The Online Library of Liberty

A project of Liberty Fund, Inc.

• About the Author
• Preface
• Part 1: The Constitution’s Deep Roots
• Points to Remember
• The Meaning of Constitutional Government
• The Lamp of Experience
• The Constitutions of Antiquity
• English Origins of America’s Constitution
• The Growth of Parliament
• The Challenge of Parliamentary Supremacy
• The Common Law Tradition
• The Republican Tradition and the Struggle For Constitutional Liberty
• The Influence of Continental Thinkers
• The Education of the Founders
• The French and American Revolutions Compared
• Appendix A: Relevant Chapters of Magna Charta (1215)
• Appendix B: Petition of Right (1628)
• Appendix C: The English Bill of Rights (1689) an Act For Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown.
• Part 2: America’s First Constitutions and Declarations of Rights
• Points to Remember
• Colonial Governments
• Relations With Great Britain
• Local Government In the Colonies
• Civil Liberties In the Colonies
• The Movement Toward Independence
• The Declaration of Independence
• The Rights Proclaimed
• The First State Constitutions, 1776–1783
• The Articles of Confederation
• Appendix A: the Mayflower Compact
• Appendix B: Fundamental Orders of Connecticut
• Appendix C: Declaration and Resolves of the First Continental Congress
• Appendix D: Declaration of the Causes and Necessity of Taking Up Arms
• Appendix E: the Declaration of Independence (1776)
• Appendix F: Virginia Bill of Rights
• Appendix G: Thoughts On Government
• Appendix H: Massachusetts Constitution of 1780
• Appendix I: Articles of Confederation (1778)
• Part 3: The Achievement of the Philadelphia Convention
• Points to Remember
• The Problems of the Convention
• The Delegates to the Convention
• A Wide Range of Talents
• Plans and Progress At Philadelphia
• The Meaning of “federal”
• The Virginia Plan: a Supreme National Government
• Hamilton’s Concept of a Unified America
• The New Jersey Plan:checks Upon Central Power
• The Benefits of Compromise
• Compromise and Consensus
• Appendix A: Virginia Plan
• Appendix B: New Jersey Plan
• Appendix C: Constitution of the United States of America (1787)
• Part 4: Basic Constitutional Concepts: Federalism, Separation of Powers, and Rule of Law
• Points to Remember
• A.: Federalism
• Powers Delegated to Congress
• Powers Denied to Congress
• Powers Denied to the States
• The Division of Powers
• The Supremacy Clause
• National and State Obligations
• Obligations of the National Government to the States
• Obligations of the States to the National Government
• Obligations of the States to Each Other
• The Role of the States In the Amendment Process
• The Federalism Factor
• The Advantages of Federalism
• The Future of Federalism
• B.: the Separation of Powers
• Checks and Balances
• Checks Upon the Congress
• Checks Upon the President
• Checks Upon the Judiciary
• The Independence of Congress
• The Independence of the President
• The Independence of the Judiciary
• Summary and Review
• Separation of Powers: a Critical Evaluation
• Separation of Powers At the Crossroads
• C.: The Rule of Law
• The Basic Principles of the American Constitution
• Appendix A: the Federalist No. 10
• Appendix B: the Federalist No. 45
• Appendix C: The Federalist No. 47
• Part 5: Defending the Constitution: the Struggle Over Ratification and the Bill of Rights
• Points to Remember
• A.: the Anti-federalist Persuasion
• The Constitution Establishes a Consolidated Empire
• The Constitution Establishes an Aristocracy
• The Constitution Confers Too Much Power
• An Imperial Congress
• An Elected Monarch
• An Omnipotent Judiciary
• B.: the Federalist Response
• The Constitution Limits and Distributes Power
• Congress Is Not an Oligarchy
• The President Is Not a King
• The Judiciary Is the Least Dangerous Branch
• Whether a Bill of Rights Was Necessary
• The Clash of Values
• C.: The Bill of Rights
• The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition
• The Second Amendment: the Right to Bear Arms
• The Third Amendment: Quartering Troops
• The Fourth Amendment: Search and Seizure
• The Fifth Amendment: Rights of Persons
• The Sixth Amendment: Rights of the Accused
• The Seventh Amendment: Trial By Jury In Civil Cases
• The Eighth Amendment: Bail and Cruel and Unusual Punishments
• The Ninth Amendment: Rights Retained By the People
• The Tenth Amendment: Rights Retained By the States
• Rights Versus Duties
• Appendix A: the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents
• Appendix B: Northwest Ordinance (1787)
• Part 6: Interpreting and Preserving the Constitution
• Points to Remember
• Principles of Statutory Construction
• The Doctrine of Judicial Review
• The Supreme Court As Final Interpreter
• The States As Final Interpreters
• Strict Versus Loose Construction
• The Independence of the Judiciary
• A.: Origins of Judicial Independence
• B.: the Judicial Power
• C.: Jurisdiction
• Appendix A: Marbury V. Madison
• Appendix B: Martin V. Hunter’s Lessee
• Appendix C: Washington’s Farewell Address (1796)
• Part 7: Changing the Constitution—together With an Explanation of the Amendments Added Since 1791
• Points to Remember
• Our Living Constitution
• Our Changing Constitution
• Amending the Constitution
• The Limits of the Amending Power
• The Amended Constitution
• A.: Amendment Xi (1798)
• B.: Amendment Xii (1804)
• C.: Amendment Xiii (1865)
• D.: Amendment Xiv (1868)
• E.: Amendment Xv (1870)
• F.: Amendment Xvi (1913)
• G.: Amendment Xvii (1913)
• H.: Amendment Xviii (1919)
• I.: Amendment Xix (1920)
• J.: Amendment Xx (1933)
• K.: Amendment Xxi (1933)
• L.: Amendment Xxii (1951)
• M.: Amendment Xxiii (1961)
• N.: Amendment Xxiv (1964)
• O.: Amendment Xxv (1967)
• P.: Amendment Xxvi (1971)
• Q.: Amendment Xxvii (1992)
• Conclusion

