Unlike parliament-centered governments, in which the chief executive is a ‘prime minister’—a member of the legislature, usually the head of the majority party—American republicanism separates executive from legislative powers, with the legislature itself separated into two branches. This means that different parties might control those branches of government, leading to ‘divided government.’ In America, one-party control of both houses of Congress and the presidency can result only from sweeping victories at the polls.

From 1800 to 1945, such victories were common. Sharply divided government—which I am defining as the circumstance in which the president is of one party and both houses have majorities of another party—occurred only five times during that period: 1849-50, when the Whigs Taylor and Fillmore were presidents and the Democrats held Congress; 1865-68, when Johnson, a Democrat elected on the Republican ticket, was president and the Republicans controlled Congress; 1879-80, when the Republican Hayes was president and the Democrats controlled Congress; 1895-96, the last two years of the Democrat Cleveland’s second term, in which Republicans controlled Congress; 1919-20, when the Democrat Wilson, disabled by a stroke, was president and faced a Republican Congress. Short periods of time, all of them. The longest was during the Johnson Administration, which only occurred because President Lincoln had been assassinated in the first year of his second term.

From 1945 to the present, within the lifetime of the postwar generation, ‘sharply divided’ government has occurred much more frequently, and for more extended periods of time: 1947-48, the last two years of Truman’s first term; 1955-60, the last six of Eisenhower’s eight years; 1969-76, all the Nixon and Ford years; 1989-92, all of George H. W. Bush’s one term; 1995-2000, the last six years of the Clinton Administration; the last two years of George W. Bush’s second term; and the last two years of Barack Obama’s second term.

Modern-day divided government was prefigured during World War II by the erosion of the New Deal coalition in Congress in the period beginning in the midterm election of 1942. At that time the North-South fissure in the Democratic Party began to widen sufficiently to show up in election results. The Democrats, and the Southern Democrats in particular (it will be recalled), faced a serious dilemma coming out of the Civil War. They were the party of treason: rebels in the South, Copperheads in the North. This gave Republicans a rhetorical bludgeon in northern and western States, and they backed up their rhetoric with organization–not only the party itself but the Grand Army of the Republic, the veterans’ organization whose members were rewarded with generous pensions from the federal government (cf. Skocpol, passim). From the Civil War to the Depression, only two Democrats won the White House: Cleveland and Wilson. Both presidencies were flukish, in the sense that they were beneficiaries of major splits in Republican ranks.

Thanks to the Depression and the magnetism of FDR, the Republicans were finally discredited and the Southern and Northern Democrats could unite in a coalition that appealed to broad elements of American society. But the legacy of the Civil War persisted, just beneath the surface. Or, rather, the legacy of one major cause of that war, race-based slavery and racial prejudice, persisted. The tension between the Northern and Southern wings of the party had to surface in some way at some point. They were united inasmuch as both sides agreed that the role of the federal government should be expanded dramatically in order to meet the challenges of the domestic and international economies, as well as the challenges of national defense in a world where worldwide conflicts were now technologically feasible. The South had never been economically isolationist; its far-flung cotton trading drove the regional economy. With the political success of the TVA and other New Deal programs, ‘big government’ was no economic threat to the South. But a strong central government also entailed a relative weakening of state governments, and state governments were the bulwarks of racial segregation and of domination by Southern whites over Southern blacks. Big government threatened the social and political structure of the South.

FDR temporized by leaving the Southern states alone; he could afford to do so because the war against Old Man Depression, and then the war against rightist tyrannies in Europe and Asia, galvanized the nation throughout his tenure. But Truman faced a different set of problems, nationally and internationally.

The Cold War against Soviet Union-based international communism gave impetus to the divided government that was only potential during the World War. Elements of the New Deal state apparatus in Washington—specifically, those associated with FDR cabinet secretary and 1948 presidential hopeful Henry Wallace—had been too close ideologically and politically to the Soviet Union, which had been an ally-of-convenience during the war. The Hiss-Chambers case and other espionage cases—some real, some invented—enabled Republicans to compete plausibly with Democrats on foreign-policy territory, despite the Democrat-led victory in the war and despite the key Truman victory of the period, the Marshall Plan. This Republican strategy was fully consistent with their long and consistent history of nationalism, dating from the origins of the party in the 1850s. It was also consistent with their successful strategy of painting Democrats as not quite patriotic enough, an image Democrats had resisted by fighting a couple of world wars. The issue of communism revived a problem for Democrats which might have been supposed to have been put to rest. But the ‘Progressive’/historicist foundations of the twentieth-century Democratic Party, seen not only in FDR’s attempt to court Stalin during the war but in the party’s Popular-Front strategy in the mid-1930s, left it vulnerable to criticism from Republicans. By 1948, the Democratic Party had split three ways: mainstream New-Deal, anti-communists led by President Truman; left-wing ‘Popular-Front’ Democrats led by Wallace; and segregationist ‘Dixiecrats’ led by Senator Strom Thurmond. Truman eked out a victory over a lackluster Republican candidate, but the seams in the New Deal coalition were fraying.

War and international politics generally empower the executive, a point well known to the old Whigs including, in America, the Jeffersonians. An atmosphere of perpetual ‘Cold War’ against the international Left thus put Democrats at a disadvantage in presidential elections. Former Supreme Allied Commander Dwight D. Eisenhower was the first Republican to demonstrate the truth of this. Democrats retained domestic-policy popularity, as they could rightly take credit for the New Deal welfare state, and voters still recalled the Depression and linked it with Hoover and the Republicans. But Eisenhower did not attack the still-popular welfare state. Rather, he concentrated voters’ minds on the Korean War quagmire—Democrats’ botched anti-communism—while also benefitting from, while deftly distancing himself from—the Senate investigations into communist infiltration of government agencies led by Senator Joseph McCarthy.

Democrats tried to beat Republicans at their own game in 1960. John F. Kennedy successfully accused Richard Nixon of countenancing a (fictitious) ‘missile gap’ vis-à-vis the Soviets, but his successor Lyndon Johnson’s overextension of American military involvement in the Vietnam War reproduced the Korean-quagmire dilemma, with a difference: This time, not the Republicans (who were hawks) but liberal Democrats split off. Simultaneously, the same liberals were driving Southern Democrats out of the party with their support for federal-government intervention in the civil rights struggles of the South. To put it another way, the Kennedy-Johnson political strategy was to shore up party support among African-Americans by backing their legitimate aspirations respecting civil rights, but at the same time to appeal to conservative Southerners with a strong anti-communist effort in Vietnam. The strategy didn’t work because Southern Democrats cared more about segregation than they did about communists, and Northern liberal-Progressive Democrats cared more about promoting civil rights and ending the war—both popular causes in their constituencies—than they did about keeping the Southerners in the fold.

Republicans inherited many Southern Democrats without losing their anti-communist edge. Alienation from the Democratic Party also entailed substantial party ‘dealignment,’ as well; in the mid-1950s, 20% of voters were ‘independents’ (more precisely, ‘undeclareds’). By 1970, the number was up to around 30%. The jarring shifts in policy seen among Democrats, and especially the social and political dislocations of the 1960s, eroded partisan allegiances along with other bonds of social trust.

