This is a paper I wrote in 2001 for a course on The Federalist as part of my master’s program in political science at Claremont Graduate University. Click here to view the submitted paper with the professor’s comments.↗
In Federalist No. 37, Publius reflects upon the difficulty the drafters of the Constitution must have experienced in delineating the balance of power between the national and state governments:
Not less arduous must have been the task of marking the proper line of partition between the authority of the general and that of the State governments. Every man will be sensible of this difficulty in proportion as he has been accustomed to contemplate and discriminate objects extensive and complicated in their nature.
The problem of “marking the proper line of partition between the authority of the general and that of the State governments” is one of the key issues in American federalism. How is the “line” between the two governments to be drawn? How is this division to be guarded? How are controversies on this issue to be resolved? To this day the debate continues. The Federalist Papers is known as the classic work of American political thought and the foremost authority on the Constitution. Yet scholars of The Federalist have generally failed to appreciate Publius’ understanding of the federal balance.
An example is George W. Carey’s analysis in The Federalist: Design for a Constitutional Republic. Carey argues: 1) Publius’ solution to the problem of resolving controversies over the proper balance of power is self-contradictory and “fraught with some very serious difficulties “ and 2) despite what Publius seems to say to the contrary, his true opinion on the issue is that the proper balance between the state and national governments has little to do with the Constitution and is, in effect, “whatever the people declare it to be.” I believe that Carey is mistaken on both accounts. This paper attempts to draw out Publius’ understanding of the federal balance in a more satisfactory light than has yet been achieved.
An Apparent Contradiction
To begin to appreciate what The Federalist has to say about the federal balance, it will be helpful to first look at the apparent contradiction Carey discovers in Publius’ writing on this issue. Carey argues that Publius proposes two contradictory solutions to the problem of how controversies over the proper division between the two spheres of government are to be resolved. On the one hand, in Federalist No. 39 Publius says the Supreme Court is “ultimately to decide” the matter whenever there are “controversies relating to the boundary between the two jurisdictions.” Yet in Federalist No. 32 Publius says that the people, “as they will hold the scales in their own hands,” must “always take care to preserve the constitutional equilibrium between the general and the State governments.” Further, in No. 46, Publius says that, in the contest between the state and national governments, “the ultimate authority” to decide the question “resides in the people alone.”
Carey sees “an evident incompatibility between the solution proffered in Federalist No. 39 [that the Supreme Court should decide controversies over the “line” between the two realms of government] and that set forth elsewhere [that the federal balance should be decided by the people].” If, Carey reasons, both the Court and the people are to decide the matter, disagreements between them as to the proper boundary can only be solved by resorting to the amendment process a solution that “we can hardly envision [Publius] supporting.” Ultimately Carey resolves this controversy by arguing that Publius’ statement in Federalist No. 39 concerning the role of the Supreme Court in marking the proper boundary between the national and State governments is “puzzling and something of an aberration.” Carey believes that Publius’ true view on the matter is that, contrary to what is said in No. 39, controversies concerning the federal balance should be treated as political, not constitutional, questions. Thus, Carey concludes, “[the] proper equilibrium [between the national and State governments] turns out to be whatever the people declare it to be.”
Carey’s identification of this contradiction brings to light an interesting feature of Publius treatment of the problem of the federal balance. Indeed, it seems that Carey failed to go far enough in recognizing the full depth of this contradiction, for he saw Federalist No. 39 as the only instance where Publius refers to the federal balance as a constitutional issue, but, upon closer reading, it becomes clear that there are many other instances where Publius implicitly treats it as such. For example, Publius says in Federalist No. 27 that only “the enumerated and legitimate objects of [the national government’s] jurisdiction will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial in each State will be bound by the sanctity of an oath.” Publius clearly views the Constitution as the source of the legitimate powers of the national government. It is hard to reconcile this with Publius’ statement in No. 32 that the people will hold the scales of the federal balance in their own hands. Throughout Publius discussion of the federal balance he seems to switch back and forth between these two views sometimes treating it as a constitutional question, sometimes as a political one. Given the depth of this apparent division, Carey’s answer to disregard Publius’ constitutional view expressed in Federalist No. 39 as “an aberration” is not satisfactory. Publius’ constitutional approach to the problem of the federal balance is too consistent to be a mere aberration.
