Madisonian Federalism | Colleen Sheehan
Articles,  Blog

Madisonian Federalism | Colleen Sheehan

Thank you Paul, and I wanted to thank Dr. Andy Bibby who has done so much work I know putting this conference together. I’m
honored to be to be invited with such an illustrious group of scholars, that
you’ve assembled. I also wanted to thank the honorable members of the Utah State
Legislature. It’s not everyday that politicians spend their time thinking
about the principles of constitutional democracy. We could use more of that in
Washington. It’s good to see that happening in Utah. And finally Dr. Ralph
Hancock, my old friend, what a pleasure to see him. His work on Tocqueville is some
of the best that there is. And this is one of the things I think we need to study when
we’re thinking about federalism today so thank you for having me. When I listen to
John Dinan’s talk and he mentioned that in, I think, in Oklahoma nobody, no county, supported Obama but in vermont just the reverse, none supported
Romney. I couldn’t help but thinking I, mean this is part of the federal system
today for better or worse isn’t it. You know Texas, Ted Cruz, Vermont, Bernie Sanders, Texas, conservatives, Vermont, progressives even socialists, Texas, Miranda Lambert, Vermont Phish with the “PH” you know Texas, ranches, Vermont, communes Texas, anti legalization of pot but pro-beer, Vermont, you don’t need to legalize marijuana, it’s never been illegal. You get the Texas trifecta right, cowboy
hats, cowboy boots and a very big belt buckle, and Vermont, shorts and a ski parka. I grew up on the border of Vermont near Lake Champlain. But in all seriousness, and you know
in Texas, pro-gun, Vermont anti-gun, Texas, anti-abortion, Vermont
pro-choice, Texas, six percent of the people consider themselves non-religious
and Vermont 58 percent of the people consider themselves non-religious. What
to do about this? Do we celebrate diversity or do we try
to create a more uniform system, and if so on what principles. Well, I passed out, or rather I had a handout passed out for me this is just a guide. It’s a few of quotations from Madison over the, sort of, founding years just to refer to from time to time because I’m not very
good with PowerPoint but also for you to keep in case there are things you might want to explore a little bit further. So I think Jack’s breakup is absolutely right
that under the weaknesses under the Articles of Confederation Madison and
vices of the political system was very concerned with the weaknesses among
which was the fact that the state retain their sovereignty and that it was simply
voluntary compliance. The central government such as it was, it wasn’t
really, didn’t have much real authority was really just sort of a league
probably not even a strong as the United Nations today. So to to fast-forward
Constitutional Convention of 1787 Madison of course writes the Virginia
report I’m sorry the the Virginia Plan that Edmund Randolph will deliver and he
wants a much stronger central government. Interestingly enough we were talking in
the car on the way over the van, I don’t know if Christine is here and Top, but
they were asking the question well, blended federalism becomes almost synonymous with nationalism. So we talk about the central or federal and national government.
Because in Madison’s time federalism and con-
federalism where the same thing. There were essentially two choices con-federalism and federalism or or unitary or consolidated government. And I think
Madison does try to carve out ultimately a sort of a third way, what he
calls a middle course. But essentially so he wants one thing in particular many
things but one thing very fundamental to change under the new constitution
because he goes to the to Philadelphia, as a say in western Pennsylvania loaded
for bear, and the states are no longer to be sovereign, but I would argue neither is a
national government. It’s the people who are to be recognized as sovereign because they are the only real sovereigns in the world that Madison understood. The constitution
begins we the people not we the people of Massachusetts New Hampshire Virginia
originally planned but we the people the United States. This creates another
problem that people do not always rule justly. This wasn’t a news alert Madison
had recognized this and it in his study of ancient modern confederacies and the vices of the political system of the United States he had wrestled with this
problem and he would continue to wrestle with it for years to come. The problem was that the people manifested in the power of the majority.
