861, Considerations on Representative Government , New York: Liberal Arts Press, 1958 [ Text available online ].
*Proudhon, Pierre Joseph, 1863, Du Principe Federatif , J.-L. Puech and Th. Ruyssen (eds.), Paris: M. Riviere, 1959.
Leo XIII, 1891, “Rerum Novarum,” in The Papal Encyclicals 1903–1939 , Raleigh: Mcgrath, 1981.
Renner, Karl, 1899, Staat und Nation , Vienna. Reprinted as “State and Nation” in Ephraim Nimni (ed.), National Cultural Autonomy and Its Contemporary Critics , London: Routledge, 2005, 64–82.
Pius XI, 1931. “Quadragesimo Anno,” in The Papal Encyclicals 1903–1939 , Raleigh: Mcgrath, 1981.
*Spinelli, Altiero, and Ernesto Rossi, 1944, Il manifesto di Ventotene ( The Ventotene Manifesto ), Naples: Guida, 1982; reprinted in Karmis and Norman 2005. [ Text available online ]
Vattel, Emmerich, 1758 (2008), “The Law of Nations (Le Droit Des Gens),” in The Classics of International Law, edited by Bela Kapossy and Richard Whatmore , Indianapolis: Liberty Fund.

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Publius: The Journal of Federalism , regularly publishes philosophical articles.

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Bakvis, Herman, and William M. Chandler (eds.), 1987, Federalism and the Role of the State , Toronto: Toronto University Press.
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Franck, Thomas M. (ed.), 1968, Why Federations Fail: An Inquiry into the Requisites for Successful Federalism , New York: New York University Press.
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Gaudreault-DesBiens, Jean-François, and Fabien Gélinas (eds.), 2005, The States and Moods of Federalism: Governance, Identity and Methodology—Le Fédéralisme Dans Tous Ses États : Gouvernance, Identité Et Méthodologie Quebec: Éditions Yvon Blais.
Grégoire, Jean-Francois, and Michael Jewkes, (eds.), 2015, Recognition and Redistribution in Multinational Federations , Leuven: Leuven University Press.
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Härtel, Ines (ed.), 2012, Handbuch Föderalismus: – Föderalismus als Demokratische Rechtsordnung und Rechtskultur in Deutschland, Europa und der Welt , 4 volumes, Berlin: Springer.
Heidemann, Dietmar, and Katja Stoppenbrink (eds.), 2016, Join, or Die: Philosophical Foundations of Federalism , Berlin: De Gruyter.
Karmis, Dimitrios, and Wayne Norman (eds.), 2005, Theories of Federalism: A Reader , New York: Palgrave.
Kincaid, John (ed.), 2011, Federalism, 4 Vols. , Sage Library of Political Science London.
Knop, Karen, Sylvia Ostry, Richard Simeon and Katherine Swinton (eds.), 1995, Rethinking Federalism: Citizens, Markets and Governments in a Changing World , Vancouver: University of British Columbia Press.
Kymlicka, Will, and Wayne Norman (eds.), 2000, Citizenship in Diverse Societies , Oxford: Oxford University Press.
Nicolaidis, Kalypso, and Robert Howse (eds.), 2001, The Federal Vision: Legitimacy and Levels of Governance in the US and the EU , Oxford: Oxford University Press.
Nimni, Ephraim (ed.), 2005, National-Cultural Autonomy and its Contemporary Critics , Milton Park: Routledge.
Steytler, Nico (ed.) 2021. Comparative federalism and Covid-19: Combating the Pandemic , Routledge.
Trechsel, Alexander (ed.), 2006, Towards a Federal Europe , London: Routledge.
Tushnet, Mark (ed.), 1990, Comparative Constitutional Federalism: Europe and America , New York: Greenwood Press.
Ward, Ann, and Lee Ward (eds.), 2009, The Ashgate Research Companion to Federalism . Farnham: Ashgate.

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Tushnet, Mark, 1996, “Federalism and Liberalism,” Cardozo Journal of International and Comparative Law , 4: 329–44.
Voyenne, Bernard, 1975, Histoire De L’idée Fédéraliste . Paris: Presses d’Europe.
Wamala, Edward. “Government by Consensus: An Analysis of a Traditional Form of Democracy,” in A Companion to African Philosophy , edited by Kwasi Wiredu, 435–42, Oxford: Blackwell.
Watts, Ronald L., 1998, “Federalism, Federal Political Systems, and Federations,” Annual Review of Political Science , 1: 117–37.
–––, 1999, Comparing Federal Systems , Montreal: McGill-Queens University Press.
Weinstock, Daniel, 2011, “Self-Determination for (some) cities?” in Axel Gosseries and Yannick Vanderborght (eds.), Arguing About Justice: Essays for Philippe Van Parijs , Louvain: Presses universitaires de Louvain, 377–86.
Wheare, Kenneth C., 1964, Federal Government (4th edition), Oxford: Oxford University Press.
Young, Iris Marion, 2000, “Hybrid Democracy: Iroquois Federalism and the Postcolonial Project,” in Political Theory and the Rights of Indigenous Peoples , edited by Duncan Ivison, Paul Patton and Will Sanders, 236–58, Cambridge: Cambridge University Press.

How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

Liberty Library of Constitutional Classics [Contains many e-texts of primary sources] (maintained by the Constitution Society at constitution.org)
Daniel J. Elazar’s writings on federalism (maintained at the Jerusalem Center for Public Affairs)

Acknowledgements

This entry has benefited from suggestions by Andrea Carla, Federica Cittadino, Philippe Crignon, Dorothea Gädeke, Douglas Klusmeyer, Silje Langvatn, Petra Malfertheiner, Thaddeus Metz, Francesco Palermo, Antoinette Scherz, Robert Schütze, and Katja Stoppenbrink, and from exchanges at a Conference on Federalism 2022 at EHESS, Paris, and at the Eurac institutes for minority rights and for federalism, Bolzano, 2022.

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Federalism is a system of government in which the same territory is controlled by two levels of government. Generally, an overarching national government is responsible for broader governance of larger territorial areas, while the smaller subdivisions, states , and cities govern the issues of local concern.

Both the national government and the smaller political subdivisions have the power to make laws and both have a certain level of autonomy from each other.

United States

In the United States, the Constitution has established a system of “dual sovereignty ,” under which the States have surrendered many of their powers to the Federal Government, but also retained some sovereignty. Examples of this dual sovereignty are described in the U.S. Constitution.

Supremacy Clause

Article VI of the U.S. Constitution contains the Supremacy Clause , which reads, "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." This effectively means that when the laws of the federal government are in conflict with the laws of a state's government, the federal law will supersede the state law.

Article I, Section 8

Article I , Section 8 of the Constitution describes specific powers which belong to the federal government. These powers are referred to as enumerated powers.

Tenth Amendment

The Tenth Amendment reserves powers to the states, as long as those powers are not delegated to the federal government. Among other powers, this includes creating school systems, overseeing state courts , creating public safety systems, managing business and trade within the state, and managing local government. These powers are referred to as reserved powers.

Concurrent Powers

Concurrent powers refer to powers that are shared by both the federal government and state governments. This includes the power to tax , build roads, and create lower courts .

Federalist Papers

By: History.com Editors

Updated: June 22, 2023 | Original: November 9, 2009

The Federalist Papers are a collection of essays written in the 1780s in support of the proposed U.S. Constitution and the strong federal government it advocated. In October 1787, the first in a series of 85 essays arguing for ratification of the Constitution appeared in the Independent Journal , under the pseudonym “Publius.” Addressed to “The People of the State of New York,” the essays were actually written by the statesmen Alexander Hamilton , James Madison and John Jay . They would be published serially from 1787-88 in several New York newspapers. The first 77 essays, including Madison’s famous Federalist 10 and Federalist 51 , appeared in book form in 1788. Titled The Federalist , it has been hailed as one of the most important political documents in U.S. history.

Articles of Confederation

As the first written constitution of the newly independent United States, the Articles of Confederation nominally granted Congress the power to conduct foreign policy, maintain armed forces and coin money.

But in practice, this centralized government body had little authority over the individual states, including no power to levy taxes or regulate commerce, which hampered the new nation’s ability to pay its outstanding debts from the Revolutionary War .

In May 1787, 55 delegates gathered in Philadelphia to address the deficiencies of the Articles of Confederation and the problems that had arisen from this weakened central government.

A New Constitution

The document that emerged from the Constitutional Convention went far beyond amending the Articles, however. Instead, it established an entirely new system, including a robust central government divided into legislative , executive and judicial branches.

As soon as 39 delegates signed the proposed Constitution in September 1787, the document went to the states for ratification, igniting a furious debate between “Federalists,” who favored ratification of the Constitution as written, and “Antifederalists,” who opposed the Constitution and resisted giving stronger powers to the national government.

The Rise of Publius

In New York, opposition to the Constitution was particularly strong, and ratification was seen as particularly important. Immediately after the document was adopted, Antifederalists began publishing articles in the press criticizing it.

They argued that the document gave Congress excessive powers and that it could lead to the American people losing the hard-won liberties they had fought for and won in the Revolution.

In response to such critiques, the New York lawyer and statesman Alexander Hamilton, who had served as a delegate to the Constitutional Convention, decided to write a comprehensive series of essays defending the Constitution, and promoting its ratification.

Who Wrote the Federalist Papers?

As a collaborator, Hamilton recruited his fellow New Yorker John Jay, who had helped negotiate the treaty ending the war with Britain and served as secretary of foreign affairs under the Articles of Confederation. The two later enlisted the help of James Madison, another delegate to the Constitutional Convention who was in New York at the time serving in the Confederation Congress.

To avoid opening himself and Madison to charges of betraying the Convention’s confidentiality, Hamilton chose the pen name “Publius,” after a general who had helped found the Roman Republic. He wrote the first essay, which appeared in the Independent Journal, on October 27, 1787.

In it, Hamilton argued that the debate facing the nation was not only over ratification of the proposed Constitution, but over the question of “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

After writing the next four essays on the failures of the Articles of Confederation in the realm of foreign affairs, Jay had to drop out of the project due to an attack of rheumatism; he would write only one more essay in the series. Madison wrote a total of 29 essays, while Hamilton wrote a staggering 51.

Federalist Papers Summary

In the Federalist Papers, Hamilton, Jay and Madison argued that the decentralization of power that existed under the Articles of Confederation prevented the new nation from becoming strong enough to compete on the world stage or to quell internal insurrections such as Shays’s Rebellion .

In addition to laying out the many ways in which they believed the Articles of Confederation didn’t work, Hamilton, Jay and Madison used the Federalist essays to explain key provisions of the proposed Constitution, as well as the nature of the republican form of government.

'Federalist 10'

In Federalist 10 , which became the most influential of all the essays, Madison argued against the French political philosopher Montesquieu ’s assertion that true democracy—including Montesquieu’s concept of the separation of powers—was feasible only for small states.

A larger republic, Madison suggested, could more easily balance the competing interests of the different factions or groups (or political parties ) within it. “Extend the sphere, and you take in a greater variety of parties and interests,” he wrote. “[Y]ou make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens[.]”

After emphasizing the central government’s weakness in law enforcement under the Articles of Confederation in Federalist 21-22 , Hamilton dove into a comprehensive defense of the proposed Constitution in the next 14 essays, devoting seven of them to the importance of the government’s power of taxation.

Madison followed with 20 essays devoted to the structure of the new government, including the need for checks and balances between the different powers.

'Federalist 51'

“If men were angels, no government would be necessary,” Madison wrote memorably in Federalist 51 . “If angels were to govern men, neither external nor internal controls on government would be necessary.”

After Jay contributed one more essay on the powers of the Senate , Hamilton concluded the Federalist essays with 21 installments exploring the powers held by the three branches of government—legislative, executive and judiciary.

Impact of the Federalist Papers

Despite their outsized influence in the years to come, and their importance today as touchstones for understanding the Constitution and the founding principles of the U.S. government, the essays published as The Federalist in 1788 saw limited circulation outside of New York at the time they were written. They also fell short of convincing many New York voters, who sent far more Antifederalists than Federalists to the state ratification convention.

Still, in July 1788, a slim majority of New York delegates voted in favor of the Constitution, on the condition that amendments would be added securing certain additional rights. Though Hamilton had opposed this (writing in Federalist 84 that such a bill was unnecessary and could even be harmful) Madison himself would draft the Bill of Rights in 1789, while serving as a representative in the nation’s first Congress.

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Ron Chernow, Hamilton (Penguin, 2004). Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (Simon & Schuster, 2010). “If Men Were Angels: Teaching the Constitution with the Federalist Papers.” Constitutional Rights Foundation . Dan T. Coenen, “Fifteen Curious Facts About the Federalist Papers.” University of Georgia School of Law , April 1, 2007.

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Legislative Branch

Understanding Federalism

Each of the five activities in this lesson introduces a different aspect of federalism. Introducing Federalism explores everyday situations that demonstrate the influence of federalism. The Historic Roots of Federalism shows students how the Articles of Confederation and the Constitution are grounded in federalism. Federalism in the Constitution explores federalism as described in Article I of the Constitution. Federalism in History uses historic legislation to illustrate how the relationship between the Federal government and the states has changed over time. Federalism in Everyday Life uses everyday experience to show the overlap among the different levels of government. The activities can be completed separately over the course of several classes.

Students will learn about federalism and its role in civic life by completing one or more of the activities.

Guiding Question

What is federalism, and how does this constitutional principle influence government and civic life in the United States?

6 Worksheets

Answer Keys

Recommended Grade Levels

Civics; U.S. Government

Time Required

Each activity requires approximately 30 minutes to complete. Activity 5 has two optional parts which can be done in class or as homework assignments.

Learning Activities

Activity 1: Introducing Federalism

What is the definition of federalism? A system of government divided among local, state, and national responsibilities.
Why is federalism an important civic concept to understand? People encounter and interact with different levels of government—local, state, and Federal—every day.
Distribute Worksheet 1. Instruct each student to use the definitions for each term to fill out the remaining two columns. The column for "Visual Representation" should be completed with an illustration showing the level of government and what it presides over. (E.g., a representation of the Federal government presiding over the states.) Check the students' work using the Worksheet 1 Answer Key.
Distribute Worksheet 2. Instruct each student to answer the questions, write the explanation called for, and fill out the diagram following the directions on the worksheet. Check the students' work using the Worksheet 2 Answer Key.

Activity 2: The Historic Roots of Federalism

Federalism has not had one set definition throughout history, because the idea of the appropriate balance of authority among the local, state, and Federal governments has changed over time.
Federalism is not specifically defined in the Constitution, but its meaning is suggested in how the national government is described.
How is the role of the states different in the two preambles? Under the Articles of Confederation the states were partners in the union and had power over the action of the Federal government. The relationship of the states to the Federal government was not mentioned in the Preamble of the Constitution.
Does the difference in the role of the states suggest a change in the meaning of federalism? Federalism under the Articles of Confederation meant that all states had to agree to each action of the Federal government in order for the Federal government to act. The role of the states and their relationship is not spelled out in the Preamble of the Constitution.

Activity 3: Federalism in the Constitution

Discuss the concept of enumerated powers (powers granted to the Federal government), denied powers, and reserved power in the Constitution.
Distribute Worksheet 4. Instruct the students to read the excerpt from the Constitution, and label each power as either E for enumerated power, D for denied power, or R for reserved power. Check the students' work using the Worksheet 4 Answer Key.
Conduct a class discussion on the following question to check the students' understanding: (A suggested answer is italicized following the question.)
Which clause of Article I, Section 8 do you think has the greatest influence on the discussion of Federalism? The answers can vary, but the most solid case might be made for Article I, Section 8 "To make all Laws which shall be 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."
The Tenth Amendment does not list any specific powers. What does that mean? The Tenth Amendment broadly says that all powers not given to the national government are reserved for the states and the people. This leaves the meaning of reserved powers open to interpretation.
In what ways might the Tenth Amendment influence the interpretation of the Enumerated Powers? The Tenth Amendment suggests that the states have undefined powers reserved to them. Determining the extent of the authority reserved to the states by this amendment has been a long-running debate in U.S. history.

Activity 4: Federalism in History

Introduce the students to the idea that the balance of authority between the Federal government and the states has shifted at different times in American history.
Explain how legislation can grant new authority or responsibility to Federal, state, or local government.
Distribute Worksheets 5. This worksheet presents two famous acts of legislation that changed the balance of authority between the Federal government and the states during the 20th century. Each example invites an assessment of the balance of authority over a topic. Check the students' work using the Worksheet 5 Answer Key.

Activity 5: Federalism in Everyday Life

Remind the students of how Worksheet 2 illustrated the overlap among the levels of government. Explain that, as a consequence, we often see examples in everyday life that demonstrate the overlapping authority of different levels of government.
Distribute Worksheet 6 to the students. Completing this worksheet will illustrate how federalism is encountered every day, and how the responsibilities of the three levels of government are interconnected.

