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?


John Adams & Thomas Jefferson: From Friendship to Antagonism to Reconciliation

February 3, 2010

Preface

I was tempted to title this piece “The DNA of the United States of America, Part 3.”

I have already written of the rivalry between Adams and Jefferson for the Presidency of the USA in the year 1800, and on the autobiography of Jefferson.

What stimulated my writing of this current article was the arrival of a book I ordered, The Adams-Jefferson Letters, which contains letters between the men, and between Abigail Adams and Jefferson, from 1777 until the deaths of the two men in 1826.

John Adams and Thomas Jefferson, the second and third Presidents of the United States (Source)

I was recently reminded of these letters while viewing the HBO television series, John Adams on Swedish TV. I also subsequently ordered and viewed a videotape of the musical play 1776, which I had seen several decades ago. The play was centered on John Adams and his relentless efforts to get the Second Continental Congress to declare independence from Great Britain.

I find this period in our country’s history endlessly fascinating. I return often to the biographies and histories of the most well-known figures and, now, some of the lesser known but no less important, such as Dr. Benjamin Rush who was the instrument through which Adams and Jefferson resumed their friendship after many years of bitter enmity, at least on the part of Adams who was the more emotional of the two men.

So, I bravely wrote the first draft of this article, focusing on the implications of the frequency and of the time line the letters occupy, and forwarded it to a friend for criticism. (He, coincidentally, is currently in the process of viewing the same six-part HBO series on John Adams). His remarks are so cogent and pithy I asked to use them here, and he consented.

I learned from the video that Jefferson was a bit of a libertarian radical for his time, and Adams a bit of a buttoned-down conservative. One aspect of all this is that it took the magic of George Washington’s leadership to keep them all together for the sake of the country, and that may be an…important lesson for today — that we lack a real leader like Washington.

I don’t see these protagonists’ philosophical differences as akin to the political warfare we have today. In Jefferson and Adams’ day, no matter the philosophical differences, each person knew the stakes were unimaginably high. We were a small and fragile nation, always vulnerable to attack from within or without. There was no guarantee we would prevail or even survive, and the Founding Fathers faced up to this reality with courage and discipline, as well as a keen sense of reality.

Today our politicians live in a Never Never Land where America is transcendent, there is no real perceived risk to us or our way of life, and debates are based on academic philosophies that have not been vetted in the real world. Today’s politicians lack the seriousness of people who know they are playing for life-and-death stakes.

Abigail Adams (1744 - 1818)

With my friend’s remarks as Introduction, I now offer some detail, derived from the Letters, to reveal some of the personal dynamics between these two men, without whom we would not be enjoying the liberties our independence from Great Britain afforded us, to whatever degree these liberties remains.

The Declaration of Independence

In June of 1776 Adams and Jefferson were appointed by the Second Continental Congress, along with Benjamin Franklin and two others, to write a declaration of independence from Great Britain. Here is Adams’s account of how Jefferson became the writer of the initial draft:

The subcommittee met. Jefferson proposed to me to make the draft. I said, ‘I will not,’ ‘You should do it.’ ‘Oh! no.’ ‘Why will you not? You ought to do it.’ ‘I will not.’ ‘Why?’ ‘Reasons enough.’ ‘What can be your reasons?’ ‘Reason first, you are a Virginian, and a Virginian ought to appear at the head of this business. Reason second, I am obnoxious, suspected, and unpopular. You are very much otherwise. Reason third, you can write ten times better than I can.’ ‘Well,’ said Jefferson, ‘if you are decided, I will do as well as I can.’ ‘Very well. When you have drawn it up, we will have a meeting.’ (Source).

From this beginning Adams and Jefferson became friends and, after the death of Jefferson’s wife Martha Wayles Jefferson in 1782, Jefferson was sometimes a guest in the home of Abigail and John Adams where Abigail and Jefferson also became friends.

The friendships between the Adamses and Jefferson resulted in a total of 380 letters written from one to the other, between 1777 until the death of the two men on July 4, 1826, exactly 50 years after they had signed the Declaration of Independence (along with 54 others).

After Independence and before the Constitution

It should be remembered that although we became independent of Great Britain by declaration in 1776, we did not have a governmental constitution until 1789. During this period the decisions of Continental Congress and then, by adoption in 1781, the Articles of Confederation, provided the framework for governance of the combined states. There were 14 presidents of the Continental Congress (two served twice) until George Washington was inaugurated as the first U.S. president, on April 30, 1789 under the new Constitution, with John Adams as his Vice President.