The apparent contradiction in Publius’ view of the federal balance indicates that his treatment of this issue is sufficiently complicated as to deserve a careful analysis. Such an analysis must go beyond a mere identification of Publius’ various views on the matter (i.e. whether he is speaking in constitutional or political terms) those views must be understood in the context of the different questions and problems that Publius seeks to address. The question of how controversies over boundaries are to be resolved is only one aspect of the federal balance Publius deals with. He also looks at such questions as how the local and national governments will be prevented from overstepping their bounds, and, if they do go beyond their constitutionally defined jurisdiction, how such an usurpation of power will be defeated. It is also imperative to pay close attention to the way in which Publius breaks down the issue. In particular, Publius makes an important distinction between “a legal exercise and an illegal usurpation of authority.” Finally, a proper analysis must keep in mind that Publius is writing to persuade a skeptical public to accept the proposed Constitution. It is this objective that guides his decisions as to what, and what not, to emphasize. The following analysis aims to comprehend Publius’ view of the federal balance in light of these considerations.
Usurpations and Legal Operations
One of the key refrains of the anti-federalists was that the adoption of the Constitution would result in the demise of the states:
The plan of government now proposed is evidently calculated totally to change, in time, our condition as a people. Instead of being thirteen republics, under a federal head, it is clearly designed to make us one consolidated government.
I have, in the course of my observation on this constitution, affirmed and endeavored to shew, that it was calculated to abolish entirely the state governments, and to melt down the states into one entire government, for every purpose as well internal and local, as external and national.
Thus we have fully established the position, that the powers vested by this constitution in Congress, will effect a consolidation of the states under one government.
The “consolidation” hypothesis was one of the most powerful anti-federalist arguments against the Constitution. As Martin Diamond shows in “The Federalist’s View of Federalism,” the traditional understanding of federalism at that time was that the federal form of government was “characterized by a contractual, voluntary relationship of states and has, therefore, the status of a league.” The Articles of Confederation, by creating a “firm league of friendship” in which each state retained “its sovereignty, freedom and independence,” held to this traditional view of federalism. The only alternative form of government known at that time was the national form, in which all sovereignty is consolidated and centralized into one national government. In Federalist No. 39, Publius quotes the “adversaries” of the Constitution as criticizing the plan for not preserving “the federal form, which regards the Union as a Confederacy of sovereign states; instead of which they have framed a national government, which regards the Union as a consolidation of the States.” In reality, the Constitution does not fit neatly into either category. It is, in Publius’ words, “neither a national nor a federal Constitution, but a combination of both.” The Constitution, in effect, calls for a partial consolidation of the States. The anti-federalists, however, regarded any hint of consolidation as ultimately destructive to the States, and as Diamond points out, most Americans at that time were “committed to the position that the problems of the Union should be solved only by federal means; that is, there was a very general abhorrence of ‘consolidation.’
In order to deal with the problem of “consolidation,” Publius has two main tasks. First, he needs to justify the partial consolidation under the Constitution. This he does by showing that it is essential to the happiness of the American people: “as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.” Throughout numerous Papers, Publius argues that the Constitution sacrifices the sovereignty of the States only so far as is necessary in order to secure the happiness of the people. After showing “how far [this] sacrifice is necessary,” Publius second task in answering the “consolidation” criticism is to show “how far the unsacrificed residue will be endangered.” In other words, Publius needs to convince his readers that the federal government will not violate the sphere of sovereignty retained by the states under the Constitution. What is important for Publius in dealing with these two issues is to keep them separate. The question of whether the powers delegated to the national government by the Constitution are necessary and proper objects of the federal government is a different question from that of whether there is a significant danger that the national government might invade the reserved rights of the States. In Federalist No. 31, Publius criticizes the anti-federalists for not making this important distinction the distinction of whether they are referring to the legal operation of the national government under the Constitution, or unconstitutional invasions of the states’ rights-when they claim that adopting the Constitution would result in the consolidation of the states:
This mode of reasoning appears sometimes to turn upon the supposition of usurpation in the national government; at other times it seems to be designed only as a deduction from the constitutional operation of its intended powers.
Publius wants to show that the danger of “usurpations” is different from what is seen as dangers that may be deduced from “the constitutional operation of [the government’s] intended powers.” It seems that the anti-federalists saw a close connection between the nature and extent of the powers delegated to the national government under the Constitution and the danger of “usurpations” unconstitutional invasions of the reserved rights of the states. The logic behind their reasoning seems to be that, if the national government is given too much power, it will eventually be able to absorb all the reserved powers of the states until they are completely ‘melted down’ and absorbed into the national sphere.
