Grant McConnell argues that state governments enforce, if not local tyrannies, then local oligarchies. Typically, state regulatory boards have been captured by the organizations ostensibly to be regulated (McConnell 187-188), and in the state legislatures logrolling based on not-so-good old-boy networks prevails (194). “Self-government in this sense may enlarge the freedom of the powerful,” he argues, “but it may also diminish the freedom of the weak” (194).
The list of offenses committed by state governments could be lengthened. Southern states banded together to fight the bloodiest war in our history over the worst of lost causes. The invocation of states’ rights from 1865 to 1965 became a code word for racial bigotry. Without national legislation and national court decisions to prevent them, the states might have beggared themselves with high tariffs and other devices of trade war. These and other tyrannical and centrifugal tendencies were of course recognized by the Framers of the 1787 Constitution. In the history of the world, confederations more usually dissolve because member states overwhelm the center, Madison observed in the forty-fifth Federalist, not the other way around. Under the Articles of Confederation, for every injury to local governments by national government there had been a hundred done by the states to the nation (Federalist 46).
All this notwithstanding, Americans have stuck with federalism for good reason, at least since the 1760. It was at that time Americans saw firsthand the dangers of centralization of power.
In the aftermath of the Seven Years’ War, the British government under Lord Grenville sought to tighten imperial administration over the North American colonists, seeking to impose direct taxation, a standing army, and restrictions on immigration to the western territories. Against these plans, the colonists asserted, famously, the demand for real rather than virtual representation in the British parliament. Less famously today, they also asserted a federal theory of empire, whereby the colonists would govern their own internal affairs while the imperial government in London would govern foreign policy, international commerce, and the money supply. Parliament countered that sovereignty is indivisible and, further, that sovereignty inhered in Parliament. There can be no imperium in imperio. Recalling that the king, not Parliament, had established the American colonies, the colonists denied Parliament’s authority over Americans. When they finally declared their independence, the Americans accordingly condemned the tyranny of the king—his designs against their unalienable natural rights as well as their common-law and chartered rights. The central authority or sovereignty wrongfully asserted by Parliament and the central authority and sovereignty wrongly used by the king were equally dangerous.
It was out of this experience that the American argument for a federal system of government arose. Madison called it “a system without example ancient or modern—a system founded on popular rights, and so combining a federal form with the forms of individual republics, as may enable each to supply the defects of the other and obtain the advantage of both” (Madison, Introduction to Eliot’s Debates, 109). This concise statement deserves unpacking, because it provides the justification for American federalism and therefore supplies the criterion by which one can answer the examination question.
The Framers agreed with the British Parliament on one point: Finally, sovereignty cannot be divided, and that imperium in imperio is a solecism. Unlike the mixed regime of England, where sovereignty inhered in both king and parliament—with an increasingly implausible claim to rule by the titled nobility thrown in—American sovereignty was wholly popular. The people of each State ratified both their State’s constitutions and their federal constitution, in order to secure their own—’popular’—rights, natural and civil/conventional. The first conventional protection of natural rights was of course the regime itself, commercial republicanism, a regime established not only by means of the national constitution but guaranteed by that constitution to each state. The defect of republicanism is the turbulence caused by faction, inasmuch as republicanism frees the citizens to form factions and to agitate for their interests. The defect of confederation is disunion, as each constituent state tends to go its own way, ignoring the common good of the confederation as a whole. American federalism as a system of government stops faction in two ways.
First, along with the device of representation, it enables a republic to extend its territory to encompass a large territory inhabited by divers groups and factions, none of which, therefore, is likely to be able to tyrannized the others—the argument of Federalist 10. An extended republic can remain republican in part because each representative has a constituency neither too large—which would lead to remoteness from the people—nor too small—which would lead to the election of representatives from one faction. And even if a faction controls one State, the others—”constituent parts of the national sovereignty” via the Senate (Federalist 9)–will prevent “a general conflagration” (Federalist 10).
