States of the United States vs. the Federal Government

September 29, 2011

From before the adoption of the US Constitution in 1787, there has been strenuous argument, sometimes bordering on the violent, between those who wanted a strong central government and those who saw the individual states as the primary locus of governmental power—except for those 18 specific powers granted to the two houses of the federal government, as enumerated in the Constitution.

(Former President) Jefferson… maintained that the national and state governments were ‘as independent, in fact, as different nations,’ and that the function of one was foreign and that of the other was domestic. President Madison still declared that Congress could not build a road or clear a watercourse; while Congress believed itself authorized to do both, and in that belief passed a law which Madison vetoed. (Source).

Why am I bringing this up 224 years after the adoption of our Constitution? Hasn’t the primacy of the Federal government in almost all matters been settled? Perhaps not. See these recent headlines, and the articles under the links:

Sitting Supreme Court Justices, 2011

After the successful Declaration of Independence from Great Britain by the Continental Congress in 1776, eleven years passed before the delegates from the 13 former colonies, now “states”, adopted the US Constitution. The USA was governed during these eleven years by a series of Continental Congresses, each with a presiding officer, or “President”, under the rules of governance as contained in The Articles of Confederation and Perpetual Union Between The States.

Many of the delegates from the new states were dissatisfied with the Articles. In May, 1787, a remarkable group of men began publishing a series of 85 pseudonymous monographs in the New York press, under the general heading of The Federalist. These are now famously known as The Federalist Papers. The authors, Alexander Hamilton, John Jay and James Madison, advanced their criticisms and recommendations for improvement in the Articles that were “adequate to the exigencies of government and the preservation of the Union”.

Fearing a return to British-style despotism, some other people, mostly from Virginia, started publishing responses to the Federalist articles, now known as the Anti-Federalist Papers. Led by Patrick Henry of Virginia, Anti-Federalists worried that the position of president in the proposed constitution would lead to a monarchy. Jefferson was sympathetic to the Anti-Federalists.

The Federalists won public support and the Constitution was passed, along with ten amendments, the 9th and 10th of which were advanced by those with Anti-Federalist sentiments.

Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Tenth Amendment: “The powers not delegated to theUnited Statesby the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Source: chogger.com

George Washington wanted a strong central government but he recognized there was danger in appearing as a monarch. During his eight years as the first president, famously saying his title should be “Mr. President”, he said and did as little as possible and deferred where and when possible to the houses of Congress. He did institute the system of departmental “secretaries” in a “Cabinet”, to which he delegated almost completely, including Alexander Hamilton as Secretary of the Treasury and Thomas Jefferson as Secretary of State.

As members of Washington’s cabinet Jefferson and Alexander Hamilton argued over national fiscal policy, especially the funding of the debts of the war. Jefferson later compared Hamilton and the Federalists with “Royalism”, and stated the “Hamiltonians were panting after…crowns, coronets and mitres.” Due to their opposition to Hamilton, Jefferson and James Madison founded and led the Democratic-Republican Party… Jefferson’s political actions, and his attempt to undermine Hamilton, nearly led George Washington to dismiss Jefferson from his cabinet. Though Jefferson left the cabinet voluntarily, Washington never forgave him, and never spoke to him again.” (Source)

Shortly before Washington’s Vice President and successor left his presidential office, John Adams appointed John Marshall, a Federalist, to be Chief Justice of the Supreme Court, intending that Marshall should provide a check against the “Jacobin” (i.e., revolutionary) and “democratic” (used as a term of opprobrium by Federalists) tendencies of the incoming President Jefferson. Marshall served 35 years and did indeed perform this function:

The Marshall Courtmade several important decisions relating to federalism, affecting the balance of power between the federal government and the states during the early years of the republic. In particular, he repeatedly confirmed the supremacy of federal law over state law, and supported an expansive reading of the enumerated powers. (Source).

Chief Supreme Court Justice John Marshall, 1801-1835

There still is much argument within and without the courts whether states can effectively nullify any given federal statute. We may well see this decided, again, by the sitting Supreme Court within a few years as the state actions quoted above, and others, are played out in the courts.