Optional Activity

The optional activity printed on page two of Worksheet 6 invites the students to identify how they experience the constitutional concept of federalism in everyday life.
Ask the students to present their experience of federalism to the class by making a PowerPoint, poster, or video.

Additional Resources

Did you like this lesson? Educators who used this lesson also viewed:

Teaching Six Big Ideas in the Constitution - Students engage in a study of the U.S. Constitution and the significance of six big ideas contained in it: limited government; republicanism; checks and balances; federalism; separation of powers; and popular sovereignty.

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Exploring Federalism

Why Federalism?

Imagine a bully threatening you and others at a school where administrators refuse to intervene. Standing up to the bully alone is impossible. Stopping the bully is more likely if you unite with others. But how can you be sure the others will come to your aid when needed, or not turn the group against you? How much individual liberty would you relinquish to the group to work collectively toward your common interests? The challenge of preserving individual liberty while also fostering collective action is common. The American people, after declaring independence from Britain in 1776, faced a similar dilemma. Their solution resulted in what has come to be known as a federal system of government.

The founders realized that government is necessary to protect human rights but wanted to prevent the rise of dictatorial rule characteristic of most governments past and present. A bill of rights, a parchment barrier, would not be sufficient to protect those rights. Instead, government had to be structured through federalism and separations of powers to check the autocratic designs of ambitious politicians.

Modern federalism, invented by the American founders, divides and shares powers to allow everyone to participate in governing the whole country for limited purposes of unity, while also guaranteeing self-government to the people’s constituent states, thereby preserving diversity. Today, nearly half the world’s people live in federal countries.

Where is Federalism in the Constitution?

Content is forthcoming

Who Was Publius — The Real Guy?

“Publius” was the pseudonym used by the authors of The Federalist, which was written to persuade the citizens of New York to support ratification of the U.S. Constitution. “Publius” was a fairly common praenomen (the first or personal name) of an ancient Roman. Some readers of The Federalist, therefore, might have understood “Publius” to be the Publius praised in the Acts of the Apostles (28:7), “the chief man of the island” of Melita (probably Malta) who received and lodged Paul and his shipwrecked companions for three days. Most readers, however, probably recognized “Publius” as Publius Valerius Publicola, a Roman patriot, general, and statesman who lived in the sixth century B.C.E. and who, according to Plutarch’s Lives, saved the early Roman republic several times from tyranny and military subjugation. Publius was one of the founders of the republic. His republican reputation was regarded by some of the American founders as superior to the republican bona fides of Brutus and Cato.

Federalism Explained

What is Federalism?

Federalism is both a form of government and a principle. It is a voluntary form of government and mode of governance that establishes unity while preserving diversity by constitutionally uniting separate political communities (e.g., the 13 original U.S. states) into a limited, but encompassing, political community (e.g., the United States) called a federal polity. As a principle, federalism combines self-rule and shared rule by linking individuals and groups in lasting but limited union thereby providing for the energetic pursuit of common ends while seeking to sustain the integrity of each partner, check forces of centralization and anarchy, establish justice among the consenting partners, and ensure individual and community liberty. See more .

Constitution and Rule of Law

The word “federal” comes from the Latin word foedus, meaning covenant, pact, or treaty. The formulators of federalism in the sixteenth and seventeenth centuries envisioned a government based on covenant between agreeing parties with that relationship defined in a written constitution. In modern times, most federal unions are confirmed through a perpetual covenant of union embodied in a written constitution. That written constitution outlines, among other things, the terms by which power is divided or shared in the political system. Typically, the constitution can be altered only by extraordinary procedures, such as supermajority votes. Moreover, the constituent polities sometimes retain local constitution-making rights of their own.

Hierarchy and Scope

Federalism unites separate polities into an overarching political system that allows each to maintain its fundamental political integrity. Federal systems do this by dispersing power among general and constituent governments. Consequently, interactions between these different governments are not based on a hierarchy of superior-subordinate relationships but rather upon interactions between co-sovereigns with independent integrity and autonomy within their respective territorial spheres of authority..

Both the general government and the constituent governments have constitutional authority to govern individuals directly (e.g., regulate behavior and levy taxes), and each has final decision-making authority over certain constitutionally delegated or reserved matters. Some constitutional powers belong exclusively to the general government; others belong exclusively to the constituent governments. Still others are concurrent—that is, exercised by both the general and constituent governments.

Unity and Diversity

Federalism provides a basis to unify diverse partners into a common community to address common issues; however, by limiting the powers of that general government, federalism protects local self-government so the participating members’ differences, diversity, and autonomy can be reflected in the laws and policies govern their own lives. Maintaining a healthy balance between unity and diversity is important because too much unity can suppress diversity and autonomy while too much diversity can become divisive, resulting in separation and disunion.

Shared-Rule and Self-Rule

Federalism uses covenants to deliberately join humans together as equals bound to certain collective endeavors while preserving their respective integrities. Such a covenant often creates a new entity (e.g., the general government) with defined powers and responsibilities, but its powers are limited, thus protecting the integrity, and a realm of autonomy, for the covenanting partners. By joining partners together in a collective enterprise, federalism fosters shared governance, or shared-rule, on collective issues of unity. That is, all the constituent political communities share in governing the entire federation. By preserving a measure of autonomy for the covenanting partners, federalism also protects self-rule. The combination of shared-rule and self-rule is the basis of self-governance on a large scale.

Non-Centralization

Federal systems are, in principle, noncentralized. In a decentralized unitary system, the central government can unilaterally centralize or decentralize power. In a noncentralized federal system, both the general federation government and the constituent political communities must act coordinately to centralize or decentralize power. A federal constitution diffuses power between the general government and constituent units, grants each government near equality in their respective responsibilities and powers, and protects those constitutional powers from being taken away from either one without mutual consent. Thus, constituent political communities may participate as partners in national government activities and also act unilaterally with a high degree of autonomy in areas constitutionally open to them—even on crucial questions and, to a degree, in opposition to national policies, because they possess effectively irrevocable powers.

When power is noncentralized in a federal government, it is inaccurate to refer to the different governments as “layers” or “levels”, which imply that one government (such as the national government) is “higher” or superior and the other governments are “lower” or inferior. It is more accurate to refer to the various governments in a noncentralized system as “orders” or “planes” of government.

Choice and Consent

Federalism, conceived in the broadest social sense, looks to the linkage of people and institutions by mutual consent, without the sacrifice of their individual identities, as the ideal form of social organization. Federal systems facilitate choice by vesting some political power in constituent units to create their own policies. Other ways federal systems foster choice and consent include:

Allowing constituent units to create their own policies places many political decisions closer to the people where they have more direct sources of information, more opportunities to participate in the political process, and greater per capita influence;
Allowing local diversity gives citizens a choice to move to localities where government policies may more closely represent their interests and values;
When one government fails to respond, citizens may call upon another government to check or correct those errors;
In the United States, the electoral college and equal representation in the Senate seek to ensure that territorial (i.e., states) and national minorities are not swamped by national majorities.

Cooperation

Most federal polities experience widespread relations among their governments called intergovernmental relations. These may entail relations between the general and constituent governments, as well as local governments, among the constituent governments themselves (e.g., interstate relations in the United States), between the constituent governments and their local governments (e.g., state-local relations in the United States), and relations among local governments themselves (e.g., interlocal relations). Ideally, intergovernmental relations are cooperative, collaborative, and competitive with mutual coordination and adjustment. However, partisan differences, personal ambition, social movements, and many other factors can make intergovernmental relations collusive, cooptive, conflictual, and/or coercive.

Competition

Because federalism creates two or more semiautonomous governments, federalism elicits competition both interjurisdictionally (horizontal) and intergovernmentally (vertical). Competition prevents monopoly government, which has little or no incentive to cooperate and may limit diversity and liberty. Competition can induce governments to be more efficient and responsive to their public. Interjurisdictional competition fosters liberty by allowing people to “vote with their feet” and move to the jurisdictions that match their values and desired balance between taxes and government services. Theoretically, interjurisdictional competition may create a “race to the bottom” whereby, for example, they battle against each other to reduce their taxes and regulations to attract businesses. There is little evidence for races to the bottom; instead, interjurisdictional competition often induces governments to make their jurisdictions more efficient and inviting to people and businesses.

Bargaining and Negotiation

In a federal system, each order of government (the national government and constituent governments) is supreme and sovereign within the limited powers and responsibilities assigned it by the country’s constitution. There is, however, no superior government to direct and coordinate activities when problems require input from multiple orders of government or one government needs the assistance of another to accomplish its goals. Rather than a superior government commanding and controlling subordinate governments, coordination between governments in federal systems ordinarily requires bargaining and negotiation between equal, or nearly equal, powers.

Bargaining and negotiation in federal systems often occur at the policy formulation, implementation, enforcement, and evaluation stages – both intergovernmentally (e.g., between the national and state governments) and interjurisdictionally (e.g., between states). The non-centralized, non-hierarchical character of federal systems means that coordinated operations are often characterized by a measure of disorder. This fits federalism’s origin in covenants between equals as a means to coordinate actions while maintaining the integrity and independence of each.

Federal Political Culture

The essence of federalism, some claim, lies not in the institutional or constitutional structure but in the attitudes of its citizens. Those attitudes require a commitment to federalism itself and its values of partnership, comity, unity in diversity, shared-rule, and self-rule. A deep commitment to these attitudes and values creates an underlying culture that values federalism as an idea and primary goal in its own right. Such a culture creates federalism “mores” or understandings of acceptable and unacceptable behavior necessary for sustaining a federal system. In other words, paper constitutions and institutional checks and balances will not preserve federalism if society does not possess a “federal political culture” that identifies federalism as a fundamental, constitutional value that requires accommodating and balancing against other constitutional values. When done well this cultivates a deep public sentiment that unites the nation and transcends ephemeral public opinion on individual or partisan issues.

Federalism Timeline

1750s to 1800s
1810s to 1860s
1870s to 1920s
1930s to 1980s
1990s to 2010s
2010s to Current

Albany Plan , proposed by Benjamin Franklin, called for creation of a confederation with a general government having a Grand Council with members appointed by the colonial assemblies and a president-general appointed by the British Crown. Britain and the colonial assemblies rejected the plan.

Declaration of Independence , written mostly by Thomas Jefferson, was adopted in Philadelphia, Pennsylvania, on July 4, 1776, to announce and explain the 13 colonies’ separation from Great Britain. The colonies then regarded themselves as independent sovereign states and adopted constitutions. As such, the 13 states invented modern written constitutions.

Articles of Confederation , drafted by a committee of delegates from the 13 states and chaired by John Dickinson, was adopted by the Continental Congress on November 15 after a year-long debate on issues such as state sovereignty and exactly what powers would be delegated to the confederation.

Massachusetts Constitution , the first to expressly provide for a separation of powers and ratification by the people, is the world’s oldest written constitution still in effect.

Federalism Matters Podcast

Federalism is American government’s best kept secret. Its influence is pervasive and profound. Though not mentioned in the Constitution, federalism’s meaning and application have been at the center of disputes from 1776 to the Civil War to our current culture wars. We are scholars who focus on federalism, and through this podcast, we explore how federalism, from practice to theory, shapes our politics, policies, culture, society, and daily life.

The Federalism Minute

Federalism’s influence on American government, culture and society is pervasive and profound, yet often unexplored. This short podcast examines single, practical topics to show how federalism’s influence is real and relevant in average citizens’ daily lives.

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The Center for the Study of Federalism is a nonpartisan, interdisciplinary research and education institution dedicated to supporting and advancing scholarship and public understanding of federal theories, principles, institutions, and processes as practical means of organizing power in free societies. Among other things, the Center publishes Publius: The Journal of Federalism and provides grants for scholarly research on federalism.

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Foundations of U.S. Federalism

by Lee Rosenthal and Gregory P. Joseph

What precisely is American federalism? In their seminal work on federal jurisdiction, Felix Frankfurter and Wilber Katz allude to a “dynamic struggle” between federal and state power, the ebb and flow of competing, sometimes conflicting, spheres of federal and state power and influence. In many respects, the story of American government is the story of how that struggle has been resolved.

The antecedents of American federalism trace to colonial days, when the concept of divided sovereign power began to take shape. At the beginning of the Revolutionary War, the thirteen colonies declared themselves to be free and independent states. During the hostilities and at the War’s end, the newly formed states recognized that they needed to operate together to function adequately on the new national stage and to enter the world stage.

America’s first attempt to codify federalism — the Articles of Confederation of 1781 — failed. Replaced by the Constitution of 1787, this sturdy document and the government it established have survived the tenuous early days of the Republic, a Civil War, serious economic depressions, America’s involvement in two World Wars, and 227 years of innumerable internal and external challenges. This paper briefly outlines how American federalism developed and how it serves as the basic organizing principle of American government.

American Federalism: Prerevolutionary Underpinnings

Reflecting on America’s early political development, Alexis de Tocqueville commented that “[i]n America . . . it may be said that the township was organized before the county, the county before the state, the state before the union.” 1 America’s earliest political associations were forged at a local level. Early colonists found themselves separated from their sovereign’s authority and protection by a vast ocean and from their fellow colonists by a vast geographic expanse. As a consequence, they organized and largely governed their day-to-day lives independently and locally.

In 1643, the first American effort to create a political union among the colonies began in Boston. Faced with the need to defend and maintain security over a large territory — and with little hope of receiving aid from England due to the “sad distractions” of the English Civil War — the New England settlers found themselves “convinced . . . of the necessity of banding together to resist destruction. . . .” 2 Delegates from Massachusetts, New Plymouth, Connecticut, and New Haven formed the New England Confederation, “a firm and perpetual league of friendship and amity for offense and defense, mutual advice and succor upon all just occasions, both for preserving and propagating the truth and liberties of the Gospel and for their own mutual safety and welfare.” 3 Their union lasted four decades, until James II folded these colonies into the new Dominion of New England in 1684. 4

Approximately a century after forming the New England Confederation, the colonies again found the need to confederate due to mutual pressing concerns, including relations with Native Americans and each other and the possibility of a French attack. Representatives from the British North American Colonies adopted the Albany Plan of Union on July 10, 1754. The Plan provided that each colony would select members of a Grand Council and the British government would appoint a “president General.” 5 One of the most prominent Plan supporters was Benjamin Franklin. His well-known “Join, or Die” political sketch, first published in Franklin’s Pennsylvania Gazette on May 9, 1754, shows a snake cut into eight pieces. Each piece is labeled with the initials of one of the colonies, except that the four New England colonies are represented by “N.E.” at the snake’s head. 6 “Join, or Die” later became a rallying cry for the Revolutionary War and is perhaps the earliest pictorial representation of the nation’s budding federalism. Neither the New England Confederation nor the Albany Plan of Union sought to sever or even to weaken ties with England. To the contrary, Franklin hoped that the Albany Plan would increase the British participation in the colonies. “Britain and her Colonies should be considered as one Whole, and not as different States with separate Interests.” 7 The New England Confederation, and the Albany Plan of Union — even though it failed — formed precedent for the idea that the colonies could join together to pursue mutual interests, while simultaneously retaining individual power over day-to-day political activities.

The Impact of the Revolutionary War: An Impetus to Federalism and the Failure of the Articles of Confederation

The need for some degree of centralization among the various colonies became clear during the Revolutionary War. The demands of raising the army, putting it under a central command, supplying it, and raising funds for it exceeded state and local government capabilities. The revolutionaries recognized that some confederation was needed, but they remained deeply suspicious of centralized power. 8 The implications of failure were not lost on the revolutionaries. In 1775, Silas Dean wrote to Patrick Henry that, “[i]f a reconciliation with G Britain take place, it will be obtained on the best terms, by the Colonies being united, and be the more like to be preserved, on just and equal Terms; if no reconciliation is to be had without a Confederation We are ruined to all intents and purposes.” 9 The wartime urgency and the necessity of union, combined with the fear of a new overarching sovereign, led the revolutionaries to ratify the Articles of Confederation on March 1, 1781. The Articles left the states as the source of sovereign power but created a new central government with its powers derived from the consent of the states. 10

Americans were cautious in creating this new centralized government. “Whatever their collective commitments to new government, the revolutionaries were in no mood to issue blank checks in the form of another strong central government that could become as harmful as the one they fought to remove.” 11 The central government under the Articles was relatively feeble. The states delegated the central government limited powers and even more limited resources. That government was unable to levy taxes or regulate commerce and depended on the states for revenue; there was no executive and no independent judiciary; there were no standing land or sea forces; and any change to the Articles required the states’ unanimous vote. Exercising the limited powers the new government did have, including making treaties and coining money, often required a majority or supermajority vote.