The Future of Federalism

The practical operation of the principles of federalism and of separation of powers is diminished today from what most of the Framers desired. Because of the intense jealousy among the States, the deep emotional attachment of the people to their local communities and their States, and the popular belief that there could be no liberty without State sovereignty, it was thought by many Federalists in 1787 that the greatest threat to federalism was separatism, not consolidation. “It will always be far more easy for the State governments to encroach upon the national authorities,” predicted Hamilton in Federalist No. 17, “than for the national government to encroach upon the State authorities.” History, of course, has proved Hamilton wrong, and the trend since the early nineteenth century has been toward increased centralization, interrupted only by secession and the establishment of the Confederate States of America in the Civil War period from 1861 to 1865. Since the New Deal and the administration of President Franklin Roosevelt in the 1930s, the pace of centralization has quickened, more and more functions of government once reserved to the States have been assumed by Federal authorities, and both the States and their political subdivisions have lost considerable independence, power, and influence.

Federalism, as understood by the Framers, recognizes that the authority of the national government extends to a few enumerated powers only, and that all powers not delegated by the States to the national government, nor denied to the States by the Constitution, are reserved to the States. As Madison explained in Federalist No. 45,

This understanding of federalism was made explicit in the Constitution by the Tenth Amendment. Federalism, then, was viewed by the founding generation as a constitutionally based, structural theory of government designed to ensure political freedom and responsive, democratic government in a large and diverse society.