Publius, however, rejects this slippery-slope reasoning. In the first place, he argues, “the moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss and fairly put ourselves out of the reach of all reasoning.” Secondly, he does not believe that a more powerful national government will necessarily be more prone to usurp the authority of the states. The only way to escape this abyss, he argues, is to limit all conjectures about possible usurpations to those that stem from flaws in the structure of the government itself, for it is the structure of the government not the powers it possesses that provides protection against usurpations:
I repeat here what I have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers. The State governments by their original constitutions are invested with complete sovereignty. In what does our security consist against usurpations from that quarter? Doubtless in the manner of their formation, and in a due dependence of those who are to administer them upon the people. If the proposed construction of the federal government be found, upon an impartial examination of it, to be such as to afford to a proper extent the same species of security, all apprehensions on the score of usurpation ought to be discarded.
Publius establishes a rule “that all observations founded upon the danger of usurpations ought to be referred to the composition and structure of the government.” So there are two separate questions. The question of whether the powers granted the national government under the Constitution are appropriately granted may be phrased as “how far the sacrifice [of state sovereignty] is necessary” to the happiness of the people. If the powers granted the national government are judged necessary, the argument that the national government may seek to unconstitutionally overstep those powers is a second question. That question the question of how much danger there is that the national government will illegally usurp the reserved powers of the states-has to do with “how far the unsacrificed residue [of state sovereignty] will be endangered.”
This distinction “between a legal exercise and an illegal usurpation of authority” is fundamental to understanding Publius’ view of federal balance.
An illegal usurpation is, by definition, an unconstitutional act. It takes place when either the national or state governments step beyond their constitutionally defined sphere of authority and invade the sovereignty of the other. In the case of the national government, a clear example of an usurpation would be if “the federal legislature should attempt to vary the law of descent in any State.” In short, any action by the federal government that is not authorized by a constitutional grant of authority is an illegal usurpation of power. Usurpations may also be perpetrated by the state governments against the federal government. The two main questions related to the problem of usurpations are: first, how will they be prevented; and second, how will usurpations be undone?
A legal exercise of intended constitutional powers, on the other hand, has to do with the extent of power the two spheres of government may enjoy within the boundaries set by the Constitution. How much the national government will be allowed to exercise its constitutionally delegated authority is the main question here. The mere delegation of authority to the national government does not necessarily mean that it will exercise that authority to its fullest extent. The more the federal government is able to exercise its constitutionally delegated authority, the more the balance of power shifts in favor of the national scale. Conversely, when the power of the national government is restrained, the scale shifts in favor of the states. Thus, as will be seen, the balance between the national and state governments depends, largely on the degree to which the people are willing to allow the national government to exercise its constitutional powers.
The distinction between an usurpation and the legal operation of constitutional powers is essential to understanding Publius treatment of the federal balance. The problem of usurpations deals with the question: what is to keep one sphere of government from violating the rights of the other sphere? Most controversies over the federal balance have to do with this question. A more subtle question, however, has to do with the balance of power that exists within the boundaries set forth by the Constitution. Publius recognized that the division between the states and national governments set forth in the Constitution was sufficiently flexible as to leave a gray-zone in which either sphere may be able to extend its authority at the expense of the other without violating the constitutional rights of the other. Throughout Publius’ discussion of the federal balance, it is essential to know which of these two problems he is addressing in order to make sense of his discussions and avoid the contradiction that Carey observed.
Unpopular Usurpations
Publius’ approach to dealing with the danger of “usurpations” is to focus on “the composition and structure of the government,” which, in the end, boils down to an emphasis on the centrality of the people as the true guardians of the federal balance. The support for this approach is found in the way the danger of usurpations is handled in the state governments:
The State governments by their original constitutions are invested with complete sovereignty. In what does our security consist against usurpations from that quarter? Doubtless in the manner of their formation, and in a due dependence of those who are to administer them upon the people.
The problem of possible usurpations under the national Constitution ought to be handled in the same way as it is with regard to the several states. Just as the state governments are restrained from violating the rights of their citizens by the dependence of the government officials on the people for election, so also the main security against usurpations by the national government lies in the degree to which the Constitution provides the necessary structural safeguards. Such safeguards most likely include adherence to the republican form of government, frequent elections, separation of the legislative, executive, and judicial branches, and so on. Publius argues that, if the federal government should be found “to afford to a proper extent the same species of security” as the State governments, “all apprehensions on the score of usurpation ought to be discarded. Publius argues that, because the Constitution is properly structured, it would be highly unlikely that the federal government will ever attempt to usurp the authority of the states.