Postrevolutionary Needs

The Articles proved unworkable. Disputes among states were difficult to resolve, and the central government was underfunded and unable to compel delinquent states to pay their shares of common expenditures. By 1784, a disagreement over the use of the Potomac River highlighted these problems:

First, all the other States were asked to agree to send delegates to the meeting, and all the States hardly ever agreed to do anything; second, if the meeting did take place it must agree upon a report to the States, and there was no reason to expect greater harmony in this assemblage than there was in the Continental Congress, where discord reigned; third, if a plan should be agreed upon, under the terms of the call of the meeting every State must accept it before it could become effective, and it seemed preposterous to expect such unanimity from such antagonistic elements. But affairs were rushing to a crisis, and it was clear that something must be done to save the Union from disintegration and America from disgrace. Far-seeing men began seriously to apprehend that soon the people who had won a glorious victory against Great Britain would fall back under the yoke of that or some other foreign power. The most dangerous and demoralizing inclinations of weak human nature were becoming more and more in the ascendancy in the State governments — a tendency to pass law by which the fulfillment of contracts might be avoided, to stamp paper with figures and promises and call it money, to repudiate debts and avoid obligations of honest men. 12 The challenge was to preserve state sovereignty within a national polity that could operate on a world stage, resolve interstate differences, and facilitate common interests. Fears that a central government would accumulate too much power and erode state sovereignty persisted, along with the fear that no central authority could govern such a huge expanse of territory.

The solution the Framers posited and the states adopted was the federalism embodied in the Constitution. “The Framers split the atom of sovereignty. The genius of their idea was that American citizens would have two political capacities, one state and one federal, each protected from incursion by the other.” 13 One scholar has described this federalism “as a new-modeled creation cobbled together out of a mix of necessity (the existence of the states) and theory (the belief that republics could not be easily maintained across a large territory).” 14 The basic structural characteristics of this “more perfect union” formed the basis of the system of American government that continues to the present.

Developing “A More Perfect Union”

Between May and September of 1787, the Constitutional Convention met in Philadelphia to address and try to remedy the failures of the Articles of Confederation. Although the word “federalism” appears nowhere in the Constitution, it pervades the structure of the government the document creates.

Article I, Section 8 specifically enumerates the powers of Congress. At the time of the founding, there was little controversy that many of these powers were best suited for national regulation, including the power to provide for a common defense, declare war, raise an army and maintain a navy, regulate naturalization, coin money, regulate international commerce, and punish piracy and violations of international law. 15 Other powers in Article I, Section 8, however, have proved controversial and have been interpreted to permit the expansion of the federal government and restrictions on powers of the states. The Commerce Clause, which empowers Congress to “regulate commerce . . . among the several states . . . ,” 16 is among the most controversial. “Commerce” can be read restrictively, to refer to a category of activities distinct from, for example, manufacturing, farming, or mining, preventing the federal government from using the Commerce Clause to regulate these and similar activities. This narrow reading is consistent with the Supreme Court’s interpretation for the first century after ratification, and with current scholarship on the original meaning of the Clause. 17 The Commerce Clause can also be, and has been, read to allow Congress to regulate any activity that in the aggregate has an effect on a national market, even if the conduct is purely intrastate. 18 The Constitution’s Taxation Clause, which provides Congress with the power to tax and spend to “provide for the . . . general Welfare of the United States,” 19 similarly has been “controversial since it first saw the light of day.” 20 Does this phrase mean that Congress can spend only in connection with the powers otherwise granted to Congress or for any good purpose? Does it permit Congress to regulate through spending? These questions have been the subject of heated debate, 21 and the answers have had a substantial impact on the balance of federal and state power. 22

Finally, the Necessary and Proper Clause, which grants Congress the power to “make all laws which shall be necessary and proper for carrying into execution” its other enumerated powers, 23 has profound federalism implications, depending on how broadly or narrowly the term “necessary” is interpreted. 24 In addition to Article I, Section 8, other parts of the Constitution provide key features of the federalist system. Article I, Section 10 prohibits states from regulating in certain areas. Article VI makes the “Constitution, and the Laws of the United States . . . and all Treaties made . . . the supreme Law of the Land.” Under the constitutional structure, all powers the Constitution neither delegated to the federal government nor prohibited to the states are reserved to the states or to the people. This structure was later made explicit in the Tenth Amendment.

In their Federalist Papers , Alexander Hamilton, James Madison, and John Jay promoted state ratification of the Constitution. In Federalist No. 9, Hamilton attempted to assuage the concerns that the states would lose sovereignty under the new Constitution:

So long as the separate organization of the members be not abolished . . . though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty . . . and leaves in their possession certain exclusive and very important portions of sovereign power. 25

In Federalist No. 51, Hamilton argued that federalism would help limit the ability of the proposed new central government to abuse its powers:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. 26 The Federalist Papers repeatedly address concerns that the proposed federal government would run roughshod over the states. 27 Federalist No. 39 focused on the limited powers of the federal government and the continuing sovereignty of the states:

Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution. . . .

[T]he proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. . . . Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact . . . . 28 Federalist No. 39 maintained that there must be some arbiter to resolve disputes among the states and that this limited sacrifice of state sovereignty was preferable to resolution by “the sword and a dissolution of the compact.” Equally noteworthy is the distinction drawn between a national and federal government, the former indicative of a boundless overarching power, the latter representing a government of limited enumerated powers.

While the Federalist Papers emphasized that the states retained their sovereignty, the authors stressed that some limits on state sovereignty were essential for the welfare of the American people:

[I]f, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States? Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? 29

There was fervent opposition to the federalism built into the Constitution. Robert Yates and John Lansing, New York’s delegates to the Constitutional Convention, wrote to New York Governor George Clinton on Dec. 21, 1787, that, in addition to lacking authority to consider the idea of a new government, a central authority would also oppress faraway citizens:

[W]e entertained an opinion that a general government, however guarded by declarations of rights, or cautionary provisions, must unavoidably, in a short time, be productive of the destruction of the civil liberty of such citizens who could be effectually coerced by it, by reason of the extensive territory of the United States, the dispersed situation of its inhabitants, and the insuperable difficulty of controlling or counteracting the views of a set of men (however unconstitutional and oppressive their acts might be) possessed of all the powers of government, and who, from their remoteness from their constituents, and necessary permanency of office, could not be supposed to be uniformly actuated by an attention to their welfare and happiness . . . . 30

They were also concerned that “the expense of supporting” the new government “would become intolerably burdensome” and that many citizens would be “necessarily . . . unknown” to the national representatives given the size of the new country. 31

The antifederalists were well aware that the stakes were high:

If the constitution, offered to your acceptance, be a wise one, calculated to preserve the invaluable blessings of liberty, to secure the inestimable rights of mankind, and promote human happiness, then, if you accept it, you will lay a lasting foundation of happiness for millions yet unborn; generations to come will rise up and call you blessed. . . . But if, on the other hand, this form of government contains principles that will lead to the subversion of liberty — if it tends to establish a despotism, or, what is worse, a tyrannic aristocracy; then, if you adopt it, this only remaining asylum for liberty will be shut up, and posterity will execrate your memory. 32

Many antifederalists, fearful of a powerful central government, demanded a Bill of Rights, which, in 1791, became the first ten amendments to the Constitution.

The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Writing in 1833, Justice Joseph Story noted that the Ninth Amendment “was manifestly introduced to prevent any perverse, or ingenious misapplication of the well known maxim, that an affirmation in particular cases implies a negation in all others . . . .” 33 The Tenth Amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Tenth Amendment made explicit that “what is not conferred, is withheld, and belongs to the state authorities, if invested by their constitutions of government respectively in them; and if not so invested, it is retained BY THE PEOPLE, as a part of their residuary sovereignty.” 34

On June 21, 1788, the ninth state, New Hampshire, ratified the Constitution, and it became effective. 35 According to one scholarly view, federalism was “the greatest of American contributions to the art of government.” 36 Alexis de Tocqueville celebrated this singular achievement: “This Constitution . . . rests upon a novel theory, which may be considered as a great invention in modern political science . . . . [A] form of government has been found out which is neither exactly national nor federal . . . . [T]he new word which will one day designate this novel invention does not yet exist.” 37

Federalism In Practice: The Early Precedents

The federal courts quickly became the arbiter of federalism, defining the relative powers of the federal and state governments. In 1810, the Supreme Court, then a young institution still establishing its authority, ruled in Fletcher v. Peck 38 that Georgia’s legislature could not invalidate a contract because the federal Constitution did not permit bills of attainder or ex post facto laws. Chief Justice John Marshall carefully noted that the Court did not intend any “disrespect of the legislature of Georgia, or of its acts.” 39 Despite this deferential tone, Fletcher v. Peck established the principle that the Supreme Court has the power to strike down an unconstitutional state law.

In 1816, the Supreme Court ruled that it could also override state courts in Martin v. Hunter’s Lessee . 40 Four years earlier, the Supreme Court had ruled in Fairfax’s Devisee v. Hunter’s Lessee 41 that the Jay Treaty between the United States and Britain precluded Virginia from appropriating the property of a loyalist. The Virginia Supreme Court ruled that it was not bound by the Supreme Court’s ruling, stating: “The court is unanimously of opinion, that the appellate power of the supreme court of the United States does not extend to this court . . . .” 42 In Martin , the Supreme Court reemphasized that it walked carefully when it reviewed state-court judgments. “The great respectability, too, of the court whose decisions we are called upon to review, and the entire deference which we entertain for the learning and ability of that court, add much to the difficulty of the task which has so unwelcomely fallen upon us.” 43 The Supreme Court again balanced this respect and deference with the recognition that “[t] he constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by ‘the people of the United States.’” 44 The Supreme Court ruled that state courts were subject to its appellate jurisdiction on constitutional matters. By 1816, the Supreme Court had declared that it could overrule state courts and invalidate unconstitutional state laws.

That same year, Congress chartered the Second Bank of the United States, a private corporation that handled all fiscal transactions for the federal government. Two years later, Maryland passed legislation to impose a tax on the Bank, which Bank employee James M’Culloch refused to pay. The Maryland state courts upheld the legality of the tax. In M’Culloch v. Maryland , 45 the Supreme Court made two critical rulings. First, it declared that the Necessary and Proper Clause of Article I, Section 8 of the Constitution granted Congress discretion in choosing the means by which to execute its enumerated powers: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” 46 Despite the absence of an enumerated power to incorporate, the Supreme Court held that creating the Bank was constitutional under Article I, Section 8 as “necessary and proper” to carry out Congress’s other enumerated powers. Second, the Court concluded that while Article I, Section 8 gave Congress the power to create the Bank, Article VI’s Supremacy Clause meant that Maryland lacked the power to tax that Bank. “The government of the Union, though limited in its powers, is supreme within its sphere of action . . . and its laws, when made in pursuance of the constitution, form the supreme law of the land.” 47

In 1824, one of the most significant cases on congressional powers came before the Supreme Court. Gibbons v. Ogden 48 involved competing steamboat ferry owners whose vessels operated in the waters between New York and New Jersey. Ogden obtained an exclusive license from the State of New York authorizing him to operate along the contested route and sought an injunction to stop Gibbons from operating along the same route. In response, Gibbons argued that a 1793 act of Congress regulating coastal commerce allowed him to compete with Ogden. He lost in the trial and appellate courts in New York, but the Supreme Court reversed. The Court’s decision for Gibbons rested on its first interpretation of the Commerce Clause, which provides that “Congress shall have power . . . [t]o regulate commerce . . . among the several States . . . .” 49

The Court found that the word “commerce” included navigation among the states, and the word “among” before the phrase “the several States” meant that Congress’s commerce power did not “stop at the external boundary line of each State, but may be introduced into the interior.” 50 The New York law granting Ogden an exclusive license was a “nullity” in light of Congress’s conflicting act and the Constitution’s Supremacy Clause. 51 Gibbons significantly expanded the authority of the federal government by recognizing Congress’s broad power to regulate commercial activity. By the Civil War, the federal courts had established several key principles of federalism, including the power of federal courts to invalidate unconstitutional state laws, to nullify conflicting state-court rulings, and to ensure the supremacy of federal law enacted within the enumerated powers the Constitution delegated to the federal government. Nonetheless, during this period, the federal government remained small and had little impact on the lives of most citizens. Most Americans identified more with their states than with the nation.

The Civil War and Reconstruction

Civil war: federalism in crisis.

The Civil War threatened the survival of the American experiment. Could states legitimately claim a right to secede from the nation? President Lincoln vehemently opposed the idea. “Plainly, the central idea of secession, is the essence of anarchy.” 52 There was the bond of geography: “Physically speaking, we cannot separate.” 53 And there was the bond of the constitution itself: “[N]o State, upon its own mere motion, can lawfully get out of the Union.” 54 Secessionists strongly disagreed. Future Confederate President Jefferson Davis, announcing his departure from the United States Senate following Mississippi’s decision to secede, declared: “I have for many years advocated, as an essential attribute of State sovereignty, the right of a State to secede from the Union.” 55

He explained:

Secession belongs to a different class of remedies. It is to be justified upon the basis that the States are sovereign. There was a time when none denied it. I hope the time may come again, when a better comprehension of the theory of our Government, and the inalienable rights of the people of the States, will prevent any one from denying that each State is a sovereign, and thus may reclaim the grants which it has made to any agent whomsoever. 56

The South’s defeat in the Civil War greatly expanded the power of the federal government and “destroyed the doctrine that the Constitution was a compact among sovereign states, each with the right to interpose or nullify an act of Congress, and each with the ultimate right to secede legally from the Union.” 57 Under modern conceptions of federalism, states retain sovereignty. The Civil War, however, removed any doubt that the federal government — which derives its sovereign power from “the People,” not the states — is supreme when acting within the scope of its enumerated powers. “The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals, and for other constitutional ends.” 58

Post Civil War: Reconstructing Federalism

When the Civil War ended, the country entered “Reconstruction,” a period that included rebuilding the roles of the federal and state governments. There was significant disagreement in the country about how to treat the former Confederate states, implicating whether the basic relationship between the federal and state governments that existed before the War was to be restored, or whether it was necessary to make fundamental alternations in that relationship to prevent the continuation of the causes of the conflict.

Ultimately, three constitutional amendments, commonly referred to as the Reconstruction Amendments, were ratified in the five years after the Civil War ended, altering the balance of federalism in America. The Thirteenth Amendment abolished slavery 59 and the Fifteenth Amendment guaranteed African Americans the right to vote. 60 The Fourteenth Amendment imposed substantial restrictions on state power and expanded the power of the federal government. 61

Section 1 of the Fourteenth Amendment, which overruled the Supreme Court’s 1857 ruling in Dred Scott v. Sandford 62 holding that African Americans were not entitled to any of the rights of citizenship, provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside” and prohibits states from passing any law that abridges “the privileges or immunities of citizens of the United States.” 63 The breadth and meaning of the phrase “privileges or immunities” remains uncertain. One theory is that the phrase was intended to be limited to certain natural rights, such as property ownership. Others argue that the phrase was intended to extend to all positive law, whether provided by state law or the Bill of Rights. 64 However, “the standard view of the effect intended by the drafters of the Privileges or Immunities Clause seems to be that it ‘has been a mystery since its adoption.’” 65

Section 1 of the Fourteenth Amendment also prohibits the states from depriving “any person of life, liberty, or property, without due process of law,” or “deny[ing] to any person within its jurisdiction the equal protection of the laws.” 66 The Due Process Clause has since been interpreted to incorporate almost all of the provisions of the Bill of Rights against the states, 67 and the Due Process and Equal Protection Clauses have since been interpreted to restrict or bar state regulation in diverse areas, including contraception, 68 abortion, 69 and same-sex marriage. 70 Significantly, Section 5 of the Fourteenth Amendment grants Congress the power to enforce the Fourteenth Amendment, providing a potentially broad grant of federal power.

The restriction of state sovereignty was a principal basis for the opposition to the Fourteenth Amendment, as reflected in a published letter of Interior Secretary Orville Browning that President Andrew Johnson — a Reconstruction opponent — reportedly approved:

The object and purpose are manifest. It is to subordinate the State judiciaries in all things to Federal supervision and control; to totally annihilate the independence and sovereignty of State judiciaries in the administration of State laws, and the authority and control of the States over matters of purely domestic and local concern. . . . [I]f adopted, every matter of judicial investigation, civil or criminal, however insignificant, may be drawn into the vortex of the Federal judiciary. 71

Supporters of the Fourteenth Amendment found Browning’s attack to be little more than the same states’ rights argument that had led to, and been defeated by the Union’s victory in, the Civil War:

In a few words the great fear of Mr. Browning is that this amendment in its operation will do away with State sovereignty, legislative and judicial, and will put the legislatures and courts of the several States under Congress and the federal courts . . . . We hold that this old Southern theory of our government was demolished at Petersburg and surrendered at Appomattox Court House with Lee’s army; and so we dismiss this branch of the argument. 72 The Fourteenth Amendment was ratified in July 1868. By 1870, however, support for a very strong version of Reconstruction had begun to wane. As part of this trend, the Supreme Court narrowly interpreted the Privileges or Immunities Clause when it first addressed the Fourteenth Amendment in the Slaughter-House Cases . 73 These cases concerned a Louisiana law permitting only one slaughterhouse in the New Orleans area, ostensibly to promote health and safety. Competing butchers were allowed to slaughter, but only at the approved slaughterhouse. Critics contended that the state law unconstitutionally deprived the other butchers of the “privilege” of practicing their profession, violating their “privileges or immunities” under the Fourteenth Amendment.