Second, the extended republic federalism makes possible enables the American people to defend themselves against the threat of foreign invasion. The danger was not so much that the English would return to conquer the continent. Rather, as Madison urged at the Philadelphia Convention on July 29, 1787, the threat of foreign invasion will transform the states’ governments into despotisms, as war preparation feeds state-building (Farrand I. 464). The American republic was made all-republican by authority of Constitutional law for the same reason. Confederations comprised of very different regime types fail (Federalist 43). Although Publius was not optimistic that a very loose confederation of commercial republics will not also bring war—some skirmishes had occurred already—he does prefer a regime-homogenous confederation to a heterogeneous one, especially if its components are all commercial-republican.
These are powerful arguments with considerable intuitive appeal. But are they demonstrably true in light of the experience of the ensuing centuries? And how could we know whether they are or are not true?
There is obviously no way to demonstrate the truth of such arguments in a geometric-deductive way, except in the limited sense that they could be true because they are not illogical. We are left with the same kind of arguments the Framers themselves employed when talking politics: prudential arguments based on comparisons with the experiences of other regimes that were equally tested by those breeders of tyranny, war and domestic conflict.
Before engaging in a comparison exercise, one should notice two early examples in which the States were directly involved which did indeed erect barriers to the potential development of tyranny.
The first is the ratification of the 1787 Constitution by the people within each State—not by the State governments themselves—and the resultant enactment of the Bill of Rights. During the ratification debates, numerous opponents of the proposed constitution cited the document’s lack of a bill of rights as a serious flaw. In Pennsylvania, the “Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents” (December 1787) argued so, as did Anti-federalists “John DeWitt” and “Agrippa” of Massachusetts, George Mason and “Federal Farmer” of Virginia and, most notably, “Brutus” of New York. Brutus summarized Locke’s argument concerning the ‘state of nature,’ remarking that “in this state of things, every individual was insecure” because every individual pursued “his own interest.” Although “a certain proportion of natural freedom” must be “yielded by individuals, when they submit to government,” individuals do not surrender “all their natural rights”—only those incompatible with civil society. It is therefore useful to spell out, at “the foundation” of a new government, exactly what those rights are, “expressly reserving to the people such of their essential natural rights, as are not necessary to be parted with: (Essays of Brutus II). Because “rulers have the same propensities as other men” to injure and oppress the ruled, “it is therefore as proper that bounds should be set to their authority, as that government should have at first been instituted to restrain private injuries: (Ibid.). Publius-Hamilton replied in Federalist 84 that the Constitution as it stood was already a Bill of Rights, more effectively so because not merely declaratory but constitutive of an actual governmental structure that would protect rights in the real world. But Madison in Virginia got the Constitution ratified in part by agreeing to push for a Bill of Rights in Congress. In effect, then, we owe the Bill of Rights—often in recent debates used against unjust actions by both State and national governments—to federalism of the ratification process itself.
Second, the controversy over the Sedition Act that was passed during the Adams Administration provided an early test of the efficacy of the Bill of Rights. Although not in itself tyrannical, the Sedition Act led in the direction of tyrannical abridgement of the freedoms of speech and of the press. Party feelings ran high in 1798 when Jefferson wrote to John Taylor, with understandable exaggeration, “It is a singular phenomenon, that while our State governments are the very best in the world, without exception or comparison, our general government has, in the rapid course of 9 or 10 years, become more arbitrary, and has swallowed up more of the public liberty than even that of England.” In his Kentucky Resolutions, he wrote that when the federal government “assumes undelegated powers” as in the Sedition Act, “its acts are unauthoritative, void, and of no force.” Even if all its branches concur with the act, the federal government is not “the exclusive or final judge of the extent of the powers delegated to itself.” With no common judge between federal and states’ governments, “each part has an equal right to judge for itself” the Constitutional legitimacy of any law. “[T]o take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in the compact”—notably the Tenth Amendment—”is not for the peace, happiness, or prosperity of these States.” Accordingly, every State has not merely a constitutional but a natural right “in cases not within the contract, to nullify of their own authority all assumptions of power by others within their limits.” Without such a right, “absolute and unlimited dominion of the federal government over the States’ governments will prevail. As in England, the national government and not the people would be sovereign.
