The Supreme Court’s doctrine of expansive federal power is much weaker than the original meaning of limited government.
Why are we still talking about federalism in 2012? Wasn’t it mortally wounded with the passage of the 16th and the 17th Amendments? At least, that is what I hear a lot of Conservatives moaning about. Surprisingly, then, we are still talking about federalism. And, I trust, doing something about it. Here is a preliminary answer to the question about the fate of federalism: federalism is a conservative principle that over the last 100 years has restrained the development of the Administrative State. My mind wanders to the Progressives with their national prohibition of intoxicating liquors, FDR’s New Deal spiritual crusade against Mammon and “the money changers in the temple,” LBJ’s Great Society “war on poverty,” and our current national debate over individual health care coverage. These various Prohibitionists are very spiritual and remind me of the spiritual Colonialists and their love of good government to make us good people. Good government is also big government.
My mind also wanders to Colonial times and the concern with moral regeneration; and, then, to the Progressives’ call to public service and the New Deal assault on rugged individualism and the need to transform the American individualistic principle of equality of opportunity to the communitarian notion of equality of outcome. And I also think further about the Kantian moral imperative of the current neo-Progressives’ approach to universal education and universal health care. No child left behind and no obese child in any state and locality. The federal republic must be replaced by a national democracy. In the words of JFK, “Ask not what your country can do for you, but what can you do for your country.” It’s not about how free you should be; rather it is about how good you should be. I think this is one of the vital American battles: being free or being good. Constitutional federalism and being free go together. There’s our first clue to why we are still talking about federalism: we are still interested in free government even in the face of good government. And whatever the states are good for these days, they are simply there and can be of constitutional assistance in the battle with the Administrative State. Along with guns and God, the neo-Progressives have to accept the presence of federalism.
One of the strongest cases for defending constitutional federalism, along with its institutional cousins, checks and balances, and the separation of powers, then is that it provides an enduring barrier to the accomplishment of the Progressives’ “spiritual morality” communitarian agenda. The Progressives have been around for 125 years—there must something that several generations of Americans find attractive in what they offer otherwise they would have dropped the political landscape—but the progressives have not yet secured their promised land because there has been an obstacle in the way. There is still a deep and enduring attachment by the American people to the core principles of federalism, checks and balances, and the separation of powers lodged in a 225 year old Constitution. This is important, because, once again, I find so many conservatives pessimistic not only about federalism, but about the future of the Constitution and the country itself.
I’d like to explore the relationship between “constitutional morality” and constitutional federalism. This “constitutional morality”-–the enduring attachment of the American people to the core institutional principles of federalism, checks and balances, and the separation of powers—is vital in what is the century year old contest over first principles. And what I have to say about constitutional morality is derived from my understanding of the debate between the Antifederalists and the Federalists over the Constitution.
Now there are moderate Antifederalists as well as immoderate Antifederalists. I want to talk about the moderate Antifederalists whose contribution is threefold: 1) their views are already incorporated in the Constitution, 2) they warn that the Constitution contains the potentiality to become dominated by either the Executive or Judicial branches, and 3) they argue for a bill of rights to constrain the federal government because they doubt that the division of powers and the separation of powers is sufficient. And they are wary about creative interpretations of the general welfare, common defense, interstate commerce, and the necessary and proper clause.
Federalism provides a constitutional defense of limited government because the purpose of a federal Constitution is primarily to restrain both the ends of government and the means to those ends. A federal Constitution in the American tradition is a document on behalf of “free government” where there are frequent and staggered elections, the predominance of the state legislatures and the Congress in the American System, with a corresponding Bill of Rights that reminds the citizen that both the ends and means of government are limited.
If one wants, instead, “good government” then the emphasis must move to the Constitution as an empowering document, where the power of the national government gravitates to the executive branch and the administrative state. Good government and Federalism do not go together. Federalism and free government, however, do go together.
Constitutional morality in a federal republic is fostered at the local level by an attachment to local issues and “place” broadly understood. But in order for this morality to be fostered, the spirit of volunteerism must be active. And, this is crucial, humans living in a federal system must see themselves as more than economic animals; there must be an active voluntary political component to human life under federalism because federalism is a political concept based on voluntary association. To be sure, federalism protects our individualistic side by helping us to resist the march toward collectivism. But federalism must be properly understood.