How and why federalism has declined is the subject of many studies. It may be explained in large part by the transformation of the relationship between the national government and the States that occurred in the 1930s, when Congress, under the leadership of President Roosevelt, decided it was necessary, in response to the Great Depression, to expand its commerce power to establish welfare and public work programs, and to regulate agricultural production, the labor force, transportation, and many other activities that had previously been under State control. The Supreme Court’s new interpretation of Congress’s power to regulate commerce among the States allowed the Federal government to gain control of virtually the entire commercial life of the nation, including many aspects of intrastate commerce wholly within one State, and a wide variety of other activities local in nature and only indirectly related to commerce, such as wildlife protection, flood and watershed projects, mountain streams, housing, even civil rights. After 1937, the Supreme Court, in a series of landmark decisions reversing many earlier cases, adopted the view that Congress was free to use its commerce power to regulate any activity that, in one way or another, might “affect” commerce. The Tenth Amendment, said the Court in United States v. Darby (1941), does not limit the commerce power and “states but a truism that all is retained which has not been surrendered.” In only one case between 1937 and 1995 did the court strike down a Federal law under the commerce clause, and even that decision was subsequently overruled. In Garcia v. San Antonio Metropolitan Transit Authority (1985), the Supreme Court rejected the proposition that the Constitution places independent limits on Congress’s commerce power, holding that participation by the States in the national political process is the only protection against Federal encroachments on their reserved powers. This may not be very reassuring to the States. Before the adoption of the Seventeenth Amendment, members of the Senate were elected by the State legislatures. Now they are elected directly by the people. The effect of this amendment has been to weaken the influence of the States in the national political process.

More recently, the Supreme Court has indicated that it may be moving away from the latitudinarian interpretation of the Commerce Clause it has followed during the last half century. Without reversing any earlier decisions, the Court ruled in United States v. Lopez (1995) that the power to regulate commerce among the States did not give Congress the authority to ban the mere possession of a firearm in a school zone. The Gun Free School Zones Act of 1990 exceeded Congress’s authority, said the Justices, because gun possession in itself did not necessarily affect interstate commerce. The Lopez case is the first instance since 1937 in which the Supreme Court has overturned a Federal statute on the ground that Congress exceeded its powers under the Commerce Clause.

Similarly, in Printz v. United States (1997) the Court struck down a provision of the Brady Gun Control Act which forced local law enforcement officials to conduct background checks on potential gun purchasers. Citing New York v. United States (1992), which held that Congress cannot compel the States to enact or enforce a Federal regulatory program, the Court asserted that Congress may not circumvent that prohibition by enlisting State officials directly. “Our constitutional system of dual sovereignty,” said the Court, “is fundamentally incompatible with conscripting state and local officials to carry out federal programs.”

Speaking for the majority of the judges, Justice Scalia agreed that, under the Supremacy and Full Faith and Credit clauses, State and local governments must comply with Federal laws, and that State judges are obliged to enforce Federal laws; but the Federal government may not coerce State and local authorities into implementing, by legislation or executive action, Federal regulatory programs. Scalia noted that, even under wartime conditions, President Woodrow Wilson was compelled to request the assistance of State governors in calling upon State officers to implement the militia draft in World War I. “The Framers,” concluded Scalia, “explicitly chose a constitution that confers upon Congress the power to regulate individuals, not States.” Whether the Lopez and Printz decisions represent the early stages of a constitutional revolution in American federalism, or just a temporary lapse of faith in the wisdom of earlier judicial rulings, remains to be seen.

In addition, Congress’s spending power under Article I, section 8 to “provide for the general welfare” has had a substantial impact on the federal system. Federal spending in the form of payments to individuals, such as old-age support under Social Security, conditional grants to States (as with education and welfare), and direct financing of Federal projects such as the Tennessee Valley Authority, has undermined local autonomy by allowing Federal instead of locally elected officials to decide how money is to be spent. In some respects this has effectively transformed State and local governments into administrative units of the national government, contributing to the gradual erosion of the State’s control over its own cities and other political subdivisions. The expansive use of the spending power by Congress—especially the practice of conditioning eligibility for Federal grants on compliance with regulations having little or no relationship to the program being funded—has led to a major expansion of Federal power over State budget priorities and, in many instances, over State laws and constitutions. Litigation about the scope of the spending power has been rare, and in those instances where the Federal Judiciary has addressed the issue, the judges have generally declined to impose any constitutional limitations.

