States of the United States vs. the Federal Government

 

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 Democratic Republic vs. the Aristocracy

“… I love you with all my heart, and pray for the continuance of your life until you should be tired of it yourself.”

Thus ends the letter of 15 August 1820 from Thomas Jefferson to John Adams, the men having achieved, respectively, the ages of 77 and 85. They had not quite another six years to live and died on the same day, exactly 50 years after they signed the Declaration of Independence from Great Britain.

Jefferson’s effusive salutation is remarkable in two ways, at least. Jefferson was ever the withdrawn, introverted, land wealthy (and cash poor) statesman of both the Colony and the State of Virgina who usually wrote from his head after much deliberation; whereas, Adams was the loquacious, argumentative and extroverted farmer-lawyer of Massachusetts who wrote from the heart quite freely.

Also, the depth of their affection for each other this late in their lives belies the severe break in relations that resulted in a hiatus of over eight years in their correspondence, between 1804 and 1812.

“…we ought not to die before we have explained ourselves to each other.”—Jefferson to Adams

This is my second writing about the treasure these men left us in their letters between years 1777 and 1826. My article of 3 February 2010 covered the letters in a general way. Today’s article presents what both saw as an enemy of a democratic republic, the aristocracy, but they never fully agreed on a remedy or how to prevent its ascendancy.

They first discussed this subject while both were diplomats; Adams represented the new United States of America in London (1785 -1788) and Jefferson, similarly, in Paris (1784 – 1789). Jefferson visited Adams at the British Embassy of the USA, commonly called, then and now, Grosvenor Square, London.

(From JA to TJ, 1 Mar 1787): A work upon the subject you mention, nobility in general [i.e., the aristocracy], which I once hinted to you a wish to see handled at large would..require many books which I have not, and a more critical knowledge both of ancient and modern languages than at my age a man can aspire to. There are but two circumstances, which will be regretted by me, when I leave Europe. One is the opportunity of searching any questions of this kind, in any books [in England and France] that may be wanted, and the other will be the interruption of that intimate correspondence with you, which is one of the most agreeable events in my life.

Twenty-six years later, the two began an intense correspondence on the subject that lasted one and one-half years.

(JA to TJ, 9 July 1813): I recollect, near 30 years ago to have said carelessly to you, that I wished I could find time and means to write something upon aristocracy…I soon began, and have been writing upon that subject ever since…Your “άριστοι” [“aristoi—aristocrats”] are the most difficult animals to manage…They will not suffer themselves to be governed. They not only exert all their own subtle industry and courage, but they employ the commonality, to knock to pieces every plan and model that the most honest architects in legislation can invent to keep them within bounds…But who are these “άριστοι”? Who shall judge? Who shall select these choice spirits from the rest of the congregation? Themselves? We must first find out and determine who themselves are. Shall the congregation choose? Ask Xenophon…[who] says that the ecclesia [popular assembly] always chooses the worst men they can find because none others will do their dirty work. This wicked motive is worse than birth or wealth.

Here I want to quote Greek again…[from] a collection of moral sentences from all the most ancient Greek poets. In one.. [is] a couplet the sense of which was “Nobility in men is worth as much as it is in horses, assess, or rams: but the meanest blooded puppy in the world, if he begets a little money, is as good a man as the best of them.” Yet birth and wealth together have prevailed over virtue and talents in all ages. The many will acknowledge no other “άριστοι”.

“Your distinction between natural and artificial aristocracy does not appear to me as well founded.”—Adams to Jefferson

So began five letters from Adams to Jefferson before the latter sent a lengthy and famous response to Adams on the subject of the aristocracy, after which Adams wrote a final letter, the beginning of which states: “We are now explicitly agreed, in one important point, viz. that ‘there is a natural aristocracy among men, the grounds of which are virtue and talents.’ ”

But where did they differ? This will be discussed, further below.

First, we must look at what these men meant by The Aristoi, an ancient Greek construction with which they were familiar as scholars in the writings and philosophies of that time. Immediately below are excerpts from two sources to give us a grounding in what these men were discussing.

Arete and the Aristoi

Arete…means goodness, excellence, or virtue of any kind. In its earliest appearance in Greek, this notion of excellence was ultimately bound up with the notion of the fulfillment of purpose or function: the act of living up to one’s full potential. Arete in ancient Greek culture was courage and strength in the face of adversity and it was to what all people aspired. [Source]

The concept of arete, or excellence, was one of the Homeric Age’s most important contributions to Western culture…(T)he nobility is the prime mover in forming a nation’s culture, and…the aristoi, or “the best,” are responsible for the creation of a definite idea of human perfection, an ideal toward which they are constantly educated. Arete became the “quintessence of early aristocratic education,” and thereafter the dominant concept in all Greek education and culture; it has remained with us as an educational ideal ever since.