But constitutional federalism, I suggest, requires what Tocqueville might have called “federalism well understood,” rather than federalism wrongly understood. Federalism well understood requires sustaining a balance between the individual and the community as well as a balance between the role of the private sector and the public sector and a balance between the legitimate role of the state government and the limited role of the general government. As a conservative principle, the advocates of federalism must disavow the doctrines of nullification and secession. That would be federalism wrongly understood.
Constitutional morality is not an abstract concept; it is grounded in the understanding that we live close to home, learn by experience, and we are actually attached to both locality and experience. And that, for the most part, we are capable of governing ourselves even if the outcome is less than perfect. The American experiment is about creating a more perfect union rather than a perfect union. The experiment is not one that would trade free government for good government, nor would it trade free government for secure government, nor for egalitarian government. It would not trade free government for any other form of government and to do that, it needs the support of public opinion, one that is firmly attached to a constitutional morality of freedom and federalism.
When I think of constitutional federalism I also think instinctively about where the States fit in and where the Congress fits in. What are the States supposed to do? And what is Congress supposed to do? Can we do without the States? Can we do without Congress? The answer is “no,” we cannot do without them because the location of the States and the Congress in the Constitution provides the constitutional support and institutional buttress for the whole notion of a constitutional morality that is both local and deliberative rather than a misguided spiritual morality that is consolidated and plebiscitary. We need a constitutional morality that seeks what James Madison in Federalist 63 called the deliberative sense of the community rather than a spiritual morality that secures the Rousseauian-Progressive direct mandate of the general will of the people.
However, I suggest that there is nothing about a State qua State that inherently deserves some kind of constitutional status—new states come in, boundaries are redrawn etc.,–unlike individuals who are born with rights. Humans create states, but God creates humans. Thus humans have natural rights, and due process rights, that are off the table as far as government is concerned. These liberties are not derived from the government, but instead limit the government. And yet in America there is something called States’ Rights, which suggests that States qua States have some kind of individual personality or sovereignty that needs to be constitutionally protected.
I have never totally grasped the association of States’ Rights with nullification and secession. That is an immoderate appeal that defenders of federalism must disavow. I can, however, grasp the argument of federalism and how federalism protects individual rights and community identity. I can also relate to the necessity of reality. The States are simply there and they aren’t going away, so the utopian democratic perfectionist attempt to eliminate the States and federalism will fail. And freedom will benefit as a result of this reality. Let’s repeat that it is federalism that we are interested in preserving and we do so because we argue that federalism preserves administrative decentralization and thus fosters the deliberative sense of the community that is the sufficient condition for ordered liberty. This is something that both the Antifederalist and the Federalists can agree on. I too look upon the States as valuable means rather than ends in themselves. But I also argue that the cause of individual rights needs the States to exist into remote futurity.
The federal foundation, again following James Madison and the Antifederalist Brutus, is a compound of a nation of people and a nation of states and we, today, call this compound federalism. So both the nation and the states are involved in a potentially unstable federalism compound that has the potentiality to move in a centrifugal or centripetal direction rather stay checked and balanced. Over the last 100 years, the problem for the defenders of liberty has been the tendency for the compound to move centrifugally. That is the Brutus problem. And this centrifugal movement has made conservatives rather depressed because it seems so relentless and complete. But the movement is still in motion. And so the task in the twenty-first century is to keep up the successful strategy of slowing down the movement.
I have also suggested that a robust Congress is important for the operation of the American System. Unlike the presence of the States, there is nothing accidental about the presence of the legislative branch in a representative democracy. It is no accident that the Congressional article comes first in the Constitution and that it is the longest and the most detailed. As John Locke correctly noted, the construction of the legislative branch is the most important. The Framers spent most of their time dealing with the structure and powers of the Congress.
Madison expected the Congress to get its way when pushed precisely because it had the final say over the separation of powers doctrine in the Constitution. But Congress over the last 100 years has deferred to both the Executive and Judiciary branches rather than being a noisy and nosey neighbor. That too is what Brutus predicted. And I add, Conservatives must stop their love affair with the Executive and their anticipated fawning over the Judiciary and get behind the rejuvenation of the Founders’ Congress.