The Kentucky Resolutions (and the Virginia Resolutions authored by Madison) did not assume unilateral action. Although Jefferson asserted a natural right to States’ sovereignty, in practice he effectively conceded that States would need to act in concert in order really to establish that right legally. In the event, the States did not do so, but did not need to do so. Jefferson’s election to the presidency, two years later—effected in part by capitalizing on anti-consolidationist sentiments expressed and fanned by the Kentucky and Virginia Resolutions, proved a more practicable means of protecting constitutional rights, and of course led to the repeal of the Sedition Act. As in the case of the Bill of Rights itself, the Stated provided an indispensable strategically-placed battleground for the defense of natural and civil rights against potential danger from the national government.
Madison’s Claim Examined
As Madison wrote, federalism is not a regime but a system of government distinguished by a greater degree of decentralization than a small, centralized ancient polis or ‘city-state’ and a large, also centralized modern state—the system first advocated by Machiavelli. A federal state, a city-state, or a modern state might have any regime; regimes are defined by the type of rule seen in the political community—the persons who rule, the institutions they use in ruling, their purposes in ruling, and the way of life the persons, institutions, and purposes impart to the people who live there. The workings of the federal system against the growth of tyranny are, well, unsystematic—not susceptible of cut-and-dried test cases. But, with the help of comparative political analysis (which is really only one form of prudential reasoning based on experience) one can test the Madisonian hypothesis.
As mentioned above, one part of the hypothesis is that federalism, combined with the regime of republicanism, defends against tyranny from without by affording vulnerable, small republics the opportunity to summon the material resources needed to defend themselves militarily against foreign tyrants, without leading to the permanent military establishments that threaten the republican regime itself. On the latter point, the comparativist Michael Mann confirms Madison’s claim. The American Revolution actually democratized American politics by “letting the ‘people’ onstage,” from which vantage point they preferred not to move after the war was over (151). But elsewhere war expanded the state—indeed, Mann remarks that “only war did this before 1850″ (359, emphasis added). After 1850, civilian bureaucracies also grew, but the military itself bureaucratized, becoming more efficient and deadly. In Germany, the combined civilian and military bureaucracy of the central government overwhelmed federalism, opening the door to the Kaiserreich of the turn of the century and the Third Reich a few decades later: Statism overwhelmed weak republicanism. The United States saw the same pressures at the same time: labor-capital strife, world wars, depressions. But although the central state apparatus expanded as a response to those pressures, it did not go the way of the German state.
Victory in those wars also confirms part of Madison’s hypothesis: that commercial republics, sufficiently extensive in territory and therefore formidable in human and material resources, will be able to fight to defend themselves. Regimes as diverse as the British mixed regime, the Confederate oligarchy, the German Kaiserreich, the Nazi tyranny, the Soviet tyranny followed by the Soviet oligarchy, have all grossly underestimated the battle-readiness of the American commercial republic. So far, that republic has enjoyed more military success than the regimes that deliberately cultivate a militarist ethos.
More worrisome from a Madisonian (and indeed from any Whiggish) viewpoint is the existence of a large standing military force in post-World War II America. The longterm ‘Cold War’ did in fact lead to considerable state growth. But there has been nothing approaching a military tyranny or a coup attempt of any sort, evidently because the military draws its personnel from the ordinary civilian population of a commercial republican society, still somewhat decentralized despite the weakening of federalism during the same period, a population whose ‘habits of mind and heart’ are decidedly non-autocratic. Madison and Jefferson would undoubtedly continue to view the military establishment with profound suspicion, but so far it looks as if federal, commercial republicanism is even more resilient than its first friends expected it to be.
The second part of the Madisonian hypothesis is the domestic component: that federal republicanism will defeat the factionalism to which small republics are prey by extending the sphere of government to a bigger territory with a larger population, in which factions are too numerous to enable any one faction to dominate. In Germany, as Mann explains, Bismarck’s authoritarian (if not tyrannical) state came about in part to manage class conflict; Hitler’s Reich came in after a decade of severe, partisan class conflict. After 1850, generally in Europe, state-building was tied at least as much to the need to assuage class conflict; in fact, Theodore Roosevelt was interested in Bismarck’s projects and thought about how they might be adapted to American circumstances, and cousin Franklin’s New Deal state-building successes were a response to the pressures of economic collapse. Both capitalist-class and working-class politics are to some degree factional in the Madisonian sense. The American federal republic quite likely has helped to prevent the more sharply authoritarian tendencies seen in other countries.
