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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• 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.
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• Simeon, Richard, and Daniel-Patrick Conway, 2001, “Federalism and the Management of Conflict in Multinational Societies,” in Gagnon and Tully 2001, 338–65.
• Stepan, Alfred, 1999, “Federalism and Democracy: Beyond the U.S. Model,” Journal of Democracy , 10: 19–34; reprinted in Karmis and Norman 2005.
• Tamir, Yael, 1993, Liberal Nationalism , Princeton: Princeton University Press.
• Taylor, Charles, 1993, Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism , Montreal: McGill-Queen’s Press.
• Tiebout, Charles M., 1956, “A Pure Theory of Local Expenditures,” Journal of Political Economy , 64(5): 416–24.
• Tully, James, 1995, Strange Multiplicity: Constitutionalism in an Age of Diversity , Cambridge: Cambridge University Press.
• 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)

Arendt, Hannah | authority | citizenship | Hume, David | identity politics | Kant, Immanuel | liberty: positive and negative | Mill, John Stuart | Montesquieu, Charles-Louis de Secondat, Baron de | -->Proudhon, Pierre --> | Rousseau, Jean Jacques | sovereignty

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.

Copyright © 2022 by Andreas Follesdal < andreas @ follesdal . net >

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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.

Related Reading: The Emergence of the American Constitutional Law Tradition

• Alexis de Tocqueville, Democracy in America ch. II (Henry Reeve trans., Bantam Classics 2004) (1835).
• Alison L. LaCroix, The Ideological Origins of American Federalism 21 (2011).
• Articles of Confederation of the New England Confederation of 1643.
• LaCroix,  supra  note 2, at 21–22.
• Albany Plan of Union of 1754, http://avalon.law.yale.edu/18th_century/albany.asp
• Georgia and Delaware (then part of Pennsylvania) were also omitted.
• Letter from Benjamin Franklin to Peter Collinson, The Papers of Benjamin Franklin (May 28, 1754), http://franklinpapers.org .
• John Witherspoon made this point succinctly in a July 30, 1776, debate with Benjamin Franklin: “We all agree that there must and shall be a Confederation, for this War. It will diminish the Glory of our Object, and depreciate our Hope. It will damp the Ardor of the People. The greatest danger We have is of Disunion among ourselves.” Notes of Debates in Congress (1776),  in  1 Classics of American Political and Constitutional Thought: Origins through the Civil War 303 (Scott J. Hammond et al. eds., 2007).
• LaCroix,  supra  note 2, at 128.
• See  Articles of Confederation and Perpetual Union of 1777 (ratified Mar. 1, 1781), http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=127.
• Larry N. Gerston, American Federalism: A Concise Introduction 24 (2007).
• Gaillard Hunt, The Life of James Madison 93–94 (1902).
• U.S. Term Limits, Inc. v. Thornton , 514 U.S. 779, 838 (1995) (Kennedy, J., concurring).
• Alison L. LaCroix,  The Authority for Federalism: Madison’s Negative and the Origins of Federal Ideology , 28 L. & Hist. Rev. 451, 452 (2010).
• See  U.S. Const. art. I, § 8, cl. 1, 3, 4, 10–13.
• U.S. Const. art. I, § 8, cl. 3.
• See United States v. Lopez , 514 U.S. 549, 553–54 (1995); Randy E. Barnett,  The Original Meaning of the Commerce Clause , 68 U. Chi. L. Rev. 101 (2001).
•   See, e.g. ,  Gonzales v. Raich , 545 U.S. 1, 15–21 (2005) (“Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”).
• U.S. Const. art. I, § 8, cl. 1.
• Robert G. Natelson,  The General Welfare Clause and the Public Trust: An Essay in Original Understanding , 52 U. Kan. L. Rev. 1, 3 (2003).
• Id . at 3–10.
• See infra  p. 28 (discussion of the Patient Protection and Affordable Care Act).
• U.S. Const. art. I, § 8, cl. 18.
• The Federalist No. 9 (Alexander Hamilton).
• The Federalist No. 51 (Alexander Hamilton).
• The Federalist Nos. 26, 31 (Alexander Hamilton).
• The Federalist No. 39 (James Madison).
• The Federalist No. 45 (James Madison).
• Letter from Robert Yates and John Lansing to George Clinton, Governor of New York (Dec. 21, 1787), http://www.constitution.org/afp/yatesltr.htm.
• Letter from Brutus to the Citizens of the State of New York (Oct. 18, 1787), http://www.constitution.org/afp/brutus01.htm.
• Joseph Story, Commentaries on the Constitution 3:§ 1898 (1833), http://press-pubs.uchicago.edu/founders/documents/amendIXs9.html.
•   Id . at § 1900.
• See  U.S. Const. art. VII. The remaining four of the original thirteen states completed ratification of the Constitution by May 29, 1790.
• Gerston,  supra  note 11, at 6 (quoting Leslie Lipson, The Democratic Civilization 143 (1964)).
• Tocqueville,  supra  note 1, at ch. VIII.
• 10 U.S. 87 (1810).
• Id.  at 134.
• 14 U.S. 304 (1816).
• 11 U.S. 603 (1812).
• Martin , 14 U.S. at 323.
• Id.  at 324.
• 17 U.S. 316 (1819).
• Id.  at 421.
•   Id.  at 405–06.
• 22 U.S. 1 (1824).
• U.S. Const. art. I, § 8.
• Gibbons , 22 U.S. at 194.
• Id.  at 210.
• Abraham Lincoln Inaugural Address (Mar. 4, 1861), http://www.abrahamlincolnonline.org/lincoln/speeches/1inaug.htm.
• Letter from Jefferson Davison to the United States Senate (Jan. 21, 1861), http://jeffersondavis.rice.edu/Content.aspx?id=87.
• David B. Walker, The Rebirth of Federalism: Slouching toward Washington 74 (2d ed. 2000).
• New York v. United States , 505 U.S. 144, 181 (1992).
• U.S. Const. amend. XIII (“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”).
• U.S. Const. amend. XV (“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”).
• U.S. Const. amend. XIV.
• 60 U.S. 393 (1857).
• U.S. Const. amend. XIV, § 1.
• See  Note,  Congress’s Power to Define the Privileges and Immunities of Citizenship , 128 Harv. L. Rev. 1206, 1207 (2015) (citations omitted).
• John Harrison,  Reconstructing the Privileges or Immunities Clause , 101 Yale L.J. 1385, 1387 n.5 (1992) (citing Robert H. Bork, The Tempting of America 166 (1989)).
• See, e.g. ,  McDonald v. City of Chicago , 561 U.S. 742, 750 (2010).
• Griswold v. Connecticut , 381 U.S. 479 (1965);  Eisenstadt v. Baird , 405 U.S. 438 (1972).
• Roe v. Wade , 410 U.S. 113, 164 (1973);  Planned Parenthood v. Casey , 505 U.S. 833 (1992).
• Obergefell v. Hodges , 135 S. Ct. 2584 (2015).
• John E. Nowak,  The Scope of Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments , 75 Colum. L. Rev. 1413, 1457–58 (1975) (citing The Cincinnati Commercial, Oct. 26, 1866, at 2, col. 4).
• Id.  at 1462–63 (citing New York Herald, Oct. 25, 1866, at 6, col. 4).
• 83 U.S. 36 (1872).
• Id.  at 67.
• Id.  at 82.
• 163 U.S. 537 (1896).
• 347 U.S. 483, 495 (1954).
• John D. Buenker,  The Ratification of the Federal Income Tax Amendment , 1 Cato J. 183, 184 (1981).
• 57 U.S. 429 (1895).
• Buenker,  supra  note 78, at 185.
• Roy G. Blakey & Gladys C. Blakey, The Federal Income Tax 70 (The Lawbook Exchange Ltd., 2006) (quoting Richmond Times-Dispatch, Mar. 3, 1910).
• J. Stanley Lemons,  The Sheppard-Towner Act: Progressivism in the 1920s , 55 J. Am. Hist. 776, 776 (1969).
• 32 U.S. 243 (1833).
• Id.  at 249.
• United States v. Cruikshank , 92 U.S. 542 (1875).
• Id.  at 549.
• 268 U.S. 652 (1925).
• Id.  at 666.
• Near v. Minnesota , 283 U.S. 697, 707 (1931) (“It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.”).
• Powell v. Alabama , 287 U.S. 45 (1932).
• McDonald v. City of Chicago , 561 U.S. 742 (2010).
• A.L.A. Schechter Poultry Corp. v. United States , 295 U.S. 495 (1935).
• Walker,  supra  note 57, at 92.
• 301 U.S. 1, 37 (1937).
• 312 U.S. 100 (1941).
• 317 U.S. 111 (1942).
• In 2011, the Supreme Court held that the federal government’s attempt to prosecute a woman who tried to poison her husband’s mistress pursuant to the Chemical Weapons Treaty could be challenged on the grounds that it violated the Tenth Amendment and basic principles of federalism: “States are not the sole intended beneficiaries of federalism. . . . An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States . . . . Fidelity to principles of federalism is not for the States alone to vindicate.”  Bond v. United States , 131 S. Ct. 2355, 2364 (2011).
• Neb. Dep’t of Revenue v. Loewenstein , 513 U.S. 123 (1994).
• Perry v. Perez , 132 S. Ct. 934 (2012).
• Rose v. Rose , 481 U.S. 619 (1987).
• 135 S. Ct. 2584 (2015).
• In re Burrus , 136 U.S. 586, 593–94 (1890).
• 388 U.S. 1 (1967).
• 450 U.S. 455 (1981).
• Obergefell , 135 S. Ct. at 2598 (citing  Baker v. Nelson , 409 U.S. 810 (1972)).
• 133 S. Ct. 2675 (2013).
• Id.  at 2683, 2691–92.
• Obergefell , 135 S. Ct. at 2604.
• The dissents in  Obergefell  emphasized the federalism implications of the Court’s decision.  See id.  at 2611 (Roberts, J., dissenting) (“Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.”);  id.  at 2643 (Alito, J., dissenting) (“The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not . . . . The majority today makes that impossible.”).
• 554 U.S. 570 (2008).
• 561 U.S. 742 (2010).
• 529 U.S. 598 (2000).
• 545 U.S. 1 (2005).
• 132 S. Ct. 2566 (2012).
• In dissent, four justices maintained that the Commerce Clause supplied the necessary Congressional power, emphasizing federalism issues.  See id.  at 2615 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part) (“The Commerce Clause, it is widely acknowledged, ‘was the Framers’ response to the central problem that gave rise to the Constitution itself.’ . . . Under the Articles of Confederation, the Constitution’s precursor, the regulation of commerce was left to the States. This scheme proved unworkable . . . . The Framers’ solution was the Commerce Clause, which, as they perceived it, granted Congress the authority to enact economic legislation ‘in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.’”) (citations omitted);  see also id.  at 2609 (“Since 1937, our precedent has recognized Congress’ large authority to set the Nation’s course in the economic and social welfare realm . . . . The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.”).
• See Oneok, Inc. v. Learjet, Inc. , 135 S. Ct. 1591, 1594–95 (2015).
• See Northwest, Inc. v. Ginsberg , 134 S. Ct. 1422 (2014).
• See PLIVA, Inc. v. Mensing , 131 S. Ct. 2567 (2011).
• See Arizona v. United States , 132 S. Ct. 2492 (2012).
• See Am. Trucking Ass’ns, Inc. v. City of Los Angeles , 133 S. Ct. 2096 (2013).
• See Kurns v. R.R. Friction Prods. Corp. , 132 S. Ct. 1261 (2012).
•   See Marmet Health Care Ctr., Inc. v. Brown , 132 S. Ct. 1201 (2012).
• See Am. Elec. Power Co. v. Connecticut , 131 S. Ct. 2527 (2011).
• See Rowe v. N.H. Motor Transport Ass’n. , 552 U.S. 364 (2012).
• See Nat’l Meat Ass’n v. Harris , 132 S. Ct. 965 (2012).
• See, e.g., Oneok, Inc. v. Learjet, Inc. , 135 S. Ct. 1591, 1591 (2015) (state antitrust claims arising from natural gas pricing);  CTS Corp. v. Waldburger , 134 S. Ct. 2175 (2014) (state statutes of repose in certain environmental cases);  Chadbourne & Parke LLP v. Troice , 134 S. Ct. 1058 (2013) (state law class action arising from bank certificates of deposit).
• Id.  at 598.
• Id.  at 599.
• Benjamin Kaplan,  A Prefatory Note , 10 B.C. Indus. & Com. L. Rev. 497, 500 (1969).

