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?

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Posted by Ron Pavellas

What Was it About George Washington…

October 13, 2010

Washington as colonel of the Virginia Regiment, painted by Charles Willson Peale, 1772

… that made him “the indispensible man,” as described by historian James Thomas Flexner?

And what was it about him that elicited these encomiums from his contemporaries upon his death?

  • “First in war, first in peace, and first in the hearts of his countrymen”, from a eulogy for George Washington adopted by Congress immediately after Washington’s death, written by Henry Lee, a soldier and political leader from Washington’s home state of Virginia.
  • “His example is now complete, and it will teach wisdom and virtue to magistrates, citizens, and men, not only in the present age, but in future generations as long as our history shall be read.” President John Adams, in a letter to the US Senate, December 23, 1799, on the death of George Washington.
  • “To us he has been the sympathising friend and tender father. He has watched over us, and viewed our degraded and afflicted state with compassion and pity—his heart was not insensible to our sufferings. Unbiased by the popular opinion of the state in which is the memorable Mount Vernon—he dared to do his duty, and wipe off the only stain with which man could ever reproach him… “ (H)e who ventured his life in battles…  did not fight for that liberty which he desired to withhold from others—the bread of oppression was not sweet to his taste, and he “let the oppressed go free… he provided lands and comfortable accommodations for them when he kept this “acceptable fast to the Lord”—that those who had been slaves might rejoice in the day of their deliverance.” From the eulogy by Rev. Richard Allen, founder in 1816 of the African Methodist Episcopal (AME), the first independent black denomination in the United States.

The basis for this article is my reading, primarily, of His Excellency: George Washington, by Joseph J. Ellis. In addition, A Patriot’s History of the United States: From Columbus’s Great Discovery to the War on Terror by Larry Schweikart and Michael Patrick Allen, provides additional color and verifies the Ellis book, despite its tendency toward the polemical.

George Washington, the man

George Washington was not a revolutionary, a great orator, or an idealist. He was a leader through example, publicly silent and fearless, always ready but never publicly eager for promotion or elevation to high office, and with enormous self-discipline. He was also land hungry (he owned over 50,000 acres upon his death), socially ambitious, sensitive to slights by English officialdom and society, proud, and with his emotions under such great control, sometimes explosive in temper.

George Washington was physically large, held himself erect, and dressed impeccably, appropriate to a landed aristocrat and military officer. He exemplified, almost universally among his contemporaries, what an American leader should be. Thus, he was always chosen during the uncertain and formative years of the republic to lead and to guide the nascent nation.

Winning the revolutionary war did not assure that the colonialists, now free from their masters, could form and maintain a nation. Washington saw it as the highest priority to form a strong nation, with all other considerations, including slavery which he saw as odious and pernicious, being secondary. His personal motivations can be attributed to his hunger for land, especially in the Ohio River Valley, which was forbidden by the British Royal Proclamation of 1763. Even before a revolution was thought of, however, Washington ignored this edict.

Whatever personal motivation he may have had for attaining all his assignments and offices, his vision of a unified nation, combined with a certain few principles he held as essential, were necessary for it to survive after the founders declared it born. These included the primacy of the civilian over the military and the idea that the position of president was important, most of the time, as a symbolic role rather than as a decision-making role.

He invented the cabinet system for running the executive branch of the government and delegated much authority and responsibility to his subordinates, intervening only when critically necessary, as it sometimes was between Secretary of State Jefferson and Secretary of The Treasury Hamilton, for example.