Yet he also had to show how usurpations, if they were committed, will be undone. The first line of defense against usurpations will be the executive and judicial branches of the government, which are to check legislative abuses. In the last resort, it is up to the people to correct the infraction by whatever means may be deemed appropriate. A good example of this formula is in Federalist No. 16 where Publius anticipates the obstacles that the states will face if they try to resist the constitutionally enacted laws of the national government. In order for such resistance to be effective, the states will be obliged to act “in such a manner as would leave no doubt that they had encroached on the national rights.” Such an usurpation will encounter two tiers of resistance: the state legislature
The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest.
Publius identifies three main obstacles to usurpations. First, there is the legislature whose members are dependent upon the good will of the people who elect them a people Publius views as predisposed to oppose illegal usurpations of authority by either sphere of government. Second, there are the courts of justice. If the legislature of the offending government fails to be faithful to the Constitution, the courts will be obliged to declare the encroachment unconditional and void. If the courts also fail, there is still a third barrier the people, who may throw their weight into the national scale, giving the national government the overwhelming advantage in the matter. These obstacles to usurpations will not only effectively overcome most attempted encroachments, but they will also ensure that attempts “would not often be made with levity or rashness.”
Publius uses this same formula for dealing with usurpations perpetrated by the national government. In Federalist No. 44, Publius addresses the question of how the federal government is to be checked if “Congress shall misconstrue…the Constitution and exercise powers not warranted by its true meaning.” In answer to this, Publius again describes the branches of the government as the first line of defense. “In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts.” If both of these departments fail to uphold the Constitution, Publius again sees the ultimate solution as residing in the hands of the people: “in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers.” Publius sees the people as the final guardians of the federal balance. If the usurpation is carried out to a degree that the regular political process is not sufficient to undue the usurpation, the only solution remaining is for the people to take up arms against the usurping government. “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government.” Yet, Publius sees this as highly unlikely: “But what degree of madness could ever drive the federal government to such an extremity?”
Publius deals with the issue of usurpations similarly in Federalist No. 33. In dealing with the question of who is to decide what the Constitution means by “necessity and propriety,” Publius argues that “the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last.” In light of the statements already examined, it is clear that by “the national government,” Publius means the legislative, executive, and judicial branches. These are to be the first line of defense, as we have said. However, if the national government should fail to check itself, it is again up to the people:
If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.
By emphasizing that the people will have the ultimate authority to check all usurpations, Publius also seeks to assure those who were particularly distrustful of government that their fate was in the hands of the only ones they could trust-themselves. He knows that many people will not be satisfied with the argument that the national government will control itself. Why should they suppose that the judicial branch will always be willing and/or able to stop either of the other two federal branches from violating the rights of the states? Publius’ answer to these fears is that, even if the national government should fail to check itself, there were numerous ways for the people to overcome the usurpation. In Federalist No. 28 Publius even argues that a federal system as designed by the Constitution provides greater protection against tyrannical governments than either a more traditional federalism or a simply national government:
But in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.
Publius’ insight into the problem of usurpations was that, if one sphere of government usurped the authority of the other, the people will be able to check the usurpers by supporting the other sphere. If either the states or the national government are supported by the people, it should always prove an overmatch for the offending government. It thus turns out that the problem of the federal balance created by the American form of confederation under the Constitution actually provides a greater protection against usurpations by the government than a single, completely national government. Seen in this way, federalism preserves liberty, providing a unique, popular means for dealing with the danger of usurpations-an advantage that even the individual state governments do not have.
This helps us understand why Publius says in Federalist 16 that the scales of the federal balance are in the hands of the people. He does not mean that the Constitution is irrelevant with regard to the federal balance, but simply that, when one or the other sphere of government goes beyond its Constitutional authority, it is the people who have the final ability to check such usurpations. Yet, this will happen only if the people choose to oppose the encroachment. This is why Publius hopes that the people “will always take care to preserve the constitutional equilibrium between the general and State governments.”
Popular Usurpations
In recognizing the ability of the people to override usurpations by throwing their weight in the opposite scale, Publius is also aware of the possibility that the people, themselves, could be the driving force behind an unconstitutional usurpation by either sphere of government. In Federalist No. 17, Publius addresses the opponents’ objection that the principle of granting the national government authority over individual citizens rather than over the states in their political capacities, “would tend to render the government of the Union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the States for local purposes.”
