The U.S. Constitution created a federal structure in which power is shared by the national government and the states. As part of what Alexander Hamilton The Federalist No. 9 called their new science of politics, the framers employed this new federal design in conjunction with their extended republic argument and their new conception of separation of powers to make it possible for the new government they were creating to avoid the rival defects to which popular governments had seemed inevitably destined: democratic ineptitude on the one hand and majority tyranny on the other. Their goal was, in James Wilson’s words, to establish a new government that would “deserve the seemingly opposite epithets—efficient and free.”
The primary purpose of the framers’ new design was to provide for a strong central government. They believed that this was essential, for the “imbecility” of the central government under the Articles of Confederation was so great that, in the words of Alexander Hamilton in The Federalist No. 15, “We may indeed with propriety be said to have reached almost the last stage of national humiliation. There is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience.” There was obviously a need for a “more perfect union” and, in the words of the Resolution of the Congress calling for the federal Convention of 1787, for new arrangements capable of rendering the political structure “adequate to the exigencies of Government and the preservation of the Union.”
The new federalism created by the framers eliminated the ineptitude and imbecility that existed under the Articles of Confederation. To begin with, they enhanced considerably the power of the new federal government. Not only could it now operate directly on the individual citizen, just as the state governments did, but it could also deal with internal matters: for example, it now could regulate commerce among the several states, establish uniform rules of bankruptcy, coin money, establish a postal system, tax, and borrow money. Moreover, the federal government was made supreme over the states on those matters to which it had been delegated power. As Article VI spelled out, “This Constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land.”
While the federalism the framers created clearly strengthened the central government, it also helped to avoid majority tyranny by preserving the presence of powerful states capable of checking and controlling not only the central government but each other as well. It granted the new central government only those powers expressly or implicitly delegated to it in the Constitution and allowed the states to retain all powers not prohibited to them. It permitted the states to regulate intrastate commerce and the health, safety, and welfare of the citizenry (i.e., the police power), and it even authorized them to exercise certain powers concurrently with the central government—for example, the power of taxation and the power to regulate interstate commerce—so long as these powers were not exercised in a manner inconsistent with constitutional limitations or federal regulations. Finally, the framers’ federalism also reduced the prospects for majority tyranny by blending federal elements into the structure and procedures of the central government itself. To take an obvious example, it mixed into the Senate the federal principle of equal representation of all the states. When joined with bicameralism and separation of powers, this principle serves, in the words of The Federalist No. 62, as “an additional impediment . . . again improper acts of legislation. No law or resolution can now be passed without the concurrence first of a majority of the people, and then of a majority of the states.”
This division of power between the federal and state governments also provided another remedy for the ills of democratic ineptitude. With two levels of government at their disposal, the people were able to assign their sovereign power to whichever level they believed would be more productive in promoting the common good.
Moreover, efficiency was gained in still another way. The original federal design permitted the states to serve, in the words of Justice John Marshall Harlan in Roth v. United States (1957), as “experimental social laboratories” in which the local concerns of their citizens can be addressed and new policies and procedures can be implemented. If these experiments prove to be successful, they can be adopted elsewhere; if they fail, the damage is limited to the particular state in question. Since the risks are lessened, experimentation is encouraged, and the chances of positive reform and better governance are increased accordingly. Justice Sandra Day O’Connor captured this benefit perfectly in Gregory v. Ashcroft (1991): “The federalist structure of joint sovereigns preserves to the people numerous advantages. It assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry.”
The framers created a constitution that was, in the words of The Federalist No. 39, “in strictness, neither a national nor a federal Constitution, but a composition of both.” They created what James Madison termed in his 1829 “Outline” a “compound system”—a system that, he continued, must “be explained by itself, and not by similitudes or analogies.”
It is essential for understanding the federalism created by the framers to appreciate that they went into the Convention recognizing only two fundamental forms, or elements, of political organization—the federal and the national—and that they thought that they had succeeded for the first time in combining these two elements into a compound system. Today, in contrast, it is commonplace to speak of three elemental forms: confederal, federal, and national. This modern typology treats the confederal and national forms as the extremes, with a confederation preserving the primacy and autonomy of the states and with a nation giving unimpeded primacy to the government of the whole society. Federalism, in this view, stands between these two poles and combines the best characteristics of each. Specifically, federalism is thought to combine states, which confederally retain sovereignty within a certain sphere, with a central body that nationally possesses sovereignty within another sphere.
As Martin Diamond (1977) has famously pointed out, however, the framers saw no more difference between confederal and federal than we see, for example, between the words “inflammable” and “flammable”: nothing more was involved than the accidental presence or absence of a non-signifying prefix. For them, the confederal or federal element was opposed to the national element, and they viewed the Constitution they had created as a composition of both of these elemental modes. Today, we regard as a third fundamental mode or element what they regarded as a compound, bestowing the simple word “federal” on what they considered to be a composition of both confederal or federal and national elements.