He respected the Indian nations:

He did not view Native Americans As exotic savages, but as familiar and formidable adversaries fighting for their own independence: in effect, behaving pretty much as he would in their place. Moreover, the letters the new president received from several tribal chiefs provided poignant testimony that they now regarded him as their personal protector. (His Excellency, p. 212)

He held idealism in low regard. This ultimately brought him to grief with Jefferson who was ever the idealist. Nonetheless, Jefferson revered Washington, as can be seen in the  eulogy Jefferson wrote 14 years after his death:

Perhaps the strongest feature in [Washington’s] character was prudence, never acting until every circumstance, every consideration, was maturely weighed; refraining if he saw a doubt, but, when once decided, going through with his purpose, whatever obstacles opposed. His integrity was most pure, his justice the most inflexible I have ever known, no motives of interest or consanguinity, of friendship or hatred, being able to bias his decision. He was, indeed, in every sense of the words, a wise, a good, and a great man. His temper was naturally high toned; but reflection and resolution had obtained a firm and habitual ascendancy over it. If ever, however, it broke its bonds, he was most tremendous in his wrath. In his expenses he was honorable, but exact; liberal in contributions to whatever promised utility; but frowning and unyielding on all visionary projects and all unworthy calls on his charity…His person, you know, was fine, his stature exactly what one would wish, his deportment easy, erect and noble; the best horseman of his age, and the most graceful figure that could be seen on horseback…

On the whole, his character was, in its mass, perfect, in nothing bad, in few points indifferent; and it may truly be said, that never did nature and fortune combine more perfectly to make a man great, and to place him in the same constellation with whatever worthies have merited from man an everlasting remembrance. For his was the singular destiny and merit, of leading the armies of his country successfully through an arduous war, for the establishment of its independence; of conducting its councils through the birth of a government, new in its forms and principles, until it had settled down into a quiet and orderly train; and of scrupulously obeying the laws through the whole of his career, civil and military, of which the history of the world furnishes no other example…

These are my opinions of General Washington, which I would vouch at the judgment seat of God, having been formed on an acquaintance of thirty years…


1732-1758

Born in 1732, a fourth generation, landed American colonial, he was appointed at age 21 as major in the British Army’s Virginia Regiment to assess the strength of the French in the Ohio Valley. The French and Indian War had been ongoing for two years and would last another five years. He was actively engaged in this conflict and emerged, in 1758, as a lieutenant general at age 26.

1758-1774

Failing to be permanently appointed as a British Army officer, he returned to civilian life as a planter and politician in the Virginia colony. He married a wealthy widow, Martha Dandridge Custis and took her two children into his household. Washington had no known issue of his own. It was later rumored that he had a brief romantic relationship with the wife of a neighboring plantation owner, but no such scandal was ever publicly aired.

1774-1783

Washington entered the wider political arena as a Virginia delegate to the First Continental Congress, and in 1775 was appointed general and commander-in-chief of the new Continental Army after “the shot heard ‘round the world” at Lexington and Concord amalgamated the delegates against the British. He didn’t sign the Declaration of Independence due to his resignation from the Virginia delegation upon his appointment. He led the Continental Army to victory over the British by 1883, despite being greatly disadvantaged in manpower and matériel against the professional army of Great Britain.

1783-1787

Lucius Quinctius Cincinnatus (519 BC–438 BC), an aristocrat and political figure of the Roman Republic, with whom George Washington is often and favorably compared

He resigned his military commission and returned to civilian life, again, in the manner some see as that of Cincinnatus to whom he has been often likened. He was recalled to duty in 1787 as president of the Constitutional Convention in Philadelphia.

1788-1797

George Washington was elected first President of the United States of America. Against his publicly-stated desires to return to his plantation after four years in office, he was unanimously reelected once, but refused to stand for a third election. He gave his historic Farewell Address, wherein he extolled the benefits of the federal government, warned against the party system, stressed the importance of religion and morality, urged a policy of stable public credit, and warned against permanent foreign alliances and an over-powerful military establishment.

1797-1799

He returned to civilian life, during which period he was commissioned as lieutenant general and Commander-in-Chief of the United States Army to serve as a warning to France, with which war seemed imminent. December 14, he died at Mount Vernon at the age of 67. He arranged for his slaves to be freed in his last will and testament.

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Posted by Ron Pavellas

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