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 Federalism Factor

Upon close examination, it will be seen that the entire Constitution is actually honeycombed with provisions designed to protect the residual sovereignty and interests of the States and to give them influence in the decision-making process at the national level. To measure the federalism factor, it is necessary not only to analyze the powers specifically granted and denied to the national government, but to be mindful of those that are by implication reserved to the States—to “read between the lines,” as the saying goes.

Article III of the Constitution defines the judicial power of the United States, which extends to nine classes of cases and controversies under Section 2 of that Article. Those classes of cases that are not specified are, by implication, left for resolution by the State tribunals. Section 2, for example, states that the judicial power shall extend to controversies between citizens of different States, but it does not declare that it shall also extend to controversies between citizens of the same State, except in those instances where they are claiming lands under grants of different States. Thus if two citizens of Utah have a contract dispute, it is clear from Article III of the Constitution that the Federal courts have no authority to settle the controversy because the judicial power does not extend to controversies between citizens of the same State in cases involving contracts. As a general rule, then, private disputes between citizens of the same State are settled in the State courts, even though the Constitution is silent on this question.

There are exceptions to this rule, one of the most notable being the Civil Rights Act of 1964. Under this major civil rights legislation, for example, a private dispute between the proprietor of a restaurant and a customer, involving the question of racial discrimination, may be taken to a Federal court because the Act prohibits “any restaurant” from denying a person “the full and equal enjoyment” of its “goods [and] services … on the ground of race, color, religion, or national origin.” The Act is based on the power of Congress to regulate commerce among the States and presumes that all restaurants are engaged in interstate commerce. The dispute is treated not as a private dispute but as a controversy between the United States and the proprietor. It may be tried in a Federal court because the Act gives Federal district courts jurisdiction over the case. The Federal judicial power extends to “controversies to which the United States shall be a party.”

Conceivably, if not in actuality, Congress can overshadow or circumvent the reserved powers of the States through its delegated and implied powers. It may thus be seen that if carried to extreme a broad interpretation of Congress’s delegated powers could result in the virtual annihilation of the reserved powers of the States. Where the line separating Federal and State power should be drawn has been a source of constitutional controversy since the earliest days of the American Republic. This is because the powers of the Federal government are not spelled out in every particular and the powers of the States are not spelled out at all. For guidance in interpreting the constitutionality of Federal laws, members of the Supreme Court have understandably turned from time to time to the debates of the Federal and State ratifying conventions of 1787–1788, the essays in The Federalist, and other original sources in order to gain a better understanding of the Framers’ intentions. Although most provisions of the Constitution are clear and precise, and may be interpreted from the text itself, the nebulous, unwritten reserved powers of the States constitute a gray area of constitutional law that has always been a source of disagreement and debate in American law and politics.

Article II of the Constitution, which establishes the office of the President and confers the executive power, represents another example of how the Framers wove federalism into the constitutional fabric. Although we do not ordinarily think of the executive branch as part of the federal design, it is nevertheless the case that the States play an important role in the election of the President. This is because of the Electoral College.

The manner in which the President shall be elected is stipulated in Section 2 of Article II. It provides that each State shall decide for itself how it shall choose electors, and that it is entitled to a number of electors that is equal to the number of Representatives and Senators it sends to Congress. The electors of each State then meet in their respective States to name two candidates for the presidency, one of whom must be from a different State. Then, when all of the nominations from all of the States have been tallied, the candidate with a majority of the electoral votes is declared President and the runner-up is chosen Vice-President. In the case of a tie, the House of Representatives elects one of the two candidates as President; and in case no candidate has a majority, then the House of Representatives shall select the President from a list of the five candidates who have received the highest number of votes. If the House is called upon to elect the President, the votes are taken not by the individual, but by the States, with each State receiving one vote.

This system lasted only until the election of 1800, when Thomas Jefferson and Aaron Burr each received the same number of electoral votes. It had been generally supposed that Burr really was a candidate for the vice presidency. But when he realized the possibility of being made President, Burr seized the opportunity—and was defeated only with difficulty. After that, the Twelfth Amendment (1804) eliminated the possibility of such a situation by specifying that the electors “shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President.”

The Electoral College itself, surviving the Twelfth Amendment, has endured to the present day, and the President must be chosen by the vote of each State, rather than by a national popular vote. This means that each State continues to choose a number of electors equivalent to the number of U.S. Senators and Representatives that that particular State sends to Congress. Usually, though not in all presidential elections, the national popular vote for candidates and the vote of the Electoral College would have the same result; but it remains theoretically possible, under peculiar circumstances, for a candidate to be chosen President by receiving a majority of Electoral College votes though a minority of the popular vote.

Why so elaborate a scheme for choosing the President? Because the Framers desired to secure the independence of the President from both the Congress and the fickle mass of citizens. They wished to select for the presidency the ablest leader in the country—an individual who would not need to be subservient to the congressional majority in order to be elected, and at the same time would not need to be a demagogue, making extravagant promises to the voters in every State in order to get elected. The way to secure such an admirable President, they thought, was to have him chosen neither by Congress nor directly by the voters of the several States, but to select a few able and honest men in every State, make them electors, and have this small body of politically prudent people (the Electoral College) choose the best possible chief executive for the United States.

Why did this plan fail to work? Because in the several States the voters demanded that candidates who wished to be chosen electors commit to a certain individual for President. Thus the would-be electors felt compelled to name their choice for the presidency—and presently found themselves pledged to vote for that particular man. So the Electoral College has never worked precisely as it was supposed to, and the names of the electors do not even appear on the ballot in presidential elections. It remains true that an elector could cast his vote as a member of the Electoral College for a presidential candidate other than the one to whom he had nominally pledged himself; however, that rarely happens. Most American voters today are probably unaware that the Electoral College still exists.

From time to time, some members of Congress have argued that the Electoral College is outdated and should be abolished. Proposed amendments to the Constitution calling for the direct election of the President have repeatedly been rejected, however, and the Electoral College still enjoys wide support. Defenders of the Electoral College contend, in particular, that the present system strengthens federalism by making the States the crucial political units in the selection of the President. The direct-election proposals would change this by scuttling the nomination conventions that give State and local party leaders great influence in the nomination process, and by making State lines irrelevant in the general election. This in turn would encourage presidential candidates to ignore a broad cross-section of the country and the interests of States with small populations, and to direct their appeal to large industrial areas of the country—an invitation, the Electoral College defenders argue, to majority tyranny and a plebiscitary presidency unrestrained by the two-party system. Such arguments have been sufficiently persuasive to defeat the advocates of change, and the present consensus seems to be that the present system, though imperfect, is preferable to the proposed alternatives.

Perhaps the most important point to be remembered, as the foregoing discussion of federalism illustrates, is that there is more to the Constitution than meets the eye. A reading of the text and wording of the document is merely the first step toward a thorough understanding of its meaning and purpose. This is especially true when we stop to consider the influence of the unwritten and often obscure federalism ingredient of the Constitution. But, as we shall presently see, it is also true of other “silences of the Constitution,” such as separation of powers and rule of law. It is impossible to understand the Constitution without first understanding the principles upon which it is built.