Jay Cost

The state of the union today is uneasy, at best. Washington is crippled by gridlock while Americans across the country feel alienated from their government, so much so that the president feels compelled to remind them that the government is “us.” But is it really so, in a meaningful sense? Sure, the people choose their lawmakers through elections, but does the government actually represent their interests? If it does, why does it fail to solve their problems? Why does it curry favor with narrow, well-heeled interest groups, who persuade Uncle Sam to supply patronage even as he is paralyzed on the big issues that matter to the rest of us?

In the face of these anxieties, Americans would do well to revisit an old principle, easily forgotten, often disparaged, but still inherent to our governmental structure: federalism.

Federalism has a strange and tortuous history in the American experiment in self-government. Alexander Hamilton and James Madison—the principal authors of the Federalist Papers—actually had little use for federalism in their first drafts of a new Constitution. Madison and his fellow delegates from the Old Dominion offered a plan to the Constitutional Convention that entitled Congress to legislate in all areas in which the states were judged to be incompetent. It also gave the chief executive a veto over state laws. Hamilton’s proposal for the new government had an even less significant role for the states.

Their determined nationalism was in part a response to the disastrous experience of the 1780s, when omnipotent state governments had acted with gross irresponsibility, undermining the rights of minorities and threatening the common good for the sake of parochial interests. Madison believed that a strong national government would attract a better sort of politician than often seen at the state level, and that a well-constructed government for a nation as vast as the United States would ultimately give a multitude of factions within society an effective veto over public policy, ensuring that whatever the government did would not run contrary to private rights or the public interest.

It was only through a compromise between the small and large states that the Constitution established a system of “dual sovereignty” and a further compromise with skeptics of the new constitutional scheme (ironically dubbed the “Anti-Federalists”) that Congress adopted the 10th Amendment, which underlined the limited nature of the national government’s powers. But federalism was not wholly wrapped up in concerns about minority rights at the time of the national founding. In fact, the staunchest anti-federal opposition came from Massachusetts, New York, and above all Virginia, large states that would naturally have a prominent role in the new government. Historians have suggested that the Anti-Federalists probably represented a majority of the nation at the time, and their skepticism of the national government was born out of fear that a privileged minority would eventually overwhelm the majority.

As it turned out, “federalism” became the rallying cry of anxious minorities from ratification forward. It was easy for minority leaders to start calling on the feds to back off after their side had lost in Congress. That is why the once-firmly nationalistic Madison would later pen the Virginia Resolution to try to stop Hamilton’s “High Federalists” from consolidating their grip over the national polity. Once the Virginia dynasty was inaugurated with Thomas Jefferson’s election, Madison’s worries about an overwhelming national power subsided. Predictably, concerns about minority rights then crept up in the previously nationalistic states of New England. The locus of High Federalism, the Northeast came to embrace federalism, limited government, and even (for some) secession as means to check the ambitions of the Jeffersonian coalition of Southern and Western farmers. Ultimately, the slave states adopted the extreme federalist principles of nullification and secession only after it became clear they would be outnumbered. In fact, the greatest antebellum champion of state sovereignty, John C. Calhoun of South Carolina, was a stalwart nationalist in his early days in Congress.

Given how quickly different factions flipped then flopped from nationalism to federalism depending on their own interests, it is unsurprising that federalism has gained a reputation as a phony posture. More often than not, its advocates were less interested in the balance of powers generally than in their own political fortunes. Nobody worked this hypocrisy better or longer than the Southern plantation elite, and federalism would become synonymous with Jim Crow for a half-century.