Meanwhile, the liberal-Progressive Democats who gained undisputed control of the party by the late 1960s were again vulnerable to the charge of softness on communism. The party’s 1972 nominee, George McGovern, resembled Henry Wallace rather too much to make a plausible major-party candidate, and Nixon buried him that November. But voters hadn’t turned against the New-Deal welfare state, and Democrats continued firmly in control of Congress. Democratic Congressional leadership, sensing they were in for a long siege, began building bigger staffs. In the 1970s House staff tripled, Senate staff doubled (Jones 17-21).

The characteristic technique of an aggressive Congress facing off against an enemy president is the investigation. This has been true since James Madison led the Jeffersonians against the Federalists during the Adams Administration. If conducted shrewdly, Congressional investigations hamstring an enemy president by making him look bad—evil and/or inept. There is a downside, as McCarthy demonstrated, but that only proves that you need to be reasonably intelligent in employing the tactic, and even Tailgunner Joe got a fair amount of play while he lasted. The large Congressional staffs can always find rich sources of scandal in large executive-branch staffs, inasmuch as who is always doing whatever to whom.

Reagan reinvigorated the presidency in the 1980s, faced off successfully against Congressional Democrats discredited by their own scandals. More than one observer considers the Iran-Contra affair to have been the central event in the constitutional history of divided government in the 1980s, as a more-assertive presidential staff clashed with a still-assertive legislative staff over the issue of who would control foreign policy. The longtime Republican trump card, anti-communism, matched the traditional Congressional trump card (Democratic and Republican), investigation into constitutionally-dubious executive-branch doings. Meanwhile, the Republican-controlled executive put the squeeze on the Democratic Congress’s domestic agenda with its policy of tax cuts and budget deficits, for which it had just enough Congressional support to sustain—thanks to the depleted by still numerous-enough-to-make-things-awkward ranks of Southern Democrats. In this double conflict within a divided government, the Republicans enjoyed a narrow, vulnerable, and (thanks to George H. W. Bush’s mishandling of the 1991 recession) temporary victory, setting the stage for the politics of the 1990s.

Divided government in the 1990s saw a musical-chairs reversal, with Democrats controlling the White House, Republicans controlling Congress. The first reversal was made possible by victory in the Cold War. Foreign and military policy lost its saliency, at least for the time; coupled with economic recession, this cost the Republicans the presidency. But the young, untried President Clinton overreached in pushing for a national health-care system and in other areas. Congressional Republicans seized control, for the first time in a generation, in the midterm election of 1992.

The new century saw a slight abatement of the trend. The George W. Bush and Barack Obama administrations saw divided government, but only in the final two years of their second terms—the ‘lame-duck’ years of any presidency, with or without a hostile Congress.

‘Divided government’ became a common feature of American politics throughout the second half of the twentieth century and into the first years of the twenty-first, with only a few short-lived exceptions: the early years of the Johnson Administration; the blundering, weak Carter Administration; in effect the firs couple of Reagan years when Republicans had a workable coalition with conservative Democrats; the first, inept, two years of Clinton; the first administrations of George W. Bush and Obama. Its analytic value for understanding major tendencies in contemporary politics is very strong, so long as one keeps an eye on who the players are and what policies they are attempting to enact. As seen above, the power equations within the overall structure of divided government are constantly shifting, and even divided government itself has on occasion been breached.

Divided government does not necessarily mean lack of government, a Burnsian ‘deadlock of democracy.’ David L. Mayhew’s study, Divided We Govern, identifies many other factors that influence policy outcomes. The most important structural factor, perhaps even more than the executive-legislative division, is the bicameral division between House and Senate. Sarah A. Binder has argued that bicameralism is more relevant to policy than divided government. This is clearly consistent with Madison’s argument in Federalist 62, which Binder cites, but even more in keeping with John Adams’s massive study, Defence of the Constitutions of the United States, the pioneering work in American in the field of historical and comparative politics, the principal point of which is to establish the utility of bicameralism as against unicameralism as an essential component for making republican government properly deliberative. The underlying principle is simple: If, to reach the president’s desk, a major bill must pass two hurdles instead of one, and if each ‘hurdle’ is made of different materials—if, for example, members of the ‘lower’ house have shorter terms and smaller constituencies than members of the ‘upper’ house—that bill must be very well-thought-of indeed merely to survive legislative scrutiny, let alone executive scrutiny. When action slows, thought has time to take effect. When action flows, those who can act may see their opportunity and take it: divided government doesn’t divide the bureaucracy; when others cannot legislate, it can still regulate.

Other factors that lead to gridlock or no-gridlock, as Binder observes, include ideational divergence (the greater the divergence, the less incentive for compromise) and the pent-up energy of a party many years out of power, now victorious (most strikingly, Republicans of the Class of ’94), who tend to unite militantly to obtain those legislative objects they’ve long for during their years in the desert. The extra-institutional fact. public sentiment, also matters—the most obvious example in the last century being the first years of the New Deal, when divided government was nearly impossible.

A perennial possibility in the American political framework, divided government has occurred more often since World War II, owing to the instability of the old Democratic Party coalition that predated the war and the political ramifications of the Cold War that came out of that war. Its analytical value in understanding major tendencies in contemporary politics is high, but it is one factor among several, not an analytic panacea.

 

Works Cited

Binder, Sarah A.: “The Dynamics of Legislative Gridlock, 1947-96.” American Political Science Review, Volume 93, Number 3, September 1999, 519-533.

Mayhew, David R.: Divided We Govern: Party Control, Lawmaking, and Investigation, 1946-2002. New Haven: Yale University Press, 2005.

Scocpol, Theda: Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States. Cambridge: Harvard University Press, 1992.

Grant McConnell argues that state governments enforce, if not local tyrannies, then local oligarchies. Typically, state regulatory boards have been captured by the organizations ostensibly to be regulated (McConnell 187-188), and in the state legislatures logrolling based on not-so-good old-boy networks prevails (194). “Self-government in this sense may enlarge the freedom of the powerful,” he argues, “but it may also diminish the freedom of the weak” (194).

The list of offenses committed by state governments could be lengthened. Southern states banded together to fight the bloodiest war in our history over the worst of lost causes. The invocation of states’ rights from 1865 to 1965 became a code word for racial bigotry. Without national legislation and national court decisions to prevent them, the states might have beggared themselves with high tariffs and other devices of trade war. These and other tyrannical and centrifugal tendencies were of course recognized by the Framers of the 1787 Constitution. In the history of the world, confederations more usually dissolve because member states overwhelm the center, Madison observed in the forty-fifth Federalist, not the other way around. Under the Articles of Confederation, for every injury to local governments by national government there had been a hundred done by the states to the nation (Federalist 46).

All this notwithstanding, Americans have stuck with federalism for good reason, at least since the 1760. It was at that time Americans saw firsthand the dangers of centralization of power.