Civil rights legislation under the Commerce Clause and the enforcement clauses of the Thirteenth, Fourteenth, and Fifteenth amendments, in conjunction with the “nationalization” of the Bill of Rights, has also contributed to the growth of Federal power at the expense of the States. As originally drafted, the Bill of Rights restricted only Congress and the Federal government. By exempting the States, it gave them exclusive jurisdiction over disputes between a State and one of its citizens regarding such matters as freedom of religion and the rights of the accused. These disputes were resolved in the State courts, in accordance with State laws and State constitutions. In recent years, however, the Supreme Court has taken command of these cases, holding that most provisions of the Bill of Rights apply to the States as well as Congress, and that such disputes must now be settled in Federal courts according to Federal standards. As a result of this development in the courts, there has been a massive transfer of power over civil liberties questions from the States to the general government.

These are only some of the examples that might be offered to explain the decline of federalism. Technological advances making State regulation impractical, changing public attitudes about the proper role of the Federal government, the incessant demand for public services and assistance: these and many other factors have also contributed to the growth of “big government.” The President, Congress, and the Courts have all played significant roles in bringing about this state of affairs.

Some observers view this development favorably, arguing that much of it was necessary because the States were either unable or unwilling to adapt to technological advances requiring uniform regulation and control, or were indifferent and even hostile to the demands of minorities, especially in the field of civil rights. Critics, on the other hand, assert that centralization has produced bureaucratic inefficiency and waste, brought on deficit spending, undermined independence and self-government, contributed to the problem of political apathy, and encouraged judicial excesses that deny citizens a say in their own affairs. Perhaps the most frequently voiced complaint is the allegation that the Federal courts have excluded the people and their elected representatives from the decision-making process by dictating public policy on the scope and meaning of individual liberty, particularly as it relates to the apprehension and treatment of criminal offenders, control and supervision of neighborhoods and schools, religion and the family, abortion, pornography, and a wide assortment of other social concerns.

Whatever the merits of these arguments for and against the growth of centralization, federalism yet remains; and there seems to be no popular movement afoot to repudiate federalism, eradicate the States, or weaken the federal system further. Even in its weakened condition, federalism remains a basic principle of the American constitutional system.

Because the Constitution does not precisely draw a line to indicate where national power ends and State power begins, the issue of States’ Rights will, it seems, continue to be a source of disagreement and debate in American public life. The difficulties associated with delineating two vaguely defined, overlapping spheres of power in the federal system are compounded by the fact that public figures are not always inclined to support the principles of federalism when they conflict with a desired program or policy; and by the tendency of the general public to favor or oppose particular policies without stopping to consider their constitutional impact on federalism. For this reason, the President, Congress, and the Courts, as well as the electorate, have not consistently supported federal principles. “Men of principle,” with a consistent record on constitutional matters, and men who are willing to take unpopular stands in defense of federalism and the Constitution, are often unappreciated or misunderstood by the public. This is unfortunate, but it surely holds true in any constitutional democracy.

B.

The Separation of Powers

Since ancient times, statesmen and political thinkers have struggled with a fundamental problem that is common to all civil societies: how to structure a government that is powerful enough to govern but itself is sufficiently controlled so that it does not become destructive of the values it was intended to promote. “In framing a government which is to be administered by men over men,” observed Publius in Federalist No. 51, “the great difficulty lies in this: 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 of the government; but experience has taught mankind the necessity of auxiliary precautions.”

The republican principle, in other words, should serve as the main pillar of the structure. A government based on consent, in which the people possess sufficient political liberty to control those who exercise political power, provides a barrier to despotism. Wise men that they were, the Framers understood, however, that we cannot rely solely and exclusively upon the people to control government or to protect the values of liberty, order, and justice. If we could, there would be no need for a constitution in the first place. Men are capable of both good and evil. This is because human beings are imperfect creatures, and it would be naive to think that all men are by nature good. “It may be a reflection on human nature,” Publius agreed, “that such [auxiliary] devices should be necessary to control the abuse of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls of government would be necessary.” From Christian teaching, the Framers had learned, then, that human nature is not to be trusted. Good laws and institutions are required to keep men from one another’s throats.