Here, Publius takes up one of the slippery slope arguments alluded to earlier that is, that the powers granted the national government will enable it to absorb the “residuary authorities” of the states. He is not clear, however, whether these residuary authorities he speaks of are constitutionally reserved authorities, or merely authorities falling in a ‘gray-zone,’ which is what he may mean by using the words, “might be judged proper to leave with the States.” In other words, Publius does not, in this case, make the clear distinction between usurpations and legal operations he argues should be made in No. 31. It appears that Publius does not make this distinction clear because the focus of this paper is the power of the people in determining the viability of usurpations.
Publius argues that even if the national government should feel some need to exercise an authority which might, in the eyes of the public, be better left to the State governments, “it may be safely affirmed that the sense of the constituent body of the national representatives, or, in other words, the people of the several states, would control the indulgence of so extravagant an appetite.” Thus, if the power exercised by the government goes too far in the eyes of the people it is left up to them to restrain the government through political means. It does not matter if the action being opposed is an usurpation or just an unpopular, though constitutional, action. What is particularly important to the discussion of the federal balance is that, as Publius argues, “it will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities.”
The reason for this is that the prejudice of the people will likely be in favor of the states. If, as seems likely to Publius, the States should enjoy greater favor from the people than the national government does, there is the possibility that the people will be supportive of their State governments in instances of unconstitutional encroachments upon the federal rights. On the other hand, the predisposition that the people have toward their State governments leads Publius to fear that even legal exercises of national power will be opposed by the people:
On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand.
Publius expects the bias of the people to be in favor of the states, making it likely that the people will at least “sometimes” oppose even legal federal measures. Thus, for Publius, the greater danger is not that usurpations will come from the national government against the will of the people, but that the state governments, with the support of the people, will violate the national rights. This form of usurpation will be most difficult, and perhaps impossible, to stop. This seems to be why Publius says, as was noted already, “it is to be hoped” that the people “will always take care to preserve the constitutional equilibrium.” It is up to the people, ultimately, to uphold the Constitution. If the people take care to preserve the constitutional equilibrium, it is unlikely that any serious usurpation will ever be successful.
Nevertheless, there are means, though limited, for opposing popularly-supported usurpations. Naturally, the government, particularly the Supreme Court, is the main defense against such usurpations. Publius says in Federalist No. 78 that the Supreme Court is “requisite to guard the Constitution…from the effects of those ill humors which…sometimes disseminate among the people themselves.” It will not be easy, however, for a popularly supported usurpation to be corrected. Though the Constitution takes care to insulate the federal judiciary from the influence of politics, Publius recognizes that it will be difficult for justices to resist the popular will:
But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of its had been instigated by the major voice of the community.
Nevertheless, Publius feels that there was reason to believe that the people of America will become, over time, more friendly toward the national government. For one thing, Publius believes that the people’s “confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration.” Publius also thinks that the federal government might eventually enjoy increased support of the people because “the general government will be better administered than the particular governments.” Indeed, it is possible, in Publius’ eyes, that the people might “become more partial to the federal than to the State governments.” This could only result, however, “from such manifest and irresistible proofs of a better administration as will overcome all their antecedent propensities.”
The danger of popularly-supported usurpations shows how important the people are in preserving the federal balance as it was intended by the Founders. If the people do not take care to preserve the federal balance, usurpations become far more likely. If the people support those usurpations, they become nearly impossible to check. The federal balance will be most secure when the predilections of the people are divided between the two spheres of government. Publius hopes and expects that the people of America will both take care to preserve the federal balance according to the general line of separation demarked by the Constitution and, at the same time, be sufficiently inclined toward both spheres of government to make attempts at usurpation unlikely.