In the aftermath of the Seven Years’ War, the British government under Lord Grenville sought to tighten imperial administration over the North American colonists, seeking to impose direct taxation, a standing army, and restrictions on immigration to the western territories. Against these plans, the colonists asserted, famously, the demand for real rather than virtual representation in the British parliament. Less famously today, they also asserted a federal theory of empire, whereby the colonists would govern their own internal affairs while the imperial government in London would govern foreign policy, international commerce, and the money supply. Parliament countered that sovereignty is indivisible and, further, that sovereignty inhered in Parliament. There can be no imperium in imperio. Recalling that the king, not Parliament, had established the American colonies, the colonists denied Parliament’s authority over Americans. When they finally declared their independence, the Americans accordingly condemned the tyranny of the king—his designs against their unalienable natural rights as well as their common-law and chartered rights. The central authority or sovereignty wrongfully asserted by Parliament and the central authority and sovereignty wrongly used by the king were equally dangerous.

It was out of this experience that the American argument for a federal system of government arose. Madison called it “a system without example ancient or modern—a system founded on popular rights, and so combining a federal form with the forms of individual republics, as may enable each to supply the defects of the other and obtain the advantage of both” (Madison, Introduction to Eliot’s Debates, 109). This concise statement deserves unpacking, because it provides the justification for American federalism and therefore supplies the criterion by which one can answer the examination question.

The Framers agreed with the British Parliament on one point: Finally, sovereignty cannot be divided, and that imperium in imperio is a solecism. Unlike the mixed regime of England, where sovereignty inhered in both king and parliament—with an increasingly implausible claim to rule by the titled nobility thrown in—American sovereignty was wholly popular. The people of each State ratified both their State’s constitutions and their federal constitution, in order to secure their own—’popular’—rights, natural and civil/conventional. The first conventional protection of natural rights was of course the regime itself, commercial republicanism, a regime established not only by means of the national constitution but guaranteed by that constitution to each state. The defect of republicanism is the turbulence caused by faction, inasmuch as republicanism frees the citizens to form factions and to agitate for their interests. The defect of confederation is disunion, as each constituent state tends to go its own way, ignoring the common good of the confederation as a whole. American federalism as a system of government stops faction in two ways.

First, along with the device of representation, it enables a republic to extend its territory to encompass a large territory inhabited by divers groups and factions, none of which, therefore, is likely to be able to tyrannized the others—the argument of Federalist 10. An extended republic can remain republican in part because each representative has a constituency neither too large—which would lead to remoteness from the people—nor too small—which would lead to the election of representatives from one faction. And even if a faction controls one State, the others—”constituent parts of the national sovereignty” via the Senate (Federalist 9)–will prevent “a general conflagration” (Federalist 10).

Second, the extended republic federalism makes possible enables the American people to defend themselves against the threat of foreign invasion. The danger was not so much that the English would return to conquer the continent. Rather, as Madison urged at the Philadelphia Convention on July 29, 1787, the threat of foreign invasion will transform the states’ governments into despotisms, as war preparation feeds state-building (Farrand I. 464). The American republic was made all-republican by authority of Constitutional law for the same reason. Confederations comprised of very different regime types fail (Federalist 43). Although Publius was not optimistic that a very loose confederation of commercial republics will not also bring war—some skirmishes had occurred already—he does prefer a regime-homogenous confederation to a heterogeneous one, especially if its components are all commercial-republican.

These are powerful arguments with considerable intuitive appeal. But are they demonstrably true in light of the experience of the ensuing centuries? And how could we know whether they are or are not true?

There is obviously no way to demonstrate the truth of such arguments in a geometric-deductive way, except in the limited sense that they could be true because they are not illogical. We are left with the same kind of arguments the Framers themselves employed when talking politics: prudential arguments based on comparisons with the experiences of other regimes that were equally tested by those breeders of tyranny, war and domestic conflict.

Before engaging in a comparison exercise, one should notice two early examples in which the States were directly involved which did indeed erect barriers to the potential development of tyranny.

The first is the ratification of the 1787 Constitution by the people within each State—not by the State governments themselves—and the resultant enactment of the Bill of Rights. During the ratification debates, numerous opponents of the proposed constitution cited the document’s lack of a bill of rights as a serious flaw. In Pennsylvania, the “Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents” (December 1787) argued so, as did Anti-federalists “John DeWitt” and “Agrippa” of Massachusetts, George Mason and “Federal Farmer” of Virginia and, most notably, “Brutus” of New York. Brutus summarized Locke’s argument concerning the ‘state of nature,’ remarking that “in this state of things, every individual was insecure” because every individual pursued “his own interest.” Although “a certain proportion of natural freedom” must be “yielded by individuals, when they submit to government,” individuals do not surrender “all their natural rights”—only those incompatible with civil society. It is therefore useful to spell out, at “the foundation” of a new government, exactly what those rights are, “expressly reserving to the people such of their essential natural rights, as are not necessary to be parted with: (Essays of Brutus II). Because “rulers have the same propensities as other men” to injure and oppress the ruled, “it is therefore as proper that bounds should be set to their authority, as that government should have at first been instituted to restrain private injuries: (Ibid.). Publius-Hamilton replied in Federalist 84 that the Constitution as it stood was already a Bill of Rights, more effectively so because not merely declaratory but constitutive of an actual governmental structure that would protect rights in the real world. But Madison in Virginia got the Constitution ratified in part by agreeing to push for a Bill of Rights in Congress. In effect, then, we owe the Bill of Rights—often in recent debates used against unjust actions by both State and national governments—to federalism of the ratification process itself.

Second, the controversy over the Sedition Act that was passed during the Adams Administration provided an early test of the efficacy of the Bill of Rights. Although not in itself tyrannical, the Sedition Act led in the direction of tyrannical abridgement of the freedoms of speech and of the press. Party feelings ran high in 1798 when Jefferson wrote to John Taylor, with understandable exaggeration, “It is a singular phenomenon, that while our State governments are the very best in the world, without exception or comparison, our general government has, in the rapid course of 9 or 10 years, become more arbitrary, and has swallowed up more of the public liberty than even that of England.” In his Kentucky Resolutions, he wrote that when the federal government “assumes undelegated powers” as in the Sedition Act, “its acts are unauthoritative, void, and of no force.” Even if all its branches concur with the act, the federal government is not “the exclusive or final judge of the extent of the powers delegated to itself.” With no common judge between federal and states’ governments, “each part has an equal right to judge for itself” the Constitutional legitimacy of any law. “[T]o take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in the compact”—notably the Tenth Amendment—”is not for the peace, happiness, or prosperity of these States.” Accordingly, every State has not merely a constitutional but a natural right “in cases not within the contract, to nullify of their own authority all assumptions of power by others within their limits.” Without such a right, “absolute and unlimited dominion of the federal government over the States’ governments will prevail. As in England, the national government and not the people would be sovereign.

The Kentucky Resolutions (and the Virginia Resolutions authored by Madison) did not assume unilateral action. Although Jefferson asserted a natural right to States’ sovereignty, in practice he effectively conceded that States would need to act in concert in order really to establish that right legally. In the event, the States did not do so, but did not need to do so. Jefferson’s election to the presidency, two years later—effected in part by capitalizing on anti-consolidationist sentiments expressed and fanned by the Kentucky and Virginia Resolutions, proved a more practicable means of protecting constitutional rights, and of course led to the repeal of the Sedition Act. As in the case of the Bill of Rights itself, the Stated provided an indispensable strategically-placed battleground for the defense of natural and civil rights against potential danger from the national government.