How do these states presume to “nullify” existing, or even future, federal legislation? Where does this notion of “nullification” come from? From resolutions, written by Jefferson and Madison, and adopted by two states: the Virginia Resolution of 1798, and the Kentucky Resolution of 1799 wherein the states said they deemed the Alien and Sedition Acts unconstitutional and would not recognize them, or any other unconstitutional law, as binding on the states or their citizens. The issue was never brought to a head and the four Acts either were repealed or expired during Jefferson’s administration.

There have been several other important attempts by states (and the Cherokee Nation) to nullify federal laws, but these have either been made moot by changing circumstances or have been denied by the Supreme Court.

It should be noted that the primacy of the federal government was greatly strengthened through the prosecution and eventual result of the “war between the states”.

A broader view of the relationship between the center of government and the people, from comments by a friend and correspondent, Jay Michlin of San Mateo, California:

An even more interesting question is not just about states versus Washington, D.C., but also about the competing virtues of individual and local liberty versus all forms of centralized governance.

These include questions regarding when individuals should retain autonomy, with neither guidance nor coercion from any governing entity, whether city, state or federal. It includes matters about which cities or towns ought to retain jurisdiction, without interference from state governments. And it includes states rights versus the federal government too.

At one extreme, Jefferson had little trust in governments. He wanted whatever government may be necessary to be as close as possible to citizens, and as much as possible under their control. We denote this with the term “Jeffersonian democracy“. The loose association of states under the Articles of Confederation enacted this concept and was ultimately seen as a failure.

Hamilton saw no way to allow the country to succeed as a loose federation without a potent central government. Yet he too understood the risks of ceding too much power to any government, and he further understood that it would be an exceedingly hard sell to a population fresh from revolution against governance by an unaccountable entity at a great distance—London. He, Jay and Madison wrote The Federalist Papers as a series to sell the idea of a more powerful central government, and more important, to allay citizens’ fears that it would become a tyranny enslaving them.

Busts of Jefferson and Hamilton, which Jefferson placed on opposite sides of the entrance hall at Monticello. This arrangement, he told visitors, showed them "opposed in death as in life". (mahg/ashland/edu)

The Bill of Rights was a political compromise along this order. Hamiltonians rightly said that no such bill was needed since the body of the Constitution rigorously enumerated the powers of the central government. But Jeffersonians didn’t trust a central government and insisted that rights be explicitly spelled out, even if redundant.

As we now know from the vantage point of more than 200 years, the Hamiltonians were right in theory, but the Jeffersonians were right in practice. And this underscores the remarkable gift the Founders gave us in the Constitution. It began with rigorous theory based on studies of governments from ancient times, to-date, then overlaid and strengthened these with brilliant insights into human nature, as the millennia have also taught us.

The Founders understood that the allocation of central authority versus local autonomy would forever be a tense and contentious matter, with each side vying for power. They knew they could not enshrine a division for time immemorial, and they perceived that the resolution would inevitably be political. So they gave us a framework by which each generation could make prudent decisions, with checks and balances to constrain either extreme from wresting definitive control.

Other societies have regularly suffered the same tensions, and usually resolved them by wars of one sort or another. The genius of our Founders is to have bequeathed us a system where we fight the battles politically and rhetorically and, therefore, peacefully.

Ending Summary and Comment

The question remains: how much power must and should the central government retain and exercise to fulfill the ideals of the Declaration of Independence and the purposes of U.S. Constitution; and, how much power should be retained by the states to assure the liberties of people residing within each of them—all 50?

The Federalists (later, Republicans) didn’t trust the people and even used the word “democracy” and its derivatives disparagingly. The Anti-Federalists (later, the Democratic-Republicans and, still later, the Democrats) didn’t trust a strong central government, feeling it would lead to the despotism they fought against in order to be free of Great Britain and its hierarchies of power: king, church, aristocracy.

Current day Democrats have been successful in directing more power to the federal government in the name of “fairness” and other abstractions aimed at leveling social and economic disparities among classes of people.

