Dr. Carson is Professor of American History at Grove City College, Pennsylvania.

Undoubtedly, I must have picked up a good bit more, but I can re­member only one point from the introductory course I took in political science. It was this: Sov­ereignty is indivisible. The pro­fessor was a recent arrival from southeastern Europe, Rumania, I think. He must have made this point about sovereignty many times, for it stuck in my mind. Quite likely, his basic principles were affronted by the notion that sovereignty was divided in Amer­ica. It was obvious to him that it could not be done, and to have thought that they had done so must have signified to him the political illiteracy of Americans.

All those who attended that course should have been forever unfitted for understanding the American tradition of federalism, assuming, of course, that we ac­cepted what was taught. The con­cept of sovereignty is an utterly useless analytical tool for under­standing the American system. Worse, it carries with it implica­tions which lead to pernicious in­terpretations and wrong positions about American government. Sov­ereignty refers to the supreme or ultimate authority in a country. The modern conception of it was developed by Jean Bodin, a six­teenth century Frenchman. It was used to buttress monarchy, abso­lutism, and the nation-state. In short, kings were thought of and referred to thereafter as sover­eigns—as possessing supreme and absolute authority.

Sovereignty, then, was an abso­lutist conception in origin and de­velopment. It became a central conception for analyzing govern­ments and for discussing political economy. But it has never been divested of its absolutist trap­pings. In consequence, the mo­ment one tries to locate sover­eignty he is searching for the su­preme authority. This has resulted already in a great deal of mis­chief in America. Since if there is a supreme authority it must be located somewhere—and not di­vided—, many thinkers have taken positions as to where it is located.

Not a Question of Sovereignty

Three positions have been most commonly stated: (1) that the states are sovereign, (2) that the people are sovereign, and (3) that the federal government is sover­eign. For example, a recent writer takes the position that the states are sovereign. He starts with the premise that sovereignty is in­divisible. "Finality knows no de­grees. In law, as in mountain climbing, there comes a point at which the pinnacle is reached…. The argument here is that the states, in forming a new perpetual union to replace their old per­petual union, remained in essence what they had been before: sepa­rate, free, and independent states. They surrendered nothing to the federal government they created.

Some of their powers they dele­gated; all of their sovereignty they retained."1

On the contrary, another writer states, though he does not expli­citly subscribe to it, the position "that the people are sovereign; that the people created both state and national governments and that therefore both levels of govern­ment are merely the agencies of the people. "² C. M. Wiltse, how­ever, maintains that the federal government emerged supreme in the Civil War. Referring to Lin­coln, he writes: "The sovereign power of the nation rested in his hands, and he exercised it. The rebellious South was beaten back into the Union, and the great de­bate was finally over…. A cen­tury after the Stamp Act had been rejected… the United States of America itself emerged as a true national state, whose sovereignty was undisputed and whose will was uncontrolled within the limits of its power."

None of these positions is even close to describing the American tradition of federalism. Supreme power was not vested anywhere in these United States. Of course, as regards the exercise of foreign powers over American citizens, these United States are sovereign, but within the country there is no seat of sovereignty. But surely, it may be argued, ultimate power is exercised in America. So it is. No greater power can be imagined than the power to take a life, and this power is frequently exercised. But where is the power to do this vested? Some will imagine that it is vested in some arm of the gov­ernment (s). It is not. For the life of a man to be taken by due process of law he must be tried for the violation of pre-existing law by a jury before a judge. His guilt must be determined by a jury drawn from the people; his sentence must be passed by a judge trained in the law, chosen directly or indirectly by the citi­zenry, and paid by government funds. All of this must take place by procedures that are rigorously prescribed for all such cases, not arbitrarily adopted for the occa­sion.

Limited and Dispersed Powers

In these United States, the tradition is of limited and dis­persed powers, limited in part by their very dispersion. Neither the people, nor the states, nor the federal government were made sovereign, for all of these were limited finally by due process of law. Many commentators, includ­ing some of the Founders, have spoken of divided or dual sover­eignty. This too is inaccurate, for it implies that between them the states and the central government are supreme. In fact, however, they are limited by constitutions and traditions. Let us discard the conception of sovereignty in the further discussion of federalism. It distorts the American tradition of liberty, rather than shedding light upon it. Happily, the Amer­ican governments—and the rela­tionships among them and to the citizenry—were not born out of abstractions rendered into abso­lutes.

Instead, American federalism was builded upon an historical tradition, was conceived to deal with a concrete situation, and was advanced to serve rather definite ends. To understand it aright we should begin not with abstractions but with the history which made it appropriate to the American condition.