Aristide Zolberg has written that “the single most important determinant of variation in the patterns of working-class politics… is simply whether, at the time this class was being brought into being by the development of capitalism… it faced an absolutist or a liberal state.” In the United States, Zolberg continues, republicanism preceded industrialism, mass parties formed before the working class formed, and political entrepreneurs needed mass support in order to win. Trans-class organizations already occupied “space in the political arena,” and this resulted in accommodation and melioration—admittedly, after some very serious and violent worker-capitalist clashes around the turn of the twentieth century (Zolberg 450 ff.). Before Aristide, Aristotle argued that who rules and the institutions by which they rule will ‘channel’ minds and hearts in different directions in different regimes.
More directly related to federalism is Ira Katznelson’s argument: The federal republican state could present no serious nationally-directed repression of labor unions in America. There was “no unitary state to defend or transform” (Katznelson 64). Madisonian republicanism did in fact yield social diversity, and ethnic clashes were not linked closely to class conflict. Machine politicians, mediators between rich and poor, followed a policy of modest and largely localized redistribution of wealth, an arrangement with which even FDR had to compromise (Bensel 149); that is, the bureaucratization of welfare politics could not become simply national. American has seen plenty of strikes and not a few riots, but no revolutions; the revolutionaries, as Madison predicted, have not been able to unite in strong national networks. Moreover, no systematic critique of the American federal system has ever caught on, although dozens have been offered. ‘The masses’ were not excluded from political representation (unlike the German workers), and so were not really masses (Katznelson 27). This is not to suggest that a sharper, class-conflictual politics in America would have led to tyranny. In some countries it did and in others it did not; England did not have the American system, but it was never in danger of succumbing to tyranny via the path of domestic unrest. Still, it is reasonable to think that American federal republicanism has worked generally to prevent factions from becoming increasingly tyrannical.
Madison himself accounted for the non-tyrannical growth of the federal government in the twentieth century. The people of the United States, he remarked in Federalist 46, are “the common authority” above both national and state governments. “If… the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration as will overcome all their antecedent propensities.” The increased partiality of Americans for the federal government as against the States can be seen precisely in the former’s necessarily nation-wide response to the Great Depression and world war in the 1930-40s, and to the Cold War thereafter. Now that those stimuli have been removed, there has been some return of authority to the States—again because the people control both parts of the system, and put different weights on the scales at different times, depending upon perceived changes in circumstances.
Works Cited
Bensel, Richard Franklin: Sectionalism and American Political Development, 1880-1980. Madison: University of Wisconsin Press, 1984.
Boyd, Julian, ed.: The Papers of Thomas Jefferson. Princeton: Princeton University Press, 1950-.
Eliot, Jonathan, ed.: Debates on the Adoption of the Federal Constitution. Philadelphia: J. B. Lippincott, 1845.
Farrand, Max, ed.: The Records of the Federal Convention. 4 volumes. New Haven: Yale University Press, 1966 [1937].
Katznelson, Ira: “Working-Class Formation: Constructing Cases and Comparisons.” In Katznelson and Zolberg, 1986.
Katznelson, Ira and Zolberg, Aristide: Working-Class Formation: Nineteenth-Century Patterns in Western Europe and the United States. Princeton: Princeton University Press, 1986.
Ketchum, Ralph: The Anti-Federalist Papers. New York: New American Library, 2003.
Mann, Michael: The Sources of Social Power. Volume II: The Rise of Classes and Nation-States, 1760-1914. Cambridge: Cambridge University Press, 1986.
McConnell, Grant: Private Power and American Democracy. New York: Alfred A. Knopf, 1966.
Publius: The Federalist. Dubuque: Kendall/Hunt Publishing Company. 1990.
Zolberg, Aristide: “How Many Exceptionalisms?” In Katznelson and Zolberg, 1986.
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