Washington as first President and the formation of political parties around differing views of the role of the Federal Government

Portrait of George Washington by Gilbert Stuart

Although there were not organized political parties until the election of 1896, there were those who called themselves Federalists and those who identified themselves as Democratic-Republicans. These groups, and later parties, had importantly differing views on the proper role of the new federal government. Simply put, the Federalists wanted more power centralized in the federal government, and the Democratic-Republicans wanted the minimum necessary accruing to the central government for the purposes laid out in the Constitution. Adams was for the Federalists and Jefferson was for the Democratic-Republicans. As they became political rivals, these differences put a cloud over their friendship which was not cleared until well after both had been out of power.

The 380 Letters

A mentioned above, the letters began in 1777, but were few in number until year 1785 when there were 69 letters between them, plus eight each between Abigail Adams and Jefferson. In the following two years there were 42 and 43 letters, respectively. In 1788 there were 12 letters.

While Adams was Vice President in the eight years 1789 through 1796, when Adams was elected President to succeed Washington, they averaged slightly over three per year between them.

Because of the odd method of choosing vice presidents (since improved) Jefferson was Adams’s Vice President from 1796-1800. There were no letters between them during this period.

Jefferson was elected President over Adams in 1800, and they returned to an intermittent and scanty correspondence in 1801 and 1804.

Jefferson was reelected, again over Adams and others, in 1804. The two men did not correspond again for eight years until January, 1812 when Madison was elected to his second term as fourth President of the USA.

Portrait of Dr. Benjamin Rush by Charles Willson Peale

The cause of their renewed correspondence and, concomitantly, their even deeper friendship was by the agency of their mutual friend Dr. Benjamin Rush, a signer of the Declaration of Independence. Here is some background to this initiative from commentary in the book (excerpted and edited):

One of the more bitter aspects of the retirement of John Adams from the presidency in 1800 was the fact that several of those with whom he had early co-labored during the Revolution had become his fervent adversaries. This was especially true in the case of Thomas Jefferson who, although serving closely with Adams during the Revolution, had become one of his chief enemies during President Washington’s administration. This feud not only deeply embittered Adams emotionally but it also troubled Dr. Rush, who was still a close friend of both Adams and Jefferson.

In his concern over the relationship between these two, one night several months after Jefferson’s retirement from the Presidency in 1809, Dr. Rush had a dream about the two which he felt was important. On October 17, 1809, he wrote down an account of that dream and sent it to John Adams.

At the time this letter was written, Jefferson and Adams were still vehement opponents. Adams received the dream from his dear friend with an open heart. Shortly after this letter, Rush, who was also a dear friend of Jefferson, initiated a correspondence with Jefferson on the same topic, attempting to reconcile the two. Jefferson, too, listened to Rush with an open heart, and tentatively reached out to Adams with a gracious letter. Adams, as he had promised, did “not fail to acknowledge and answer the letter,” and thus began a cordial renewing of a warm and sincere friendship between the two. Source

Adams took the first step by writing a brief letter to Jefferson on New Year’s Day, 1812, the subject being a “Packett containing two Pieces of Homespun” which Adams sent under separate cover to Jefferson. Jefferson responded on January 21 and they exchanged 13 letters in this year.

Year 1813 saw an explosion of pent-up expression from Adams who wrote 29 letters to Jefferson; the latter, as was his habit, wrote fewer but longer letters, only 6. Abigail and Jefferson also exchanged one letter between them this year.

They continued a regular, but less frequent correspondence until their deaths in 1826. Abigail and Jefferson also exchanged, typically, one letter per year until her death in 1818.

I offer, in closing, two excerpts from the book of letters, chapter 9, headed: “Whether you or I were right posterity must judge:”

Even in retirement Adams could not view the political scene… with the detachment that Jefferson achieved. Charges of corruption against the Republican Presidents Adams treated with contempt, even though he told Jefferson, “in the Measures of Administration I have neither agreed with you or Madison.” As for non-importation, non-intercourse (with other nations) embargoes, the structure of the judiciary, or neglect of the Navy, “whether you or I were right Posterity must judge (May, 1912)…

“By the summer of 1813 their accord was re-established, despite a few old wounds exposed and irritated. But their mutual friend who had brought about the rapprochement died on April 19. As Adams and Jefferson mourned Rush’s death, they took count of the surviving signers of the Declaration of Independence. Beside themselves, only six (of the 58) were alive.

I think there is a lesson here for our present-day representatives, in the two branches of government where the people directly choose: there can be strong and completely opposing points of view, hard fought in public and privately, but public benefit can be maintained through disciplined argument, and through the respect such argument can engender among men of good will.

I am again reminded to honor and revere the memory and the contributions of these two men, of disparate background and disposition, to our nation and to our freedom from tyranny.

But, as my friend points out, strong and purposeful leadership, mindful of the endless dangers in the world, is the key ingredient in maintaining our liberties.

(Read my essay on Liberty and Freedom here)


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