The American colonies were settled for varying purposes, at different times, in diverging lo­cales, with people having dissimi­lar views and aims. The founders of Massachusetts Bay Colony hoped to set up a Bible Common­wealth; the settlers of Virginia hoped to find gold and a North­west Passage; the British govern­ment sought to create a buffer be­tween South Carolina and Span­ish Florida by authorizing the set­tlement of Georgia; Lord Balti­more wanted Maryland to be a place where Roman Catholics might be secure from persecu­tion. Men made their living by quite different pursuits on the rocky coasts of New England from those in the Tidewater of Vir­ginia. The colonies differed great­ly in the religious practices which they permitted or encouraged. In some, all Christians were toler­ated; in others, only those of a particular sect could openly prac­tice their religion. Negro slavery thrived in South Carolina, but Pennsylvania Quakers began to have compunctions about it in the eighteenth century. Some colonial governments were virtually inde­pendent of England, while others were bound rather more closely to the Crown.

Local Loyalties

These differences gave rise to regional and local cultures, each with its own particular flavor and ways. Men grew attached to par­ticular colonies and took pride in those things which differentiated them from the inhabitants of other colonies. A Virginian writ­ing in 1728 gave voice to this sen­timent which, with appropriate variations, was shared to greater or lesser extent by colonists else­where. "If New England be called a Receptacle of Dissenters..

Pensylvania [sic] the Nursery of Quakers, Maryland the Retirement of Roman Catholicks, North Caro­lina the Refuge of Runaways, South Carolina the Delight of Buccaneers…, Virginia may be justly esteemed the happy Retreat of true Britons and true Church­men."

Local Government

Within the rather loose frame­work of the British empire, each colony developed its own govern­ment. The major handicap to local self-government was that in Royal and Proprietary colonies the gov­ernor was frequently appointed from England. These appointees were sometimes viewed as inter­lopers. Robert Beverley, a Vir­ginia gentleman who published a book in 1705, indirectly accused one governor of behaving like an "Otteman. Bashaw," that is, in an "Arbitrary" and "Despotick" manner. He accused Governor Nicholson of violating individual rights by instituting censorship to keep unfavorable mail from get­ting to England. Not only was mail intercepted, said Beverley, but spies were set upon people and the governor "condescended to act the low Part of an Evesdropper [sic] himself, and to stand under a Window to listen for Secrets, that would certainly displease him."5

My point is that colonists were not only attached to their colonies but also that they began to iden­tify local government with liberty and representatives from else­where as sources of tyranny. The colonies were seedbeds of the de­velopment of self-government and shields against outside interfer­ence.

A Bias for Home Rule

Americans inherited a British tradition of local government and administration and built upon it. Counties and towns were the basic units of government which per­formed most of the functions of government in New England. In South Carolina and Virginia this was done by county and parish. One historian has concluded: "In general, the central governments of the colonies exercised even less control over local institutions than did the mother country over the colonies. Self-government was doubly the rule in colonial America."⁶ Colonists prized their local prerogatives, were eager to extend their number and scope, and re­sisted any attempt to reduce them, resorting finally to arms to pre­serve local government.

Many of us have never become aware of what they knew well, liv­ing as they did in a sparsely set­tled land. Tyranny upon one’s neighbor is seldom practiced. Not only is this so because one may see immediately the effects of his actions but also he must live among those whom he has wronged. Thus, a sheriff must act circumspectly if he expects to live in peace among those over whom he has exercised authority. Jurors will wish to be very definite about a decision if they are to live out their lives in contact with the relatives of a man whom they have sentenced to death. At any rate, Americans were accustomed and devoted to governments as near to hand as practicable.

American federalism, then, was conceived to deal with a concrete historical situation. No man of good sense in the 1780′s would have proposed seriously that a unitary state be erected to em­brace all English Americans. Al­most every man’s hand would have been against him. Thus, to have created a single sovereign power in America would have been to do so at the expense not only of popu­lar favor but of liberty as well. Some states had established churches, while others had none. A single sovereign must have one established church or none, but either course would alienate some large part of the population. Only a tyrant beyond the capacities of most of the "enlightened despots" of the eighteenth century could have imposed such uniformity up­on America.

A More Perfect Union

Yet some sort of union was reckoned to be essential by most of those who attempted to assay the American condition. The Americans were in the midst of a war with England when they de­clared their independence. Their only hope for success lay in mak­ing common cause against the enemy. In these circumstances they sought the requisite unity by way of confederation, a union for­malized in 1781 by the adoption of the Articles of Confederation. By this plan they hoped to preserve the virtual independence of the states while presenting a united front to the rest of the world.