Most elements of the current Republican Party, especially the Libertarian wing, see great danger in the power that has accrued to Washington, D.C. in the past Century.

The historical ironies presented here are worth contemplating. As Mr. Michlin points out, the amazing flexibility of our system allows for such shifts of political perspectives.

For example, without a strong central government would we have had the necessary attention paid to the inequities of “Jim Crow” in most of the southern states?

On the other hand, how far must and should the central government protect us from ourselves in matters of diet and behavior, for instance, without infantilizing the citizenry?

How do you see it?


”The [American] Revolution of 1800”

January 28, 2009

The book that stimulated me to write this article is Adams vs. Jefferson: The Tumultuous Election of 1800, by John Ferling. While reading this book over the last several weeks I was reminded of the similarities between the presidential campaign of 1800 and the one currently in play in the USA.

Part I: Underpinnings of the 1800 Presidential Campaign

Painting of George Washington in 1972

President Washington served two terms from 1789 until 1797. Prior to his presidency there were around 20 “Presidents of Congress” in the first and second Continental Congresses from 1774 to 1781, and in the Congress after the ratification by the states of the Articles of Confederation in March,1781. Some of these presidents served more than once.

John Adams was Washington’s vice president because he received the second largest number of votes from the Electoral College in the elections of 1788 and 1792, but the ticket of these two men was not contested by others, in deference to the immense political and personal stature of George Washington who chose Adams as his running mate. Adams won the presidency in the election of 1796 and Thomas Jefferson received the second most votes to become the vice president, in the first contested American presidential election and the first one to elect a President and Vice-President from opposing tickets, exposing a downside to the original Electoral College system. The rules were changed in this regard by the 12th Amendment to the Constitution in 1804.

Left to right, President John Adams and Vice President Thomas Jefferson, in office 1797-1801

The parties of Adams and Jefferson were, respectively, The Federalist Party and The Democratic-Republican Party (which later morphed into the present-day Democrat Party).

To set the stage for the political conflict between Adams and Jefferson, another extraordinary man must be introduced: Alexander Hamilton.

Alexander Hamilton

With John Jay and James Madison, Hamilton wrote a series of papers (published in book form as The Federalist, 1788) urging the people of New York to ratify the new constitution. His brilliant essays on the need for a stronger union, the utility of a national taxing power, and the importance of the executive and judicial branches of the federal government became classic statements of his political philosophy of strong leadership in the public interest. At the New York ratifying convention of June-July 1788, Hamilton and his allies defeated the previously dominant antifederal forces in the state.

The political map of the United States in 1800 could be seen as the “red” and “blue” we now employ to designate those states leaning toward Republicans, or Democrats, respectively. Although this analogy is not entirely translatable to the past, the “reds” were the Federalists and their sympathizers, and the “blues” were the Anti-Federalists or Republicans. Another way to characterize the parties: the Federalists as elitists and crypto-monarchists; the Republicans as anti-federalists and populists.

Hamilton was the driving force among the Federalist party and like-minded people, some of whom were still emotionally wed to a strong central government with a kingly leader—and with themselves as the aristocracy. Hamilton had served under General Washington in the army of independence and gained his admiration and support in many matters after independence was gained.

Abigail Adams

Adams was a Federalist, but not the firebrand that Hamilton uniquely was. Hamilton preferred another candidate over Adams in the Federalist Party and worked diligently to prevent Adams to get to the top of the party’s ticket. Over time, Adams, and wife Abigail Adams thought Hamilton a sort of fiend or devil.

Jefferson, although himself an aristocrat of the south, especially in his home state, Virginia, was an anti-federalist and, therefore, in the Democratic-Republican Party—usually shortened to Republican. He and Adams had served together as diplomats under the Continental Congress and under President Washington, and had been quite social with each other, including with Abigail (Jefferson had become a widower by this time). As the run-up to the campaign of 1800 loomed, Adams became estranged from Jefferson, although Jefferson remained generally fond of Adams. Hamilton figured large in this schism between Adams and Jefferson; to Hamilton, Jefferson was the arch-enemy and “devil.”