We often see Congress and the States in opposition; Article One Section 8 is seen as in opposition to the Tenth Amendment. This was true in the 19th Century when we had a relatively limited expectation of the Presidency. But with FDR, we get the birth of the Modern Presidency. And when power moved from the States to Congress, then it was swiftly moved to the Executive branch in the form of programs to be managed by enlightened administrators. Localism is replaced by nationalism and then Congressional politics and deliberation is replaced by Executive administration and action.
Madison actually anticipated this centrifugal movement. In Federalist 45, Madison tries to blunt the Antifederalist critique that the Constitution contains the potentiality for the general government to swallow up the powers of the State governments. He says that the powers of the general government are few and defined where as the power of the state governments are many and ill defined. But in the very next paragraph, he says this formula of a limited federal government presupposes a condition of peace rather than a condition of war. All bets are off once war prevails. And it is true that over the last 100 years, there have been a number of domestic wars launched by various Presidents. The metaphors of war and administration have replaced the metaphors of deliberation and politics.
This centrifugal movement away from balanced federalism and Congressional predominance toward a centralized national democracy has been justified on two grounds: 1) freedom from fear and freedom from want are the vital components of the current existing spiritual morality and 2) the executive branch of the general government provides the appropriate leadership even if it requires abandoning the letter and spirit of the Constitution and assuming domestic war powers.
Should the era of big government ever come to a second ending, we need the States to be ready and able to tackle the demands of a smaller federal government. And we need a Congress to be more aware of the important role it has to play in limiting the growth of the Executive and the Judiciary. Are the States ready for that role or have they become mere administrative dependencies of the general government? Is the Congress ready for that role or have they become mere administrative dependencies of the Executive and the Judiciary?
Put differently, are federalism, checks and balances, and the separation of powers wounded or dead and so we are now left with a consolidated government? After all, utopians seek a centralized administration where even issues that are best left to local authorities are centralized in the hands of what FDR called “enlightened administrators.” That leaves us with a related question: since the fate of federalism is linked to the health of administrative decentralization which, in turn, is linked to the State governments doing a fair amount of important things to which the people are attached, I ask what are the States and Congress good for anymore?
The conservative scholarly narrative on the fate of federalism over the last hundred years goes something like this. The Progressives wanted to create a national democracy. In order to do this they needed to replace the existing federal republic bequeathed to us by the Framers. A prominent structural foundation of federalism, the argument continues, was the constitutional presence of the state legislatures in the election of the U. S. Senate. The Progressives tackled this problem by securing the passage of the 17th Amendment. I have news for our Conservative friends: neither the Federalists nor the Antifederalist considered the election of U. S. Senators by the state legislators to be a vital principle of constitutional federalism in 1787. And the 17th Amendment has been with us for 100 years has, through what Madison calls “the liquidation of meaning,” become part of the constitutional morality. And the 16th Amendment has been around for 100 years and it too is part of the constitutional morality.
Nevertheless, depending on which Conservative we are talking about, the passage of the 17th amendment either severely wounded the constitutional support for federalism or was the mortal blow. If this is in fact true, so, why are we still talking about the fate of federalism 100 years later?
I want to ask a different question. Did the States commit suicide by supporting the passage of the 17th Amendment? The Progressives needed the consent of 2/3 of the Senate elected by the state legislatures AND the consent of ¾ of the state legislatures. This is a possible self-inflicted suicide rather than conspiratorial Progressivism at work. I have a different answer. Maybe we today have attached too much importance to the passage of the 17th Amendment for the preservation of federalism. I repeat my point: The 17th Amendment would not have really bothered either the Federalists or the Antifederalists.