It was not possible to separate leadership from arete, the Greeks believed, because unusual or exceptional prowess was a natural manifestation of leadership. Since each man was ranked in accordance with his ability, arete became an ideal of self-fulfillment or self-realization in terms of human excellence. A noble’s arete, in Homer, is specifically indicated by his skill and prowess as a soldier in war, and as an athlete in peace. War provides the occasion for the display of arete and the winning of kleos, or glory. The aristoi compete among themselves “always to be the best and to be superior to others.” [Source]

Definitions of Monarchy, Aristocracy and Democracy in Modern Times, from a paper by Paul Lucardie at the University of Groningen, Netherlands, to give us a current context in which to understand our subject  [Please click on the table to be able to read it]:



The Letters Between Adams and Jefferson on the Aristocracy

Adams wrote to Jefferson on 2 September 1813: “The five pillars of aristocracy are beauty, wealth, birth, genius and virtues. Any one of the first three can at any time overbear any one or both of the two last,” and goes on to give historical and contemporary examples.

Jefferson counters that he has faith in the enlightenment of men through science, and in the well-functioning democratic principles and machinery they and their fellow writers of the U.S. Constitution established, especially regarding regular elections:

Science is progressive, and talents and enterprise on the alert. Resort may be had to the people of the country, a more governable power from their principles and subordination; and rank, and birth, and tinsel-aristocracy will finally shrink into insignificance… (I)f the moral and physical conditions of our own citizens qualifies them to select the able and good for the direction of their government, with the recurrence of elections at such short periods as will enable them to displace an unfaithful servant before the mischief he mediates may become irredeemable.

The mostly formal style of their writing (Adams occasionally lapsed into a more familiar style) sometimes masks, for the modern eye, the fundamental disagreement between these statesmen on the issue. Adams was the Federalist, perceiving a strong federal (i.e., central) government as necessary to “control” the natural appetites of man toward power and privilege. He had no confidence that those with natural born talent (sometimes called “genius”)  and “virtues,” derived through family traits and education, who ascended as “natural aristocracy” would not become as corrupt as those who ascended through wealth, beauty or name–the latter group being the “tinsel aristocracy” as described by Jefferson.

Obituary for John Adams and Thomas Jefferson (source: /media.photobucket.com)

Jefferson had faith in the common sense of the ordinary citizen to vote out the misbehaving elected officials before they could do irreparable damage. Further, he did not place as much importance on the doings of the central government, observing that the limitless frontier then offered by America made the enterprising man relatively independent of the aristocratic tendencies of those in power in the country’s capital.

[The text is not edited to conform with modern English usage] With respect to Aristocracy, we should further consider that, before the establishment of the American states, nothing was known to History but the Man of the old world, crouded within limits either small or overcharged, and steeped in the vices which that situation generates. A government adapted to such men would be one thing; but a very different one that for the Man of these states. Here every one may have land to labor for himself if he chuses; or, preferring the exercise of any other industry, may exact for it such compensation as not only to afford a comfortable subsistence, but where-with to provide for a cessation from labor in old age. Every one, by his property, or by his satisfactory situation, is interested in the support of law and order. And such men may safely and advantageously reserve to themselves a wholsome controul over their public affairs…

What is unstated by Jefferson in this correspondence is his underlying acceptance, perhaps even approval, of the occasional revolution to cleanse the ruling elite. Jefferson was enthusiastic about the French Revolution to which he was a direct witness, although he acknowledged that its latter stages went to bloody excess. This was a point of contention and public controversy between the Federalists and the Democratic-Republicans in the election of 1800 between Adams and Jefferson.

Jefferson famously wrote from Paris to William S. Smith on 13 November 1787:

We have had 13. states independent 11. years. There has been one rebellion. That comes to one rebellion in a century & a half for each state. What country before ever existed a century & half without a rebellion? & what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon & pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is it’s natural manure.

There is much reference these days to the thoughts and intentions of the “founding fathers.” I suggest a reading of these letters would help us all truly understand where the founders stood on issues of freedom and liberty, government and democracy.

You can see all the letters (to everyone) of Thomas Jefferson here.