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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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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Federalism and its kindred terms (e.g., “federal”) are used, most broadly, to describe the mode of political organization that unites separate polities into an overarching political system so as to allow each to maintain its fundamental political integrity. Federal systems do this by distributing power among general and constituent governments in a manner designed to protect the existence and authority of all the governments. By requiring that basic policies be made and implemented through negotiation in some form, it enables all to share the system’s decision making and decision-making processes.

• 1.1 Social and Political Principle
• 1.2 Federation and Confederation
• 1.3 Federalism and Related Systems
• 1.4 Mature and Emergent Federal Systems
• 1.5 Federalism and Intergovernmental Relations
• 2.1 Written Constitution
• 2.2 Noncentralization
• 2.3 Areal Division of Power
• 2.4 Maintaining Union
• 2.5 Maintaining Noncentralization
• 2.6 Maintaining the Federal Principle
• 2.7 The End Product
• 3.1 Ancient Protofederal Systems
• 3.2 Medieval Experiments
• 3.3 First Modern Formulations
• 3.4 Modern Federalism
• 3.5 The Contemporary Study of Federalism
• 4.1 Daniel J. Elazar

DIFFERENT CONCEPTIONS

No single definition of federalism has proved satisfactory to all students, primarily because of the difficulties in relating theoretical formulations to the evidence gathered from observing the actual operation of federal systems. Attempts at definition have also foundered on the problems of distinguishing between (1) the federal principle as a broad social concept and federalism as a narrower political device, (2) two classic but different conceptions of federalism, (3) authentically federal systems and political systems that utilize elements of the federal principle, (4) mature and emergent federal systems, and (5) federalism and “intergovernmental relations” as distinct political phenomena.

Social and Political Principle

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. First formulated in the covenant theories of the Bible (Kaufman 1937–48), this conception of federalism was revived by the Bible-centered “federal” theologians of seventeenth-century Britain and New England (Miller [1939] 1961), who coined the term “federal”—derived from the Latin foedus (covenant)—in 1645 to describe the system of holy and enduring covenants between God and man that lay the foundation of their worldview. This conception of federalism was given new theoretical form by nineteenth-century French and German social theorists. Closely related to the various theories of social contract, it is characterized by the desire to build society on the basis of coordinative rather than subordinative relationships and by the emphasis on partnership among parties with equal claims to legitimacy who seek to cultivate their diverse integrities within a common social order (Boehm 1931).

As a political device, federalism can be viewed more narrowly as a kind of political order animated by political principles that emphasize the primacy of bargaining and negotiated coordination among several power centers as a prelude to the exercise of power within a single political system, and that stress the value of dispersed power centers as a means for safeguarding individual and local liberties. This means, in effect, that political institutions common to different political systems, when combined within a federal system and animated by federal principles, are effectively endowed with a distinctive character. For example, while political parties are common in modern political systems, parties animated by the federal principle show unique characteristics of fragmentation and a lack of central discipline that increase the power of local groups within the system as a whole (Grodzins 1960a).

Federation and Confederation

Federal ideas have been systematically conceptualized in two different ways. On the one hand, federalism has been conceived as a means to unite a people already linked by bonds of nationality through the distribution of political power among the nation’s constituent units. In such cases, the polities that constitute the federal system are unalterably parts of the national whole, and federalism invariably leads to the development of a strong national government operating in direct contact with the people it serves, just as the constituent governments do. On the other hand, federalism has also been conceived as a means to unify diverse peoples for important but limited purposes, without disrupting their primary ties to the individual polities that constitute the federal system. In such cases the federal government is generally limited in its scope and powers, functioning through constituent governments that retain their plenary autonomy, and to a substantial degree is dependent upon them.

Both conceptions of federalism have evolved from early federal experiments. The principles of strong national federalism were first applied by the ancient Israelites, beginning in the thirteenth century B.C., to maintain their national unity through linking their several tribes under a single national constitution and at least quasi-federal political institutions (Bright 1959). Several centuries later, the Greek city-states experimented with federal-style institutions as means for the promotion of intranational harmony and cooperation, primarily for defensive purposes, through associations (e.g., the Achaean League) that came close to what were later defined as confederations (Freeman [1863] 1893). A modified form of the Greek view was developed by the sixteenth-century theorists (Gierke [1913] 1934). They held that federalism meant a permanent league of states united through a perpetual covenant, binding under international law, in which the constituent states delegated enumerated powers to a general government while retaining full rights of internal sovereignty.