The Supreme Court ruled that the Privileges or Immunities Clause protected the privileges of United States citizenship but did not require the states to grant its citizens any particular privileges. The Court stressed that it considered these questions as vital to federalism and therefore to the nation:

No questions so far-reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States, and of the several States to each other and to the citizens of the States and of the United States, have been before this court during the official life of any of its present members. 74 The Court analyzed the historical underpinnings of the Fourteenth Amendment, emphasizing the “pervading purpose” of the Reconstruction Amendments as freeing the slaves, securing that freedom, and protecting the new freemen from oppression. The Court refused to interpret the Privileges or Immunities Clause as a dramatic general reworking of the federal-state balance:

The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted, shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking out of the late civil war. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government.

Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National government. But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights — the rights of person and of property — was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation.

But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this court, so far as its functions required, has always held with a steady and an even hand the balance between State and Federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution, or of any of its parts. 75 The Equal Protection Clause of Section 1 of the Fourteenth Amendment was effectively nullified when the Supreme Court ruled in 1896 that “separate, but equal facilities” were constitutional in Plessy v. Ferguson , authorizing state-sanctioned segregation. 76 It was not until 1954 that the Supreme Court reversed that decision in Brown v. Board of Education , ruling that “separate educational facilities are inherently unequal.” 77

Progressive Era: Federalism Grows

Rapid industrialization in the late nineteenth and early twentieth centuries raised a variety of economic and social issues that in turn produced a series of political reforms. This period has been described as characterized by a “growing conviction that government at all levels ought to intervene in the socioeconomic order to enact antitrust and regulatory legislation, labor and welfare measures, and tax reform.” 78 The nation adopted several constitutional amendments, including the Sixteenth, which authorized direct federal income taxes, and the Seventeenth, which provided for the citizens in each state to elect their senators directly rather than through their state legislatures. Federal power continued to expand and become entrenched.

The Sixteenth Amendment: Taxation

The Sixteenth Amendment, ratified on Feb. 3, 1913, is considered the first Progressive Era constitutional amendment. In 1895, in Pollock v. Farmers’ Loan & Trust Company , 79 the Supreme Court had invalidated a federal income tax as an unconstitutional direct tax because it was not apportioned to the states based on their respective populations. The Sixteenth Amendment overturned this ruling. 80 Some opponents saw this as a federal “power grab” designed to further weaken the states:

A hand from Washington will be stretched out and placed upon every man’s business; the eye of the federal inspector will be in every man’s counting house. . . . An army of Federal inspectors, spies and detectives will descend upon the state. . . . I do not hesitate to say that the adoption of this amendment will be such a surrender to imperialism that has not been since the Northern states in their blindness forced the fourteenth and fifteenth amendments upon the entire sisterhood of the Commonwealth. 81 Following the Sixteenth Amendment, the federal government began using its expanded resources to pass legislation approving federal funding for social welfare programs, including the 1921 Sheppard Towner Act to fund child and maternity care, described as the “first venture of the federal government into social security legislation.” 82 Over time, the Sixteenth Amendment significantly impacted the balance of federal-state power. Together with an expansive interpretation of the congressional spending power, the taxing power permitted the substantial growth of the federal government in myriad areas it previously had not occupied or regulated.

The Seventeenth Amendment: Direct Election of Senators

The Seventeenth Amendment, adopted on May 31, 1913, provided for the voters of each state to elect their Senators directly, rather than having state legislatures select them. This abrogated one of the original, fundamental structural protections for the states by affording direct state influence over the operations of the federal government.

Incorporating the Bill of Rights

The Reconstruction Amendments profoundly impacted the federal-state balance by applying the Bill of Rights through the Fourteenth Amendment (“incorporating” the Bill of Rights in the Fourteenth Amendment) to limit or invalidate state action. Before the Civil War, the Supreme Court held that the Bill of Rights did not apply to the states. In 1833 the Supreme Court ruled in Barron v. City of Baltimore 83 that the Constitution’s Fifth Amendment prohibition against government confiscation of property without just compensation was a limit only on the power of the federal government. “Had the people of the several States, or any of them, required changes in their Constitutions; had they required additional safeguards to liberty from the apprehended encroachments of their particular governments; the remedy was in their own hands, and could have been applied by themselves.” 84 Years after the Civil War, in 1875, the Court ruled that the First Amendment right to free assembly and the Second Amendment right to bear arms did not apply to the states. 85

In so holding, the Court emphasized the existence of more than one sovereign in the federal system:

We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other. 86

This changed over time, as the Supreme Court slowly applied specific protections afforded by the Bill of Rights to the states. The Court relied on the commandment in the Fourteenth Amendment’s Due Process Clause that no state may “deprive any person of life, liberty or property, without due process of law.” In 1925, the Supreme Court used the Clause to apply the First Amendment to the states. In Gitlow v. New York , 87 the Court stated: “For present purposes we may and do assume that freedom of speech and of the press — which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” 88 In 1931, the Supreme Court relied on the Clause to remove any doubt that the First Amendment rights of freedom of the press applied to the states 89 and, in another case, to recognize that a defendant’s right to legal representation in capital cases applied to the states. 90 As recently as 2010, the Court recognized that the Second Amendment applies to the states through the Fourteenth Amendment, restricting the states’ ability to regulate gun ownership. 91

Expanding Federal Power: The New Deal

After his election in 1933, President Franklin Roosevelt initiated a series of economic and regulatory programs to address the Great Depression. Congress passed the National Industrial Recovery Act, authorizing the promulgation of fair competition codes. The Roosevelt administration adopted a series of these codes, including one governing the poultry industry. That led to the Schechter Poultry Corporation case, invalidating the legislation as exceeding constitutional limits on federal powers.

The Schechter Poultry Corporation was charged with violating the Live Poultry Code. Schechter sued, claiming that the federal government had exceeded its authority by issuing the code. The Supreme Court agreed, holding that Article I of the Constitution vested the Congress, not the President, with the power to legislate, and the National Industrial Recovery Act unconstitutionally authorized the President to do so. The Court also held that the Code regulated intrastate commerce, making the Code unconstitutional because the Commerce Clause authorized Congress to regulate only interstate commerce. 92 Between 1933 and 1936, the Supreme Court invalidated other pieces of New Deal legislation. In 1936, buoyed by his landslide reelection, President Roosevelt proposed a plan that would reshape the Court, allowing him to select additional justices who would approve his policies. Dubbed “court packing” by his critics, his plan was opposed even by some of his fervent supporters. It was never enacted, in part because the Supreme Court began approving Roosevelt’s New Deal legislation. 93 A series of decisions gradually recognized the Commerce Clause as providing constitutional authorization for expanding federal government power.

In 1937, the Supreme Court ruled in NLRB v. Jones & Laughlin Steel Corporation 94 that Congress may regulate isolated economic activities, like labor relations, under the Commerce Clause, because that activity has a “close and substantial relationship” to interstate commerce. In United States v. Darby , 95 the Court found the Fair Labor Standards Act constitutional under the Commerce Clause, barring states from enacting lower standards to obtain a commercial advantage over other states. In Wickard v. Filburn , 96 the Supreme Court declared that the Commerce Clause empowered federal regulation of wheat grown by a farmer for his own use, on his own farm, that never crossed state lines, because of its effect on interstate commerce. “A new era of judicial construction had been launched” and “[a]reas of authoritative action that previously had been left to the states’ sphere of sovereignty or to the private sector now fell within the powers of Congress.” 97

Federalism Today

How America interprets the balance of federal and state power has changed over two hundred years. Those changes reflect, and helped us survive, challenges that almost destroyed the nation. How best to strike that balance continues to pervade critical aspects of modern American government, including healthcare, race, civil liberties, the environment, and foreign policy. 98 Federalism also directly affects tax policy, 99 elections, 100 and domestic relations. 101 Yet more than 200 years after the nation’s founding, fundamental questions implicating federalism remain unsettled. That is nowhere more apparent than in the Supreme Court’s June 2015 decision on same-sex marriage, Obergefell v. Hodges . 102

Historically, the view had been that “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the States and not the laws of the United States.” 103 Over time, Supreme Court decisions began to recognize limitations on the states’ traditional power to regulate marriage. In Loving v. Virginia , 104 for example, the Supreme Court applied the Fourteenth Amendment to overturn a Virginia prohibition on interracial marriage. In Kirchberg v. Feenstra , 105 the Court similarly applied the Fourteenth Amendment to strike down state laws deeming the husband “head and master” of the household.

The Supreme Court initially declined to apply Fourteenth Amendment principles to state restrictions on same-sex marriage. The first time the Supreme Court addressed same-sex marriage, it issued a “one-line summary decision . . . in 1972, holding the exclusion of same-sex couples from marriage did not present a substantial federal question.” 106 As recently as two years ago, in United States v. Windsor , 107 the Supreme Court relied on the states’ primacy in domestic relations to strike down a congressional attempt to define marriage as “a legal union between one man and one woman as husband and wife” for purposes of federal statutory law. 108 This year, however, the Court held in Obergefell that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.” 109 The definition of marriage is no longer the exclusive province of the states. 110 Recent jurisprudence under the Second Amendment, addressing the right to bear arms, presents another example of the fluid nature of American federalism. For years, states were thought to have virtually unbridled authority to regulate the ownership, possession and use of firearms within their borders. That understanding changed dramatically in a short period. In 2008, the Supreme Court held in District of Columbia v. Heller 111 that the Second Amendment conferred an individual right to keep and bear arms, precluding the District of Columbia from banning handguns in the home and requiring firearms to be kept inoperable at all times. Subsequently, in McDonald v. City of Chicago , 112 the Court ruled that the Second Amendment applies to the states through the doctrine of incorporation. Together, Heller and McDonald dramatically altered firearms regulation by prohibiting the states from banning handgun possession outright, and by circumscribing the states’ ability to regulate firearms to an extent that remains to be determined.

In addition to these examples, Commerce Clause jurisprudence continues to present a source of contested but expansive federal power, with uncertain scope. In 2000, for example, the Supreme Court ruled in United States v. Morrison 113 that the federal Violence Against Women Act’s civil remedy for victims of gender-motivated violence exceeded congressional power under the Commerce Clause. By contrast, in 2005, the Court concluded in Gonzales v. Raich 114 that federal criminalization of intrastate marijuana growers and users did not violate the Commerce Clause. Perhaps most notably, in National Federation of Independent Business v. Sebelius , 115 the Court held that the Patient Protection and Affordable Care Act was constitutional under Congress’s power to tax, but was not a proper use of the Commerce Clause power because although the federal government can regulate interstate commerce, it cannot compel it. 116 Recent interpretations of the Supremacy Clause also illustrate some of the shifting contours of federalism. Under the preemption doctrine, when Congress acts within the scope of its enumerated powers, or a federal agency acts within the scope of its statutory mandate, their action may preempt conflicting state laws or, if federal action is sufficiently pervasive, may even bar state regulation within that field. 117 Over the past decade, state laws have been held preempted under this doctrine in such divergent areas as aviation, 118 food and drug regulation, 119 immigration, 120 trucking 121 and locomotive equipment, 122 arbitration agreements, 123 regulation of emissions, 124 state age-verification requirements for the shipment and delivery of tobacco, 125 and even the treatment and processing nonambulatory animals in a slaughterhouse. 126 At the same time, preemption has been denied in multiple other contexts. 127

As this discussion suggests, the only safe prediction about the future of American federalism is that none can be made with certainty. But while the interpretation of the balance of federal and state power has changed from the colonial period to the present, federalism continues to be a foundational principle defining America and a principal tool used to build its government.

The Supreme Court continues to look to the Framers for guidance in resolving important questions raising federalism issues or implicating federalism concerns. In District of Columbia v. Heller , 128 for example, the Court noted that “[d]uring the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.” 129 The Court echoed the concerns America’s founders had over 200 years ago about the danger to democracy posed by the new federal government. “But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right — unlike some other English rights — was codified in a written Constitution.” 130

As the nation has grown and become established, so have both federal and state power. That path has been neither smooth nor linear. Dispute and even armed conflict have marked the way. But throughout, the Constitution has served as the source of federal and state government powers and their limits. The courts continue to be the first, and often last, arbiters of the struggle to define both. That has worked so far, although far from perfectly or, at times, even well. But no one has devised an alternative approach, much less a better way.

The problems of federalism, like many aspects of the work judges across legal systems confront, are real. A great judge and legal scholar, Benjamin Kaplan of Massachusetts, described one aspect of why judges’ work is so difficult and so compelling. Rules and principles, however long established and seemingly clear, cannot “solve [the] problems fully and forever. If the problems are real ones, they can never be solved. We are merely under the duty of trying continually to solve them.” 131

The judiciary has many grave responsibilities. Shaping and protecting federalism continue to be among the most important and enduring of those obligations. It is a responsibility and a joy that we in the United States and the United Kingdom share.

Also In This Edition

Table of Contents
Judicial Honors (Spring 2017)
A Model Trial Judge: U.S. District Judge Sim Lake
Cain questions court funding, highlights best practices for proportionality
Saving Our Profession: It’s Up to Us
Judicial Excellence after Earl Warren
Why We Read the Scalia Opinion First
Rebuild our Courts: State Chief Justices Call for Action to Achieve Civil Justice for All
Mindfulness and Judging
#Engage: It’s Time for Judges to Tweet, Like, & Share
A Speech Code for Lawyers?
Hold the Parentheticals, Please
Picking Judges: How Judicial-Selection Methods Affect Diversity in State Appellate Courts
National Security. Civil Liberties. Can We Have Both?
Lastly: A Judge Honors the Activist Who Brought Her to Jail
As I See It: Updates from the Center for Judicial Studies
Salary by Committee
Editor’s Note: Relentlessly Relevant

About Lee Rosenthal

Lee Rosenthal is chief judge of the U.S. District Court for the Southern District of Texas. She serves as vice president of the American Law Institute and as a member of the Bolch Judicial Institute Advisory Board.

About Gregory P. Joseph

Gregory P. Joseph, partner at Joseph Hage Aaronson LLC, is a past president of the American College of Trial Lawyers; former chair of the American Bar Association Section of Litigation; and a former member of the Advisory Committee on the Federal Rules of Evidence.

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US government and civics

Course: us government and civics > unit 1, federalism in the united states.

Categorical grants, mandates, and the Commerce Clause
Article IV of the Constitution: States, Citizenship, New States
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First Amendment Exhibit Historic Graphic

New exhibit

The first amendment, historic document, federalist 10 (1787).

James Madison | 1787

Print by lithographer Peter Duval and artist Albert Newsam of James Madison, head-and-shoulders portrait.

After the Constitutional Convention adjourned in September 1787, heated local debate followed on the merits of the Constitution. Each state was required to vote on ratification of the document. A series of articles signed “Publius” soon began in New York newspapers. These Federalist Papers strongly supported the Constitution and continued to appear through the summer of 1788. Hamilton organized them, and he and Madison wrote most of the series of eighty-five articles, with John Jay contributing five. These essays were read carefully and debated in newspapers, primarily in New York. The Federalist Papers have since taken on immense significance, as they have come to be seen as the definitive early exposition on the Constitution’s meaning and giving us the main arguments for our form of government. In Federalist 10, Madison fulfills the promise made in Federalist No. 9 to demonstrate the utility of the proposed union in overcoming the problem of faction. Madison’s argument is the most systematic argument presented in the Federalist Papers , with syllogistically developed reasoning sustained virtually throughout.

Selected by

William B. Allen

Emeritus Dean of James Madison College and Emeritus Professor of Political Science at Michigan State University

Jonathan Gienapp

Associate Professor of History at Stanford University

Among the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. …

The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarranted partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable; that the public good is disregarded in the conflicts of rival parties; and that measures are too often decided, not according to the rules of justice, and the rights of the minor party, but by the superior force of an interested and overbearing majority. These must be chiefly, if not wholly, effects of the unsteadiness and injustice, with which a factious spirit has tainted our public administrations.

By a faction, I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.