What concerned the Federalist and the Antifederalists was the constitutional equality of the states in the American system. That was the essential structural feature of constitutional federalism. This equality manifests itself in a number of ways, but I limit myself to the equal representation of the States in the Senate—the only feature in the Constitution that virtually can’t be amended—the Electoral College, and the Amendment process. I realize that these features are under heavy attack by contemporary intellectuals who favor the New Deal attachment to everyman democracy and direct electoral mandates executed by enlightened administrators. To defend the federalism of the Framers requires a vigorous defense of the equality of States in the Senate, the preservation of the Electoral College, and the Amendment process. And the defense must be that these constitutional institutions are needed to counteract the best-laid plans of enlightened administrators. Despite what public policy and public administration schools tell us, we know deep down that Administration can’t be separated from politics and politics can’t be reduced to a poker game if free government is to survive. We must resist the urge to replace free government with good government or enlightened administration. Note my optimistic language: free government is in the Constitution; good government types must try time and time again to declare free government to be anachronistic.
There is still more work to do: among the most successful accomplishments of the Progressives, FDR, and LBJ is the sapping of the confidence of the people in their legislative branches. The restoration of the confidence of the people in their legislatures is vital. Currently only 10% of the electorate expresses this confidence. And fewer and fewer people are engaged in the activities of local government.
And there is still one more obstacle to overcome in defense of the constitutional morality of federalism. For the last 175 years, federalism and States’ rights have, unfortunately, been associated with the defense of slavery and racial discrimination. Along with nullification and secession, the reliance on the argument of federalism to support slavery is clearly incompatible with the defense of freedom.
This raises both a positive and negative feature of federalism: how much diversity from one state to another can we tolerate over against the neo-progressive move toward standardization in a national democracy? To paraphrase Jefferson, it is no business of government at any level to be concerned about whether my neighbor believes in one God or several Gods. Thus, following Jefferson, we can tolerate religious diversity, and we have federalism to thank for protecting this diversity. But what if we substituted the following for God: it is not the business of government whether my neighbor believes in 1 slave or several slaves; 1 wife or several wives; 1 gun or several guns; 1 abortion or several abortions; 1 drink or several drinks; 1 cigarette or several cigarettes. 1 soda or several sodas? In short, how much federal diversity can we tolerate? How much can we be free? How much must we be good?
Interestingly, the elastic interpretation of the general welfare clause, the common defense clause, the interstate commerce clause, and the necessary and proper clause have led to the growth of the administrative state in the Executive branch at the expense of the originally intended superior position of the Congress by the Framers. I am more interested in the undermining of constitutional morality by dubious constitutional interpretations than I am in the impact of the constitutional passage of the 16th or 17th Amendment one hundred years ago that lead conservatives to be pessimistic about the fate of federalism. We could overturn these two Amendments just as we overturned the 18th Amendment.
Beginning with the Commonwealth speech in 1932, FDR attempted to transform the American System through the interpretation of powers rather than by formal amendment of the Constitution. Unlike the Founding, the Civil War era, and the Progressive era, there are no formal constitutional amendments associated with the New Deal that can be incorporated into the concept of constitutional morality. There is one exception: the President is constitutionally limited to two terms.
With the New Deal, we get a living Constitution rather than an enduring Constitution and the three most important words in the Constitution become “We the People.” The Constitution lives because the people have mandated action through the Presidential electoral system. So the living Constitution is in conflict with living Federalism and living Congressionalism. According to the FDR model, it is not the Congressional elections—later known as mid-term or off year elections—but the Presidential election where the action is located. Presidential elections become a crusade, a battle, a war against 1/3 ill clothed, 1/3 ill fed, and 1/3 ill housed. And it is not a big step to see a war against 1/3 ill educated, 1/3 ill caloried, and 1/5 ill health insured. Unless “everyone” is plum equal in terms of outcome, we have failed in achieving the democratic ideal. And the effort keeps being a failure because, in part, the institutional framework slows down the effort to achieve perfection. The very fact that there is a serious effort every generation over the last 50 years, including this generation, to roll back the administrative state shows that federalism is still very much alive.
Let me conclude. The American system works well or badly as a result of the prevailing opinions of the American people. These opinions need to be informed by a civic education that is attached to the regime of the Framers rather than a “neutral” position outside of the regime. Federalism and Congressionalism are nuanced expressions of a Constitutional structure with enumerated powers. And that requires elected officials to be more attached to their office than to their political party, and the people themselves must be attached to the forms of government created by the Framers.
Alexander Pope advised that for forms of government let fools contest that which is governed best, is best. Let me, less poetically, say that for forms of government let free men fuss, and to the work of enlightened administrators, let us cuss.