They have might on their side but they may not themselves, be on the side of justice,
on the side of right. What to do about this? Now some of you students here probably
studied Federalist 10 and you looked at Madison’s solutions. So the problem is
factions, particularly majority factions and its solution is, first contrary to the old ideas
ways of thinking about popular government where you had to have a small
territory Madison says let’s extend the sphere and take you in you’ll see on the
handout the first quotation, extend the sphere and you take in a greater variety
of parties and interests you make it less probable that a majority of the
whole will have a common motive to invade the rights of other citizens or
if such a common motive exists it will be more difficult for all who feel it to
discover their own strengths and to act in unison with each other. Because part of the problem of these partial groups vying against each other in this was at the
state level that the majorities in the state tended to be factions, unjust, especially
in places like rogue island as Washington liked to call it. So Madison
thought if we extend the sphere, rather than thinking of republicanism, small “r” in one state where we just what we see as a lot of instability injustice and
confusion, if we can think of thirteen states and with the 13 states that were
bigger than 13 states on the seaboard today because Massachusetts included
Maine, New York included Vermont and so forth. that we’d have a fairly extensive
territory which by the way he thought would extend much further and that way
somehow we could come up with more just public policy. How? Well first of all to
extend the sphere and then you have the need for representatives and the job
of representatives, not that they’ll all do it, and likely, statesmen are not
always at the helm, but the job of the representative is to listen to his
constituents and his constituents in a certain
territory may not always agree so there’s a discussion a discourse that
goes on a kind of civic education if you will. Refine and enlarge the public views
when the… whether it’s at the state level or the national level, you go to the
assembly, to the senate and you discuss these things. And through this process of
deliberation is naturally occurring so extend the Republic, representation, now
you’ve created a government that separate from the people that like the
old Greek democracies so now you wanna put controls on the government. So
Madison says what we need are auxiliary precautions, separation of
powers, checks and balances, bicameralism. Let the Senate and the House duke it out
sometimes, put their ideas up against each other so that then more discourse, more deliberation the chance for time and reason to happen in such a way that it
refines and elevates the kind of outcome that you’ll have, will take place. And
this is what he talks about in Federalist 51. Okay, so this is how we see
federalism particularly emerged in Madison’s theory of what he’s up to in
designing the constitutional way of life., So I think the overriding questions are these, what is Madison’s constitutional design supposed to achieve? He spent all this time thinking this through and the notes he takes on the ancient modern
Confederacies and the vices of the political system leading up to the
convention in the notes is taking at the convention and what he writes in The
Federalist Papers when he goes and serves on the first congress of the
United States in Philadelphia, he’s just across the quad from the Pennsylvania
State House, Independence Hall, staying at Mrs. House’s boarding house on the
Market, then High Street and 5th. And he would practically run back over there to
get back to his books and think through these questions more. As soon as the first
session the first congress ends, he buries himself in his books. Jefferson has to
tug at him just to come out on a nice day to take a ride you know through the
countryside which I suppose means over as far as maybe going out towards the
Schuylkill, because he wants to keep thinking it through, he hasn’t quite got it all
down yet, he’s up to something, he’s trying to achieve something, and
federalism is a part of this. Who or what in Madison’s scheme, who possesses or what possesses sovereignty.
