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:

• Arizona Senate Passes Bill to Let State Nullify Federal Laws
• 12 States Have Bills to Nullify ObamaCare
• Health Overhaul Heads to Justices

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 9^th and 10^th 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.”

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).

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?