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Federalism. The USA Experiment

Viriato Soromenho-Marques

FLUL, Political Philosophy

www.viriatosoromenho-marques.com 1

James Madison: 2 Problems, 2 solutions

MAJORITY TYRANNY >>>>EXTENDED REPUBLIC.

GOVERNMENTAL TYRANNY>>>COMPOUND REPUBLIC


The Preamble of the USA Constitution

“ We the people of the United States, in order to form a more perfect union, to establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare , and secure the blessings of liberty to ourselves and our postrity, do ordain and establish this Constitution for the United States of America”, (Madison, 1987: 545).


Articles of Confederation (1781) 1

• Congress was given the power to:

• Declare war

• Make peace

• Sign treaties

• Borrow money

• Establish an army and navy

• Organize a post office


Articles of Confedration (1781) 2 • Negative features od the AACC

1. No chief executive

2. No national court system

3. No power to draft soldiers

4. No power to control interstate

commerce


Articles of Confedration (1781) 3

• No power to enforce treaties

• No power to colect taxes from states

• No national currency

• Difficult to pass laws( two thirds of

Congress vote required)

• Very difficult to amend the Articles

(unanimous vote of states required)


The constitutional uncompletness of federalism

"Earlier it was said that the United States Constitution was an incomplete text without the state constitutions, but it is still incomplete even with them [...]The story of American constitutionalism since 1789 [1st Congress] is the story of a move toward a more perfect union." LUTZ, Donald S., The Origins of American Constitutionalism, Baton Rouge/London, Louisiana State University Press, 1988, p. 169


The essence of federalism

"The essential characteristic of a federal

system is a division of powers between two

levels of government, each supreme in

some areas of policy making. This in turn

requires two legislatures, each able to affect

citizens directly and something akin to dual

citizenship whereby one is a citizen of the

nation and of the smaller unit." (Lutz, 64).


Federalism: managing the trend for completeness

“The natural tendency of any political

community, whether large or small, is to

completeness, to the perfection of its

autonomy. Federalism is the effort

deliberately to modify that tendency. Hence

any given federal structure is always the

institutional expression of the contradiction or

tension between the particular reasons the

member units have for remaining small and

autonomous but not wholly, and large and

consolidated but not quite.” (Diamond, 1985: 17). www.viriatosoromenho-marques.com 9

The common source of power

The fabric of American empire ought to

rest on the solid basis of THE

CONSENT OF THE PEOPLE. The

streams of national power ought to flow

immediately from that pure, original

fountain of all legitimate authority)

(Hamilton, FP 22: 184).


Federalism isn’t a CONSOLIDATION of States

“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them would be altogether dependent on the general will” (Hamilton, FP 32: 220).


Sharing sovereignty

“But as the plan of the convention aims

only at a partial union or consolidation,

the State governments would clearly

retain all the rights of sovereignty which

they before had, and which were not,

by that act, exclusively delegated to

the United States”, (Hamilton, FP 32,

220).


Only in the distant future…

“Tis time only that can mature and

perfect so compound a system, can

liquidate the meaning of all parts,

and can adjust them to each other

in a harmonious and consistent

WHOLE)”, (Hamilton, FP 82: 458).


Federalism fights against distrust

“But the radical infirmity of the «artº of

Confederation» was the dependance of the

Congº on the voluntary and simultaneous

compliance with its Requisitions, by so

many independent Communities, each

consulting more or less its particular

interests & conveniences and distrusting the

compliance of the others.” (Madison, 1787:

5).


1. Foundation

Regarding its “foundation”, the Constitution is federal amd not national: Citizens vote “(not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong.”(Madison, FP 39: 257).


2. Sources of political institutions

CONGRESS: The House of Representatives is potentially national, while the Senate is completley federal.

The President combines also the national element (popular vote( and the fedeal one (the Electoral College).

ibid.: 257-258).


3. Operation of government)

It is National, because it acts directly

upon the citizens, not through the filter

of States,, although within the narrow

boundaries of the competencies and

capacities delegated to the federal

government by the Constitution.


4. Extent of its powers

It is also more national than federal: "since its jurisdiction extends to certain enumerated objects only; and leaves to the several States a residuary and inviolable sovereignty over all other objects”(ibid.: 258)


5. Amendment process

Also a combination: “in requiring more than a majority, and particularly in computing the proportion by States, not by citizens, it departs from the national and advances towards the federal character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the federal and partakes of the national character” (ibid.: 259).