 

Madison’s Claim Examined

As Madison wrote, federalism is not a regime but a system of government distinguished by a greater degree of decentralization than a small, centralized ancient polis or ‘city-state’ and a large, also centralized modern state—the system first advocated by Machiavelli. A federal state, a city-state, or a modern state might have any regime; regimes are defined by the type of rule seen in the political community—the persons who rule, the institutions they use in ruling, their purposes in ruling, and the way of life the persons, institutions, and purposes impart to the people who live there. The workings of the federal system against the growth of tyranny are, well, unsystematic—not susceptible of cut-and-dried test cases. But, with the help of comparative political analysis (which is really only one form of prudential reasoning based on experience) one can test the Madisonian hypothesis.

As mentioned above, one part of the hypothesis is that federalism, combined with the regime of republicanism, defends against tyranny from without by affording vulnerable, small republics the opportunity to summon the material resources needed to defend themselves militarily against foreign tyrants, without leading to the permanent military establishments that threaten the republican regime itself. On the latter point, the comparativist Michael Mann confirms Madison’s claim. The American Revolution actually democratized American politics by “letting the ‘people’ onstage,” from which vantage point they preferred not to move after the war was over (151). But elsewhere war expanded the state—indeed, Mann remarks that “only war did this before 1850″ (359, emphasis added). After 1850, civilian bureaucracies also grew, but the military itself bureaucratized, becoming more efficient and deadly. In Germany, the combined civilian and military bureaucracy of the central government overwhelmed federalism, opening the door to the Kaiserreich of the turn of the century and the Third Reich a few decades later: Statism overwhelmed weak republicanism. The United States saw the same pressures at the same time: labor-capital strife, world wars, depressions. But although the central state apparatus expanded as a response to those pressures, it did not go the way of the German state.

Victory in those wars also confirms part of Madison’s hypothesis: that commercial republics, sufficiently extensive in territory and therefore formidable in human and material resources, will be able to fight to defend themselves. Regimes as diverse as the British mixed regime, the Confederate oligarchy, the German Kaiserreich, the Nazi tyranny, the Soviet tyranny followed by the Soviet oligarchy, have all grossly underestimated the battle-readiness of the American commercial republic. So far, that republic has enjoyed more military success than the regimes that deliberately cultivate a militarist ethos.

More worrisome from a Madisonian (and indeed from any Whiggish) viewpoint is the existence of a large standing military force in post-World War II America. The longterm ‘Cold War’ did in fact lead to considerable state growth. But there has been nothing approaching a military tyranny or a coup attempt of any sort, evidently because the military draws its personnel from the ordinary civilian population of a commercial republican society, still somewhat decentralized despite the weakening of federalism during the same period, a population whose ‘habits of mind and heart’ are decidedly non-autocratic. Madison and Jefferson would undoubtedly continue to view the military establishment with profound suspicion, but so far it looks as if federal, commercial republicanism is even more resilient than its first friends expected it to be.

The second part of the Madisonian hypothesis is the domestic component: that federal republicanism will defeat the factionalism to which small republics are prey by extending the sphere of government to a bigger territory with a larger population, in which factions are too numerous to enable any one faction to dominate. In Germany, as Mann explains, Bismarck’s authoritarian (if not tyrannical) state came about in part to manage class conflict; Hitler’s Reich came in after a decade of severe, partisan class conflict. After 1850, generally in Europe, state-building was tied at least as much to the need to assuage class conflict; in fact, Theodore Roosevelt was interested in Bismarck’s projects and thought about how they might be adapted to American circumstances, and cousin Franklin’s New Deal state-building successes were a response to the pressures of economic collapse. Both capitalist-class and working-class politics are to some degree factional in the Madisonian sense. The American federal republic quite likely has helped to prevent the more sharply authoritarian tendencies seen in other countries.

Aristide Zolberg has written that “the single most important determinant of variation in the patterns of working-class politics… is simply whether, at the time this class was being brought into being by the development of capitalism… it faced an absolutist or a liberal state.” In the United States, Zolberg continues, republicanism preceded industrialism, mass parties formed before the working class formed, and political entrepreneurs needed mass support in order to win. Trans-class organizations already occupied “space in the political arena,” and this resulted in accommodation and melioration—admittedly, after some very serious and violent worker-capitalist clashes around the turn of the twentieth century (Zolberg 450 ff.). Before Aristide, Aristotle argued that who rules and the institutions by which they rule will ‘channel’ minds and hearts in different directions in different regimes.

More directly related to federalism is Ira Katznelson’s argument: The federal republican state could present no serious nationally-directed repression of labor unions in America. There was “no unitary state to defend or transform” (Katznelson 64). Madisonian republicanism did in fact yield social diversity, and ethnic clashes were not linked closely to class conflict. Machine politicians, mediators between rich and poor, followed a policy of modest and largely localized redistribution of wealth, an arrangement with which even FDR had to compromise (Bensel 149); that is, the bureaucratization of welfare politics could not become simply national. American has seen plenty of strikes and not a few riots, but no revolutions; the revolutionaries, as Madison predicted, have not been able to unite in strong national networks. Moreover, no systematic critique of the American federal system has ever caught on, although dozens have been offered. ‘The masses’ were not excluded from political representation (unlike the German workers), and so were not really masses (Katznelson 27). This is not to suggest that a sharper, class-conflictual politics in America would have led to tyranny. In some countries it did and in others it did not; England did not have the American system, but it was never in danger of succumbing to tyranny via the path of domestic unrest. Still, it is reasonable to think that American federal republicanism has worked generally to prevent factions from becoming increasingly tyrannical.

Madison himself accounted for the non-tyrannical growth of the federal government in the twentieth century. The people of the United States, he remarked in Federalist 46, are “the common authority” above both national and state governments. “If… the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration as will overcome all their antecedent propensities.” The increased partiality of Americans for the federal government as against the States can be seen precisely in the former’s necessarily nation-wide response to the Great Depression and world war in the 1930-40s, and to the Cold War thereafter. Now that those stimuli have been removed, there has been some return of authority to the States—again because the people control both parts of the system, and put different weights on the scales at different times, depending upon perceived changes in circumstances.

 

Works Cited

Bensel, Richard Franklin: Sectionalism and American Political Development, 1880-1980. Madison: University of Wisconsin Press, 1984.

Boyd, Julian, ed.: The Papers of Thomas Jefferson. Princeton: Princeton University Press, 1950-.

Eliot, Jonathan, ed.: Debates on the Adoption of the Federal Constitution. Philadelphia: J. B. Lippincott, 1845.

Farrand, Max, ed.: The Records of the Federal Convention. 4 volumes. New Haven: Yale University Press, 1966 [1937].

Katznelson, Ira: “Working-Class Formation: Constructing Cases and Comparisons.” In Katznelson and Zolberg, 1986.

Katznelson, Ira and Zolberg, Aristide: Working-Class Formation: Nineteenth-Century Patterns in Western Europe and the United States. Princeton: Princeton University Press, 1986.

Ketchum, Ralph: The Anti-Federalist Papers. New York: New American Library, 2003.

Mann, Michael: The Sources of Social Power. Volume II: The Rise of Classes and Nation-States, 1760-1914. Cambridge: Cambridge University Press, 1986.

McConnell, Grant: Private Power and American Democracy. New York: Alfred A. Knopf, 1966. 

Publius: The Federalist. Dubuque: Kendall/Hunt Publishing Company. 1990.