Foremost among the “auxiliary precautions” Publius had in mind was the separation of powers. Whereas republicanism provides an external check on government, separation of powers supplies an internal or built-in form of restraint. Of all the theories of government that have been propounded to establish limited government, the doctrine of separation of powers has been the most influential and successful. It stands alongside that other great pillar of Western political thought—the concept of representative government—as the major support for constitutional government.

The American doctrine of separation of powers consists of four elements: (1) the idea of three separate and independent branches of government—the legislature, the executive, and the judiciary; (2) the realization that government performs different kinds of functions, and the belief that there are unique functions appropriate to each branch; (3) the belief that the personnel of the branches of government should be kept distinct, no one person being able to be a member of more than one branch of government at the same time; and (4) the belief that the legislature may not alter the distribution by delegating its powers to the executive or the judicial branch. A separation of powers is a necessary prerequisite to limited constitutional government because a concentration of political power is inherently dangerous and will sooner or later lead to the abuse of power and to oppressive government. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny,” Publius wrote in Federalist No. 47.

The separation of powers doctrine is also closely associated with rule of law, and may be said to be an indispensable means for its attainment. If any one body had the power to interpret and enforce its own laws, there would be no force, other than good will, to counteract the temptation to use the powers of government to provide exemptions from the operation of the law and establish special privileges and immunities for the ruling class or governing faction.

The doctrine of the separation of powers may be traced back to the ancient world, where the concepts of governmental functions and theories of mixed and balanced government first appeared. Separation of powers, by itself, however, has never been a satisfactory safeguard against the usurpation and abuse of power, and even among the ancients it was realized that some form of checks and balances was necessary to prevent one branch from encroaching upon the powers of the others. The idea of internal checks, exercised by each branch over the others, first came to maturity in eighteenth-century England with the development of the “mixed and balanced” Constitution of Great Britain. The solution to the problem of political tyranny, thought the English, was to distribute the powers of government among monarchy (the crown), aristocracy (House of Lords), and democracy (House of Commons), so that each class would check the advances of the others, thereby producing a “mixed and balanced” government. The idea of a judicial power distinct from the executive, which complicated matters, was added to the equation and popularized by Montesquieu and Blackstone toward the end of the eighteenth century.

The American achievement was to substitute a functionally divided system for the “mixed” system, replacing a class-based structure with one in which all the branches of government drew their authority from the people. This was first achieved in the revolutionary State constitutions adopted in 1776, that of Virginia being an example: “The legislature, executive and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other.” These first State constitutions also departed from the British model by requiring a complete separation of personnel as well as function, that of Virginia again being representative: “nor shall any person exercise the powers of more than one of them [branch] at the same time.”

Working without any clear precedents or guidelines, and laboring under the erroneous assumption that an almost pure separation of powers would achieve the desired result of limited government, the framers of these first constitutions established powerful legislative bodies but failed to provide a check and balance system. It soon became apparent that this was a fatal omission. Throughout the country, the State legislatures became an embarrassment to republican government, not infrequently interfering with the operation of the courts, reducing governors to a condition of subservience, and violating the rights of property. Under the Virginia Constitution of 1776, “All the powers of government,” complained Thomas Jefferson, “legislative, executive, and judiciary, result to the legislative body.” His friend and colleague James Madison spoke for virtually the entire Federal Convention when he stated in Federalist No. 48: “a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.” Accordingly, the Framers enthusiastically embraced the separation of powers doctrine but incorporated a check and balance system into the machinery of government. This, together with the distinctly American system of federalism, rendered the Constitution truly unique. The credit for the checks and balances feature of the Constitution probably goes to a group of astute Massachusetts lawyers, however, for it was they, under the leadership of John Adams, who wrote the Massachusetts Constitution of 1780—the first to introduce the check and balance concept that later became a part of the United States Constitution.