Those who favored a new con­stitution in 1787 maintained that this government had failed, that it was not respected by foreign countries, that it could not pay its debts, that some states would not respect its levies, that property and life were insecure in Amer­ica. America needed a more en­ergetic government, they declared, one with some direct powers over the citizenry. Defenders of the Confederation accused these advo­cates of change of being alarm­ists, and there are still differences of opinion as to which side was right in the contest.

Be that as it may, those favor­ing a stronger government of the union went ahead and drew up plans for a federal government, and it was this plan which became the Constitution of which we speak. The Constitution not only became the basis for an American tradition of federalism but it em­braced and recognized a much older tradition of local govern­ment, colonial and state divisions, and diversity in the habits of in­dividuals and groups. It recog­nized an existing system of gov­ernments and provided for a gov­ernment of the Union.

The central (or federal) gov­ernment was created to realize certain limited objects. These were felicitously enumerated in the Pre­amble to the Constitution, which reads:

We the people of the United States, in Order to form a more per­fect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the gen­eral Welfare, and secure the bless­ings of Liberty to ourselves and our Posterity….

It should be noted that this is not a grant of power but a state­ment of the ends for which the government is erected. Moreover, some of these phrases have been reinterpreted since, as we shall see. Thus, it will be well to ex­amine what those who partici­pated in the adoption of the Con­stitution thought the objects of the general government were.

Defense, Peace, Trade, Justice

John Jay, arguing for adoption before the convention held in New York state, said that the general government was very limited in its scope, and had but few objects. "They comprehend the interests of the states in relation to each other, and in relation to foreign powers."⁷ In defending the need for a federal judiciary, Edmund Randolph gave his understanding of the general purpose of the cen­tral government. "That it shall be auxiliary to the federal govern­ment, support and maintain har­mony between the United States and foreign powers, and between different states, and prevent a failure of justice in cases to which particular state courts are incom­petent…. Self-defence is its first object…. Its next object is to perpetuate harmony between us and foreign powers."⁸ James Mad­ison observed that the "powers of the general government relate to external objects and are but few."⁹ Edmund Pendleton de­clared that the "general govern­ment" was to act "in great na­tional concerns, in which we are interested in common with other members of the Union… "¹º More heatedly, at another point, he emphasized the limited extent of the government:

I should understand a consolidated government to be that which should have the sole and exclusive power, legislative, executive, and judicial, without any limitation. Is this such a government? Or can it be changed to such a one? It only extends to the general purposes of the Union. It does not intermeddle with the local, particular affairs of the states."

From these quotations it ap­pears that the objects of the gen­eral government were largely (1) protection from foreign invasion, (2) maintenance of peace among the members of the union, (3) fa­cilitating of commerce among the states, and (4) establishing jus­tice and liberty.

Enumerated Powers

Under the federal system as provided by the Constitution the United States government was limited in several ways in powers held and to be exercised. First, it was limited by an enumeration of powers actually granted. For ex­ample, Article I, Section 8, of the Constitution reads, in part:

The Congress shall have Power to lay and collect taxes….

To borrow money on the credit of the United States; To regulate Commerce with for­eign Nations, and among the several States, and with the Indian Tribes….

Second, the powers of the gov­ernment were limited by specific prohibitions in the original Con­stitution:

The privilege of the Writ of Ha­beas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may re­quire it.

No Bill of Attainder or ex post facto Law shall be passed.

No Title of Nobility shall be grant­ed by the United States..

In addition to other restrictions not mentioned here but contained in the Constitution of 1787, other limitations were placed on the gen­eral government by the first ten amendments to it, commonly called the Bill of Rights. For example:

Congress shall make no law re­specting an establishment of re­ligion, or prohibiting the free exer­cise thereof; or abridging the free­dom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Gov­ernment for a redress of grievances.

More pointedly, a blanket limi­tation on the government of the Union was imposed by Amend­ment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respec­tively, or to the people.

Third, it was limited by its formal dependence upon the states for its basis and operation. Be­fore the Constitution could go in­to effect it had to have the ap­proval of the electorate by states. To be amended, there must be fa­vorable action on the amendment by three-fourths of the states. James Madison explains further the dependence of the general government upon the states:

The State governments may be re­graded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legislatures, the Presi­dent of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases_{, of} themselves determine it. The Senate will be elected absolutely and exclusively by the state legislatures.¹^² Even the House of Repre­sentatives, though drawn immedi­ately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for them­selves an election into the State legis­lature Thus, each of the principal branches of the federal government will o e its existence more or less to the favor of the State governments, and must consequently feel a de­pendence….13

This dependence, it was thought, would serve to restrain the central government and act effectively to limit its exercise of power.