Zolberg, Aristide: “How Many Exceptionalisms?” In Katznelson and Zolberg, 1986.

In To Make a Nation: The Rediscovery of American Federalism, Samuel H. Beer seeks to refute James Madison’s conception of federalism. Beer traces his own, nationalistic, conception of federalism to Franklin Roosevelt, Herbert Croly, Abraham Lincoln, and James Wilson. In examining Beer’s argument, I shall first summarize it and raise questions with respect to its historical accuracy. I shall then discuss Croly and Madison, ending with a comparison of the merits of Madison’s conception with Beer’s.

 

1. Beer’s Argument on the Constitution’s ‘Prehistory’

Beer calls “the national idea” both a “concept of authority” that “identifies the whole people of the nation as the source of the legitimate powers of any and all governments” and a “concept of purpose” that “tells us that we are one people and guides us toward what we should make of ourselves as a people.” The national idea encompasses the sovereignty of the people and their self-government. [1]  The combination of popular sovereignty and self-government yields democracy—government of, by, and for the people. Although the people are ‘unitary,’ the government is not; the government is dual or federal. “In establishing this system, the American people authorized and empowered two sets of governments—a general government for the whole, and state governments for the parts. The constitutional authority for the two sets of government is therefore coordinate.” (Beer 1).

The first section of the book, an account of the movement in political philosophy “from hierarchy to republicanism”—from Thomas Aquinas’s “rule of the wise and the holy” (1) to Benjamin Franklin’s empire of individual liberty, a journey stopping at destinations including John Milton and James Harrington—need not detain us. This journey ends with Beer’s main argument, an account of federalism as conceived by the American Founders.

Initially, he concedes, the Americans understood government as a compact. Before the Declaration of Independence, the Founders were not founders but reformers, engaged in a Franklin-like attempt to rewrite what they took to be the social contract between themselves and their king. As late as the framing of the Articles of Confederation, the Founders declared that each state would retain “its sovereignty, freedom and independence”; “while not without ambiguity, this strong assertion of state sovereignty gave comfort to advocates of the compact theory in later years” (194). However, what legal theory gave, political practice overstepped. The confederation acted as a government and as a constituent assembly, chosen not by colonial governments but by committees of correspondence and other popular modes of election. This body “authorized the creation of the states,” and then of the United States (196). The Declaration of Independence’s reference to “the good people of the several colonies” amounts to a lightly veiled reference to Whigs as distinguished from Tories, the bad people of the several colonies, both taken collectively (198). These actions justify Lincoln’s assertion that the Union is “older than any of the States, and, in fact, it created them as States” (Message to Congress, July 4, 1861, cited in Beer, 200).

Beer observes that “no colony declared its independence separately or gave itself a constitution before being authorized to do so by the Continental Congress” (200). New Hampshire delegates at Exeter asked “the advice and direction of the Congress” with regard to creating a legal government. “Congress,” Beer writes, “gave the desired authorization” (201, emphasis added). It then granted “similar authorization” to a request from South Carolina. On May 10, 1776, Beer continues, Congress adopted a general resolution “which over the following months ensured that all colonies would acquire state governments”—a declaration John Adams regarded to be tantamount to a declaration of independence (201). The formal Declaration of July 4, 1776 refers to “a people” dissolving the “political bands” that had connected them to another people. While the Articles of Confederation framed a government admittedly “based on a compact among the thirteen states,” the United States itself had already been created and declared in 1776 (202). “No more than an interstate compact today did the Articles of Confederation create a new and independent polity” (202). And the 1787 Constitution once more had recourse not to the states and their legislatures but to the people’s representatives assembled in constitutional conventions.

Beer’s argument is plausible, but slanted toward nationalism. The very manner in which he organizes his history—discussing first the Articles, then the events leading up to and including the Declaration of Independence, then back to the Articles and the 1787 Constitution—should raise suspicion. The suspicion is justified by presenting the events chronologically. When Lincoln mentions the creation of the Union by the States, he refers to the following sequence of events:

First, the Continental Congress was formed in 1774 not by colonial legislatures but by committees of correspondence (initiated by town meetings) and other informal and popular mechanisms. So far, Beer is right.

Second, at the first Continental Congress, Patrick Henry argued that British depredations had placed the colonies in a state of nature, that the colonial structure of government had dissolved. “I am not a Virginian, but an American,” he averred. But this was the minority view. Most delegates regarded Americans to be in a state of nature vis-à-vis Great Britain, but not vis-à-vis their own legislatures. [2]

Third, given these two points, the “Declaration and Resolve” of 1774 stated, “The good people of the several colonies… have severally elected, constituted, and appointed deputies” to sit in Congress (Solberg, 11, emphasis added).

Fourth, the July 1775 “Declaration of the Causes and Necessity for Taking Up Arms” states that “Our Union is perfect”; this union consists in “being of one mind resolved to die as freemen rather than to live slaves” (Solberg, 22, emphasis added). Here, union means unity of intention. This intention did not yet encompass independence, only self-defense.

Fifth, in June 1775, the Massachusetts Provincial Congress requested the “advice and consent” of the Continental Congress with respect to the crisis of civil authority precipitated by the Battle of Lexington. Congress passed a resolution recommending that Massachusetts appoint an interim government pending the King’s appointment of a governor willing to govern Massachusetts in accordance with its colonial charter.

Sixth, in 1775 the Congress recommended (not, as Beer contends, authorized) the Congress recommended (not, as Beer contends, authorized) that New Hampshire and South Carolina declare independence from Great Britain. This again reflects the “one mind” assertion, but cannot be said to imply any authority in the strong, nationalist sense Beer wants to establish. The Congress did not “create” the States as formal sovereignties. Congress urged and applauded their action.

Seventh, on May 10, 1776, Congress passed a resolution recommending that all colonial governments constitute State (i.e., independent) governments—and that all the governments be republican. Such governments, Congress stated, will “best conduce to the happiness and safety of their constituents and America in general” (Solberg 29, emphasis added). That is, Congress distinguished between the constituents of colonial governments—the people living within each of the colonies—and the people of America as a whole. This distinction is viewed as complementary, not contradictory.

Eighth, the Resolution of Independence (June 7, 1776) states that the colonies are united but not yet confederated (Solberg 32). This can only mean that “the Union,” the unitedness of the American States, is not a federal or even confederal union; at this point, there is no general government at all. The Congress is simply that: a congress.

Ninth, the final paragraph of the Declaration of Independence clearly refers to the representatives of the United States—plural—of America, in General Congress assembled, acting by the authority of “the good People of these Colonies”—again plural—to dissolve “all political connection between them and the State”—singular—of Great Britain. These are now “free and independent States”—plural.

Tenth, as Beer concedes, the Articles of Confederation was a compact between independent states; the States created the Articles. The Continental Congress, representing the “union” of the American people in the above-mentioned sense of ‘the American mind,’ had encouraged the colonies to reconstitute themselves as independent States. Under the Articles, these States would “retain” their “sovereignty” in “perpetual” union. What has been retained must be definition have existed before. Union now refers not only to the “one mind” committed to the defense of natural rights but to the confederation or “league of friendship” which is not yet fully a federal government.