Please click on the image for greater clarity

Jefferson was a democrat by moral inclination, even taking the position that slaves were not subhuman but full-fledged humans, despite being a slave-holder. He was for the widest possible suffrage, not to be limited by class and property qualifications (adult, non-slave males only, at this time).

Thus the stage was set for the second contested presidential election in the United States, with the political parties more clearly defined and with more partisan energy than in the 1796 election when Jefferson was not as sure as he now was, in 1800, that he wanted to be president.

Part II: The 1800 Campaign for President

Now follows a series of brief quotes from the book Adams vs. Jefferson to show the rancor and exaggeration from and within both sides of the political dichotomy in the USA of 1800.

[T]hirteen months before election day…Pennsylvania’s Senator James Ross introduced legislation to create a “Grand Committee”—it was to consist of the chief justice of the United States and five members of Congress—to adjudicate any disputes in the election of the president. As the chief justice was a staunch Federalist, and as that party controlled both houses of Congress, Ross’s bill seemed…to be an attempt by the Federalists to steal the election. The bill went nowhere, but its introduction and the Repblican response to it—one who was close to Jefferson labeled it a “deadly blow…aimed at us”—was a signal that the presidential contest was underway.

So too was the publication a few weeks later of James Callender’s The Prospects Before US. A Scotsman with a poison pen, Callender had been forced to flee to…Philadelphia (in 1793) to avoid arrest…The pamphlet that got him in trouble…,an assault on the British constitution in the old country, had been read with delight by Jefferson while he was secretary of state. Jefferson also savored Callendar’s subsequent work, especially when he not only lashed out at Hamiltonianism but broke the the story in 1979 that while Treasury secretary, Hamilton had been involved in an extramarital affair with a married woman and supposedly…provided her husband with public monies and insider information to purchase his silence.

Thereafter, Jefferson visited Callendar in his lodging and agreed to underwrite additional malicious squibs. Soon other Republicans with deep pockets came forward…to bankroll the journalist. Calumny dripped from Callender’s pen in several essays that he wrote during the next year…He called Hamilton “the Judas Iscariot of our country” and charged that he was a monarchist willing to sell out his the United States to Great Britain.

Callender’s hatchet jobs soon landed him in trouble…[T]hugs visited his apartment, terrorizing his family and curtailing his literary productivity. The Sedition Act stopped it altogether.

What I heretofore have not mentioned in this narrative is the passage of the The Alien and Sedition Acts of 1798, sponsored by the Federalists…intended [in part] to quell any political opposition from the Republicans, led by Thomas Jefferson. This story is too large to present here, but the reader should be aware of the poisonous atmosphere it generated in the young nation regarding “freedom of speech” which Jefferson and his fellow Republicans, and many other people, treasured, especially as it was (and remains) encased in the First Amendment to the US Constitution. One act — the Alien Enemies Act — is still in force in 2008, and has frequently been enforced in wartime. The others expired or were repealed by 1802. Thomas Jefferson [when president] held them all to be unconstitutional and void, then pardoned and ordered the release of all who had been convicted of violating them (Source).

Satiric portrayal of the first fight in Congress, between Matthew Lyon and Roger Griswold. Lyon was later prosecuted under the Sedition Act

In Chapter 10, “The Boistrous Sea of Liberty” the author of Adams vs. Jefferson shows us many unbridled verbal and written attacks by one party and its leaders against the other party and its leaders, and also within the Federalist party under Hamiliton’s leadership against Adams in favor of Thomas Pinckney for the top of the Federalist ticket.

Here are a final few political and personal assaults:

By early summer [1800] all signs pointed toward [Jefferson's] electoral success in December…In October Alexander Hamilton published a savage attack on Adams that for scurrility equaled the worst assaults by the most noxious Republican scribes…The Letter from Alexander Hamilton, Concerning the Public Conduct and Character of John Adams, fifty-four pages of unremitting vilification, was called by the [Philadelphia] Aurora “the most gross and libelous charges against Mr. Adams that have ever yet to be published or heard of.”