Fourth, both the federal and state ^governments were limited by the balance of powers granted to each of them. This was intended to deter either of them from usurping the rights belonging to the People. Alexander Hamilton argued that the states would serve as a brake upon the powers of the general government:

This great cement of society [the administration of criminal and civil justice by the states], which will dif­fuse Itself almost wholly through the channels of the particular govern­ments… would insure them so de­cided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union.’4

He explains further:

The separate governments in a confederacy may aptly be compared with the feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and good-will of the people, and with so important a support, will be able effectually to oppose all encroach­ments of the national government.¹⁵

In the New York convention Hamilton elaborated this idea:

This balance between the nation and state governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the peo­ple. If one encroaches on their rights, they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits, by a certain rivalship, which will ever subsist be­tween them. I am persuaded that a firm union is as necessary to perpet­uate our liberties as it is to make us respectable… ¹⁶

Just as the federal government was limited in its powers, how­ever, so were the states. Each of the states had and has a consti­tution which limits its power. The United States Constitution re­stricts state powers in two ways: (1) by giving exclusive jurisdic­tion in certain matters to the cen­tral government and (2) by specif­ically prohibiting the states to take certain kinds of action. For example of the latter, the Consti­tution says: "No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility." Every state must have a republican form of government, and by custom and tradition, if not otherwise pro­vided, all legal action must follow the forms of due process of law. All levels of government are lim­ited by the fact that those who make law and policy—at least of­ficially—must be subject to re­election or removal at regular in­tervals by the electorate.

Authoritarian Moorings

The American tradition of fed­eralism began to take shape in the authoritarian framework of the seventeenth century. The govern­mental powers which the colonists exercised stemmed from their "dread sovereign," the King of England. The exercise of these powers came in the course of time to be thought of as rights. At any rate, colonial legislatures, courts, and local governments became bul­warks against the exercise of power from England. In like man­ner, dispersed power became iden­tified as a major buttress to lib­erty. This view was given depth by the feudal tradition which pre­ceded it, and by the ideas of Mon­tesquieu which had great curren­cy at the time of the American Revolution.

When it was cut loose from its authoritarian moorings, federal­ism became a profound part of the American tradition. I have placed much emphasis upon the historical circumstances within which federalism was embraced. But this does not lead to the con­clusion that it was all a matter of expediency. It is true that there was little hope of creating a con­solidated government in 1787, but, it must be remembered, there was little desire either. Edmund Ran­dolph thought it a blessing that there were great differences among the people in America, for it served to assure the liberty of all. In the matter of religious sects, he argued thusly:

I am a friend to a variety of sects, because they keep one another in order. How many different sects are we composed of throughout the United States? How many different sects will be in Congress! We cannot enumerate the sects that may be in Congress! And there are now so many in the United States, that they will prevent the establishment of any one sect, in prejudice to the rest, and will forever oppose all attempts to infringe religious liberty.¹7

Struggles for Control

My point is this: Federalism was conceived not only as a prac­tical means of getting the requi­site measures for the defense of the country but as a lasting means for preserving liberty—the high­est end of all government. Hence, it was an essential ingredient to the liberal tradition because it provided for the dispersion and counterbalancing of powers.

There were contests over power between the federal and state gov­ernments almost from the begin­ning. This was intended. And many examples could be found where one or the other has been prevented from encroaching upon the rights of the people by the contest, whether it was conclusive or not. But what concerns us here is the tremendous shift in the balance of power. Surely no one today will deny that the federal government has vastly augmented its powers from what they were in the beginning and that there is mounting pressure for effectually reducing the states to administra­tive units of a consolidated central government. Federalism remains, of course, but it is much the worse for the wear.

Trend Toward Collectivism

How did these developments come about? Some claim to see a gradual extension of the powers of the federal government from the outset. True, Hamilton worked assiduously in the early years of the Republic to advance those powers, and John Marshall wrote decisions for the Supreme Court which frequently served to extend the sway of the central govern­ment. But the Jacksonians re­versed this trend in the mid-nine­teenth century, and the states re­asserted their vitality. During the Civil War and Reconstruction the federal government extended its sway once more, but in the late nineteenth century the courts nul­lified much of this. Thus, if my analysis is correct, the great and mounting shift has occurred in the twentieth century.