• Art V: 2/3 Congress chambers; ¾ of States


Division of powers between state and federal governments

• Delegated or enumerated Powers: currency, armed forces, foreign trade, international relations.

• Reserved Powers: see 10th Amendment; health, public safety, marriage, divorce, comercial activities, professional regulations, education, penal justice.

• Concurrent Powers: building of infrastructures, taxation, economic policies, administration of justice.


Federalism: enhancing the control of people…

“The natural strength of the people in a large

community, in proportion to the artificial

strength of the government, is greater than

in a small, and of course more competent to

a struggle with the attempts of the

government to establish a tyranny. But in a

confederacy the people, without

exaggeration, may be said to be entirely the

masters of their own fate.


…over government

Power being almost always the rival of

power, the general government will at all

times stand ready to check the usurpations

of the state governments, and these will

have the same disposition towards the

general government. The people, by

throwing themselves into either scale, will

infallibily make it preponderate) (Hamilton,

FP 28: 206)


Federalism: the governed divide…

National federalism makes that principle

serve the cause of popular government by

reversing the roles of governors and

governed. Now the governed divide their

governors for the sake of the peoples'

interests. The object of the controls of the

federal system is not merely to preserve the

«constitutional equilibrium» between the federal and state governments.


…their governors

…It is primarily to enable the common

superior of both, the people at large of the

nation, to intervene at either level in order to

promote justice and the general good. This

division of power makes the governed the

arbiter between the two sets of governors

and the champion of the peoples' rights

within each) (Beer, 1994: 307).


Calhoun: Two majorities ([...] there are two different modes in which the sense of the community may be taken; one, simply by the right of suffrage [...] regards numbers only, and considers the whole community as a unit, having but one common interest throughout...[the 2nd mode] regards interests as well as numbers -- considering the community as made up of different and conflicting interests, as far as the action of government is concerned; and takes the sense of each, through its majority or appropriate organ, and the united sense of all, as the sense of the entire community. The former of these I shall call the numerical or absolute majority; and the latter, the concurrent, or constitutional majority) (Calhoun, 1992: 23-24 www.viriatosoromenho-marques.com 25

Calhoun and his contemporary followers

“In sum, the notion of federalism is no more than a legal fiction today. Any political incentive for the National Government to respect states' interests was obliterated by the Seventeenth Amendment [1913]. Any legal incentive has been abandoned by the Supreme Court. Instead of protecting the legitimate interests of the states, the Supreme Court competes with Congress to dictate to the states their 'legitimate' interests). (Donnelly, 1995: 58).


Daniel Webster versus J.C. Calhoun

“It is, Sir, the people's Constitution, the people's government, made for the people, made by the people, and answerable to the people [...] The States are, unquestionably, sovereign, so far as their sovereignty is not affected by this supreme law. But the state legislatures, as political bodies, however sovereign, are yet not sovereign over the people (...) We are all agents of the same supreme power, the people. The general government and the State governments derive their authority from the same source) (Webster, [1831]: 481).


Lincoln, against the split of the Union

“ I hold, that in contemplation of universal law, and of the Constitution, the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all the national governments. It is safe to assert that no government proper, ever had a provision in its organic law for its own termination”, Lincoln (ibid.: 197).


Why Secession is Rebellion

“The States have their status IN the Union, and they have no other legal status. If they break from this, they can only do so against the law, and by revolution. The Union, and not themselves separately, procured their independence and their liberty. By conquest, or purchase, the Union gave each of them, whatever of independence, and liberty, it has. The Union is older than any of the States; and, in fact, it created them as States. Originally, some dependent colonies made the Union; and, in turn, the Union threw off their old dependence, for them, and made them States, such as they are) (Lincoln, 1992: 219-220).


Kant anticipated Lincoln

"Sob o conceito de Congresso entendo aqui apenas um conselho ([reunião] Zusammentretung) de Estados formado arbitrariamente, e em qualquer altura revogável, e não uma União [Verbindung] (como a dos Estados americanos), a qual está fundada sobre uma constituição política, e é por isso irrevogável" (Unter einem Kongress wird hier aber nur eine willkürliche, zu aller Zeit ablösliche Zusammentretung verschiedener Staaten, nicht eine solche Verbindung (so wie die der amerikanischen Staaten) auf einer Staatsverfassung gegründet, und daher unauflöslich ist) (Kant, [1797]: VI, 351).


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