There are two methods of curing the mischiefs of faction. The one, by removing its causes; the other, by controlling its effects. There are again two methods of removing the causes of faction. The one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

It could never be more truly said, than of the first remedy, that it is worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it would not be a less folly to abolish liberty, which is essential to political life because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

The second expedient is as impracticable, as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his selflove, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to an uniformity of interests. The protection of those faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.

The latent causes of faction are thus sown in the nature of man; … and rendered them much more disposed to vex and oppress each other, than to co-operate for their common good. So strong is this propensity of mankind, to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those, who hold, and those who are without property, have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall into a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation and involves the spirit of the party and faction in the necessary and ordinary operations of government. …

It is vain to say, that enlightened statesmen will be able to adjust these clashing interests and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. …

The inference to which we are brought is, that the causes of faction cannot be removed; and that relief is only to be sought in the means of controlling its effects.

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views, by regular vote. It may clog the administration; it may convulse the society; but it will be unable to execute and mask its violence under the forms of the constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest, both the public good and the rights of other citizens. To secure the public good, and private rights, against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is the greatest object to which our inquiries are directed. ...

By what means is the object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority, at the same time must be prevented; or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. …

From this view of the subject, it may be concluded, that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure from the mischiefs of faction. …

A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the union. The two great points of difference, between a democracy and a republic, are, first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and the greater sphere of country, over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen, that the public voice, pronounced by the representatives of the people, will be more consonant to the public good, than if pronounced by the people themselves, convened for the purpose.... The question resulting is, whether small or extensive republics are most favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations.

In the first place, it is to be remarked, that however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the constituents, and being proportionately greatest in the small republic, it follows that if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater probability of a fit choice.

In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts, by which elections are too often carried; and the suffrages of the people being more free, will be more likely to center in men who possess the most attractive merit, and the most diffusive and established characters. …

The other point of difference is, the greater number of citizens, and extent of territory, which may be brought within the compass of republican, than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former, than in the latter. .. Extend the sphere, and you will take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. …

Hence, it clearly appears, that the same advantage, which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic - enjoyed by the union over the states composing it. …

In the extent and proper structure of the union, therefore, we behold a republican remedy for the diseases most incident to republican government.

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Article Contents

Definitions through the Ages: Autonomy or Co-determination?
The Language of “Shared Rule”
Explaining the Error

What is Federalism? Some Definitional Clarification

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Alan Fenna, Johanna Schnabel, What is Federalism? Some Definitional Clarification, Publius: The Journal of Federalism , Volume 54, Issue 2, Spring 2024, Pages 179–200, https://doi.org/10.1093/publius/pjad034

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The most prominent conceptualization of federalism is as a political organization combining “self-rule” with “shared rule”. The abstractness that makes this formula so attractive has, however, opened the door to misinterpretation and, in turn, encouraged misconceptions about the essential nature of federalism. “Shared rule” has been misinterpreted as meaning participation of the constituent units in central-government decision-making, or co-determination. This confuses common aspects of federal design, such as bicameralism, or important elements of federal practice, such as intergovernmental relations, with the essential or defining features of a federal system. The analysis here clarifies the meaning of shared rule and confirms that the existence of two constitutionally guaranteed orders of government, each enjoying a direct relationship with the people and exercising meaningful powers, is both necessary and sufficient for a political system to be characterized as a federation.

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The American Founding

The Federalist Papers: An Essay-by-summary

Federalist 1: The Challenge and the Outline

Hamilton says Americans have the opportunity and obligation to “decide the important question” can “good government” be established by “reflection and choice,” or is mankind “forever destined to depend for their political constitutions on accident and force.”

To assist “our deliberations,” he provides an outline of topics to be covered “in a series of papers.” 1) “The utility of the union,” 2) the “insufficiency” of the Articles of Confederation, 3) the minimum “energetic” government requirement, 4) “the true principles of republican government,” 5) the analogy of the proposed Constitution to the State governments, 6) and the added security “to republican government, to liberty, and to property” provided by the proposed Constitution. He concludes this essay on the “momentous decision”: adopt the Constitution or dismember the Union.

To read the entire essay, click here.

Part II Federalist 2-14: “The Utility of the Union”

Federalist 2.

Jay urges, in the first of four essays, “calm and mature inquiries and reflections” as well as “cool, uninterrupted, and daily consultation.” He supports “sedate and candid consideration” of the Constitution, the product of the “mature deliberation” that took place in the summer of 1787. He favors the common ties of the Union and rejects the “novel idea” of seeking “safety and happiness” in three or four separate Confederacies.

Federalist 3

Domestic tranquillity and common defense, says Jay, are better served under one “cordial union” directed by “temperate and cool” policies, in accordance with the “wisdom and prudence” of one well-administered government, than under three or four confederacies.

Federalist 4

One government, continues Jay, efficiently run and well administered, discourages foreigners from invading. One good national government will attract competent people.

Federalist 5

One government, Jay reiterates, discourages internal division and convulsion, as well as dangers from abroad. He invites the reader to compare England, Scotland, and Wales united—formidable together– and disunited—formidable against each other.

Federalist 6

Hamilton argues that ambition, rage, jealousy, envy, and vicinity are the five causes of war and faction. Such is human nature: “momentary passions, and immediate interests, have a more active and imperious control over human conduct than general or remote considerations of policy, utility, or justice.” Reject the “visionary” notions of “perpetual peace,” and that separate “commercial republics” are “pacific and well mannered.”

Federalist 7

Hamilton argues that disunited, we will be drawn into European politics and Europe will be drawn into American politics. There will be the usual territorial and commercial disputes if separated. We won’t remain united under the Articles of Confederation.

Federalist 8

Hamilton details the consequences of being disunited, including the presence of vast standing armies at the borders of each State. A united America, like the United Kingdom, will bring us the “safety from external danger …[which]…is the most powerful director of national conduct,” rather than the disunited and hostile states of Europe.

Federalist 9

Hamilton’s five improvements in “the science of politics” were “either not known at all, or imperfectly understood by the ancients.” They form the “broad and solid” foundation for the claim that America will succeed where previous regimes have failed. The improvements are 1) legislative checks and balances, 2) the separation of powers, 3) an independent judiciary, 4) a scheme of representation, 5) “the enlargement of the orbit.”

He suggests that concerning 5) it is not clear that Montesquieu has a definitive and relevant teaching on enlarging the orbit through federal arrangements. His distinctions seem “more subtle than accurate.” And he chooses the Lycian Confederacy as his favorite where there is no equality of suffrage among the members and no sharp line protecting “internal administration.” Anyway, our States are larger than the small republics he had in mind. Thus, we need to move beyond the “oracle” Montesquieu’s understanding of federalism as a way of a) retaining the independence of small states deemed traditionally necessary for liberty and happiness yet b) joining such pre-existing entities together so that they can pool their resources for such limited goals as common defence. We need a new and American understanding of “the enlargement of the orbit.”

Federalist 10

This is the first essay by Madison in The Federalist. It contains twenty-three paragraphs.

β 1. The “violence of faction” is the “mortal disease” of popular governments. The public assemblies have been infected with the vice of majority tyranny: “measures are too often decided, not according to the rules of justice, and the rights of the minor party; but by the superior force of an interested and overbearing majority.”

β 2. What is a faction? “A number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

β 3. How can we cure “the mischiefs of faction?” We can either cure it by I) “removing its causes,” or II) “controlling its effects.”

β 4. There are “two methods of removing the causes of faction”: I a) destroy “the liberty essential to its existence,” or I b) give “to every citizen the same opinions, the same passions, and the same interests.”

β 5. I a) is a “remedy that is worse than the disease,” because it is “unwise.” It entails the abolition of liberty, “which is essential to political life.”

β 6. I b) is “impracticable.” Opinions, passions, and interests are unlikely to be in harmony. “The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government.” And that leads to “the division of society into different interests and parties.”

β 7. Further consideration of I b). “The latent causes of faction are thus sown in the nature of man.” Thus, there are many sources of factions, “but the most common and durable source of factions has been the various and unequal distribution of property.” The “regulation of these various and interfering interests,” that “grow up of necessity in civilized nations…forms the principal task of modern legislation and forms the spirit of party and faction in the necessary and ordinary operations of government.”

β 8. Further consideration of I b). Legislators, alas, tend to be “advocates and parties to the causes which they determine.” But “justice and the public good,” require “impartiality.”

β 9. Further consideration of I b). “It is vain to say that enlightened statesmen will be able to adjust these clashing interests and render all subservient to the public good. Enlightened statesmen will not always be at the helm.”

β 10. Conclusion to I b) and the introduction to II. “The inference to which we are brought is that [I] the causes of faction cannot be removed and that relief is only to be sought in the means of [II] controlling its effects .”

β 11. Further consideration of II) “controlling its effects.” “The republican principle” of majority rule is the solution to minority faction. But what if we have majority faction? “To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and form of popular government, is then the great desideratum by which this form of government can be rescued from the opprobrium under which it has labored and be recommended to the esteem and adoption of mankind.”

β 12. The introduction of II a) and II b) as the solutions to majority faction. “Either [II a)] the existence of the same passion or interest in a majority at the same time must be prevented, or [II b)] the majority having such coexistent passion or interest, must be rendered by their number and local situation, unable to concert and carry into effect schemes of oppression.”

β 13. The introduction of III, the form of government, to implement the solution. Madison declares that III a) “pure democracy,” works against solutions II a) and II b.

β 14. III b) “a republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect and promises the cure for which we are seeking.”

β 15. “The two great points of difference between a democracy and a republic.”

β 16. The first difference III b)* is “to refine and enlarge the public views” by way of the election system. The question is do we choose “small (IVa) or extensive (IVb) republics?”

β 17. IV b) is better than IV a) because it provides “a greater probability of a fit choice” of representatives.

β 18. IV b) is better than IV a) because it “will be more difficult for unworthy candidates to practice the vicious arts by which elections are too often carried.”

β 19. The Constitution “forms a happy combination” of IVa) and IVb): “the great and aggregate interests being referred to the national, the local and particular to the State legislatures.”

β 20. The second difference III b)** “is the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government.”

β 21. III b)** clinches the case for IV b) over IV a).

β 22. “The influence of factious leaders may kindle a flame within their particular States but will be unable to spread a general conflagration through the other States.”

β 23. “In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government.”

Federalist 11

“A unity of commercial, as well as political, interests can only result from a unity of government.” There is another advantage to union: “it belongs to us to vindicate the honor of the human race,” in Africa, Asia, and America. With a strong union, we can restrain “the arrogant pretensions of the Europeans,” and “dictate the terms of the connection between the old and the new world.” They think, “dogs cease to bark in America.”

Federalist 12

Agriculture, as well as commerce, will benefit from a strong union. And experience shows that the interests of both are the same. Besides, taxing agriculture and commerce is where government revenue comes from. We need to union if we want government revenue.

Federalist 13

Through economies of scale, it is cheaper to run one government than it is to run thirteen governments or three confederacies.

Federalist 14

Madison concludes this section on “the necessity of the Union,” with a response to the Antifederalist critique that “the great extent of country which the Union embraces” exceeds “the practicable sphere of republican administration.” Madison offers six arguments. 1) The American experiment rests on a) discovering the distinction between a republic and a democracy. This distinction—“the principle of representation” replaces the people meeting and governing on the spot—was unknown to the ancient world, and b) making “the discovery the basis of unmixed and extensive republics.” Thus “the natural limit of a republic” has been extended far beyond what was ever previously envisioned. 2) the general government “is limited to certain enumerated objects, which concern all the members of the republic.” 3) “intercourse throughout the Union will be facilitated by new improvements…[in]…communication.” 4) “Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world.” 5) The greatness of the people of America is that “they have not suffered a blind veneration for the past….To this manly spirit posterity will be indebted.” 6) Let us “deliberate and decide” whether to adopt “a new and more noble course,” namely, “the experiment of an extended republic.”

Part III Federalist 15-22: The “Insufficiency” of the Articles of Confederation

Federalist 15.

There is a “great and radical vice in the construction of the existing confederacy,” says Hamilton. The structural “defect” of the confederacy is that it is a union of, by, for, and over states and not a government based on individuals. “The great and radical vice in the construction of the existing confederation is the principle of LEGISLATION for STATES OR GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of whom they consist.”

He then asks the central question undergirding all the essays: “why has government been instituted at all?” The answer is: “because the passions of men will not conform to the dictates of reason and justice without constraint.” Applied to the Articles, this answer suggests that “the ill-informed and prejudicial interference of particular administrators” in national issues ought to be of far greater concern than the other way around.

Federalist 16

The traditional federal principle—legislation over states in their collective political capacity–is anarchistic because it does not “address itself immediately to the hopes and fears of individuals.” The laws of a Confederacy can only be enforced by a large standing army. Thus we must adopt the principle of government over individuals for the people ought to be “the natural guardians of the Constitution.” Hamilton introduces a brief introduction of judicial review and state nullification.

Federalist 17

Hamilton raises a question: won’t the federal government be so powerful that it will encroach on the States? No, The real problem is centrifugal and not centripetal. The States have “a greater degree of influence” in every day matters such as the “ordinary administration of criminal and civil justice” and they are physically closer to the people. “Affections are weak in proportion to distance or diffusiveness of the object.” The objects of the federal government are limited to commerce, finance, negotiation, and war. In the end, however, the people will throw their loyalty to the level of government that “administer their affairs with uprightness and prudence.”

Federalist 18

The first example of the traditional federal “disease” of anarchism: Greece.

Federalist 19

The second example of the traditional federal “disease” of anarchism: Germanic.

Federalist 20

The third example of the traditional federal “disease” of anarchism: Netherlands.

Federalist 21

Three initial “defects” of the Articles of Confederation are examined: 1) all powers of Congress are expressly delegated, 2) no guarantee for state governments and 3) quotas of contribution for raising revenue.

Federalist 22

Five additional “defects” of the Articles of Confederation are examined: 4) no power to regulate interstate commerce, 5) inadequate power to raise troops, 6) the equal representation of states, 7) no judiciary, and 8) inadequate method of ratification.

Part IV Federalist 23-36: The minimum “energetic” government requirement

Federalist 23.

Hamilton announces the start of several essays dealing with three topics: “the objects to be provided for by a federal government, the quantity of power necessary to the accomplishment of those objects, (and) the persons upon whom that power ought to operate.” He states that the objects of the federal government encompass, 1) common defense, 2) domestic tranquillity, 3) the regulation of commerce, and 4) relations with foreign nations. And he reminds his readers that it is impossible to foresee future “national exigencies.” Thus we need a degree of power—or energy–commensurate to the end in view. He begins with 1) the war powers of the nation and declares them to be necessary and proper means to accomplishing the object of common defense. He finds the Antifederalist position to be an “absurdity”: they support enlarged purposes but want limited powers! If it is safe to delegate the “object,” isn’t it safe to delegate the “power?”

Federalist 24

The object of 1) common defense receives further coverage. Hamilton critiques, with the help of the observations a fictitious “stranger to our politics,” the objection to the presence of standing armies in time of peace. We live in a hostile world, says Hamilton. Anyway, the power over military establishments is lodged in Congress. The two-year appropriation process, he asserts, is the appropriate protection against the abuse of military power and the creation of “unnecessary military establishments.” He takes the opportunity to note that the Antifederalists have “misled” the electorate by exaggerating the presence of “bills of rights” that are “annexed” to State constitutions.

Federalist 25

Further coverage of 1) common defense. Why wait until a formal declaration of war, asks Hamilton, prior to initiating the raising of an army? Anyway, “the formal ceremony of declaring war has fallen into disuse.” That “we must receive the blow before we could even prepare to return it,” is a “most extraordinary spectacle.” We ought to be “cautious about fettering the government with restrictions that cannot be observed” because “necessity” will prevail over a “parchment barrier.” If a breach, justified by necessity, becomes the norm, it will impair “the sacred reverence” for the “fundamental laws”

Federalist 26

Further coverage of 1) common defense. An additional defense of the two-year appropriation process as a check on the abuse of a standing army. Don’t tie down the legislature with parchment barriers on the means for providing for the common defense. To accept the end, but restrain the means, is to display “a zeal for liberty more ardent than enlightened.”

Federalist 27

Coverage turns to 2) domestic tranquillity by way of 1) common defense. Hamilton responds to the claim that the Constitution “cannot operate without the aid of a military force to execute its laws.” He lays down “a general rule…of confidence in and obedience to a government.” The people will support government in “proportion to the goodness or badness of its administration.” He expects the American people will become more and more attached to the general government as it intermingles more in their daily lives.