Who is to rule in the republican government of the United States and
finally how does federalism fit into the scheme in other words why federalism? Why not as John Dinan, said why not administrative states, wouldn’t that work
just as well? to accomplish whatever it is that we
want to accomplish in America. Well for Madison it wouldn’t, federalism is for him a principal. So, let me see if I can trace his reasons for that briefly and make
sure we have plenty of time for discussion. Well, first of all the Bill of Rights,
Madison is originally opposed to the Bill of Rights, and that is because he
fears that if we start trying to enumerate the rights that people have,
then there might be an assumption, as we move forward, that only those rights that
we’ve listed in the Constitution are right that people possess. And he does
not want that to be the assumption, he wants it to be the reverse that
everything that the powers of government are listed and those rights and only
those rights given to the national government are legitimately within
their purview. The assumption should be on the side of the right that the people
retain so it’s it’s the people who give powers to the government not the
government that gives rights to the people. Let me repeat that, this is critical, the
people give power to the government to the national government, national
government does not give rights to the people. That was the old British system
that was not the American way. He finally agrees to the Bill of Rights, in fact,
he’s the one who introduces it, right, in the first congress, but he says he does so with some hesitation, but he says if we do it carefully maybe we can make sure that we won’t
misconstrue this, making sure we preserve the idea that this is a government of
enumerated powers. And so that’s one of the reasons for the Tenth Amendment,
right, the Ninth Amendment and the 10th Amendment, and I’ve listened the Tenth Amendment on your sheet just to make sure we always
remember that that is there to remind us the very nature of our
constitutional compact. in 1791 after the first congress ends and
Madison is back at Mrs. House’s boarding house writing his notes on
government and trying to figure out even further how to make this system of small “r”
republicanism work. He writes aseries of essays which you might call the party
press essays. They’re published in a newspaper in Philadelphia by editor
Philip Freneau. And in these terse pieces, sort of op-eds, nineteen of them, Madison lays out fairly extensively his
ideas on the nature of the system and what it is that he is trying to achieve
by his constitutional design. In the essay charters, published in 1791, if I can find that, in the essay charters, he says in Europe
charters of Liberty have been granted by power, it’s on your handout, America has set the example and France has followed it, of charters of power granted by Liberty. And
then he wants to talk about the solemnity of these acts, proclaiming the
will and authenticated by the seal of the people, the only earthly source of
authority, and thus ought to be our vigilance with which these charters are guarded by
every citizen in private life and the circumspection with which they are
executed by every citizen and public trust. And he goes on, but let me read just a little bit more of this, ’cause I want you to get the not just the idea but the feel of the
importance of this to Madison. As compacts, charters of government are
superior an obligation to all others because they give effect to all others
as trust none can be more sacred because they are bound on the conscience by the
religious sanctions of an oath. And then he goes on to say, all power has been traced up to opinion. The stability of all governments depend on, depends on opinion, and so how devoutly it is to be wished then, that public opinion in United States should be enlightened and that it should attach
itself as the lineage in the great charters, derived from the legitimate
source of authority in the people. So, and, then he goes on that to sort of presage
Abraham Lincoln, that these are kind of a holy civil scriptures much like the
Scriptures that Lincoln will talk about, political scriptures in the Lyceum address.
What is Madison up to then? Note Madison’s logic in this essay, first the people are
sovereign, secondly it is the people who give fundamental authority to the
Constitution, which is why constitutions or charters are superior to ordinary
acts of legislation. Remember offices of government, branches of government
executive, legislative, judiciary cannot be created until after there’s a
constitution. After the United States’ Constitution is formed and ratified, it’s only after
that, that we first establish the legislature. And you have to have the
legislature, right, before you can establish the executive, because, why?
Because what happens think of the way you have to elect the
executive, right, and the various provisions for that and it’s only after
both of those branches are established that you can establish a court a
Supreme Court. The Constitution is the umbrella over the government. It is the
fundamental expression of the sovereignty of the people, which is why
even a majority rule through their representatives in congress. And the
policies they create must be consistent with the Constitution of the United
States. It is it is an expression, a manifestation of the opinion of the
public, of public opinion in its highest sovereign capacity. So, constitutional
government in the United States is to establish, is meant to establish a
government, that can, when necessary, protects citizens against the injustice
of a factious majority. Constitutional government is also
designed to protect the people’s liberties against a governmental
over-reach or abuse of power. Madison’s emphasis in charters that is
that the people, in other words public opinion, is the source of all political
power and that it is the job of the people to watch over their government
and control it is fundamental to him. So why federalism what purpose does it
serve? in his article “Consolidation,” Madison
makes clear that if you were to diminish too much more particularly to abolish
the state governments what you would find is an increase in executive power. Remember the old troops of the great
Oracle’s of political wisdom from Plato to Aristotle down through Montesquieu
that in a large territory government almost necessarily becomes despotic and
think of the examples. Empires are despotic Persia, China, what happens when Rome the Roman Republic expands and become the Roman Empire. Enter stage left a Caesar.