However, when the American system—the prototype of modern federal systems—emerged in the late eighteenth century, its architects developed a conception of federalism much like that of ancient Israel. From the first, American federalism functioned to serve a people with a single national identity and was constituted with a strong national government to serve that people on a national basis, though, as late as 1789, The Federalist could describe the new American Constitution as “partly national and partly federal” in deference to the then-accepted views. The successful efforts of the supporters of the Constitution to appropriate the term “federalist” for their own use (Main 1961, ix–xi) restored to common usage the older conception of federalism as a noncentralized national union bound by municipal law, with a general government superior to the governments of the constituent states (Diamond 1963).

Just as the American system became the prototype for other modern federal systems, so the American conception of federalism became the generally accepted one. The other conception was ultimately subsumed under the word “confederation” and its kindred terms. The two systems described by these different conceptions reflect, in part, the distinctions implied in the German Staatenbund (confederation) and Bundesstaat (federation), terms developed in the mid-nineteenth century (Mogi 1931). A certain degree of confusion remains because the terms invented to describe both systems were used indiscriminately for many years.

Though the American conception of federalism is today almost universally accepted as the most accurate usage, the confederal conception remains a living and legitimate aspect of the federal idea in its largest political sense. Today, the latter is most prominent among certain advocates of limited European union (the Common Market exemplifies a confederal form) and among many so-called world federalists .

Federalism and Related Systems

Federal systems are often confused with four other forms of political order that make use of specific federal principles. The use of some federal principles in multiple monarchies, legislative unions, empires, and decentralized unitary systems can have important consequences similar to those in authentically federal systems. But the fact that such principles do not permeate the four systems makes the distinctions between them and true federations extremely important. Federal systems differ from multiple (or dual) monarchies in two essential ways. The central constitutional characteristic of the multiple monarchy is that union exists only in the person of the sovereign and is maintained only through the exercise of executive power in the sovereign’s name. No significant common institutions exist to unite the constituent polities—no common legislatures, no common legal system, and little in the way of a common political substructure. On the contrary, each constituent polity maintains its own political system, which the monarch guarantees to support under the terms of his or her compact with the realm. Multiple monarchies have historically been less than democratic regimes. Even where there have been tendencies toward democratization, the very fact that union exists only by virtue of the common sovereign has tended to elevate the position of the monarch to one of real power. Attempts to transfer sovereignty or the attributes of sovereignty elsewhere, by their very nature, stimulate the division of this kind of association of civil societies into separate polities. Thus, the Austro-Hungarian Empire was held together by the Hapsburg emperors and disintegrated when that family ceased to rule (Sharma 1953, ch. 7). The dual monarchy of Sweden and Norway ceased to function when democratic government was introduced, transferring the attributes of sovereignty from the monarch to the nation(s). In Spain, on the other hand, the inability of the Spaniards to transform a multiple monarchy into a federal system, in a locale that by nature demanded peninsular union of some sort, led to the consolidation of the constituent polities into something approximating a unitary state that remained highly unstable because of the local barriers to consolidation that could be neither accommodated nor eradicated (Elliott 1964).

Multiple monarchies have been transformed into stable and unified polities through legislative union. The United Kingdom is a case in point. The centrifugal tendencies of the seventeenth-century dual monarchy linking England and Scotland were finally eliminated through a legislative union of the two nations in 1707. Legislative union bears very close resemblance to federal union at several crucial points. Though designed to direct public allegiance to a single national authority, the terms of the union encourage the political system to retain certain noncentralizing elements. The government of the nation remains national rather than central in character, since it is created by a perpetual covenant that guarantees the constituent parties their boundaries, representation in the national legislature, and certain local autonomies, such as their own systems of municipal law. Legislative unions usually unite unequal polities. The centralizing tendencies induced by this are somewhat counterbalanced by the residual desire for local self-government in the constituent states. Thus, in the United Kingdom the cabinet has acquired a supremacy not foreseen in 1707, but within the framework of cabinet government Scotland has acquired a national ministry of its own with a separate administrative structure, based in Scotland, for most of its governmental programs (Milne 1957).

Federal systems also differ from empires allowing cultural home rule. Such empires have often been termed “federal”—in some cases because they claim to be. The Roman Empire was the classic example of this kind of political system in the ancient world, and the Soviet Union may well have been its classic modern counterpart. In both cases, highly centralized political authorities possessing a virtual monopoly of power decide, for reasons of policy, to allow local populations with different ethnic or cultural backgrounds to maintain a degree of cultural home rule, provided that they remain politically subservient to the imperial regime. While this often appears to offer a substantial degree of local autonomy, its political effects are purposely kept minimal. Any local efforts to transform cultural home rule into political power are invariably met with suppressive force from the central government, even to the point of revoking cultural rights, as examples from the history of both empires reveal.

Federal systems are clearly different from decentralized unitary states, even though such states may allow local governments considerable autonomy in some ways. In such states, local powers are invariably restricted to local matters, as determined by the central authorities, and are subject to national supervision, restriction, and even withdrawal, though tradition may mitigate against precipitous action by the central government in areas where local privileges have been established. Still, as the English experience has shown, even powerful traditions supporting local autonomy have not stood in the way of great reconcentration of power by democratically elected parliaments when such action has been deemed necessary by a national majority.

Mature and Emergent Federal Systems

Several studies (Macmahon 1955; Wheare [1946] 1964) have attempted to draw distinctions between mature and emergent federal systems. The thrust of their argument is that federalism, when used to unify separate political systems to form a new nation, and federalism as a form of decentralized government in an established nation encourage markedly different kinds of political behavior. In the former case, federalism serves as a means to bring tenuous unity to nations composed of highly autonomous polities, with the locus of power remaining among the constituent units. As federal systems mature, so the argument goes, power is increasingly concentrated at the center, and federalism remains only to promote a certain amount of decentralization within an otherwise highly unified political system. Wheare goes so far as to argue that federalism is a transitional phenomenon useful in promoting progressively larger polities, which are then gradually discarded (in fact, if not in form) as an unnecessary encumbrance. This argument may have some validity in describing the history of nonfederal political systems that have utilized federal principles to promote national unity. For example, it can be used to describe the evolution of the United Kingdom into its present constitutional state. It cannot be applied, however, to any of the three exemplary federal systems—Canada, Switzerland, and the United States. Their national ties existed from the first, and their national governments were granted broad powers at the outset. Nor has federalism declined in importance as those nations have matured. There are undoubtedly differences between mature and emergent federal systems, but those differences are more likely to relate to the character of conflict and negotiation between the general and constituent governments than to their relative strengths.

Federalism and Intergovernmental Relations

Because the study of federalism at its most immediately empirical level heavily stresses the study of intergovernmental relations, the two are often considered to be synonymous. Federalism, however, is something much more than the relationships between governmental units, involving as it does principles that are designed to establish the proper character of those relationships and that must also affect the character of other political institutions within federal systems. As already indicated, federalism concerns the way in which federal principles influence party and electoral systems in federal polities just as much as it concerns the way in which local governments relate to their regional or national ones, or to each other. Moreover, the study of intergovernmental relations exists apart from the study of federalism, since such relationships are to be found in all political systems, federal or otherwise, where there is more than one government extant within a given polity.

CHARACTERISTICS AND OPERATIONAL PRINCIPLES

The most useful way to attempt to understand federalism as a political phenomenon is to under—take a survey of the basic characteristics of federal systems, principles, and processes in order to understand both the manner and the direction of their development.

As a first step, it seems necessary to identify the various federal systems that exist today or have existed in the past; only then can we analyze them as operating political systems. However, identifying federal systems is no simple matter, as we have just seen. The difficulties are heightened by the wide functional differences easily observed in the various political systems that call themselves federal and by the often greater operational similarities between self-styled “federal” and “unitary” systems. Contrast, for example, the political systerns of Australia and the Soviet Union, Canada and Mexico, and Switzerland and Yugoslavia, or compare the United States and Great Britain.