Therefore, prior to the 1787 Convention, prior to the 1781 Articles of Confederation, and after the 1776 Declaration, the States were sovereign. They became sovereign by declaring their independence at the recommendation of the united American people (not the colonial governments) represented in the Continental Congress. This one, united people, divided into sovereign groups, further united formally by the Articles of Confederation, which nevertheless explicitly cited the states’ continued sovereignty. Lincoln was correct to say that the Union preceded the States. He was correct to say that the Union ‘created’ the States in the sense that “Union” meant a single “mind” or intention. this mental/moral union did not, however, create a national government. It did not even create the States as sovereign entities; they were created by the citizens of the colonies. There was one people, divided into several sovereign states. This is why Lincoln needed recourse to other arguments against secession—arguments based on natural rights, constitutionalism, and prudential reasoning.

Beer’s ‘practical’ point—that the Confederation acted in some measure like a government, despite its “rhetoric” about sovereignty (Beer 202)—is well noted. But it cannot carry the argument. The Articles’ language wasn’t rhetoric; it was treaty law. The treaty proved inadequate to perpetuate the avowedly perpetual union. Hence the need for a real government, not merely a strong treaty.

 

Croly’s Argument

At the outset of his book, Beer writes that he has “pretty well confirmed” the “insights” of Herbert Croly with respect to the question of “how the leading minds among the framers conceived the Constitution in general and its federal arrangements in particular” (Beer xi). He does not elaborate on what Croly’s insights were. It is therefore useful to review and evaluate those insights.

Croly speaks not in the Founders’ language of natural right but in terms of German idealism. Americans are loyal not only to “historical tradition,” he writes, but to “the imaginative projection of an ideal national Promise”—a “vision of a better future.” [3]  Unfortunately, Americans conceive of their duty as consisting “fundamentally in remaining true to traditional ways of behavior, standards, and ideals” (Croly 5). “[E]ntertain[ing],” as he does, “an active and intense dislike of the foregoing mixture of optimism, fatalism, and conservatism,” Croly seeks to steel Americans to sacrifice “traditional American ways” to arouse Americans “from their patriotic slumber”—event as Kant had been aroused from his dogmatic slumber by Hume—for the task of constructing a “better future” (Croly 5-6, 21).

While popular sovereignty and representative government need not be sacrificed, in view of the new social and economic conditions imposed by concentrations of great wealth these now need to be turned “to good account” by the means of “a more highly socialized democracy” (Croly 25). Croly’s self-described “radical critique” (28) of the American regime apparently culminates in his celebrated formula, ‘Hamiltonian means for Jeffersonian ends’—ends Croly describes as “essentially equalitarian and even socialistic” (43). This German-style synthesis of apparent irreconcilables depends upon an organic-historicist-vitalist reading of American history (60, 69-70)—again, entirely consistent with German idealism. Thus: “Lincoln’s peculiar and permanent distinction as a democrat will depend rather upon the fact that his thoughts and his actions looked towards the realization of the highest and most edifying realization of the highest and most edifying democratic ideal” (74)—a formulation that elegantly elides Lincoln’s own attachment to natural rights. Citing the undeniably changed socioeconomic conditions of his contemporary America, Croly appeals not to constitutional law or to natural rights but to “national opinion” (131, 134). He praises Theodore Roosevelt as having “divined that the national principle involved a continual process of internal reformation,” a ‘permanent revolution’ of progress; Croly’s Roosevelt is “the founder of a new national democracy” (168,170). “Divined” is exactly right: for Croly, Roosevelt is not so much a statesman as a political prophet, a man of “leadership” (170). This prophet follows not so much the will of God; rather, “his intelligence has been the handmaid of his will” (174). Roosevelt’s one flaw is his continuation of the “Jeffersonian bondage,” that is, his identification of democracy “with the legal constitution of a system of insurgent, ambiguous, and indiscriminate individual rights” (172). Croly is more than helpful, indeed eager, to liberate Roosevelt from this bondage, to reinterpret his enterprise for him, and even to await the day “when a national reformer will appear who can be figured more in the guise of St. Michael, armed with a flaming sword and winged for flight” (175). In the event, Woodrow Wilson would have to do.

The Jeffersonian “principle of equal rights encourages mutual suspicion and disloyalty” (Croly 185). Croly prefers to speak not of American republicanism, with its separated and balanced power and its federalism, as of democracy—defined as popular sovereignty that is effective, not self-binding, and as equal civil (not natural) rights (178). A strong national state must be constructed to make democracy effective. Croly thus outlines a ‘soft’ or social version of Social Darwinism, distinguished from Marxism by Croly’s emphasis on the power of nationalism. But Croly isn’t entirely ‘soft’; he praises Bismarck’s deliberate provocation of war for the purpose of enhancing national unity (256), and lauds Bismarck’s rejection of “individualistic ‘liberalism'” (249-250). In America, Jeffersonian fears of governmental centralization are “absurd” (277). “[T]he Federal government belongs to the American people even more completely than do the state governments, because a general climate of public opinion can act much more effectively on the single Federal authority than it can upon the many separate State authorities” (278). But by “the people” Croly does not mean merely those who supply majorities in elections. The “true people,” as Bismarck said, are “an invisible multitude of spirits—the nation of yesterday and tomorrow, organized for its national historical mission” (280)—a sort of Burkeanism of the Left. This organized and “living movement” (282), based on “the whole complex of human powers and interests” (283), will “sanctify” the robust loyalty of American citizens (285). The ‘totalized’ movement will require a central authority to organize it: authority will go to the central government, with responsibility reserved for the states (322-323). A plebiscitary system whereby the president proposes referendum items to be voted on by the nation (with the executive himself to be restrained by the existence of a recall provision) will replace the old system of federalism, and to a decisive extent, the old system of representation (331). An “efficient national industrial policy” that extends the commerce clause of the Constitution to all levels of the economy (351-352) will serve as the economic counterpart to political centralization.

By now it should be clear that the formula ‘Hamiltonian means for Jeffersonian ends’ is fake, on both ends. Plebiscitary rule has no place in Hamilton’s thought; locating rights in ‘History’ instead of nature has no place in Jefferson’s. Croly’s “democratic scheme of moral values” is nothing less than a “religion” of “loving-kindness” (453)—but, for the first time, one with efficiency. “[T]he soil will be prepared for the crowning work of some democratic Saint Francis,” for “some democratic evangelist” who sees that democracy cannot be disentangled from an aspiration toward human perfectibility” (453-454). That sounds a bit more like Wilson.

Whatever it may be, this kinder, gentler Bismarckism bears little resemblance to the thought of the American Founders. Beer applauds Croly, and very prudently does not describe the real character of Croly’s thought. Beer’s applause does account for his selective story about the American founding, which gives historical credence to Croly’s much more forthrightly radical agenda.

 

Madisonian federalism

Beer devotes the final section of his book to a critique of Madison’s federalism and a celebration of James Wilson’s ‘nationalism.’ Before considering this critique, one must recall how Madison conceived of federalism.