The founding generation understood a confederal or federal government, for example, the Articles of Confederation, to be characterized by three operative principles, each of which drastically limited the power of the federal authority and preserved the primacy of the member states. First, the central federal authority did not govern individual citizens: it dealt only with the individual states that composed the federal system and operated primarily by the voluntary consent of those states. Second, the central government had no authority to deal with the internal affairs of the member states; rather, its rule was narrowly confined to certain external tasks of mutual interest to all—for example, diplomacy, war, and common defense. Third, each member state had an exact equality of suffrage—an equal vote derived from the equal sovereignty possessed by each state, regardless of size, strength, or wealth.
By contrast, the founding generation understood that in a national government, all power resided in the central authority. Local units of government, if retained at all, were mere subdivisions that existed for administrative purposes only. Such powers as these localities possessed were delegated to them by the national government and could be overridden or withdrawn altogether at its will. They understood that the national authority extended to all matters of internal administration and that it acted directly, through its own officials, not merely on the local governments but upon every citizen as well. Finally, they appreciated that, since the national government was independent of the local units, it could continue in existence even if those local units were to disappear.
Given a choice between these two modes, those who favored republican government invariably preferred a confederal or federal arrangement; they had been taught by Montesquieu to regard it as the only mode that combined the advantages of size with the blessings of republicanism. Proponents of this view argued, first of all, that only small countries with homogeneous populations could possess republican government, for only small countries could secure the public’s voluntary attachment to the government and voluntary obedience to the laws; and, secondly, that when such small republics would seek the advantages and safety of greater size, as inevitably they would, they could preserve their republican character only by uniting in a federal manner. Federalism was, for them, in Herbert J. Storing’s memorable phrase, the protective husk that preserved the kernels of free government.
The leading framers countered, however, that the traditional republican embrace of federalism, as incorporated in the Articles of Confederation, had humiliated the people and degraded the character of the nation. The principles of federalism, Hamilton asserted in The Federalist No. 22, had rendered the Articles so weak that the situation “sometimes border[ed] on anarchy.” Nor was the government’s “imbecility” limited to the realm of foreign affairs; Madison pointed out to his fellow delegates in the federal Convention how, domestically, the “infirmities of the existing federal system” rendered precarious the “security of private rights” and the “steady dispensation of justice.” Convinced of the need for a more powerful government, many delegates supported the Virginia Plan. As amended, it declared that “a Union of the States merely federal will not accomplish the objects proposed by the Articles of Confederation, namely common defense, security of liberty, and general welfare,” and proposed, therefore, that “a national Government ought to be established consisting of a supreme Legislative, Executive and Judiciary.”
At this juncture, however, those who favored the establishment of such a government had to persuade their contemporaries that the plan they proposed was also compatible with republican government—that federalism as it had been understood to that time was not indispensable to republicanism. To do so, they chose to undermine the prevailing notion that without federalism, only small countries could possess republican governments. Madison’s “extended-republic” arguments—made on June 6 in the Convention and repeated in The Federalist No. 10—were decisive in this respect. Turning Montesquieu’s small-republic view on its head, Madison contended that smallness, not largeness, was fatal to republican liberty. History demonstrated that small republics were continuously racked with faction and oppression; indeed, the federal Convention itself had been instigated by the fear for liberty in the small American states. “Was it to be supposed that republican liberty could long exist under the abuses of it practiced in some of the States? . . . Were we not thence admonished to enlarge the sphere as far as the nature of the government would admit?” Because smallness had proven fatal to republicanism, “the only remedy is to enlarge the sphere, and thereby divide the community into so great a number of interests and parties, that in the first place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the second place, that in case they should have such an interest, they may not be apt to unite in the pursuit of it.” The multiplicity of interests present in a large republic thus was the true guardian of republican liberty.
While Madison’s arguments on behalf of a large extended republic effectively demolished the small-republic argument, they failed to convince the Convention to adopt a wholly national government. Most of the delegates were reluctant to abolish the states altogether, and sought some means for preserving their existence and agency. Increasingly, they came to recognize, as William Johnson of Connecticut pointed out, that the states were both distinct “political societies” and “districts of people composing one political society,” and that, therefore, neither a wholly federal nor a wholly national constitution was appropriate. Spurred on by George Mason of Virginia and others, they realized that it was possible for the people to create and assign power to more than “one set of immediate representatives.” The people could not only preserve the states while at the same time establishing a new national government, but they could also have a political structure in which both levels of government would operate over the same geographic area and would act directly on the same individual citizens. Power would be divided between these two levels according to a simple yet elegant formula: any object of government confined in operation and effect wholly within the bounds of a particular state would belong to the government of that state, and any object of government extended in its operation and effect beyond the bounds of the particular state would belong to the government of the United States.
Beyond this straightforward division of power between the central government and the states, federalism to the framers also came to mean the presence of federal elements in the central government itself. They came to recognize, in William Davie’s words, that the new constitution would “in some respects operate on the states, in others on the people,” and, since the new central government would act upon both the states and the people, they concluded that both ought to be represented in the new government. Accordingly, they mixed together varying proportions of federal and national elements to create a composition that was neither wholly federal nor wholly national. This blend of federal elements in the central government is apparent in the equal representation of the states in the Senate, in the election of the Senate by state legislatures, and in the assignment to the Senate alone of such traditional federal functions as approval of treaties. It is also apparent in such other constitutional provisions as the mode by which the Constitution was to be ratified, the amending process, and the Electoral College.