Moreover, federal systems have historically been marked by great internal distinctions between theory and practice, perhaps more so than other political systems. In the United States, the measure of the maintenance of federalism was long considered to be the degree of separation of government activities by level, because it was generally believed that such separation actually existed. In fact, American federalism from the first had been characterized by extensive intergovernmental functional collaboration within the framework of separate governmental structures (Elazar 1962). Similarly, the Canadian federal system has always been described as one in which the federal government is clearly dominant—the repository of all powers not explicitly granted to the provinces. Yet since the brief period of federal supremacy in the years immediately following confederation, the provinces have consistently gained power at federal expense (Smiley 1965). The Russian federal constitution went so far as to grant each Soviet republic the right of secession—a patent impossibility under the realities of the Russian political system.

Nevertheless, some basic characteristics and operational principles common to all truly federal systems can be identified, and can help us to define such systems. These may be divided into three essential elements and a number of supplementary ones.

Written Constitution

First, the federal relationship must be established or confirmed through a perpetual covenant of union, inevitably embodied in a written constitution that outlines, among other things, the terms by which power is divided or shared in the political system and that can be altered only by extraordinary procedures. Every existing federal nation possesses a written constitution, as do most of the other nations incorporating elements of the federal principle. Juridically, federal constitutions are distinctive in that they are not simply compacts between the rulers and the ruled but involve the people, the general government, and the polities constituting the federal union. Moreover, the constituent polities retain local constitution-making rights of their own.

Noncentralization

The political system must reinforce the terms of the constitution through an actual diffusion of power among a number of substantially self-sustaining centers that are generally coincident with the constituent polities established by the federal compact. Such a diffusion of power may be termed “noncentralization.” It differs from decentralization— the conditional diffusion of specific powers to subordinate local governments by a central government, subject to recall by unilateral decision. It is also more than devolution— the special grant of powers to a subnational unit by a central government, not normally rescindable. Noncentralization ensures that no matter how certain powers may be shared by the general and constituent governments at any point in time, the authority to participate in exercising them cannot be taken away from either without mutual consent. Constituent polities in federal systems are able to participate as partners in national governmental activities and to 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.

Areal Division of Power

A third element that appears to be essential in any federal system is the internal division of authority and power on an areal basis (Maass 1959), what in the United States has been called “territorial democracy.” It is theoretically possible to create a federal system whose constituent units are fixed but not territorially based. There were premodern protofederations of nomadic tribes, and some observers have seen federal elements in nations constitutionally structured to accommodate social and political divisions along ethnic, religious, or even ideological lines. Nevertheless, no authentic federal system has existed without an areal basis for the federal division. Historically, when areal divisions of power have given way to divisions on the basis of functional interest, federalism has been replaced by pluralism. In modern democratic theory the argument between Federalists and Anti-Federalists has frequently revolved around the respective values of areal and functional diffusions of power. Theorists who have argued the obsolescence of federalism while endorsing the values used to justify its existence have generally based their case on the superior utility of pluralism (Mogi 1931, 1059–115). Proponents of the federal-areal division argue that the deficiencies of territorial democracy are greatly overshadowed by the neutrality of areal representation of functional interests, and they argue further that any other system devised for giving power to these interests has proved unable to cope with the complexities and changes of interest endemic in a dynamic age while certainly limiting the advantages for local differentiation inherent in the areal system.

Studies of federal systems indicate the existence of other elements that supplement the three basic ones. While all of them are not always present in every federal system, their near universality leads one to the conclusion that they serve important functions in the maintenance of federalism in each. Similarly, while many of them are found individually in various kinds of political systems, it is their combination within a single system structured around the basic elements that is characteristic of federalism.

Maintaining Union

Generally characteristic of modern federal systems are direct lines of communication between the public and both the general and the constituent governments, which allow the public to exert direct influence on both governments and permit them to exercise direct authority over a common citizenry. The people may (and usually do) elect representatives to all governments that serve them. All of the governments may (and usually do) administer programs so as to serve the individual citizen directly. The courts may serve both levels of government, applying the relevant laws directly.

The existence of those direct lines of communication—one of the major features distinguishing federations from leagues—is usually predicated on the existence of a sense of common nationality binding the constituent polities and peoples of federal nations together, another element requisite for the maintenance of a successful federal system. In some countries this sense has been inherited, but in most it has had to be invented. Federalism in Germany has been based on a common sense of an inherited German nationhood. In the United States, Argentina, and Australia, a sense of nationhood had to be at least partly invented. National consciousness soon became second nature in those countries, since none of their constituent states ever had much more than a partially developed national consciousness of its own. Canada, Switzerland, and Yugoslavia have had to invent a sense of common nationality strong enough to embrace “nationality groups” whose intense national feelings are rooted in the constituent polities. In such newly formed federal systems as India, Malaysia, and Nigeria, the future of federalism is endangered by the absence of a common sense of nationality. Contrary to some theories, federalism has not proved to be a particularly good device for integrating diverse nationalities into a single political system unless it has been accompanied by other factors compelling integration.

Geographic necessity has been a major factor promoting the maintenance of union within federal systems, even in the face of strong pressures toward disunion. The Mississippi Valley in the United States, the Alps in Switzerland, the island character of the Australian continent, and the mountains and jungles surrounding Brazil have served as direct geographic influences promoting unity. More political than “natural,” but no less compelling geographically, have been the pressures for Canadian union generated by that country’s neighbor to the south or for the federation of the German states generated by their neighbors to the east and west.

Maintaining Noncentralization

It has been well demonstrated that the constituent polities in a federal system must be fairly equal in population and wealth, or at least balanced geographically or numerically in their inequalities, if noncentralization is to be maintained. The United States has been able to overcome its internal inequities because each geographic section has included both great and small states. In Canada, the ethnic differences between the two largest provinces have served to inject balance into the system. The existence of groups of cantons in different size categories has helped maintain Swiss federalism. Similar distributions exist in every other system whose federal character is not in question.

The existence of a large polity dominating smaller states with which it is nominally federated on equal terms has often been one of the major reasons for the failure of federalism. In the German federal empire of the late nineteenth century, Prussia was so obviously dominant that the other states had little opportunity to provide national leadership or even a reasonably strong hedge against the desires of its king and government. Similarly, even without the problem of the Communist Party, the existence of the Russian Soviet Federal Socialist Republic, which occupied three-fourths of the area and contained three-fifths of the population of the Soviet Union, would have severely crippled the possibilities of maintaining authentic federal relationships in that country.

Successful federal systems have also been characterized by the permanence of the boundaries of their constituent units. This does not mean that boundary changes cannot occur, but it does mean that as a matter of constitutional law such changes can be made only with the consent of the polities involved and that, as a matter of political policy, they are avoided except in the most extreme situations. Boundary changes have occurred in the “classic” federal systems—the United States divided Virginia during the Civil War , Canada has enlarged the boundaries of its provinces, and Switzerland has divided cantons—but they have been the exception rather than the rule, and in every case at least the formal consent of the constituent polities was given. Even in weaker federal systems, such as those of Latin America, state boundaries have tended to remain relatively secure. When boundary changes have been made, as in the postwar redrawing of Lander boundaries in West Germany to account for the diminished territory of the Federal Republic and the alteration of state lines to recognize linguistic unities in India, the essential heartlands of the polities involved have been preserved.

In a few very important cases, noncentralization is both reflected and supported through the constitutionally guaranteed existence of different systems of law in the constituent polities. Though the differences in those systems are likely to be somewhat eroded over time—the extent of their preservation varying from system to system— their continued existence as separate systems and the national mixture of laws that their existence promotes act as great bulwarks against centralization. In the United States, each state’s legal system stems directly and to a certain extent uniquely from English law, while federal law occupies only an interstitial position binding the systems of the 50 states together insofar as necessary. The resulting mixture of laws keeps the administration of justice, even in federal courts, substantially noncentralized (Macmahon 1955, ch. 11). In Canada, the existence of common law and civil law systems side by side is one constitutional guarantee of French Canadian cultural survival. Noncentralized legal systems, a particularly Anglo-American device, are often used in legislative as well as federal unions. They are rare in other political cultures and have become less common in all federal systems established since 1900. More common is the provision for modification of national legal codes by the subnational governments to meet special local needs, as in Switzerland.

The point is generally well taken that unless the constituent polities have substantial influence over the formal or informal amending process, the federal character of the system is open to question. Since many constitutional changes are made without recourse to formal constitutional amendment, the position of the constituent polities must be additionally protected by a constitution designed so that any serious changes in the political order can be made only by the decision of dispersed majorities that reflect the areal division of powers. This protection, which federal theorists have argued is important for popular government as well as for federalism (Diamond 1963), is a feature of the most truly federal systems.