This shift has been impelled largely by the thrust toward col­lectivism. Theoretically, collectiv­ism might be advanced and per­haps achieved at the local and state level. Indeed, much collectiv­ization has gone on at these levels, viz., city owned electrical systems and state minimum wages and "fair" prices. But the federal system posed two major obstacles to collectivism. The federal courts, particularly in the latter part of the nineteenth century, disallowed much of the state action, basing their decisions on the Fourteenth Amendment. Second, collectivism did not appeal to some people, notably manufacturers and indus­trialists. Hence, it was noted that as the states entered upon regu­lation and control, industrialists sought more favorable sites for their new factories. When unions entrenched themselves by violence and coercion, undeterred by state authorities, industries migrated, for example, the textile industry from New England into the South.

The point was not missed by many collectivist reformers. In or­der to achieve collectivism, it would have to be done on a nationwide basis, and the courts would have to change the character of their decisions. How much of this was consciously realized I do not know, for reformers have advanced their programs under the protective cover of necessity, and they have rarely exposed their aims and ends to open discussion.

At any rate, the powers of the federal government have been greatly extended. Several means have usually been employed. The clauses in the Constitution refer­ring to the promotion of the gen­eral welfare have been misinter­preted as grants of power, which they were not.^¹8 The interstate commerce clause has been stretched to extend the power of the gov­ernment over almost every kind of economic activity." There have also been constitutional amend­ments which have served to aug­ment the power of the central gov­ernment. Most noteworthy of these have been the Fourteenth and Sixteenth. The Fourteenth provided the basis by which the courts have become positive actors on the American scene, and the Sixteenth opened the way practi­cally for the federal government to engage in the redistribution of the wealth.

"States Rights" a Misnomer

Defenders of the American sys­tem of federalism have frequently fallen into a ready trap. They have usually become earnest defenders of what have come to be called "state’s rights." By so doing, they misname what they should be defending and confuse means with ends. Anyone who would care to examine the quotations in this es­say from Americans who estab­lished the tradition will discover that they did not refer to any gov­ernments as having rights. They referred regularly to the powers of government, and they did so consistently. Rights, at that time, were conceived of as something belonging to the people as indi­viduals. Power was granted to governments for the purpose of maintaining justice and order so that liberty might be exercised by individuals. Dispersion of power was conceived as a means to the end of fostering liberty.

These distinctions we should re­vive, for they too are a part of the American tradition. Those con­cerned with the recovery of lib­erty in America may well work for a restoration of the balance of power among the governments, but they should keep in mind that it is not for the rights of states but for the rights of man for which they labor.

The next article in this series will treat "Of Individualism."

Footnotes

¹ James J. Kilpatrick, The Sovereign States (Chicago: Regnery, 1957), p. 14.

² William Anderson, The Nation and the States, Rivals or Partners (Minne­apolis: University of Minnesota Press, 1955), p. 14.

³ Quoted in M. J. C. Vile, The Struc­ture of American Federalism (London: Oxford University Press, 1961), p. 27.

⁴ Hugh Jones, The Present State of Virginia (New York: Reprinted for Jo­seph Sabin, 1856), p. 48.

⁵ Robert Beverley, The History and Present State of Virginia, Louis B. Wright, ed. (Chapel Hill: University of North Carolina Press, 1947), pp. 90-91.

⁶ Clinton Rossiter, The First Ameri­can Revolution (New York: A Harvest Book, 1956), p. 119.

⁷ Elliot’s Debates, Bk. I, vol. 2, p. 283.

⁸ Ibid., vol. 3, p. 570.

⁹ Ibid., p. 259.¹º

¹⁰ Ibid., p. 301.

¹¹Ibid., p. 40.

¹² Changed to direct election by the Seventeenth Amendment.

¹³ Benjamin F. Wright, ed., The Fed­eralist (Cambridge: Harvard University Press, 1961), p. 327. ¹4 Ibid., p. 169.

¹5 Ibid., pp. 170-71.

¹⁶ Elliot’s Debates, Bk. I, vol. 2, pp. 257-58.

¹7 Ibid., vol. 3, p. 204

¹8 For such a misinterpretation, see, for example, Mr. Justice Cardozo’s deci­sion in Helvering et, al. v. Davis.

¹9 Madison indicates in Federalist number 42 that the aim was to facilitate commerce among the states, thus, not to control it in the present sense.

 

***

 

Ideas on Liberty

Uses of History

In free governments… it is incumbent on every man to instruct himself, as well as the means and opportunities he has permit, concerning the nature and interests of the gov­ernment, and those rights and duties that belong to him, or to his superiors, or to his inferiors. This in general, but in particular it is certain that the obligations under which we lie to serve our country increase, in proportion to the ranks we hold, and other circumstances of birth, fortune, and situation that call us to their service; and above all, to the talents which God has given us to perform it.

LORD BOLINGBROKE, On the Study and Use of History, 1735