When Tocqueville examined the American Constitution, he described it as “neither exactly national nor exactly federal; but the new word which ought to express this novel thing does not yet exist.” While he was correct in declaring that a new word had not been devised, a familiar term from the beginning had been pressed into service to express this novel thing: the term was “federal.” Well aware that federalism was generally thought to be essential for a republican government, the framers seized the word for themselves and called their new compound arrangement “federalism.” This stratagem proved to be of considerable value during the ratification campaign, as it enabled them to present themselves as the defenders of federalism and to refer to the adherents of federalism as it had been traditionally understood as Anti-Federalists. (In truth, it was more than a stratagem; the framers could legitimately claim to be Federalists, because they sought to strengthen the federal government, if at the expense of the federal principle.) But the framers’ identification of their compound government as federal, although an effective ploy at the time, has been the source of much subsequent confusion concerning exactly what federalism means and concerning what mode of government the American Constitution establishes. Such confusion, however, can be avoided by reference to the Constitution’s preamble. The Constitution was intended neither to provide for a perfect union (i.e., a wholly national government), nor to preserve the radically imperfect union of the Articles of Confederation; rather, it was ordained and established “in order to form a more perfect Union.” The phrase “a more perfect Union,” is no grammatical solecism; to the contrary, it is an accurate description of the compound government—made up of both federal and national elements—that the framers had devised.
The framers incorporated this federal design into the Constitution, but without ever defining federalism or expressly mentioning it. This design, however, would seem to be inherently unstable; the precarious balance between national and federal elements would seem inevitably to shift over time, tilting the government toward becoming either more national or more federal. And, when that shift occurred, given the widely recognized need for a more powerful national government as well as the actual powers delegated to it in Article I, Section 8, the tilt would seen necessarily to be in the direction of making the government more national. How could the balance between national and federal elements be maintained, and how could the original federal design be preserved? The framers’ answer to these questions was not to employ what Madison in The Federalist No. 37 called the “cloudy medium” of words and spell out in exacting detail where national power ends and state power begins; neither was it to erect ineffectual “parchment barriers” in an attempt to prohibit such a tilt. Rather, the framers chose to rely on constitutional structure; in this case, they relied on the mode of electing the U.S. Senate.
The fact that senators were elected (and reelected) by state legislatures made it in their self-interest to preserve the original federal design, to protect the interests of states as states, and to prevent the transfer of what Madison in The Federalist No. 39 called the “residuary and inviolable sovereignty” of the states. During the New York Ratifying Convention, Hamilton perfectly captured how the mode of electing the Senate served to protect the original federal design. “When you take a view of all the circumstances. . . you will certainly see that the senators will constantly look up to the state governments with an eye of dependence and affection. If they are ambitious to continue in office, they will make every prudent arrangement for this purpose, and, whatever may be their private sentiments or politics, they will be convinced that the surest means of obtaining reelection will be a uniform attachment to the interests of their several states” (Elliot n.d., 286).
The framers’ solution worked well for over a century, but the political and social forces that led to the adoption and ratification of the Seventeenth Amendment (1913), providing for direct election of senators, changed all that. That amendment eliminated the structural support crucial for preserving the original federal design, and, since federalism exists in the Constitution only structurally, it thereby altered the very meaning and nature of federalism itself. Post–Seventeenth Amendment federalism differs dramatically from the federalism of the framers. The federalism of the original Constitution was protected both structurally and democratically—the interests of the states as states were protected by the self-interest of vigilant senators elected by popularly elected state legislatures. Post–Seventeenth Amendment federalism was not. Today, the interests of the states as states are protected, to the extent they are, by a political process that treats them as one more set of special interests for Congress to accommodate as it will (a protection that is not structural) or by the mustering of an occasional Supreme Court majority that fears that the balance has been tilted too much in favor of the national government and that therefore votes to invalidate what Congress has done on the grounds that it has exceeded its power under the Commerce Clause, “commandeered” state officials to carry out certain federal mandates, exceeded its enforcement powers under Section 5 of the Fourteenth Amendment, or, most recently, trenched on the states’ sovereignty immunity (a protection that is neither structural nor democratic).
Martin Diamond, “The Ends of Federalism,” Publius 3 (Fall 1973). Reprinted in William A. Schambra, ed., As Far as Republican Principles Will Admit: Essays by Martin Diamond (Washington, DC: AEI Press, 1992); Martin Diamond, “The Federalist on Federalism: Neither a National nor a Federal Constitution, but a Composition of Both,” Yale Law Journal 86 (May 1977): 1273–85; Martin Diamond, “What the Framers Meant by Federalism,” in A Nation of States, ed. Robert A. Goldwin (Chicago: Rand McNally, 1974); Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787 5 vols, 2nd ed. (1888; reprint, New York: Burt Franklin, n.d.); and Ralph A. Rossum, Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy (Lanham, MD: Lexington Books, 2001).