Noncentralization is strengthened in all federal systems by giving the constituent polities guaranteed representation in the national legislature and, often, by giving them a guaranteed role in the national political process. In some federal systems, notably those of the United States and Switzerland, the latter is guaranteed in the written constitution. In others, such as Canada and those in Latin America, certain powers of participation have been acquired and have become part of the traditional constitution.

Recent studies have shown that the existence of a noncentralized party system is perhaps the most important single element in the maintenance of federal noncentralization (Macmahon 1955). Noncentralized parties initially develop because of the constitutional arrangements of the federal compact, but once they have come into existence, they tend to be self-perpetuating and to function as decentralizing forces in their own right.

The United States and Canada provide two examples of the different forms that can be assumed by a noncentralized party system. In the United States, where party responsibility is minimal and virtually nonexistent on the national level, a two-party system has developed, with the parties actually being coalitions of the several state or, in some cases, local party organizations functioning as national units only for the quadrennial presidential elections or for purposes of organizing the national Congress. Party financing and decision making are functions that are dispersed either among the state organizations or among widely divergent factions operating nationwide. In Canada, on the other hand, the parliamentary form of government, with its concomitant requirement of party responsibility, means that at the national level considerably more party cohesiveness must be maintained simply in order to gain and hold power.

The noncentralized party system in Canada has developed through a fragmentation of the parties along regional or provincial lines. The parties with nationwide bases are still divided internally along provincial lines, with each provincial organization autonomous. Individual provinces are frequently dominated by regional parties that send only a few representatives to the national legislature, adding to the fragmentation of the system. Very often, the party victorious in national elections is the one that is briefly able to expand its base to most nearly national proportions.

European-style federal systems where parliamentary government is the norm follow the Canadian model. Australia and Switzerland come closest to paralleling it, and traces of it can be found in the German Federal Republic. A more centralized variation of the same pattern exists in countries like India, in which the national government is dominated by one very large and diffused national party that is held together nationally by personal leadership but is quite factionalized in the states where it must share the governing power with other parties.

Federal nations with less developed party systems frequently gain some of the same decentralizing effects through what Latin Americans call caudillismo —noncentralized personal leadership systems that diffuse power through strong local leaders operating in the constituent polities. Caudillistic noncentralization is most characteristic of Latin American federal systems but apparently exists in such new federations as Nigeria and Malaysia as well.

The importance to federalism of a noncentralized party system is well illustrated by contrast with those formally federal nations dominated by one highly centralized party, such as the Soviet Union, Yugoslavia, and Mexico. In all three cases, the dominant party has operated to limit the power of the constituent polities in direct proportion to the extent of its dominance.

Ultimately, however, noncentralization is maintained to the extent that there is respect for the federal principle within each federal system. Such respect is necessarily reflected in the immediate recognition by the decision-making publics that the preservation of the constituent polities is as important as the preservation of the nation as a whole. In the words of the American Chief Justice Salmon P. Chase, federalism looks to “an indestructible Union, composed of indestructible States” ( Texas v. White 1869). This recognition may be based on loyalty to particular constituent polities or on an understanding of the role played by federalism in animating the political system along certain unique lines. Thus, those who value government by conciliation and partnership, with emphasis on local control, are likely to have respect for the federal principle.

Citizens of a federal nation must show that respect in two ways, by showing self-restraint and by cultivating the political art of negotiation. Federalism can exist only where there is considerable tolerance of diversity and willingness to take political action through conciliation even when the power to act unilaterally is available. The usual prerequisite to action in federal systems is the ability to build consensus rather than the power to threaten coercion. Western federal nations can furnish many examples of the exercise of national self-restraint in dealing with difficult federal problems. Even in a federal system as centralized as that of India, the constitutional right of the national government to assume control of the state governments is exercised as little as possible—notably when the Communists win local elections—and is then clearly a temporary action.

The historical record indicates that the dual purpose implied in Chase’s dictum has been at least as responsible for the creation of federal systems as has the single interest in political unification. The Canadian confederation came into being not only to create a new nation out of the British North American colonies but also to give Ontario and Quebec autonomous political systems of their own. Similarly, every move toward greater union in the Swiss confederation has been made in order to preserve the independence of the cantons from both outside encroachment and revolutionary centralism (Sharma 1953, 269–75). A good case can be made that similar motivations were important in the creation of Australia, Malaysia, Nigeria, and the United States.

Maintaining the Federal Principle

Several of the devices commonly found in federal systems serve to maintain the federal principle per se and are consequently supportive of both the national government and the constituent polities. Two of these are particularly common and important.

The maintenance of federalism requires that the nation and its constituent polities each have a substantially complete set of governing institutions of their own with the right—within limits set by the compact—to modify those institutions unilaterally. Separate legislative and administrative institutions are both necessary. This does not necessarily mean that all governmental activities must be carried out by separate institutions at each level. It is possible for the agencies of one government to serve as agents of the other by mutual agreement. But each government must have the needed institutions to function independently in the areas of its authority and the structural resources to cooperate freely with the other government’s counterpart agencies.

In this regard, the contractual sharing of public responsibilities by all governments in the system appears to be a central characteristic of federalism. Sharing, broadly conceived, includes common involvement in policy making, financing, and administration of government activities. In contemporary federal systems, it is characterized by extensive intergovernmental collaboration. Sharing can be based on highly formal arrangements or informal agreements. In federal systems, it is usually contractual in nature. The contract—politically a limited expression of the compact principle—is used in formal arrangements as a legal device to enable governments responsible to separate polities to engage in joint action while remaining independent entities. Even where government agencies cooperate without formally contracting to do so, the spirit of federalism that pervades ongoing federal systems tends to infuse the participating parties with a sense of contractual obligation.

In any federal system, it is likely that there will be continued tension between the federal government and the constituent polities over the years and that different “balances” between them will develop at different times. The existence of this tension is an integral part of the federal relationship, and its character does much to determine the future of federalism in each system. The question of federal-state relations that it produces is perennially a matter of public concern because virtually all other political issues arising in a federal system are phrased in terms of their implications for federalism. In this way, federalism imposes a way of looking at problems that stands apart from the substantive issues raised by the problems themselves. This is particularly true of those issues that affect the very fabric of society. In the United States, for example, the race question is a problem of federal-state as well as black-white relations, and the same is true of the cultural question in Canada and the linguistic question in India.

The End Product

The very terminology of federalism is characterized by a revealing ambiguity that is indicative of the end product of federal systems. The word “federalize” is used to describe the unification of “sovereign” states into a federal polity and also the permanent devolution of authority and power within a nation to subnational governments. In this ambiguity lies the essence of the federal principle—the perpetuation of both union and noncentralization.

Viewed from the top, the combination of the elements discussed above results in a federal rather than a central government, that is, a government composed of a nationwide coalition of political institutions, some with predominantly local power bases (such as the national legislature), and others with predominantly national power bases (such as the national bureaucracy). This government, whose power is thus diffused vertically and laterally, functions in cooperation with the constituent polities that it must conciliate in order to act. Decision making is characterized by heavy reliance upon negotiation and bargaining and by minimal reliance upon the exercise of force. Operations are characterized by a measure of disorder, since noncentralization breeds multiple power centers located at or cutting across all levels of government. Each of these centers seeks to keep open routes of access to the others, usually succeeding because it is in the best interests of all to maintain this kind of disorder as part of the “rules of the game.”

Viewed locally, a federal system consists of governmental inputs from different sources whose local connections normally serve to fragment local authority. However, because such a system rewards those who actively seek to reconcile the diffuse elements and bind them together for a larger purpose, local political leaders can control these inputs to a great extent. While this may not prevent the national government from exercising great power at any given time or from increasing its total power over time, it does mean that as long as the federal principle remains operative, the public can and almost invariably does limit certain kinds of national government actions or guides such actions into particular channels (often directed toward strengthening the constituent governments) by invoking the terms of the compact.

Viewed theoretically, these patterns of behavior and the arguments advanced to justify them serve to reaffirm the fundamental principles that (1) the strength of a federal polity does not stem from the power of the national government but from the authority vested in the nation as a whole, (2) both the national government and the governments of the constituent polities are possessed of delegated powers only, and (3) all governments are limited by the common national constitution.

All this should make it apparent that federalism is a form of popular government embodying elements of both republicanism and democracy. The federal structures occasionally adopted by nondemocratic systems must generally be considered “window dressing” except insofar as the injection of the federal principle may serve as a democratizing force in itself. In Yugoslavia, for example, the existence of a federal superstructure has proved useful in fostering such decentralization as the Communist Party leadership wished to allow and may even have played a role in stimulating decentralizing tendencies.