Although many have claimed that Madison contradicted himself on federalism—veering from nationalism in the 1780s to states’-rightism in the 1790s and then back to nationalism in his last years—Madison denied any inconsistency. I maintain that he was right, that his federalism  remained essentially the same throughout his career. [4]

In the forty-sixth Federalist Madison argues that both “the federal and State governments are in fact but different agents and trustees of the people, constituted with different powers and for different purposes.” These governments are controlled by “a common superior,” “the ultimate authority” residing in “the people alone.” The people have ordained that the powers of the federal or national government be separated and derived from a mixture of national and State sources—the “compound republic” seen in Federalist 39. This compound republic crucially stipulates federal/national authority for guaranteeing republican governments in all the States: “The more intimate the nature of such a [confederal] union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be substantially maintained” (Federalist 43). That is, just as one who enters a contract will insist that the terms of the contract be maintained, so will he also insist that the contract be performed by the same person with whom he enters the contract. Here, the States are the contracting ‘persons’ or parties; each has the rightful expectation that the others will not change into substantially different ‘persons.’ The sovereignty of the States is justified only to the extent that it effects the happiness of the people; that sovereignty has been sacrificed to the extent seen in the new, compound republic, and no further (Federalist 45).

But was this the principle of the partial transfer of power from the States to the federal/national government not rejected by Madison in the 19790s, the Madison of the Virginia Resolutions? In that decade, Alexander Hamilton’s financial system raised serious questions concerning the centralization of power in the national government at the expense of the States. Characteristically, Madison’s response was nuanced. He opposed the bill establishing a national bank on the grounds that a broad construction of the Constitution’s “necessary and proper” clause resting on the doctrine of implied powers could not be sustained. The national government has “a grant of particular powers only, leaving the general mass in others hands.” “Necessary” must never come to mean “convenient.” The same argument holds against the use of the commerce clause as justification of internal improvements. Nonetheless, although Madison opposed the Bank he supported internal improvements—that is, he endorsed the substance of a major element of the Federalist (later the Whig) program. He could find no constitutional warrant for either, however, and remained consistently opposed to “broad and pliant” construction of the Constitution while supporting, against Jefferson, the constitutionality of judicial review. [5]

The Virginia Resolutions amounted to an attempt to supplement judicial review by review of national legislature by the States. Madison struck not at the national government outlined in The Federalist but at what he took to be the Hamiltonian concept of “consolidation.” Consolidating the States into one government would cause the aggrandizement of executive power at the expense of Congress because only the executive branch could regulate the vast number of matters taken over from state governments. Also, a single, national government over such a large territory and population as existed in the United States would make public opinion impossible to hear; “neither the voice nor the sense of ten or twenty millions of people, spread through so many latitudes as are comprehended within the United States, could ever be combined or called into effect, if deprived of those local organs, through which both can now be conveyed.” The national government would run on a “self-directed course, which, it must be owned, is the natural propensity of every government.” Republicanism itself would fail. [6]

The Virginia Resolutions cited “the compact to which the states are the parties” as the source of the origin of the national government. The powers of that government are “no farther valid than they are authorized by the grants enumerated in that compact, and in case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.” By “the states” with respect to the origin of the Constitution, Madison meant “the people composing those political societies, in their highest sovereign capacity.” The judiciary must not “be raised above the authority of the sovereign parties to the constitution”; “however true… it may be that the Judicial Department, is, in all questions submitted to it by the forms of the constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts.” To claim otherwise violates “the fundamental principle of the revolution,” namely, “that the colonies were coordinate members with each other, and with Great Britain” of an empire “united by a common Executive Sovereign” but “not united by any common Legislative Sovereign.” With executive sovereignty removed, the States/ people alone retained sovereignty. There was no American common law. There is now a supreme law of the land, the Constitution, which enumerates the powers of the national government, subject to review by the states as undertaken by their only possible spokesmen for such a purpose: their governments. [7]

Madison insisted that the Virginia Resolutions and Madison’s Report of 1800 supplied no grounds either for the later doctrine of nullification nor for unilateral secession. A compact established by the peoples of the several States “as sovereign communities” does not mean that the power to review national legislation rests with the States “in their individual Characters”; that would mean that “the Constitution of the U. S. might become different in every State, and would be pretty sure to do so in some.” The United States remain one nation. The Declaration of Independence was “our National birth,” the “fundamental act of Union of these States.” The Constitution’s “true meaning” is what was understood to be such “by the nation at the time of its ratification” by the states. “Were this a mere league, each of the parties would have an equal right to expound it; and of course, there would be as much right in one to insist on the bargain, as in another to renounce it. But the Union of the States is, according to the Virginia doctrine… a Constitutional Union; and the right to judge in the last resort, concerning usurpations of power, affecting the validity of the Union, referred by that doctrine to the parties to the compact.” But this power derives “its authority from the whole not from the parts, from the States in some collective not individual capacity”; “it is the nature and essence of a compact that it is equally obligatory on the parties to it, and of course that no one of them can be liberated therefrom without the consent of the others.” “[N]o individual or set of individuals can at pleasure, break off and set up for themselves, without such a violation of the compact as absolves them from its obligations.” It was the argument of the Declaration of Independence that exactly such violations had been committed by the British king and parliament. Secession may be justified but it will always be extraconstitutional; nullification cannot be constitutional at all; the Virginia Resolutions mean that a State that objects to a national law must appeal successfully to all other parties to the compact before it can consider the objectionable law to have been overturned. In the event, of course, the seven states that replied to the Virginia Resolution unanimously opposed them; the objectionable laws, the Alien and Sedition Acts, had to await a change in the national administration in order to be repealed. [8]

A unique feature of the United States, Madison argued throughout, is divided sovereignty. “[T]he sovereignty of the people of the States” was divided “between the States in their united and the States in their individual capacities that as the States, in their highest sovereign character, were competent to surrender the whole sovereignty and form themselves into a consolidated State, so they might surrender a part and retain, as they have done, the other part, forming a mixed Government with a division of its attributes as marked out in the Constitution.” The Nullification doctrine asserts the opposite: that sovereignty remained within each State, and that the States “acted as indivisible sovereignties” in forming the Union. But if this were the case, either with respect to the original social contract or the constitutional compact among the States, majority rule could not prevail; or, alternatively, the majority could prevail over every right of the parties to the compact. But majority rule can and does prevail in societies where the reserved rights of the contracting parties are nonetheless preserved. Sovereignty “resides not in a single state but in the people of each of the several states, uniting with those of the others in the express and solemn compact which forms the Constitution. To the extent of that compact or Constitution therefore, the people of the several States must be a sovereign as they are a united people.” “Had it been formed the people of the U. S. as one society, the authority could not have been more competent, than that which did form it; nor would a consolidation of the people of the States into one people, be different in validity or operation, if made by the aggregate authority of the people of the States, than if made by the plenary sanction given concurrently as it was in their highest sovereign capacity…. Whether the centripetal or centrifugal tendency be greatest, is a problem which experience is to decide….” Those who would run to either extreme of consolidation or mere confederation “aim a deadly blow at the last hope of true liberty on the face of the Earth”—words Lincoln paraphrased some twenty-five years later. [10]

 

Beer’s Critique of Madison

In support of his claim that the Constitution of 1787 is a ‘nationalizing’ document, Beer cites the well-known statement of Patrick Henry at the Virginia ratifying convention—that “We the People” in the Constitution’s Preamble means the people of America taken in one mass (Beer 254). He ignores Madison’s reply: the Preamble does not say, “We the people of the States of New Hampshire, Massachusetts, Rhode Island….” and so on because no one at the Philadelphia convention had known if all the States would ratify the new constitution. Madison further said that “We the People” refers to “the people as composing thirteen sovereignties.” [10]