So, large… government over a large and populous territory tends to be
despotic, with a very very strong executive in such a large territory as the
13 or more states, Madison argued, if you reduce the role of the state’s
executive power will grow, the legislative power cannot deal with the
things that such a large and populous territory would need. Things that, by right
in the United States, are reserved to the states for example health, education,
welfare, the police powers, the police powers are essentially the things that
the deal with the morals and manners of the people from, you know, the French call
it “la police,” those kinds of things are not only rightly at the state level, because they’re best dealt with there, and they’re constitutionally left there because they
are not powers delegated to the national government. But the national government
cannot effectively handle those things anyway. So it’s both a principal and
expediency that this is based on so Madison says if you diminish the state
governments you’ll have a growth of an executive power and part of the reason
that happene is that one of the jobs of the
state governments is to collect the public voice and to serve as a vehicle
for the expression of the public voice. This is what he says,
look in your handout under consolidation: Consolidation or centralized
centralization of power at the national level would result in an all too
powerful executive and a people powerless…, sorry that’s not the quote, thats my summary, the quote is; Consolidation, much has been said, and not without reason, middle of the page 2, against the
consolidation of the state’s into one government, I’m gonna skip, were the state
governments abolished the same space of country that would produce an undue
growth of the executive power would prevent that control on the legislative
body which is essential to a faithful discharge of its trust. Neither the voice nor the sense of ten or twenty millions of people imagine that of 330 million
spread throughout so many latitudes as are comprehended within the United
States could ever be called could ever be combined or called in to effect or
deprived if deprived of these local organs to which both can now be conveyed. Because what would happen is that government would be left left to a self
directed court that would not be the check on it, by public opinion and without
that check on the government by public opinion it’s a natural tendency of every
government to become despotic this is precisely what Tocqueville is talking
about in his opus, Democracy in America. Madison simply repeats this kind of
argument in his essay, “Public Opinion.” Public opinion, he says, sets bounds to every
government and is the real sovereign every free one. When public opinion is fixed government must obey it when it is
not fixed, government, he means the representatives in government, may
influence it, and that would do…if we understand that that’ll decide for
legislators particularly the respect that is due to public opinion to there’s
constituency. What does he mean by that? Think of it that when it’s settled and
not settled this is the way the whole system is designed by Madison he wants
it to be hard to fix or settle to form public opinion, why? Because if it forms
to easily, majority will be often become factions, that’s the history of the old
Greek city-states right, but he doesn’t want to stymie it, because to do that
would leave government to a self-directed course to create a despotism. So how do you have rule by the people, majority rule, and at the same
time create a space and time and factors that influence it to refine and enlarge
it so that the majority that rules will to, the extent possible, be a just majority. In the great extended republic of the United States that requires
federalism. Federalism is a principle not just an act of expediency. The state
governments are responsible for two major jobs, one is those powers not enumerated to the national government, like health, education, welfare, police
powers, and so on, the things that they can do well and do best. Secondly, it’s where the people learn the
tools of republican government. It is where the people learn participation,
where they learn give and take, where they learn public discourse,
imagine a nation without that. Only heads in Washington talking to each other, that it’s not Madison’s vision. Madison’s vision of america is a vision of a country in
which the people actually govern themselves but to govern themselves they
have to be capable of governing themselves, and the state are critical.
Not just in 1787 or in the eighteen thirties when Tocqueville wrote but
today. Absolutely critical I think in that
enterprise and I think it’s something we’ve a bit forgotten about federalism today. The absolutely critical importance of it in a nation, a constitutional democracy which
hopes that the people can continue to govern themselves. Let me just say this
in closing. What’s to be done? Washington’s there and its looming it
feels like it just it moves in our houses on every TV, we where any
of the new stations are on, CNN and Fox and MSNBC and then there are those
people talking about us. What’s a poor state to do? What are the majestic, mighty, 50 strong entities in this united states to do when pitted against 4 or 5 be-robed
be-speckled founding members of the AARP says thank you.

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