EMPIRICAL AND THEORETICAL DEVELOPMENT

Ancient protofederal systems.

Long before the term “federal” was invented, there were political systems that embodied elements of the federal principle. The Israelite political system was probably the first example in recorded history of a union of constituent polities based on a sense of common nationality, with national and tribal political institutions and some division of functions between the two partly formalized by a written constitution. As a republic it was never able to overcome the problems of national executive leadership and succession and, after some 200 years, revised its constitution to superimpose a limited monarchy on its federal institutions. Still, as many of the seventeenth-century Federalists noted, it came closer to resembling a modern federal system than any comparable premodern nation. Its classic intellectual product, the Bible, was the first book to discuss the problems of a federal polity.

Permanent leagues of independent states united by a sense of common need but without any sense of common nationhood were found in various parts of the Greek world. They were entrusted with certain matters in the realm of foreign affairs and defense but were in every respect accountable to their member states. The classic example of this system was the Achaean League (251–146 B.C.), a protofederal system often erroneously considered to be the first federal polity (Freeman [1863] 1893). The Greeks left some descriptions of their leagues but no theoretical discussions of the league as a political system. Except for Aristotle’s criticisms, the great Greek political theorists ignored federalism as a political principle because the very idea contradicted their conception of the small, unified polis as the only basis upon which to build the good regime.

Several of the great ancient empires, notably the Persian, Hellenic, and Roman Empires, structured their political systems around the principle of cultural home rule. Since political life was virtually inseparable from the religious and cultural aspects of society in the ancient world, imperial recognition of local constitutions offered a measure of contractual devolution of political power; however, as in more recent examples of this form of imperialism, such home rule was not a matter of local right but represented a conditional grant subject to unilateral revocation by the imperial rulers.

Medieval Experiments

Elements of the federal principle are foreshadowed in medieval feudalism through its emphasis on essentially immutable contractual relationships that permanently link the contracting parties while guaranteeing their rights. However, the hierarchical character of these relationships, coupled with the lack of practical mechanisms to maintain the terms of the contracts, led to the degeneration of those elements in most feudal societies. Another movement in the direction of federalism grew out of the development of medieval commercial towns in central Europe that formed leagues for mutual defense and assistance following the Greek model. The most important development in this period was the first confederation of Swiss cantons in 1291 for mutual aid in defense of their independence. The success of this effort was in no small measure due to its connection, from the beginning, with quasi-popular government. These embryonic federal experiments all proceeded pragmatically while federal theory was confined to juridical discussions of the corporate relationships between polities in the Holy Roman Empire.

Ultimately a fusion of contractual elements from feudalism with political mechanisms from the commercial confederacies gave rise to the immediate antecedents of modern federalism. The Christian states on the Iberian Peninsula created a political system that in its most advanced stages came very close to authentic federalism. During the years of the Spanish Reconquest, most of the peninsula was reorganized under the fuero system, which established local governments with relatively liberal political institutions in order to encourage resettlement. New states were formed through feudal-style contractual relationships designed to protect local rights. Three of these states joined in a quasi-federal arrangement under the Crown of Aragon, each of them (plus several in Italy added later) retaining its own constitution and governing institutions as well as acquiring representation in the overall Aragonese government. The unification of Spain under a multiple monarchy in 1469 left most of these federal elements intact for the next two and a half centuries, but the demands of the monarchy ultimately subverted them, transforming Spain into a precariously centralized state.

In the sixteenth century, certain emergent civil societies, influenced by the Reformation to return to Scripture as a political source, by the Spanish system of political organization, as well as by local necessity, began to apply federal principles for statebuilding purposes. The Hapsburg heirs to the Spanish crown had applied Iberian principles to the organization of their other European possessions. Their governmental reforms in the Netherlands provided an organizational basis for the federation of the United Provinces in the late sixteenth century. When that country gained its independence, it established a political system that, while unable to solve the most crucial technical problems of federalism, maintained itself in federal style for 200 years, until Napoleon put an end to its existence, leaving a residue of noncentralization that marks the Netherlands today.

The Swiss, in the meantime, were developing their own techniques for combining feudal and commercial elements to create a loose confederation of cantons, which was also influenced by biblical ideas and, perhaps negatively, by contacts with Hapsburg Spain. Achieving full independence in 1648, the Swiss confederation remained loosely leagued for two centuries (except for the Napoleonic interlude), until it adopted a federal constitution in 1848.

First Modern Formulations

The protofederalism of the United Provinces and the Swiss cantons, coming at the outset of the age of nationalism, also stimulated the first serious efforts to formulate federal theories based on modern political ideas. Jean Bodin analyzed the possibilities of federation in light of the problem of sovereignty. Hugo Grotius and Samuel Pufendorf examined federal arrangements as aspects of international law. These theorists all treated federalism as an aspect of international law. Johannes Althusius (1603), analyzing the Dutch and Swiss constitutions, was the first to perceive that federalism was really concerned with problems of national unity. The real father of modern federal theory, he was also the first to connect federalism with popular sovereignty and to distinguish between leagues, multiple monarchies, and confederations. His retention of hierarchical principles and his emphasis on the corporate organization of society both flawed the federal character of his work and reflected the empirical roots of his analysis.

Thus the rise of the nation-state in the sixteenth and seventeenth centuries stimulated federal solutions to the problems of national unification. In all but a few countries on the periphery of western Europe, the application of federal principles foundered on three problems: (1) the conciliation of feudally rooted hierarchies with a system demanding fundamental social equality in order to facilitate the sharing of power, (2) the reconciliation of local autonomy with national energy in an era of political upheaval that required most nations to maintain a state of constant mobilization basically incompatible with the toleration of local differences, and (3) the problem of executive leadership and succession, which is particularly complex in federal systems and was not solved until the United States invented the elected presidency.

Modern Federalism

The rise of modern imperialism also contributed to the emergence of federalism, as indicated by the works of the important prerevolutionary political theorists of the eighteenth century, for example, Montesquieu and Adam Smith. Here, too, the Spanish experience was influential, but it remained for the British to create the requisite popular institutions in their colonization of North America and for the biblically influenced colonists to create the theoretical justification for these institutions. The theoretical ambiguity of those quasi-federal institutions led Americans to assume that their relationship to the British government was federal, while London entertained no such notion (Becker [1922] 1958). The Americans’ response to their view of the imperial system helped them develop the federal ideas they were later to use so creatively.

The founders of the United States of America can be said to have transformed and organized the principles of federalism into a practical system of government. They were able to do so partly because their nation developed without the disadvantages that plagued earlier federal systems. As a postfeudal society, the United States had no serious problem of coping with hierarchies. As a relatively isolated nation, external pressures for centralization were not present for nearly 150 years. American political inventiveness took care of the internal problems of applying the federal principle, though not without having to fight a major civil war to resolve some of them. Though the specific forms of American federalism were not widely imitated with success, its basic principles of organization were emulated by almost every other nation attempting the federal solution to the problems of popular government in a pluralistic civil society. The creation of the theoretical framework for those principles was part and parcel of the invention of federalism. Set forth in its basics in the debate over ratification of the U.S. Constitution, that framework had at its core The Federalist (Hamilton, Madison, and Jay [1787–88] 1961), the classic formulation of the principles of modern federalism. Equally important to the evolution of federal systems, however, were the arguments of those who wished to preserve even greater state autonomy; many of these arguments were transformed into tools to promote extraconstitutional decentralization during the nineteenth century.

From the first, American contributions to federal theory—even those of the few theorists not actively involved in politics—have been rooted in the practical concerns of maintaining a federal system. Most of these contributions have, accordingly, been formulated as discussions of constitutional law. The courts, particularly the federal Supreme Court, have conducted continuing debate on the meaning and character of federalism through the medium of case law. Leading political figures, such as Albert Gallatin, John Calhoun , Abraham Lincoln , Woodrow Wilson , and Theodore and Franklin D. Roosevelt , have made real contributions through their state papers. The pragmatic orientation of those contributions, however, has tended to obscure their more lasting theoretical importance (Anderson 1955).

The French Revolution, while stimulating the development of popular government, was essentially hostile to the spirit and institutions of federalism. Its immediate heirs tried to destroy federal institutions in western Europe in the name of democracy, and the subsequent bearers of its tradition have proved equally hostile to federal ideas—except insofar as some of them have equated federalism with decentralized government.

