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The Rise and Decline of Old Federalism[index]

Of course, man seeks more than his natural rights--he also seeks an ordered world for their enjoyment. Government and laws are set up with the express purpose of securing natural rights. From the beginning, man accepts the contradiction: Give up a little freedom, adopt a rule, be safer and less free. What is the optimal balance? In some societies, individuals envious of the sovereignty of the people have been known to try to panic society into trading some of their natural rights for the benevolent order in a state where civil liberties are restricted. Fortunately, the people aren't like other sovereigns. As Abraham Lincoln observed, "You can fool some of the people some of the time, but you can't fool all of the people all of the time."

"Federalism" is a term used to describe a way in which the power to govern may be partitioned between a central or national government and the government of smaller entities into which the national territory is divided. Before the United States of America was formed, there was no federal or national government. There were thirteen states who had successfully banded together in their revolution against England. These states were interested in maintaining their bonds for some purposes (such as self-defense, trade and the like), but they did not want to give up their local power to govern to a federal government. Alexander Hamilton put the matter very realistically:

Among the most formidable obstacles which the new Constitution will have to encounter may readily be distinguishing the obvious interest of a certain class of men in every state to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the state establishments. Powers-that-be justifiably fear the coming of a "king that knows not Joseph."

On March 1, 1781, a loose confederation of the thirteen states ratified the Articles of Confederation, thereby forming the United States of America. In this confederation, each state was sovereign; the federal government was powerless. Within a very short time, there were insurmountable difficulties. There was near anarchy in interstate relations and in foreign relations. States erected tariff barriers against each other and violated treaties wholesale.

Spurred on by these problems, seven states took steps to meet in Philadelphia in May of 1787. Congress formally called for the convention for the "sole and express purpose" of "revising the Articles of Confederation." Five more states joined in. Only Rhode Island did not send representatives.

Fifty five white males between the ages of twenty-seven and eighty-one attended the constitutional convention, beginning on May 25, 1787. They were not representative of the people. For the most part, they were well-to-do professionals who owned property, with lawyers predominating. Alexander Hamilton was probably the most brilliant, but he was such an extreme nationalist that he had little following. Conspicuous by their absence were such radicals as Samuel Adams, Thomas Jefferson, and Patrick Henry.

It was clearly not the intention of the framers to create a democratic government; quite the contrary. The vast majority were afraid of popular rule and expressed their concern about the dangers of mobocracy. France was experiencing the effects of giving "power to the people." The delegates wanted a stable government and security for property. It seemed that most of these objectives could best be attained by a stronger national government. Thus, the framers of the United States Constitution were the first of many who were willing to trade a little personal freedom for law and order.

The men who drafted the United States Constitution had just crossed swords with arrogant and arbitrary English colonial governors. Furthermore, they knew they were exceeding their instructions in drafting a new constitution. They also knew that the powerful central government which they were about to suggest would be severely criticized when it came before their state conventions for ratification or rejection. They themselves believed in individual liberty and were therefore suspicious of governmental power. Their problem was to create a government that was strong enough to survive while, at the same time, tolerable to live under.

As expected, bitter struggles for ratification took place in some of the states. New York, a key state due to its geographical location, returned 46 delegates who opposed ratification and only 19 in favor. Throughout the nation, there were the Federalists who favored the constitution and the Antifederalists who opposed it. The "have-nots" (small landowners, the propertyless in towns, etc.) were Antifederalists, the well-to-do (merchants, bankers, manufacturers, speculators, the privileged class, etc.) were Federalists. However, some prosperous men, including Thomas Jefferson and Patrick Henry, who feared the hubris of government, opposed ratification.

In fact, much of the principled resistance to ratification centered on the failure to include a bill of rights that would prohibit the central government from infringing natural rights and other individual liberties. Even James Madison was impressed by the demands for a bill of rights, and it was he who later introduced in Congress the resolution calling for the first ten amendments.

Thus, the Bill of Rights of the United States Constitution was enacted in 1791 at the instance of several states who wanted specific provisions preventing the federal government from taking certain rights away from citizens. These amendments were generated by the fear that the national Congress might make laws that would infringe on the natural rights of the people.

In 1791 the most prevalent concept was that "the people" was the collective citizens of each state. Therefore, the framers did not perceive a need to prevent the state governments from taking these rights away from the people. It was left to the people of each state to guarantee these rights on a state by state basis through affirmative grants of natural rights in their respective constitutions.

And the people of each state did so. However, a problem arose because, in some states, "the people" did not include all the people.

Those excluded did not share in the exercise of sovereignty. There followed a civil war that established that "the people" referred to in the Preamble were the collective citizens of the United States, not the citizens of each state. This dramatic change of course for the Republic was put into law in 1886 with the enactment of the fourteenth amendment. In theory, the fourteenth amendment rectified the problem by defining citizenship of the states more broadly, and by extending the prohibitions of the federal Bill of Rights to actions by state government ("state action").

But hubris, greed and the lust for power do not die easily because they are so contagious. Even the guillotine, used first so effectively and then so excessively by the revolutionaries in France, did little more than to transfer the infection from one group to another. In the United States, the sovereign people accelerated their campaign of genocide against another people it wished to displace--the native Americans. It is no wonder that only lip service was given to the broad guarantees of the fourteenth amendment. For forty years the federal courts refused to enforce it. As late as 1925, the United States Supreme Court declined to apply the fourteenth amendment to state action in a case styled Gitlow v. New York, 268 U.S. 652 (1925).

Eventually, after the West was won, the people looked inward. The natural restraints on old federalism began to wane as the vested interests in the states continued to stumble over their own desire to be kings. Once power is attributed to the people, the pressure will be continuous to make the term include all people, at least all those who survive. The basic drive in every democracy is toward equality and those who find themselves excluded will insist upon their inclusion. The resistance to including ex-slaves and the few surviving native Americans was fierce. It still is, but either it or the country is destined to fail.

Eventually, the Supreme Court began enforcing the fourteenth amendment. Congress began enacting laws to implement the amendment in new areas. While state courts were ignoring settled state precedent that had zealously guarded individual rights, an active federal judiciary produced decisions relying more and more on protections of rights found in our federal constitution.

Now, over 200 years after our declaration of belief in natural rights for the people, the pressure to include all people has enfranchised other races, the propertyless, and women. The vested interests of slavery, property, male superiority, and the like have been swept aside.

Unfortunately, the only effective legal means for preventing violations of our natural rights and freedoms has been federal constitutional law with its limitation that only governmental action to infringe these rights is prohibited. The good news is that there is now a large body of federal civil rights law that protects personal liberties. The bad news is that the protection of our inalienable natural rights is limited to their infringement by a state or the federal government. The original concept of having affirmative rights that no one can infringe was relegated to a back burner in many jurisdictions.

Next - The New Federalism

Previous - Sovereignty


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