Federalist 28

Further coverage of 2) domestic tranquillity. Hamilton repeats his maxim “that the means to be employed must be proportioned to the extent of the mischief.” Of course, the rule of law is generally the “admissible principle of republican government.” But there will be emergencies involving domestic insurrection and the general government may have to use force. This conforms to “that original right of self-defense which is paramount to all positive forms of government.” To think otherwise, is to engage in “the reveries” of naïve “political doctors.” But what if the general government or State governments abuse their power? There are two lines of defense: 1) “the great extent of the country,” and 2) “the people, by throwing themselves into either scale, will infallibly make it preponderate.”

Federalist 29

Further coverage of 2) domestic tranquillity. Hamilton argues for the existence of a well-regulated militia under the control of the general government. He accuses the Antifederalists of “a striking incoherence:” they want neither a militia nor an army! Is this “the inflammatory ravings if chagrined incendiaries or distempered enthusiasts?”

Federalist 30

Hamilton turns to 3) the regulation of commerce. Once again he states the maxim that “every power ought to be proportionate to its object.” This time, he applies it to taxation: “money is, with propriety, considered the vital principle of the body politic.” He rejects the opposition proposal that the power of internal taxation be given to the States and the power of external taxation be given to the nation. This is romantic poetry.

Federalist 31

Further coverage of 3) the regulation of commerce. He repeats his point that the general government should not be excluded ahead of time from exercising certain means of raising revenue since the world is full of contingency. Moreover, there are certain “maxims in politics”—“first principles,” or “primary truths”– governing the relationship between ends or objects on the one hand and means or powers on the other hand: the government must be given the “requisite” means for the “complete execution” of the objects “for which it is responsible.” But, say the opposition, the States don’t have a guaranteed source of revenue and won’t be able to protect themselves from the usurpations by general government. More “enchanted castle,” nonsense replies Hamilton. We should leave the preservation of the “constitutional equilibrium” between the two levels of government “to the prudence and firmness of the people.”

Federalist 32

Further coverage of 3) the regulation of commerce. Hamilton reminds the reader that the Constitution is a “partial consolidation” rather than “an entire consolidation.” Accordingly, he employs the three-pronged “negative pregnant” test to grasp “the whole tenor of the instrument which contains the articles of the proposed constitution.” He applies the test to the power of taxation: a) is the power exclusively granted to the union? “No.” b) is the power prohibited to the States? “No.” And c) is the power granted to the union and it makes no sense that the states have concurrent jurisdiction? “No.” He concludes, therefore, that it was the “sense of the convention,” to permit the states to retain the power of concurrent taxation.

Federalist 33

Further coverage of 3) the regulation of commerce. Hamilton answers the following Antifederalist claim grounded in “virulent invective and petulant declamation,” namely, that the necessary and proper clause and the supremacy clause will enable the general government to completely take over the power of taxation and thus destroy local government and individual liberty. Not so; nothing would change if these clauses weren’t even there. Isn’t the power of taxation given to the general government? All clause 18—the so-called “sweeping clause–is saying is that Congress can “pass all laws necessary and proper to carry it into effect.” Why, then, was “the clause introduced?” The Convention saw this “tautology” as a precautionary protection of the general government against later attempts “to curtail and evade the legitimate authorities of the Union.” Anyway, in the end, it is the people of America who will decide the meaning of necessary and proper. And without the supremacy clause, the arrangement would be a mere treaty.

Federalist 34

Further coverage of 3) the regulation of commerce. Hamilton repeats his claim that when thinking about the expenses of government we ought not to tie the hands of the general government. “If we mean to be a commercial people, it must form a part of our policy to be able one day to defend that commerce.” Accordingly, we must be aware of “future contingencies,” in designing a Constitution that is to last into “remote futurity.” In framing a Constitution, as distinguished from writing legislation, we ought to focus on the future and the permanent rather than the current and temporary scene.

Federalist 35

Further coverage of 3) the regulation of commerce. This essay explores the relationship between the power of taxation and the right of representation. Hamilton criticizes the “frequent objection” of the Antifederalists that the House “is not sufficiently numerous” to provide for a complete and sympathetic representation of the people. He portrays this argument as “impracticable” and “unnecessary.” First, “an actual representation of all classes of the people by persons of each class is altogether visionary.” Second, the Congress need not be an exact mirror of the society. Third, a dependency on the people, and being bound by the very laws he makes, are “the strong chords of sympathy between the representative and the constituent.” Finally, we need representatives capable of exercising “neutrality” and “impartiality” in the clash between the agricultural and mercantile interests. That is the role of the “learned professions.”

Federalist 36

Further coverage of 3) “of the regulation of commerce.” Additional emphasis is given to representation and taxation. If we leave things alone, then merchants, landowners, and the learned professions will be elected to Congress. They “will truly represent all those different interests and views” across the extended republic. He concludes his coverage of the “energy” essays thus: “Happy will it be for ourselves, and most honorable for human nature, if we have wisdom and virtue enough to set so glorious an example to mankind!”

Part V Federalist 37-51: “The Great Difficulty of Founding”

Federalist 37-40: the difficulty with demarcations and definitions , federalist 37.

This is the first of fifteen essays written by Madison that provide a window on the “work of the convention.” He says, “a faultless plan was not to be expected.” The “indistinctness of the object, imperfection of the organ of conception, [and] inadequateness of the vehicle of ideas” each made the founding of the Constitution “a great difficulty.” 1) Humans are fallible, 2) the undertaking was “novel,” 3) “mingling…together” and “defining with certainty,” the “vital principles” of liberty, energy, and stability in the legislature, executive, and judiciary was very difficult, 4) drawing the line between the powers of the general government and the state governments was “no less arduous,” 5) the “imperfection of the human faculties” is clear and so “meaning” must be “liquidated and ascertained by a series of particular discussions and adjudications,” and 6) “contending interests and local jealousies” had to be dealt with. It is astonishing that “so many difficulties should have been surmounted.” Is this the result of the “finger” of “the Almighty hand” at work?

Federalist 38

The creation of the Constitution faced another difficulty. It is an “experiment.” This is the first in the history of the world to have “been committed to an assembly of men.” But, instead of acknowledging “the improvement made by America on the ancient mode of preparing and establishing regular plans of government,” the Antifederalists criticize the plan in an incoherent and irrelevant manner and demand perfection. Yet “are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted?”

Federalist 39

Madison addresses two questions: does the Constitution pass 1) the republicanism test and 2) the federalism test? The answer depends on how we define republicanism and federalism. These are the “great difficulties” of definition.

1) The “genius of the people of America,” and “the fundamental principles of the Revolution,” demand that we “rest all our political experiments on the capacity of mankind for self government.” If the Constitution departs from the “strictly republican” standard, or “character,” it must be rejected. What, then, is the definition of a republic? It is “a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding office during good behavior.” We learn that a) “it is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion or a favored class of it,” and b) it is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified.” Madison announces that the Constitution passes the test.

2) There are three tests to measure the federalism of the Constitution, the first of which—a) “the real character of the government”—is covered in the remainder of the essay. There are five “considerations” to ponder when dealing with the “real character” standard.

I) “The foundation on which it is to be established.” Who ratifies the Constitution, the states or the people? II) “The sources from which its ordinary powers are to be drawn.” Are the people or the states represented in the Congress? III) “The operation of those powers.” Does the government “operate” directly on the people in their “individual capacities” or on the states in “their collective and political capacities?” IV) “The extent of`… the powers.” Does the general government have “an indefinite supremacy over all persons and things,” or does its jurisdiction extend “to certain enumerated objects only?” V) “The authority by which future changes in the government are to be introduced.” Are amendments secured by a majority of the people or by the unanimity of the States?

Madison concludes that it is “in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally in the authoritative mode of introducing amendments , it is neither wholly federal nor wholly national.”

Federalist 40

Madison turns to the second and third tests, or difficulties, concerning the “federalism” of the Constitution. b) Was the convention “authorized to propose such a government?” Madison’s response is that the delegates were authorized to frame a government “adequate to the exigencies of the Union,” and they performed that task, and c) how far did “considerations of duty arising out of the case itself…supply any defect of regular authority?” Madison acknowledges that there are some doubts that Congress authorized the delegates to devise a plan that totally overhauled, rather than simply amended, the Articles. So he appeals to the Declaration of Independence: “it is the precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’” So the really important question is NOT is the plan legal in the narrow sense of the term, but “whether the advice (of the Convention) be good?”

Federalist 41-46: The Difficulty of Federalism

Federalist 41.

This is the first of six essays on the difficulty of powers and federalism. This difficulty, in turn, can be divided into two parts around the consideration of two questions. The first difficulty of powers and federalism is this: has any unnecessary and improper power been granted to the general government? This is covered in Federalist 41-44. The answer is “no.” (The second difficulty is this: is the mass of power granted to the federal government dangerous to the exercise of power retained by the states? This is covered in Federalist 45-46.) Six “classes” [1-6 below] of the first difficulty of power and federalism in the Constitution are examined.

Federalist 41 examines the 1) “security against foreign danger” class of power. Madison reiterates Hamilton’s earlier defense of the Constitution with respect to military establishments, standing armies, the militia, the power of taxation, and the war powers of the general government.

Federalist 42

This essay examines the second and third classes of federal power: 2) “regulation of the intercourse with foreign nations,” and 3) “maintenance of harmony and proper intercourse among the states.” The former covers the implications of the “interstate commerce” clause. The latter focuses on the remaining clauses in Article I, Section 8.

Madison regrets that 2) the “power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation.” Nevertheless, he is optimistic that the “the barbarism of modern policy” will be soon “totally abolished.” He concludes: “Happy would it be for the unfortunate Africans if an equal prospect lay before them of being redeemed from the oppressions of their European brethren.” Concerning 3) Madison laments that “the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.”

Federalist 43

This essay examines the fourth class of federal power: 4) “certain miscellaneous objects of general utility.” Nine miscellaneous clauses are covered.

Most attention is given to the sixth clause, namely, the republican guarantee clause. The main issues here are a) “to defend the system against aristocratic or monarchical innovations,” and b) to protect the principle of majority rule against the actions of a minority of “adventurers.” Madison then adds: “I take no notice of an unhappy species of population abounding in some of the States, who, during the calm of regular government are sunk below the level of men; but who, in the tempestuous scenes of civil violence, may emerge into the human character and give a superiority of strength to any party with which they may associate themselves.”

The ninth and last clause covered is Article VII. This clause provides for ratification of the Constitution by nine out of thirteen specially called conventions. Madison asks: how can the Articles be “superseded without the unanimous consent of the parties to it? The answer, anticipated in Federalist 40, is “the great principle of self-preservation: to the transcendent law of nature and nature’s God, which declares that the safety and happiness of the society are the objects at which all political institutions aim and to which all such institutions must be sacrificed.”

Federalist 44

This essay examines the fifth and six classes of federal power: 5) “restraint of the States from certain injurious acts,” and 6) “provisions for giving due efficacy to these powers.” The latter revisits the necessary and proper clause. “Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, as has been elsewhere shown, no part can appear more completely invulnerable. Without the substance of this power, the whole Constitution would be a dead letter.” He examines, and rejects, the four choices, other than the one stated in Article 1, Section 8, clause 18, that were available to the convention: a) adopt the “expressly” delegated language of the Articles, b) list a “positive enumeration of the powers” attached to the necessary and proper clause, c) list a “negative enumeration” of the powers not attached, and d) remain “altogether silent on the subject, leaving these necessary and proper powers to construction and inference.” All the clause is saying is that “wherever a general power to do a thing is given, every particular power necessary for doing it is included.” And if Congress should abuse this power? “The people…can, by the election of more faithful representatives, annul the acts of the usurpers.”

Federalist 45

This essay starts the consideration of the second difficulty of power and federalism: is the mass of power granted to the federal government dangerous to the exercise of power retained by the states? The answer is “no.”

Federalist 45 begins with the question: was the revolution fought to secure the peace, liberty, safety, and public good of the American people or to secure the sovereignty of the states? Madison says, the former, and he is willing, if necessary, to sacrifice the states for the “public happiness.” But it will be difficult to do away with the states even if one wanted to because they are “ constituent and essential parts of the federal government.” Besides, “the powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” Actually, he concludes, the Constitution doesn’t enlarge the powers of the federal government; “it only substitutes a more effectual mode of administering them.” But the federal government will grow in importance during wartime.

Federalist 46

This essay concludes the consideration of the second difficulty of power and federalism: is the mass of power granted to the federal government dangerous to the exercise of power retained by the states? The answer, again, is “no.”

Madison suggests that the federal government has more to fear from the encroachment of the state governments than vice versa. And the state governments are capable of defending themselves. The sentiments of the people are naturally closer to the state governments and things will stay that way unless the federal government is better administered. In which case, “the people ought not surely to be precluded from giving most of their confidence where they may discover it to be the most due.”

Federalist 47-51: The Difficulty of Republicanism

Federalist 47.

This is the first of five essays on the difficulty of republicanism. He is interested in “the structure” of the government. Madison begins with a “political truth”: “the accumulation of all powers, legislative, executive, and judiciary, in the same hands…may justly be pronounced the very definition of tyranny.” The Antifederalists, relying on Montesquieu the “oracle” on the doctrine of separation of powers, claim that the Constitution violates the political truth or maxim, because the branches are not separate and “distinct.” Madison argues 1) that Montesquieu wasn’t advocating a complete “wall of separation” between the branches, but endorsed “ partial agency ,” b) there isn’t a strictly “distinct” separation of powers in the state constitutions and 3) the “political truth” really means that the separation of powers is violated when “the whole power of one department is exercised by the same hands which possess the whole power of another department,” and not when one branch has a partial agency in another branch. In fact, partial agency in practice is needed to accomplish the separation of powers in theory.

Federalist 48

Madison declares that “the most difficult task” is to provide “some practical” security for each branch against “the invasion of the others.” The Madison “correction” of “the founders of our early republics,” is this: Legislative tyranny is far more likely than executive tyranny “in a democracy.” Virginia and Pennsylvania in the 1780s are proof for Madison that their Constitutions actually encourage the emergence of this new kind of tyranny. And, says Madison, Jefferson, in his Notes on the State of Virginia , came to recognize the reality of “ elective despotism ”: “One hundred and seventy-three despots would surely be as oppressive as one.” What “precautions” then shall be taken against this dangerous branch? More is needed than “a mere demarcation on parchment of the constitutional limits of the several departments.”

Federalist 49

Madison opens with a critique of Jefferson: he understands the problem, but not the solution. Jefferson proposes that when violations of the separation of powers occur, “a convention shall be called for the purpose” of “ correcting breaches .” But, asks Madison, won’t it be the executive and judiciary appealing to the people to call a convention to restrain the legislature? And who would most likely be elected to the convention than the very legislators who caused the problem? “The passions , therefore, not the reason , of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.” Even if these conventions are called only for “certain great and extraordinary occasions,” we must remember “that all governments rest on opinion,” and the calling of a correcting convention would “deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.”

Federalist 50

Madison says the same objections apply to “periodical appeals” as they do to “occasional appeals to the people” to correct infractions of the Constitution.

Federalist 51

This is the last of fifteen essays written by Madison on “the great difficulty” of founding. There are ten paragraphs in the essay.

β 1. The way to implement the theory of separation of powers in practice is to so contrive “the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”

β 2. Accordingly, “each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.”

β 3. “It is equally evident that the members of each department should be as little dependent as possible on those of the others for the emoluments annexed to their offices.”

β 4. A.“The Great Security”

“The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others…Ambition must be made to counteract ambition. The interests of the man must be connected with the constitutional rights of the place.”

B: “A Reflection on Human Nature”

Isn’t relying on ambition and interest, “a reflection on human nature?” But, adds Madison, what is government itself but the greatest reflection on human nature? If men were angels, no government would be necessary.”

C: “The Great Difficulty” of Founding

“You must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions.”

β 5. “This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.” Madison calls this policy “inventions of prudence.”

β 6. “In republican government, the legislative authority necessarily predominates.” Thus, it is “not possible to give to each department an equal power of self-defense.” Accordingly, we need to add here and subtract there. We can divide the legislature into two branches and fortify the executive a) with the power of a conditional veto and b) “some qualified connection” with the Senate.

β 7. The general government comes closer to passing the “self-defense” of each branch test than do the State governments.

β 8. “There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view.”

β 9. First, America is a “compound republic,” rather than a “single republic.” This provides for a “double security…to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

β 10. Second, there are only two ways to combat “the evil” of majority faction, a) “by creating a will in the community independent of the majority,” or b) creating an authoritative source “dependent on the society,” but, and here is the essence of the American experiment, the society “will be broken down into so many parts,” that it contain a vast number and variety of interests.

To repeat, the American society will “be broken down into so many parts, interests and classes of citizens, that the rights of individuals, or the minority, will be in little danger from interested combinations of the majority.” Echoing Federalist 10, Madison says “the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects.” And both depend on “the extended republic.” Let us not forget, adds Madison, that “justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” Fortunately, in “the extended republic…a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.” We have rejected the “precarious security” provided by the “hereditary or self-appointed” alternative of “introducing into the government…a will independent of the society itself.”