In the nineteenth century, several of the new Latin American nations, following the United States’ example and also influenced by the federal elements in the Hispanic imperial tradition, experimented with federalism, with distinctly mixed results. Even where federalism survived in theory, the instability of Latin American governments and the frequent recourse to dictatorial regimes hampered its effective operation. Even so, the three largest Latin American nations—Argentina, Brazil, and Mexico—retain federal systems of varying political significance; federal principles are also included in the political systems of Colombia and Venezuela.

In the mid-nineteenth century, European politicians and political theorists, stimulated by necessity, the American example, and the very influential studies of Tocqueville ([1835] 1945), turned to consider federalism as a form of democratic political organization. Though practical applications remained few, numerous works were produced, primarily in the German-speaking countries, where doctrinaire and metaphysical analyses of federalism in relation to the problems of nationalism, sovereignty, and popular consent were in vogue. The most important of these works were the theoretical formulations of Bluntschli (1849–52), based on his observations of federal reorganization in Switzerland, and the historical studies of Gierke ([1913] 1934). In the end, federal principles were used in the unification of Germany, and Switzerland adopted a modern federal constitution. Fully federal solutions were rejected in other nations, but several adopted quasi-federal institutions to meet particular problems of unification and decentralization.

During the late nineteenth century, British interest in imperial federalism was manifested in several ways. Canada and Australia were given federal constitutions and dominion status in 1867 and 1901, respectively, and the foundations were laid for the federal unification of India. British political theorists interested in imperial unity and internal devolution explored contemporary (Bryce [1888] 1909) and historical (Freeman [1863] 1893) federal experiments and presented arguments of their own as to the utility and proper organization of federal systems (Labilliere 1894).

Whereas in the nineteenth century federalism was used to abet ethnic nationalism, in the twentieth it has been used as a means to unify multiethnic nations. Several of the ethnically heterogeneous nations created or reconstructed after World War I, including the Soviet Union and Yugoslavia, formally embraced federalism as a nominal solution to their nationality problems. The United Kingdom added a federal dimension at the same time to accommodate the Irish. The extension of nation-building activities to Asia and Africa, where ethnic diversity is even greater than in Europe, has led to new efforts in the same vein. In nations outside of the totalitarian orbit, such as India and Malaysia, federalism has been used to secure political and cultural rights for the larger ethnolinguistic groups. In Africa, where the survival of separate ethnic groups has been called into question by the native nationalists, federalism has been applied in several nations, including Nigeria and Cameroon, as a device for sharing political power rather than a way to maintain cultural autonomy.

The Contemporary Study of Federalism

The emergence of political science as a discipline in the late nineteenth century stimulated a shift from an explicitly normative to a predominantly empirical interest in federalism. Such noted British scholars as Bryce (1901) and Dicey ([1885] 1961) were the first to study federalism as part of their general interest in political systems. American scholars began their work in the 1870s, as the Civil War generation was passing into history, but their first works still reflected the issues of the war. Thus Burgess (1886) concluded that the utility of the states was dissipated by modern technology just as their power was destroyed by the war, while Wilson ([1885] 1961) accepted the view that the war had wrought great changes but still saw federalism as alive and vital.

Though these men and their colleagues laid the foundations for the empirical study of federal systems with the tools of contemporary political science, federalism as a field of study was neglected for many years. The rise of other problems to attract the attention of scholars, the negation of earlier legalistic and metaphysical approaches, and the decline of normative interest in the federal principle combined to dissuade younger political scientists from examining questions of federal government, except incidentally, until the twentieth century was well advanced.

Renewed interest in the field first developed when American students of public administration found themselves confronted with problems of intergovernmental relations at nearly every turn. The study of intergovernmental relations in the administrative realm brought about significant gains in the understanding of the process of federal government, not the least of which was a growing recognition that the assumptions about federalism underlying their work, borrowed whole from nineteenth-century theorists, needed serious reexamination. Beginning in the 1930's and 1940's, American and British political scientists began to raise fundamental questions about the nature of federal systems and the interrelationships of their governmental components (Anderson 1946). In the 1950's these questions were expanded to include, among others, problems of political influence, the role of political parties, the historical development of federal systems, and the meaning of earlier federal theories (Bachelder and Shaw 1964). By the early 1960's, students of existing federal governments were rediscovering the need to clarify the principles of federalism in order to understand the operation of those governments. Students of comparative government were also becoming increasingly interested in problems of political integration, centralization, and decentralization—all of which stimulated new interest in the systematic study of federalism.

While many attempts to establish federal systems have ended in failure, such systems, once established, have proved to be most durable. No authentic federal system that has lasted for even fifteen years has ever been abandoned except through revolutionary disruption (as in the case of Germany), and in every such case federalism—showing remarkable resilience—has ultimately been restored. Certain theories to the contrary, there is no evidence that federalism represents a transitional stage on the road to unitary government. No federal system in history has ever “evolved” into a unitary one, nor has any established system been structurally consolidated by internal decision. On the contrary, federal devices to conciliate minority populations have been used in place of force to maintain unity even in consolidated systems. Moreover, federal systems or systems strongly influenced by the federal principle have been among the most stable and long lasting of polities.

At the same time, relatively few cultures have been able to utilize federal principles in government. Anglo-American civil societies have done so most successfully. Even those not fully committed to federalism have, without exception, included elements of the federal principle in whatever systems they have chosen, no doubt because both constitutionalism and noncentralization rate high on the scale of Anglo-American political values.

Of the sixteen formally federal nations that exist in the world today, Australia, Cameroon, Canada, India, Malaysia, Nigeria, and the United States were created under British colonial tutelage. These seven include all the nations established since World War II that have been able to maintain federal systems, and they provide most of the successful examples of federalism in operation. Of the nine remaining federal nations, Argentina, Brazil, and Mexico fall directly within the Hispanic political tradition, and Austria, Germany, and Switzerland, though they follow the Germanic political tradition, were also influenced by Hispanic ideas at some point in their development. Both political traditions have been influential in stimulating federal inclinations in many of the nonfederal nations, but they have been notably less successful in fostering lasting federal institutions; the Hispanic tradition has failed to combine federalism and stability, while the Germanic has tended toward authoritarian centralization. (The three remaining nations, Libya, the former Soviet Union, and former Yugoslavia, are federal in name and formal structure but hardly in any meaningful sense of the term.)

The successful operation of federal systems requires a particular kind of political environment, one that is conducive to popular government and has the strong traditions of political cooperation and self-restraint that are needed to maintain a system that minimizes the use of coercion. Beyond the level of tradition, federal systems operate best in societies with sufficient homogeneity of fundamental interests—or consensus—to allow a great deal of latitude in political operations and to place primary reliance upon voluntary collaboration. The existence of severe strains on the body politic that lead to the use of force to maintain domestic order is even more inimical to the successful maintenance of federal patterns of government than of other forms of popular government. Moreover, federal systems are most successful in civil societies with the human resources to fill many public offices competently and with material resources plentiful enough to allow a measure of economic waste in payment for the luxury of liberty.

This essay is reprinted from David L. Sills (ed.), The International Encyclopedia of the Social Sciences (New York: Macmillan, 1972). Reprinted by permission of the Gale Group.

Daniel J. Elazar

Last updated: 2006

SEE ALSO: Federal-State Relations ; Intergovernmental Relations ; U.S. Constitution

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AP Government and Politics: Federalism Explained

Federalism is a crucial concept in the study of American government and politics, exploring the division of powers between the national government and state governments. Here's an overview to help you understand federalism for the AP Government and Politics Exam:

1. Definition of Federalism:

   - Concept: Federalism is a system of government in which power is divided and shared between a central (national) government and regional (state) governments.

   - Key Points: Recognize that both levels of government have independent authority and responsibilities.

2. Enumerated Powers:

   - Concept: Enumerated powers are specific powers granted to the federal government by the Constitution.

   - Key Points: Understand examples of enumerated powers, such as the power to coin money, regulate interstate commerce, and declare war.

3. Reserved Powers:

   - Concept: Reserved powers are powers not granted to the federal government and therefore reserved to the states.

   - Key Points: Recognize examples of reserved powers, including the regulation of intrastate commerce, education, and the establishment of local governments.

4. Concurrent Powers:

   - Concept: Concurrent powers are powers shared by both the federal and state governments.

   - Key Points: Understand examples of concurrent powers, such as the power to tax, borrow money, and establish courts.