In Philadelphia, far from eschewing compact theory, Madison had refined it. He distinguished two kinds of compact: the league or treaty and the Constitution. Treaties are compacts between or among sovereign states specifying “certain duties to which the parties were to be bound, and certain rules by which their subjects were to be reciprocally governed in their intercourse”; such a treaty may be founded on the ratification of legislatures and may be morally inviolable but politically weak, in that “a breach of any one article by any of the parties, frees the other parties from their engagements.” Compacts forming constitutions create “an authority… paramount to the parties, and making laws for the government of them”; these are not only morally but politically inviolable, and so a breach of the compact by one part does not necessarily free the other parties from their engagements.” [11]  This supports the “partly national, partly federal” concept of the American system enunciated by Madison in Federalist 39. As a constitutional compact, the 1787 Constitution issues from all the States as sovereign peoples—and thus from the American people as a whole—but it limits the powers of the State governments.

Beer claims that Federalist 39 contradicts Madison’s own argument made only a few numbers later, in Federalist 46. There Madison describes both national and state governments as “substantially dependent on the great body of the citizens of the United States.” “The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers and designed for different purposes.” This discrepancy is a “fatal gap in Madison’s reasoning” (Beer 314-316). But there is no contradiction at all. The more States ratify the Constitution, the more the people as a whole have exerted their sovereignty in perfecting their union of sovereign States. In perfecting that union, they have taken some of the sovereign powers they exercise through the States’ governments and transferred authority for certain acts—regulating commerce, making treaties, and so on—to the national government. Obviously, the Framers of the Constitution do not envision an intrusion of the national government, representing the sovereign people as a whole, into areas still reserved for the States. The sovereignty of the people within each State does not contradict the sovereignty of the American people as a whole. If it did, the language of the Declaration, referring to “the good People of these Colonies would have made no sense to its authors. It is rather Beer who contradicts himself in discussing the “rule of nine” whereby the 1787 Constitution was to be enacted if nine States ratified it (Beer 339). The rule of nine clearly implies that any States ratifying the Constitution would remain sovereign, as they were under the Articles of Confederation.

Madison’s treatment of union in Federalist 39 and in the writings of his old age are correct. These arguments are not contradicted by the writings of his ‘Jeffersonian’ period. The Webster-Lincoln argument goes too far with respect to the “course of events” in the 1770s and 1780s. However, in conjunction with Lincoln’s other arguments—based on natural rights, constitutionalism, and prudential reasoning—Lincoln’s defense of the Union is decisive against the secessionists.

 

Conclusion

Having said all this, the obvious question is, So what? Does it make any real difference to endorse Madison’s dual sovereignty as distinguished from Crolyan uniate sovereignty?

It makes a difference to historians, clearly. Madison’s account is noticeably more faithful to the events of the founding period and to the stated intentions of the Founders. The Madisonian account requires no German intellectual imports such as Idealism and Hegelian historicism in order to justify it. Nor does Madisonianism require a democratized version of Burke to justify itself. Madisonianism stands squarely with natural-rights political thought as seen in the Declaration of Independence and other authoritative documents of the founding period.

In a practical, political sense, Madisonian compact theory no less than Crolyism annuls nullification and precludes secession as a constitutional—though never of course as a natural—right. Madisonian compact theory in no way allows the States to tie the hands of the federal government. If anything, the review process promoted by the Virginia Resolutions is much too cumbersome to work as an effective check on any but the most blatant and unpopular encroachments on the States’ powers, as Madison and Jefferson themselves discovered. In a nation not of fifteen but of fifty states, the impracticability of intercession is all the more obvious. The normal political process is really the only way to trim the wings of the national state. Indeed, any encroachment so unpopular as to raise the ire of all fifty States would likely be too unpopular to be enacted in the first place.

The revival of the Madisonian doctrine might have some rhetorical utility for those who, in the face of strong pressures from the national government, desire to strengthen federalism. To the extent that the intentions of the Founders may count for anything politically, Madison’s argument might be helpful for that purpose.

 

Notes

1. Samuel H. Beer: To Make a Nation: The Rediscovery of American Federalism. Cambridge: Harvard University Press, 1993, p. 1. Subsequent page references in text.
2. Cited in Winton U. Solberg, ed.: The Federal Constitution and the Formation of the Union. Indianapolis: The Bobbs-Merrill Company, 1958, p. lxii. Subsequently cited as “Solberg.”
3. Herbert Croly: The Promise of American Life. Cambridge: Harvard University Press, 1965, p. 3. Originally published in 1909. Subsequently cited as “Croly.’
4. My argument has been anticipated by Leonard R. Sorenson: Madison on the “General Welfare” of America: His Consistent Constitutional Vision. Lanham: Rowman and Littlefield, 1995.
5. Speech on the Bank Bill, United States House of Representatives, February 2, 1791, in Robert A. Rutland et al., eds: The Papers of James Madison XIII. 374-378. See Sorenson 50-61; Veto Message, March 3, 1817, in Gaillard Hunt, ed.: The Writings of James Madison VIII. 388; Letter to James Monroe, November 11, 1817, WJM VIII. 397; Letter to Spencer Roane, September 2, 1819, WJM VIII. 450; Letter to Thomas Jefferson, June 27, 1823, WJM IX. 142-143.
6. “Consolidation.” Essay in the National Gazette, December 3, 1791, PJM XIV. 138.
7. Virginia Resolution, PJM XVII. 189; The Report of 1800, January 7, 1800, PJM XVII. 309-312, 315-316; 327-328.
8. Letter to Spencer Roane, June 29, 1821, WJM IX. 66; Letter to John G. Jackson, December 27, 1822, WJM IX. 74; Letter to Thomas Jefferson, September 6, 1823, WJM IX. 156; Letter to Thomas Jefferson, February 8, 1825, WJM IX. 221; Letter to Joseph C. Cabell, September 7, 1829, WJM IX. 347-348; Letter to N. P. Trist, February 15, 1830, WJM IX. 354-355. Thus Madison explicitly refuted the arguments of Senator Robert Y. Haynes, the pro-nullification senator to whom Senator Daniel Webster made his celebrated “Reply” (Letter to Robert Y. Haynes, January 19, 1830, WJM IX. 388-391) and he praised one of Webster’s speeches against nullification as “crushing” to that doctrine (Letter to Daniel Webster, March 15, 1833, WJM IX. 604-605).
9. “Sovereignty” (unpublished essay, 1835), WJM IX. 568-572; “Notes on Nullification” (unpublished essay, 1835) WJM IX. 575-576, 603, 606.
10. Eliot, Jonathan, ed.: Debates on the Adoption of the Federal Constitution, Philadelphia: J.B. Lippincott, 1845.
11. Madison, Speech at the Constitutional Convention, Philadelphia, June 28, 1787, Farrand, Max, ed.: The Records of the Federal Convention (4 volumes, New Haven: Yale University Press, 1966), I. 446; Speech at the Constitutional Convention, Philadelphia, July 23, 1787, Ibid. II. 93.