Many of my contributions to this blog will riff my forthcoming tome on the Constitution and its federalism, cleverly entitled The Upside-Down Constitution. The publisher’s (Harvard University Press) release date is February 15. However, you can already pre-order the book on Amazon.com. What exactly is “upside-down” about our Constitution? Keep reading to find out.
When questioned recently about the administration’s Ebola response, President Obama’s exasperated White House press secretary, Josh Earnest, proclaimed to a reporter: “I guess you can take that up with James Madison.” Earnest, in his attempt to express the evolving nature of governance in a federated republic, correctly affirmed Madison’s central role in the debate, and directed the thoughtful citizen to appreciate original understandings of power.
In order to gain a grasp of American federalism, many factors must be considered. Some of these vital concerns include the structure of the political system; the original intentions of some Framers of the Constitution; and the citizenry’s prevailing understanding of the political order during the Early Republic. All of these issues have encouraged a diversity of opinions regarding the fundamental nature of the Union.
Mr. Earnest was correct to note unresolved tensions within American political life, and these tensions may in fact be of a salutatory nature for many reasons. Today, even as we face what Russell Kirk and others have called the behemoth state, the necessary limits on national political power should not be neglected or the consequences of such desuetude will only worsen.
In returning to views of the Founding, as Earnest recommends, we recall the concerns that arose in many quarters during the Constitutional Convention and ratification process. The Antifederalists, especially, feared that an overbearing national government would assume the authority of the states. Article Two of the Articles of Confederation had contained explicit provisions for protecting states, initiating a system whereby “each state retains its sovereignty.”
Various early state constitutions included provisions outlining the primacy of states in the confederal arrangement, often at the expense of a unified political order. The most popular form of amendment requested during the state ratification conventions and proposed to the First Congress concerned a reserved powers clause. The defenders of the Constitution argued, however, that such a provision was unnecessary.
Earnest was also correct to locate much of the interpretation of American federalism—as well as the confusion—with Madison. In fact, we have all too few genuine attempts to sort out the confusion. Madison, or “Little Jemmy” as he was known by his close associates, suggested in Federalist 39 that each state was “a sovereign body” only “bound by its voluntary act” of ratification. Other Federalists, including James Wilson, Alexander Hamilton, and John Marshall at the Virginia ratifying convention, held that such a proposal was already present in the Constitution and that the new government would only have the powers delegated to it.
Opposition to and suspicion of the proposed Constitution on the grounds that it would infringe upon the privileged status of the states was widespread. The defenders of state authority viewed the states as the repository of reserved power, and many believed that states were invested with an equal, and perhaps superior, capacity to judge infractions by the federal government.
The most significant assurances to this effect came in the Virginia ratifying convention from George Nicholas and Edmund Randolph. As the spokesmen for the committee that reported the instrument of ratification, they noted that the Constitution would only have the powers “expressly” delegated to it. If Federalists disagreed with the stress on state authority, they generally viewed a reserved power clause as innocuous, and Madison included such a provision among the amendments he introduced in 1789.
While much debate has ensued, usually at the expense of state authority, it is good to see a prominent acknowledgment of the role that Madison and his writings have assumed in this constitutional dialogue, and of the need to revisit these old yet vital understandings of the nature of power. Perhaps Earnest’s colleagues in the Obama White House will take note.
 See Kevin R. C. Gutzman’s definitive study, Virginia’s American Revolution: From Dominion to Republic, 1776-1840 (Lanham, Maryland: Lexington Books, 2007), for more analysis of the Virginia ratification debate.