Part VI Federalist 52-84: “The True Principles of Republican Government”

Federalist 52-61: the house of representatives, federalist 52.

Madison introduces the “more particular examination of the several parts of the government,” with ten essays on the House of Representatives. He organizes the treatment around “five views.” 1) “The qualification of electors” is completely covered and 2) the duration in office is partially covered in Federalist 52. With regard to the former, he says the electoral “door” is wide “open to merit of every description,” regardless of place of birth, “young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.” Concerning the latter, he reminds the reader that “the scheme of representation as a substitute for a meeting of the citizens in person being at most but very imperfectly known to ancient polity, it is in more modern times only that we are to expect instructive examples.”

Federalist 53

Further coverage of 2) duration in office. One of the “instructive examples” derived from the modern understanding of constitutionalism, says Madison, is that we can safely discard the notion “that where annual election end, tyranny begins.” The only “reason on which this proverbial observation is founded” can be traced to Britain where the Parliament can, and has, “by ordinary power of government…changed the period of election.” But no such security “for the liberty of the people” against “these dangerous practices” is necessary in America because the government is “limited…by the authority of a paramount Constitution.” Besides which, a two year “unalterably fixed” biennial elections provides more time for representatives to acquire the “practical knowledge…useful to the affairs of the public.”

Federalist 54

This essay covers 3) “the apportionment of its members.” Madison says that the rule for apportionment is to be the “same rule with that of direct taxes.” There is no inherent reason, he says, why the rule should not be “numbers” for both. However, property has “recently obtained the general sanction of America” as the rule for direct taxes. Does it then follow “that slaves ought to be in the numerical rule of representation?” He lets an unidentified defender of “southern interests” make the case—articulate in quotation marks over four pages–for the modification in “the census of persons” rule for apportionment. Madison concludes: “it may appear a little strained in some points, yet on the whole, I must confess that it fully reconciles me to the scale of representation which the convention have established.”

Federalist 55

This is the first of four essays on 4) “the number of which the House of Representatives is to consist.” The apparently small size of the House, says Madison, has been given extensive attention by the most worthy of the opponents. He outlines four “charges” concerning the small number: the House will a) be “an unsafe depository of the public interests,” b) fail to “possess a proper knowledge” of the interests of their constituents, c) be “taken from” the class least sympathetic to the “mass of the people,” and most disposed to sacrifice their interest, and d) the defect in numbers of representatives will become “more disproportionate” as the population increases. This essay discusses a) and makes the following two points i) “Had every Athenian been a Socrates, every Athenian assembly would still have been a mob,” and ii) there is a decent side to human nature that balances the depraved side. In fact, “republican government presupposes the existence of these [better] qualities in a higher degree than any other form.”

Federalist 56

This is the second essay on 4) “the number of which the House of Representatives is to consist.” It addresses the “second charge”: b) the House “will be too small to possess a due knowledge of the interests of its constituents.” The essay says that the kind of information the representatives need to assist their constituents, echoing Federalist 35 and 53, is knowledge about “commerce, taxation, and the militia,” rather than “particular knowledge of their affairs.”

Federalist 57

This is the third essay on 4) “the number of which the House of Representatives is to consist.” It addresses the “third charge”: c) the chosen representatives will “have least sympathy with the mass of the people,” and be inclined to “sacrifice” the interests of the people. Madison describes this objection as “extraordinary,” because “the principle of it strikes at the very root of republican government.” The objective, says Madison, is to elect wise and virtuous representatives and then adopt “precautions” to keep them that way whilst in office. The primary method of keeping the representatives virtuous is a “habitual recollection of their dependence on the people.” But “human prudence” has “devised” four “cords by which they will be bound to fidelity and sympathy with the great mass of the people”: “duty, gratitude, interest, ambition.”

Federalist 58

This is the fourth and final essay on 4) “the number of which the House of Representatives is to consist.” It addresses the “remaining charge”: “the number of representatives will not be augmented” as the population increases. Madison admits, “this objection, if well supported, would have great weight.” But, he continues, “there is a peculiarity in the federal Constitution which insures a watchful attention…to a constitutional augmentation.” The four largest states “will have a majority of the whole votes in the House,” and since they hold the power of the purse, “the most complete and powerful weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure,” these states can defeat “unfriendly” opposition in the Senate. Madison, in conclusion, warns about increasing the size of the House “beyond a certain limit.” Experience demonstrates “that the countenance of the government may become more democratic, but the soul that animates it will be more oligarchic.”

Federalist 59

This is the first of three essays on 5) “the times, places, and manner” clause. Hamilton states the case for this clause: “ every government ought to contain in itself the means of its own preservation .” What if “the leaders of a few of the most important States should have entered into a previous conspiracy to prevent an election?”

Federalist 60

This is the second of three essays on 5) “the times, places, and manner” clause. Couldn’t this clause be manipulated to confine “the places of election to particular districts and rendering it impracticable to the citizens at large to partake in the choice?” This, says Hamilton, is “the most chimerical” of “all chimerical propositions.” Hamilton continues: “to speak in the fashionable language of the adversaries of the Constitution,” will this clause “court the elevation of the ‘wealthy and the well-born,’ to the exclusion and debasement of all the rest of the society?” “No,” because of the multiplicity of interests, the separation of powers, and the scheme of representation.

Federalist 61

This is the third of three essays on 5) “the times, places, and manner” clause. Here the defense of the clause moves beyond the argument that it is necessary and proper to “a positive advantage.” In conclusion, “I allude to the circumstance of uniformity in the time of elections for the federal House of Representatives.”

Federalist 62-66: The Senate

Federalist 62.

Madison “enters next on the examination of the Senate.” He organizes the five essays on the Senate around five “heads.” Federalist 62 covers four of the “heads.”

The first three are “1) the qualification of Senators, 2) the appointment of them by the state legislatures, 3) the equality of representation in the Senate. ” It is “unnecessary to dilate,” says Madison, on 1) and 2). Concerning 3) this is the result of the compromise, which renders us a “compound republic, partaking of both the national and federal,” and, accordingly, “ does not call for much discussion.” But, he does say that it is “a advantageous consequence” that “no law or resolution can now be passed without the concurrence, first, of a majority of the people, and then of a majority of the States.”

The remainder of Federalist 62 introduces 4) “the number of Senators and the term for which they are to be elected.” Madison divides the coverage of 4) into six parts. The treatment of the first four of these six “defects” and six “remedies,” occurs in this essay and are directed to checking the House, that “numerous and changeable body.”

First . The Senate operates as “a salutary check” on efforts by representatives in the House to betray the public trust. Second . The smaller numerical size, and the longer duration in office, provides a healthy restraint “to the impulse of sudden and violent passions.” Third . A Senate is vital to overcoming “the blunders” of popular legislation. “A good government implies two things; first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained….I scruple not to assert that in American Governments too little attention has been paid to the last. The federal Constitution avoids this error; and what merits particular notice, it provides for the last mode which increases the security for the first.” Fourth . A Senate helps overcome the “mutability in the public councils.” A frequent change of the representatives in the lower House causes a “change in opinions,” and then a “change in measures.”

Madison outlines five “mischievous effects of mutable government.” A) “It forfeits the respect and confidence of other nations, and all the advantages connected with national character.” B) At home, it “poisons the blessings of liberty itself…if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” C) “Public instability” favors “the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people.” D) “No great improvements or laudable enterprises can go forward” without the presence of “a steady system of national policy.” E) It robs the system of “attachment and reverence.”

Federalist 63

This essay contains twenty-one paragraphs. The first six paragraphs of the essay concludes the fifth and sixth part of 4) “the number of Senators and the term for which they are to be elected.” Madison then turns in paragraph seven to protecting the people “against their own temporary errors and delusions.” Paragraphs 8 through 14 revisit the sufficiency of the extended orbit and what the ancients knew about the principle of representation. The essay concludes with a consideration of the Antifederalist claim that the Senate will become a “Tyrannical Aristocracy.”

The Idea of “Due Responsibility”

β 1. Fifth . A Senate is valuable because it provides “ a due sense of national character.”

β 2 and 3. In particular, it is wise to listen to the “opinion of the impartial world,” and the “unbiased part of mankind” lest the “numerous and changeable” House of Representatives “be warped by some strong passions or momentary interest.”

β 4. Sixth . Madison introduces a “new, but paradoxical, understanding” of “the due responsibility in the government to the people.”

β 5. Instead of understanding “responsibility” exclusively in terms of “dependence on the people” through “the frequency of elections, ” Madison puts forth the idea of the “responsibility” of the representatives to the long run interests of the community.

β 6. This is the “responsibility” of the Senate.

“The Cool and Deliberate Sense of the Community”

β 7. The Senate is valuable at certain “critical moments” in “public affairs.” It is “salutary” to have a Senate that can check the “temporary errors and delusions of the people,” until reason, justice, and truth can regain their authority over the public mind.” The vital role of the Senate in the institutional framework, then, is to secure the principle of “the cool and deliberate sense of the community.”

The “Extension of the Orbit” Revisited

β 8. Madison revisits the importance of “the extension of the orbit” element in the science of politics introduced in Federalist 9 and explicated in Federalist 10. He admits that the extended orbit theory of Federalist 10 is necessary but insufficient and, may in fact, be counterproductive. Once again, we need further “auxiliary precautions” to make the American experiment succeed.

β 9. To be sure, America is different from other governments, both “ancient and modern.“ Yet, it is instructive to note that “history informs us of no long-lived republic which had not a senate.”

The “Principle of Representation” Revisited

β 10. Madison repeats the claim of Federalist 9 that “the principle of representation” is the pivotal difference between the American model and those found in antiquity. He revisits the claim that the principle of representation was “unknown” to the ancients.

β 11, 12, & 13. The extent to which the principle of representation was used in antiquity.

β 14. Thus, “it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political institutions.” The unique feature of the American experiment is, that for the first time, we have “ the total exclusion of the people in their collective capacity , from any share” in the government,” rather than “ the total exclusion of the representatives of the people from the administration” of the government.” Madison then concludes “that to insure this advantage its full effect, we must be careful not to separate it from the other advantage, of an extensive territory.”

The Senate as a “Tyrannical Aristocracy”

β 15. The opposition will claim that the Senate will become, by “gradual usurpations,” an independent and “tyrannical aristocracy.”

β 16. One response to the Antifederalists is “that liberty may be endangered by the abuses of liberty as well as by the abuses of power.”

β 17. A second response is that the claim defies reason: for the alleged “tyrannical aristocracy” to take place, the Senate must “in the first place, corrupt itself,” and ultimately corrupt “the people at large.”

β 18. A third response: the claim defies experience of the state governments.

β 19. A fourth response: even the British example fails to lead to “tyrannical aristocracy.”

β 20. A fifth response: there are no examples from antiquity of “tyrannical aristocracy.”

β 21. Finally, the House of Representatives will never allow this to happen.

Federalist 64

This is the first of three essays on 5) “the powers vested in the Senate.” The essay covers the “advise and consent” clause concerning the treaty making power that the Senate shares with the President. Jay asks why is it better for national policy to involve the Senate and not the whole Congress? “The Constitution has taken the utmost care” by the size of the Senate, the need for “secrecy and dispatch,” and the age and duration in office provisions that the Senators “shall be men of talents, and integrity.” Thus “the treaties they make will be as advantageous as…could be made.”

Federalist 65

This is the second of three essays on 5) “the powers vested in the Senate” The remaining powers of the Senate involve the participation of the Senate “with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments.” The former is covered in the executive essays; here, Hamilton explains “the judicial character of the Senate.” In short, this essay covers the impeachment-conviction power. The Senate, and neither the House nor the Supreme Court, is the “tribunal sufficiently dignified” and “sufficiently independent” to render the sentence of “perpetual ostracism from the esteem and confidence and honors and emoluments of his country” for official “POLITICAL” misconduct.

Federalist 66

This is the last of three essays on 5) “the powers vested in the Senate.” This essay concludes the defense of locating of the “determining in all cases of impeachment” power alone in the Senate. This power does not 1) violate the doctrine of the separation of powers, 2) “give to the government a countenance too aristocratic,” or produce a conflict of interest with the Senate-Executive 3) appointment power, or 4) treaty making power.

Federalist 67-77: The Presidency

Federalist 67.

This is the first of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This is the first of six essays in The Federalist that identify specific authors of Antifederalist writings. Here it is Cato V.

“Scarcely any other part of the Constitution,” says Hamilton, has been “inveighed against with less candor or criticized with less judgment.” The opposition portray the Presidency as a full-grown progeny of monarchy, and Cato claims that, under the Constitution, the President can fill temporary vacancies in the Senate. This is utter nonsense, since this power is “expressly allotted to the executives of the individual States.” Yet, this is typical of the “shameless” exercise of “their talent of misrepresentations,” and “an unequivocal proof of the unwarrantable arts which are practised to prevent a fair and impartial judgement of the real merits of the Constitution.”

Federalist 68

This is the second of eleven essays written by Hamilton defending the Presidency Presidency against the “unfairness” of the Antifederalist “representations.” This is the second of six essays in The Federalist that identify specific authors of Antifederalist writings. Here it is the Federal Farmer.

He remarks that the “mode of appointment” by the Electoral College “is almost the only part of the system, of any consequence, which has escaped without severe censure.” He reminds the reader that “this process of election affords a moral certainty that the office of President” will be “filled by characters pre-eminent for ability and virtue.” This is important since “the true test of a good government is its aptitude and tendency to produce a good administration.” And a good executive is central to a good administration.

Federalist 69

This is the third of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This is third of six essays in The Federalist that identify specific authors of Antifederalist writings. Here it is Tamony.

The “real character of the proposed executive” is revealed in terms of the organization and powers tests. The tests are 1) “single magistrate,” 2) “ four years; and is to be re-eligible,” 3) impeachment and removal from office, 4) “qualified negative of the Presidency,” 5) “occasional…commander-in-chief” power which “would amount to nothing more than the supreme command and direction” of the armed forces, 6) power to pardon, 7) power to “adjourn the legislature,” 8) with the “advice and consent of the Senate, to make treaties,” 9) power to “receive ambassadors and public ministers,” 10) “the power to nominate and appoint.” Hamilton concludes that putting the Constitution to these tests, the Presidency is closer to the Governor of New York than to the Monarch of Great Britain. In fact, with the exception of the treaty-making power, “it would be difficult to determine whether that magistrate would in the aggregate, possess more or less power than the governor of New York.”

Federalist 70

This is the fourth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” The essay opens with the Antifederalist concern “that a vigorous executive is inconsistent with the genius of republican government.” Hamilton’s response is that “energy in the executive is a leading character in the definition of good government.” He explores two questions. A) What are the “ingredients which constitute energy in the executive?” B) How far can these ingredients be combined with other ingredients which constitute safety in the republican sense? A) There are four ingredients of energy: I Unity, II Duration, III Adequate Provision for Support, and IV Competent Powers. B) There are two ingredients of republican safety: I “A due dependence on the people,” and II “A due responsibility.”

A) I Unity is “conducive to energy.” “The dictates of reason and good sense,” demonstrate that unity in the executive better secures the goals of “decision, activity, secrecy, and dispatch.” A “plurality in the executive” also destroys “responsibility.”

Federalist 71

This is the fifth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” It covers A) II Duration as it pertains to “the personal firmness of the executive.

β 1. “It is a general principle of human nature that a man will be interested in what he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it.” The duration provision helps the President to be “interested” in resisting the “ill-humors” of society and a “predominant faction in the legislative body.”

β 2. “The servile pliancy of the executive to a prevailing current in the community or in the legislature” is NOT “its best recommendation.” The President must resist a “complaisance to every sudden breeze of passion” that might emerge in the society contrary to the true interests of the people, and, instead be “the guardians of those interests to withstand the temporary delusions in order to give them time and opportunity for more cool and sedate reflection.” It is the duty of the executive to secure the “republican principle”: “the deliberate sense of the community should govern.”

β 3. “The executive should be in a situation to dare to act…with vigor and decision.”

β 4. “The fundamental principles of good government” requires a fortification of the executive against the “almost irresistible” tendency in “governments purely republican” for the “legislative authority to absorb every other.”

β 5- β7. “It may be asked whether a duration of four years” is sufficient. It may not “completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government.”

Federalist 72

This is the sixth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This essay concludes the coverage of A) II Duration pertaining to “the stability of the system of administration.” He lists five “pernicious” “ill effects” that will occur as a result of “exclusion.”

β 1. “There is an intimate connection between the duration of the executive magistrate in office and the stability of the administration of government” which includes “foreign negotiations,” public finance, and “the directions of the operations of war.”