5. Supremacy Clause:

   - Concept: The Supremacy Clause establishes the Constitution, federal laws, and treaties as the supreme law of the land.

   - Key Points: Recognize that conflicts between federal and state laws are resolved in favor of federal law.

6. Necessary and Proper Clause (Elastic Clause):

   - Concept: The Necessary and Proper Clause grants Congress the authority to make laws deemed necessary and proper for carrying out its enumerated powers.

   - Key Points: Understand how this clause expands the scope of federal power by allowing Congress to legislate beyond its enumerated powers.

7. Dual Federalism vs. Cooperative Federalism:

   - Concept: Dual federalism emphasizes a strict separation of federal and state powers, while cooperative federalism stresses collaboration and shared responsibilities.

   - Key Points: Recognize historical shifts between these models, such as during the New Deal era when cooperative federalism became prominent.

8. Marble Cake Federalism:

   - Concept: Marble Cake Federalism, also known as cooperative federalism, envisions the blending of federal and state powers.

   - Key Points: Understand how this model emphasizes intergovernmental cooperation to address complex issues.

9. Categorical Grants vs. Block Grants:

   - Concept: Categorical grants are specific grants for narrowly defined purposes, while block grants provide states with more flexibility in spending.

   - Key Points: Recognize the advantages and disadvantages of each type of grant and their impact on federal-state relations.

10. Devolution:

    - Concept: Devolution is the transfer of powers and responsibilities from the federal government to the states.

    - Key Points: Understand instances of devolution, such as welfare reform, and its implications for state autonomy.

11. McCulloch v. Maryland (1819):

    - Concept: This landmark Supreme Court case affirmed the supremacy of federal law over state law.

    - Key Points: Understand the Court's interpretation of the Necessary and Proper Clause and its implications for federal power.

12. United States v. Lopez (1995):

    - Concept: In this case, the Supreme Court limited Congress's power under the Commerce Clause.

    - Key Points: Recognize the Court's decision to strike down a federal law regulating guns near schools and its impact on federalism.

13. Obergefell v. Hodges (2015):

    - Concept: This Supreme Court case legalized same-sex marriage nationwide.

    - Key Points: Understand how this case reflects the evolving nature of federalism and the balance between state and federal authority.

14. Dual Citizenship:

    - Concept: Dual citizenship refers to individuals being citizens of both the United States and a particular state.

    - Key Points: Recognize the concept's implications for legal rights and responsibilities at both the federal and state levels.

15. Evolution of Federalism:

    - Concept: Federalism has evolved over time in response to changing political, social, and economic circumstances.

    - Key Points: Understand how historical events, court decisions, and political shifts have shaped the dynamic relationship between the federal government and the states.

Mastering the principles of federalism is essential for success in the AP Government and Politics Exam. Consider exploring case studies, historical examples, and contemporary issues to deepen your understanding of how federalism operates in practice.

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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.  

Home — Essay Samples — Government & Politics — Forms of Government — Federalism

Essays on Federalism

When it comes to writing an essay on Federalism, there are many topics to choose from. Federalism is a complex and multifaceted concept that has been at the heart of political discourse for centuries. From its origins in the United States to its application in other countries around the world, Federalism has been a topic of debate and discussion for scholars, policymakers, and citizens alike.

Comparison between Federalism and Unitarism

One of the most popular topics when it comes to Federalism is the comparison between Federalism and Unitarism. This topic delves into the differences between the two systems of government and the pros and cons of each. It also explores the historical context of Federalism and Unitarism and how they have been applied in different countries.

Role of Federalism in promoting democracy and protecting individual rights

Another popular topic is the role of Federalism in promoting democracy and protecting individual rights. This topic looks at how Federalism can be a safeguard against tyranny and how it can promote citizen participation in government. It also examines the ways in which Federalism can prevent the concentration of power in the hands of a few and ensure that the rights of all citizens are protected.

Impact of Federalism on public policy

The impact of Federalism on public policy is another important topic to consider. This topic explores how Federalism influences the development and implementation of public policies in areas such as healthcare, education, and environmental protection. It also looks at the challenges and opportunities that Federalism presents for policymakers at the federal, state, and local levels.

Role of Federalism in addressing social and economic inequality

The role of Federalism in addressing social and economic inequality is also a timely and relevant topic. This topic examines how Federalism can be used to promote economic development, reduce poverty, and address social disparities. It also looks at the potential drawbacks of Federalism in addressing these issues and how policymakers can navigate these challenges.

Impact of Federalism on intergovernmental relations

The impact of Federalism on intergovernmental relations is another important aspect to consider. This topic explores the dynamics of the relationship between the federal government and state and local governments. It also examines the mechanisms through which intergovernmental cooperation and conflict can be resolved and how Federalism can be used to promote effective governance.

Impact of Federalism on political parties and electoral systems

The impact of Federalism on political parties and electoral systems is another interesting topic to explore. This topic looks at how Federalism influences the formation and operation of political parties and the conduct of elections. It also examines the ways in which Federalism can either promote or hinder political competition and the representation of diverse interests.

Role of Federalism in promoting cultural diversity and minority rights

The role of Federalism in promoting cultural diversity and minority rights is another important topic to consider. This topic examines how Federalism can be used to protect the rights of minority groups and preserve cultural heritage. It also looks at the challenges and opportunities that Federalism presents for promoting inclusion and diversity in society.

Impact of Federalism on public administration and governance

The impact of Federalism on public administration and governance is also an important topic to explore. This topic examines how Federalism influences the structure and operation of public institutions and the delivery of public services. It also looks at the ways in which Federalism can promote administrative efficiency and accountability.

Role of Federalism in addressing global challenges

The role of Federalism in addressing global challenges such as climate change, migration, and security is another important topic to consider. This topic explores how Federalism can be used to coordinate international efforts to address these challenges and the potential obstacles that Federalism presents in this regard.

The choice of Federalism essay topics is vast and varied. From the comparison between Federalism and Unitarism to the impact of Federalism on public policy, intergovernmental relations, political parties, cultural diversity, and global challenges, there are many important and relevant topics to explore. By choosing a topic that is of interest and relevance, students and scholars can delve into the complexities of Federalism and contribute to the ongoing debate and discussion surrounding this important concept.

The Role of Federalism in Democracy

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The Difference Between Federalists and Anti-federalists

The debate around constitution between federalists and anti federalists, hamilton and jefferson's disagreement on federal government power, issues of federalis as seen in the usa governing system, the james bryce's and grodzin's different views on federalism, the liberty of anti federalist papers proposed by patrick henry, thomas jefferson and alexander hamilton: anti-federalist and federalist, the evolution of government based on dual federalism in the state of texas, anti-federalist papers: the development of american government, the difference between federalism, authoritarianism and totalitarianism, evolution of the government in india, the anti-federalists more like the anti-hisotirilists, the origin in forming a governmental structure in favor of the newly formed constitution of federalism, the advantages and disadvantages of federalism in florida, the history of tyranny and its features, america: from cooperative to coercive federalism, federalism - the way to success for myanmar, relevant topics.

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• Definitions through the Ages: Autonomy or Co-determination?
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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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Back to Faculty Bibliography

Martha A. Field, The Meaning of Federalism , 23 Ohio N.U. L. Rev. 1365 (1997).

Abstract: I wanted to talk about "The Meaning of Federalism" because often, in discussions of federalism, people seem to be talking about very different things, and with very different assumptions. Federalism-even "Our Federalism" as the Supreme Court sometimes calls the type of federalism that has developed in this country-is used with different and sometimes even opposite meanings. The Federalists of our history originally were supporters of strong central government and surely the phrase can still carry that meaning. But many today, including sometimes the Supreme Court (Younger v. Harris) use the federalism slogan to support not greater national power but to support greater states' rights. Today, I will suggest that neither of these definitions of federalism is required by our constitutional system. As a matter of dictionary definition, federalism is not inherently either pro-centrist or pro-local; a society can be federalist and have either characteristic. The Supreme Court essentially held in Garcia v. San Antonio Metropolitan Transit Authority that either slant, within very broad limits, is consistent with our Constitution, and that Congress, not the Supreme Court, is the primary arbiter of the appropriate balance to maintain between state and federal powers. The point for now, however, is not which of these various views of federalism is the correct one as much as to show that there is this confusion as to whether "federalism" carries an inherent pro-centrist bias, an inherent pro-state bias, or neither. In this way and others, the term is used with very different meanings and different agendas.