The Republicans indicted their adversaries as Anglophiles who wished not only to save or reestablish the society and customs of the colonial past, but to build the nation’s ecenomy on the British template…Republicans excoriated the Federalists for seldom mentioning the War of Independence or recalling the wartime destruction sown by Britain’s redcoat armies…The Federalists were limned as political apostates who mouthed republican ideas while they sought “to sap the very foundation of public liberty”…This was a contest, said one Republican newspaper, to determine “whether we shall have at the head of our executive a steadfast friend of the Rights of the People, or an advocate for hereditary power and distinctions.”

This Federalist cartoon depicts the federal eagle preventing Jefferson from burning the Constitution on the altar of French despotism

Both parties engaged in…negative campaigning, an assault on their adversary’s program amd leadership rather than an emphasis on their own platform. The Federalisis…link[ed] the Republicans with the bloody excesses of the French Revolution. Jefferson and his adherents, they charged, embraced the same “cant of jacobinical illiberality” as their radical friends in France; like their counterparts across the ocean, they were “artful and ambiguous demagogues” who led “discontented hotheads,” “democratic blockhea[d]s” and “cold-hearted jacobin[s].” Furthermore…the [Federalisis charged] the Republican leaders espoused a “creed of atheism and revolution.”

The Federalists also fixated on Jefferson’s religious beliefs, maligning him as an atheist…Jefferson had dilated on the “rights of conscience,” about which individuals were “answerable [only to ...or God" and never to the state. He then added that "it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pockets nor breaks my leg." Those two sentence were reprinted endlessly in Federalist newspapers as proof of Jefferson's impiety.

Part III: Evaluating "The Revolution of 1800"

The author's final chapter is an epilogue on "The Revolution of 1800."

Jefferson and his fellow Republican, Aaron Burr, ended up in a tie vote in first place over Federlists Adams and Pinckney. The final outcome, after many votes in the House of Representative, was that Jefferson won the presidency and Burr was vice president.

[W]hen he was seventy-six years old [Jefferson] offered his most memorable observation of his victory. The election of 1800 was tantamount to “the revolution of 1800.” It was “as real a revolution in the principles of our government as that of 1776 was in its form; not effected indeed by the sword, as that, but by the rational and peaceful instruments of reform, the suffrage of the people.”

Although Jefferson’s claim of a “revolution of 1800″ was exaggerated, his famous postmortem was not absurd. While his election was not as revolutionary as independence had been in 1776, Republican governance came with a new tone, a new style, and a new ideology that enabled the nation to move piecemeal from the habits of 1800, laced as they yet were with restrictive customs that had persisted from colonial days, toward egalitarianism and democratization.


It was a transformation that many of the consolidationists [Federalists wanting a strong central government over the former colonies] had sought to inhibit through the Constitution of 1787 and that the Federalists had eagerly attempted to forestall when they fought to thwart Jefferson’s election in the House of Representatives.

Sooner or later a democratic revolution would have occurred, but it would not have been during a era of Federalist hegemony, and had Adams or Pinckney been elected in 1800, the Federalists might have controlled both the executive and the judicial branches of the government for a very long time. In this sense, the elction of 1800 consummated the American Revolution, resolving what had not been settled in the initial upheaval and fulfilling the dreams of those who, like [Thomas] Paine, long had yearned for the “birthday of a new world.”

No one is free from bias and I admit my bias matches what seems to be that of the author; that is, in favor of Jefferson’s point of view.

This may or may not account for my citing more examples of the Federalists’ intemperate diatribes than of the Republicans’, including Jefferson. To correct his possible bias I state here that it seemed both sides were just about equally rancorous toward their adversaries, although Jefferson (via the author) seemed less inclined to personally, or at least publicly, engage in such behavior.

As the author goes on to say in the balance of the “Epilogue,” this election set the tone for most others to follow. More importantly, it established the framework for the two-party system we now employ, if not enjoy, and broke us away from the lingering sentiments toward the parent country, Great Britain, and its imperial and aristocratic nature.

We became truly “American” (USA-style) upon the final outcome of this election of 1800.


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