β 2. “With a positive duration of considerable extent, I connect the circumstance of re-eligibility.” The former is vital for individual firmness; the latter for a “wise system of administration.”

β 3. “Exclusion” from office, or term limits, for the President is “pernicious.”

β 4. “One ill effect of the exclusion would be a diminution in inducements to good behavior.” “The desire of reward is one of the strongest incentives of human conduct. Even the love of fame, the ruling passion of the noblest minds” is not strong enough to motivate “the generality of men” toward “the positive merit of doing good.”

β 5, 6, 7. “Another ill effect of the exclusion would be the temptation to sordid views, to peculation, and, in some instances, to usurpation.” It is contrary “to the stability of government, to have half a dozen men who had credit enough to raise themselves to the seat of the supreme magistracy wandering among the people like discontented ghosts and sighing for a place which they were destined never more to possess.”

β 8. “A third ill effect of the exclusion would be the depriving the community of the advantage of the experience gained by the Chief Magistrate in the exercise of his office.” Remember, “experience is the parent of wisdom.”

β 9. “A fourth ill effect of the exclusion would be the banishing men from stations in which, in certain emergencies of the State, their presence might be of the greatest moment to the public interest or safety.”

β 10. “ A fifth ill effect” is that “by necessitating a change of men, in the first office of the nation, it would necessitate a mutability of measures.”

β 11. These “disadvantages” are worse under a “scheme of perpetual exclusion.”

β 12, 13. “What are the advantages promised to counterbalance these disadvantages?…1 st , greater independence in the magistrate; 2 nd , greater security to the people.”

β 14. The disadvantages of exclusion outweigh the advantages.

Federalist 73

This is the seventh of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This is the fourth of six essays in The Federalist that identify specific authors of Antifederalist writings. Here it is Abraham Yates. This essay covers the third and fourth, and the last, of the “ingredients”: A) III: Adequate Provision for Support, and A) IV: Competent Powers. The essay focuses on A) IV. Attention is given to A) IV a, the veto power.

Hamilton defends the “qualified negative of the President” as 1) “a shield to the executive,” to protect its “constitutional rights,” and as 2) an “additional security against the enaction of improper laws.” Sometimes, instead of adhering to the principle of “due deliberation,” the Congress passes laws through “haste, inadvertence, or design.” Thus the “public good” is “evidently and palpably sacrificed.” The presidential veto, moreover, “will often have a silent and unperceived, though forcible, operation.”

Federalist 74

This is the eighth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This essay continues the coverage of A) IV. Attention is given to A) IV b, the commander-in-chief clause, and A) IV c, the power to pardon and reprieve clause. Concerning the former, Hamilton observes “the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.” As to the latter, the Congress may not always be in session; “there are often critical moments when a well-timed offer of pardon…may restore tranquillity to the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”

Federalist 75

This is the ninth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This essay continues the coverage of A) IV. Attention is given to A) IV d, the treaty making power. Hamilton claims that this “is one of the best digested and most unexceptional parts of the plan.” Human nature demonstrates the wisdom of 1) joining the Senate and the President in the “possession of the power,” and 2) excluding the “fluctuating,” and “multitudinous,” House. Furthermore, it is republican to have 2/3 of the Senators present concur, rather than require the concurrence of 2/3 of the whole Senate.

Federalist 76

This is the tenth of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This essay continues the coverage of A) IV. Attention is given to A) IV e, the appointing power. He argues that the mode proposed advances the premise that “the true test of a good government is its aptitude and tendency to produce a good administration.” The critical question is why require “the co-operation of the Senate” in what is traditionally viewed as an exclusively executive function? “Their concurrence would have a powerful, though in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President.” Furthermore, “it would be an efficacious source of stability in the administration.”

Won’t the Senate simply “rubber stamp” Presidential nominations? “This supposition of universal venality in human nature is little less an error in political reasoning than the supposition of universal rectitude. The institution of delegated power implies that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence.” We should “view human nature as it is, without either flattering its virtues or exaggerating its vices.” The Senate will live up to its assigned duty.

Federalist 77

This is the last of eleven essays written by Hamilton defending the Presidency against the “unfairness” of the Antifederalist “representations.” This essay concludes the coverage of A) IV, the issue of energy, and turns, finally, but in only a concluding paragraph, to B) how these ingredients can be combined with others that are safe in the republican sense?

A) Hamilton claims that an added advantage “to the stability of the administration,” is that the consent of the Senate “would be necessary to remove as well as to appoint.” He approves of “this union of the Senate with the President” in the nomination, appointment, and removal process. He endorses the exclusion of the House from the process: “A body so fluctuating and at the same time so numerous can never be deemed proper for the exercise of that power. Its unfitness will appear manifest to all when it is recollected that in half a century it may consist of three or four hundred persons.”

B) In Federalist 70, Hamilton introduced B) and stated that there were “two ingredients of republican safety”: I “A due dependence on the people,” and II “A due responsibility.” Here he says, “The answer to this question has been anticipated in the investigation of its other characteristics.”

Federalist 78-82: The Judiciary

Federalist 78.

This is the first of five essays written by Hamilton on the Judiciary. In this essay, we also find the fifth of six essays in The Federalist that identify specific authors of Antifederalist writings. Here it is the “ Protest of the Minority of the Convention of Pennsylvania, Martin’s speech, etc .”

β 1. “We proceed now to an examination of the judiciary department.”

β 2. The coverage of the judiciary is in two parts: A) “the manner of constituting it” and B) “its extent.”

β 3. There are three A) “objects.” “1 st . The mode of appointing the judges. 2 nd . The tenure by which they are to hold their places. 3 rd . The partition of the judicial authority between different courts and their relations to each other.” [See Federalist 81.]

β 4. A) 1 st . See Federalist 76 and 77.

β 5. A) 2 nd . “As to tenure by which the judges are to hold their places: this chiefly concerns [1] their duration in office, [II] the provisions for their support, [III] the precaution for their responsibility.” The remainder of the essay covers the case for [I] their duration in office. {Article III, Section 1.}

β 6. “The standard of good behavior…is certainly one of the most valuable of the modern improvements in the practice of government.” It helps the judiciary to resist “legislative encroachment.” β 7-β 17 makes the case for “permanent tenure” to resist the encroachment of the legislature.

β 7. The judiciary “will always be the least dangerous to the political rights of the Constitution….It may truly be said to have neither FORCE nor WILL but merely judgment.”

β 8. The judiciary is “the weakest of the three departments of power,” and its “natural feebleness” needs fortification.

β 9. “The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority.” It is the “duty” of the courts, “to declare all acts contrary to the manifest tenor of the constitution void.”

β 10. The opposition thinks that this “doctrine would imply a superiority of the judiciary to the legislative power.”

β 11. But “every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.”

β 12. The courts are an “intermediate body between the people and the legislature” to keep the latter within their proper sphere. The legislature cannot be “the constitutional judges of their own powers.” The Constitution is the fundamental law and it belongs to the courts to “ascertain its meaning” and to secure “the intention of the people” over “the intention of their agents” whenever there is “an irreconcilable variance between the two.” “The interpretation of the laws is the proper and peculiar province of the courts.” Since the Constitution is the “fundamental law,” it therefore belongs to the Supreme Courts “to ascertain its meaning.”

β 13. This does not “suppose a superiority of the judicial to the legislative power.”

β 14. “In determining between two contradictory laws…it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction” they ought to “be reconciled to each other.” When “impracticable, it becomes a matter of necessity to give effect to one in exclusion of the other.”

β 15. “Whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”

β 16. “It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure for the constitutional intentions of the legislature…. The courts must declare the sense of the law,” and not “be disposed to exercise WILL instead of JUDGMENT.”

β 17. “The permanent tenure of judicial offices” is critical if the courts are to be “the bulwarks of a limited Constitution against legislative encroachments.”

β 18. “Permanent tenure” can help to resist the “ill humors” that may momentarily “lay hold” of the people to violate the Constitution. “As faithful guardians of the Constitution,” the courts must restore the norm of “more deliberate reflection.”

β 19. “Permanent tenure” can also help to resist legislative efforts to injure “the private rights of particular classes of citizens, by unjust and partial laws.”

β 20. “Permanent tenure” is needed so that courts provide “inflexible adherence to the rights of the Constitution, and of individuals.”

β 21. “Permanent tenure” is needed to attract individuals with the “requisite integrity,” and the “requisite knowledge” to handle the “variety of controversies which grow out of the folly and wickedness of mankind.” But “to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.”

β 22. “Good behavior” for justices has the added benefit of securing “good government.”

Federalist 79

This is the second of five essays written by Hamilton on the Judiciary. This essay continues A) 2 nd . “As to tenure by which the judges are to hold their places,” and covers: “[II] the provisions for their support,” and [III] the precaution for their responsibility.” {Article III, Section 1.}

With respect to [II] we should remember “that in the general course of human nature, a power over a man’s subsistence amounts to a power over his will .” A “fixed provision for their support” enhances judicial independence. And to be impeached “for malconduct” is the constitutional “precaution” for securing “their responsibility.” He rejects the call for a mandatory retirement age.

Federalist 80

This is the third of five essays written by Hamilton on the Judiciary. He turns to B) “the proper extent of the federal judiciary.” He examines, first, the five “proper objects” of the judicial authority. He then turns to an examination of the cases and controversies covered by the judicial power {Article III, section 2} and especially it extension “to all cases, in law and equity, a) arising under the (sic) Constitution and b) the laws of the United States .” As a “sample” of a), as distinguished from b), Hamilton includes “all the restrictions upon the authority of the State legislatures.” {See Article I, Section 9.} Thus the federal courts ought to “overrule” state laws that are “in manifest contradiction of the articles of Union.” What are “equity causes” that “can grow out” of a) and b)? “There is hardly a subject of litigation,” that does not involve “ fraud, accident, trust , or hardship .” And if “inconveniences” should emerge in the implementation of the various judicial powers, “the national legislature will have ample authority to make such exceptions and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.”

Federalist 81

This is the fourth of five essays written by Hamilton on the Judiciary. In Federalist 78, we learned that three A) “objects” to the coverage of the judiciary. Here, he turns to A) 3 rd . “The partition of the judicial authority between different courts and their relations to each other.” {Article III, Sections 1 and 2.}

He examines the claim that the Supreme Court will become the supreme branch because it has the power “to construe the laws according to the spirit of the Constitution.” There is “not a syllable in the plan under consideration, which directly empowers the national courts to construe the laws according to the spirit of the constitution.” It is true, however, that “the general theory of a limited Constitution” requires the courts to over turn a law in “evident opposition” to the Constitution. But it is a “phantom” to expect judicial supremacy: judicial “misconstructions and contraventions of the will of the legislature may now and then happen, but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system.” A second “phantom” is that the Congressional power to constitute “inferior courts” is intended to abolish state and local courts. And there is a third “phantom,” that the clause, “the Supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make,” is not an attempt to abolish the trial by jury at the state level. Hamilton observes that the original jurisdiction of the Supreme Court “is confined to two classes of cases.”

Federalist 82

This is the last of five essays written by Hamilton on the Judiciary. He continues A) 3 rd . “The partition of the judicial authority between different courts and their relations to each other.” Here, he discusses exclusive and concurrent jurisdictions between the general and state governments and invites the reader to consult Federalist 32. In the process, he reiterates Madison’s remarks about “liquidation” in Federalist 37: It’s “time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE.”

Federalist 83-84: Five Miscellaneous Republican Issues

Federalist 83.

1) Hamilton discusses the objection that “has met with most success”: “ the want of a constitutional provision for the trial by jury in civil cases.” This is the longest essay in The Federalist and the last of six essays in The Federalist that identify specific authors of Antifederalist writings. Here, it is the “absolutely senseless” Report of the Pennsylvania Minority and the propositions of the Massachusetts Convention on trial by jury.

The issue turns on how to interpret silence. The Constitution provides for “the trial by jury in criminal cases,” but “is silent in respect to civil.” It is “absurd,” says Hamilton, to interpret “this silence” as “an implied prohibition of trial by jury in regard to the latter.” There is a “material diversity” from state to state concerning trial by jury in civil cases for “the plan of the convention” to have imposed one uniform standard on all the states. Besides, the opposition grossly exaggerates “the inseparable connection between the existence of liberty and the trial by jury in civil cases.”

Federalist 84

This second longest essay in The Federalist contains twenty-four paragraphs. Hamilton begins with a discussion of 2) “the most considerable” of the “remaining objections”: “the plan of the convention contains no bill of rights.” This is contained in β 1- β 12. He then turns in β 13-β 15 to 3) the location of the seat of government. An “extraordinary” objection is 4) “the want of some provision respecting the debts due to the United States.” This is covered in β 16. He turns, finally, in β 17- β 24, to the claim that 5) “the adoption of the proposed government would occasion a considerable increase of expense.”

β 1, 2. “The most considerable of these remaining objections is that 2) the plan of the convention contains no bill of rights.” True, New York doesn’t have a “prefixed” bill of rights, but the opposition claim that the New York Constitution contains the “substance” of a bill of rights “in the body of it” and “adopts” the British “common and statute law.”

β 3. “The Constitution proposed by the convention contains…a number of such provisions.”

β 4. He lists eight rights located “in the body” of the U. S. Constitution: a) The post impeachment-conviction provision of Article I, Section 3; b) four rights from Article I, Section 9—the privilege of habeas corpus, no bill of attainder, no ex-post facto laws, and “no title of nobility;”–and c) three rights from Article III, Sections 2–the provision for trial by jury in criminal cases and the two parts of the treason clause.

β 5. These are “of equal importance with any which are to be listed found in the constitution of this State.” Blackstone, for example, thinks “the habeas corpus act” is “the BULWARK of the British Constitution.”

β 6. The prohibition on titles of nobility “may truly be denominated the cornerstone of republican government.”

β 7. The claim that the New York Constitution “adopts, in their full extent, the common and statute law of Great Britain” is simply false. “They are expressly made subject ‘to such alterations and provisions as the legislature shall from time to time make concerning the same.’”

β 8. “Bills of Rights are, in their origin, stipulations between kings and their subjects.” The “We the people” clause in the Preamble to the Constitution “is a better recognition of popular rights than volumes of those aphorisms which make the principle figure in several of our State bills of rights and which would sound much better in a treatise of ethics than in a constitution of government.”

β 9, 10. “Bills of Rights…are not only unnecessary in the proposed Constitution but would even be dangerous.”

β 11. A declaration protecting liberty of the press is “impracticable.” We must seek its security “on public opinion, and on the general spirit of the government.”

β 12. “The Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.” It meets two vital objects of a bill of rights: it 1) declares and specifies “the political privileges of the citizens in the structure and administration of the government,” and 2) defines “certain immunities and modes of proceeding, which are relative to personal and private concerns.”

β 13-15. Hamilton answers objection 3) that the citizens will lack the “proper knowledge” to judge the conduct of a government so far removed from the people. This will be “overbalanced by the effects of the vigilance of the State governments” on the conduct of “persons employed in every department of the national administration.” Moreover, “the public papers will be expeditious messengers of intelligence to the most remote inhabitants of the Union.”

β 16. An “extraordinary” objection is 4) “the want of some provision respecting the debts due to the United States.” This, says Hamilton, is simply “inflammatory.”

β 17- β 24. He turns, finally, to the claim that 5) “the adoption of the proposed government would occasion a considerable increase of expense.” But look what we gain from the increase: a new and improved system of government; “it is certain that a government less expensive would be incompetent to the purposes of the Union.” One observer suggests that “the dreaded augmentation of expense” will spring from “the multiplication of offices under the new government.” This is ridiculous since there are few new offices. True, the judges will be an added expense, but this will be of no “material consequence.” And this will “counterbalance” the decline in the expenses of a) Congress since “a great part” of their business “will be transacted by the President,” and b) the State legislatures since “the Congress under the proposed government will do all the business of United States themselves, without the interference of the State legislatures.” But won’t there be an increase in the expense of running the House with an augmentation in the number of representatives? “No.” Currently, there are “sixty-five persons, and probably at no future period by above a fourth or a fifth of that number.”

Part VII

Federalist 85: analogy to state governments and added security to republicanism.

Hamilton informs his readers that “that there would appear still to remain for discussion two points {outlined in Federalist 1}: ‘the analogy of the proposed government to your own State constitution.’ And ‘the additional security which its adoption will afford to republican government, to liberty, and to property.’`’ These topics have been “exhausted” in previous essays. “I never expect to see a perfect work from imperfect man.” Surely the plan of the convention is more perfect than what we have under the Articles? Let’s not call for another convention. Furthermore, isn’t it better to “obtain subsequent amendments than previous amendments to the Constitution?” Remember, “seven out of the thirteen States” have already ratified the plan of the convention.

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