Federalism

1. Federalism Hamilton v. Jefferson and McCullouch v. Maryland Elderhostel September 25, 2006 Artemus Ward Department of Political Science Northern Illinois University

2. Federalism Defined • What is federalism? • Federalism describes a system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political units such as states. • The division of power between the United States government and the state governments has been an ongoing divisive issue in American politics since the founding.

3. The Articles of Confederation • Adopted by Congress in 1777, it combined the Thirteen Colonies of the American Revolutionary War into a loose confederation. • Still at war with England, the colonists were reluctant to establish another powerful national government. Jealously guarding their new independence, the Continental Congress created a loosely structured unicameral legislature that protected the liberty of the individual states at the expense of the confederation.

4. The Articles in Practice • While calling on Congress to regulate military and monetary affairs, for example, the Articles of Confederation provided no mechanism to ensure states complied with requests for troops or revenue. At times, this left the military in a precarious position. • Perhaps the most important power that Congress was denied was the power of taxation: Congress could only request money from the states. Understandably, the states did not generally comply with the requests in full, leaving the confederation chronically short of funds. The states and the national congress had both incurred debts during the war, and paying congressional debts became a major issue.

5. The Constitution: Is the National Government too Powerful? • Necessary and Proper Clause: Congress has the power “To make all Laws which shall be necessary and proper for carrying into Execution [its] Powers, and all other Powers of the United States.” • Supremacy Clause: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

6. Comparing the Articles with the Constitution • Articles of Confederation, Article II. “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” • United States Constitution, Amendment X. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. • What happened to the word “expressly”? Does it matter?

7. Two Views of the Constitution:Justice Joseph Story in Martin v. Hunter’s Lessee (1816) • “The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by "the people of the United States." . . . The Constitution was not, therefore, necessarily carved out of existing State sovereignties, nor a surrender of powers already existing in State institutions.”

8. Two Views of the Constitution:James Madison in a Resolution of the Virginia Assembly (1798) • “That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that 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.”

9. Bank of the United States • On the urging of Secretary of the Treasury Alexander Hamilton, Congress passed a bill establishing a national Bank of the United States. • When the bill arrived on President Washington’s desk, he did not sign it immediately. He wanted to ascertain whether Congress could create a bank since it lacked explicit constitutional authority to do so. • He asked Hamilton, Secretary of State Thomas Jefferson, and Attorney General Edmund Randolph for their opinions on the bank’s constitutionality. The United States Bank, Philadelphia

10. Thomas Jefferson, “Opinion on the Constitutionality of a National Bank” (1791) • “To take a single step beyond the boundaries . . . Specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.” • “It is known that the very power now proposed as a means [a national bank], was rejected as an end, by the Convention which formed the constitution.” • The enumerated powers “can all be carried into execution without a bank. A bank therefore is not necessary, and consequently not authorized by the [necessary and proper clause].” • “The constitution allows only the means which are ‘necessary’ not those which are merely ‘convenient’ for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to every one, for there is no one which ingenuity may not torture into a convenience, in some way or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one phrase . . . Therefore it was that the constitution restrained them to the necessary means, that is to say, to those means without which the grant of the power would be nugatory.”

11. Alexander Hamilton, “Opinion as to the Constitutionality of the Bank of the United States” (1791) • “This general principle is inherent in the very definition of government, and essential to every step of the progress to be made by hat of the United States, namely: that every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.” • “What was the precise nature or extent of this proposition [to establish a national bank at the Convention], or what the reasons for refusing it, is not ascertained by any authentic document, or even by accurate recollection.” [Even if it were known, it would not matter because] “whatever may have been the intention of the framers . . . that intention is to be sought for in the instrument itself.” • “[A bank] has a relation, more or less direct, to the power of collecting taxes, to that of borrowing money [etc.].”

12. McCulloch v. Maryland (1819) • Because of inefficiency and corruption, the United States Bank was very unpopular, and many blamed it for the nation’s economic problems. • As a result, Maryland sought to regulate and tax the branch located in Baltimore. • James McCulloch, a bank official, brought suit. • Can Congress establish a bank? • Can a state tax/regulate an instrument of the national government? The United States Bank, Philadelphia James McCulloch

13. McCulloch v. Maryland (1819) • “Among the enumerated powers, we do not find that of establishing a bank. But there is no phrase in that instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word ‘expressly.’” • “Its nature requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. . . we must never forget that it is a constitution we are expounding.” Chief Justice John Marshall

14. McCulloch v. Maryland (1819) • “Although, among the enumerated powers of government, we do not find the word ‘bank,’ we find the great powers to lay and collect taxes; to borrow money; to regulate commerce.... But the constitution of the United States has not left the right of Congress to employ the necessary means for the execution of the powers conferred on the government to general reasoning. To its enumeration of powers is added [the necessary and proper clause].” • “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” • “The power to tax involves the power to destroy. . . . [the states] may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the States.” Chief Justice John Marshall

15. Aftermath • The nationalist views articulated by Hamilton and Marshall eventually succumbed to the states-rights views of Jefferson with President Andrew Jackson’s appointment of Roger Taney as Chief Justice. • Subsequently, the pendulum has swung back and forth in the United States between a more nationalist interpretation and a more states-rights interpretation of the Constitution. • For example, in Hammer v. Dagenhart (1918), Justice William R. Day wrote: “In interpreting the Constitution it must never be forgotten that the nation is made up of states to which are entrusted the powers of local government. And to them and to the people the powers not expressly delegated to the national government are reserved.”

16. Conclusion • Federalism disputes have been continually present throughout American history. • Many issues can be viewed through the lens of federalism: i.e. abortion. • Does federalism have an ideological dimension? Are both liberals and conservatives consistent in their views on federalism no matter what the issue? Do conservatives always take a state’s rights position and do liberals generally take a nationalist stance? • Consider the Supreme Court’s decision in Bush v. Gore (2000) or their holding in the California medical marijuana case Gonzales v. Raich (2005).