A Balance Within the Boundaries
Although Publius addresses the problem of usurpations, he considers questions dealing with the “nature and extent of the powers [delegated to the national government] as they are delineated in the Constitution” as the more important issue. In other words, Publius expects that serious usurpations will not often be a problem, and even when such usurpations do happen, there are numerous means to rectify them. The question of what the federal balance will look like within the proper constitutional boundaries is, however, a very interesting and important matter. This goes beyond the question of the constitutional “line” dividing the two spheres. People wanted to know how far the national government would be able to go in exercising its constitutional powers. The problem, as Publius recognizes, is that it is not always possible to set formal limits on the national government’s powers. Indeed, it is necessary that the national government possess unlimited sovereignty within its sphere of delegated powers: “[the federal government] must, in short possess all the means, and have a right to resort to all the methods of executing the powers with which it is intrusted, that are possessed and exercised by the governments of the particular States.” How, then, is the federal government to be restrained from exercising its constitutional powers with, as some might see it, too much liberality? In answer to this question, Publius argues that the federal balance, as long as it remains within the constitutional boundaries, will be regulated through the political process. In particular, Publius stresses the central role that the people will play in determining the extent That the federal government will be able to exercise its constitutionally delegated powers.
We can see this in Federalist 27 where Publius implies that the Constitution grants a great degree of latitude for the national government to extend its sphere of authority into the local matters of the States:
I will, in this place, hazard an observation which will not be the less just because to some it may appear new; which is, that the more the operations of the national authority are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into these objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community…. The inference is that the authority of the Union and the affections of the citizens towards it will be strengthened, rather than weakened, by its extension to what are called matters of internal concern…”
Rather than viewing the Constitution as demanding an absolute separation of powers between the national and state governments, Publius recognizes that the powers granted to the national government allow it to legitimately extend its authority into “matters of internal concern.” The degree to which such extensions will actually take place, however, depends on the degree to which they will be tolerated by the people. Publius expects that the American people will, at least at first, be reluctant to allow the national authority to weigh in on many matters of internal concern. Yet as people become more accustomed to the federal government over time, Publius expects that it will be able to extend the national arm into matters of local concern. He sees this as a positive development that will help to promote a favorable disposition in the people toward the national authority, resulting in the willing obedience to the laws.
The political nature of the federal balance within the bounds of the Constitution is brought out most clearly in Federalist 46, where Publius inquires “whether the federal government or the State governments will have the advantage with regard to the predilection and support of the people.” The implication of this question is that the fundamental issue in the federal balance will be the attitude of the people toward the national and State governments. Publius wants his readers to have confidence that their fate is completely within their own hands:
They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments whether either, or which of them will be able to enlarge its sphere of jurisdiction at the expense of the other.”
By saying that the “ultimate authority” over which sphere of government “will be able to enlarge its sphere of jurisdiction at the expense of the other,” it seems that he is talking about the ability of the people to resist and defeat unconstitutional usurpations. Yet, in light of the rest of his discussion of the federal balance in No. 46, it becomes clear that he is not referring merely to the problem of usurpations. Publius goes on to say that, even if the people should prefer the national government to the states, there is still a limit to how far the general authority can extend:
If, therefore, as has been elsewhere remarked, the people should in the future become more partial to the federal than to the State governments, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due; but even in that case the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.
The “sphere” within which the federal power can be administered is, most likely, the sphere of authority granted by the Constitution. Publius expects that, as long as the states enjoy the predilection of the people, the federal government will not be able to exercise its constitutional powers fully in such a political climate. It is possible, however, that the federal government might, over time, garner greater support and trust from the people. In that case, it would be less restrained in its ability to exercise its constitutional powers. In general, it seems that Publius expects the balance of power to ebb and flow between the two spheres of government according to the degree of support either receives from the people. This dynamic may be seen in the increase in federal authority in war time: “The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments in times of peace and security.” The greater powers the national government will enjoy in war time is not due to a provision in the Constitution for such an increase. It is, rather, the natural result of the greater support the people will give to the federal government in times of war. The Constitution leaves room for such shifts in the federal balance. Thus, questions of the federal balance cannot be referred merely to the constitutional delegation of powers. Those powers are defined in sufficiently broad language as to allow a large degree of flexibility in their interpretation. Publius expected that, more often than not, the precise balance of power between the federal and state governments would be determined by the degree that the people support either side. As long as the balance remained reasonably within the boundaries established in the Constitution, and so long as there was no significant controversy, the Supreme Court would not, in Publius’ view, decide the federal balance.
Conclusion
In light of this analysis, it becomes clear that Publius’ apparent contradiction concerning the federal balance is no contradiction at all. Publius sees both the Supreme Court and the people as playing vital roles in preserving a proper equilibrium. The official boundaries are defined by the Constitution. When it comes to preventing illegal usurpations, it is up to the government, in the first place, to police itself. In particular, the courts, and especially the Supreme Court, must be ready to declare usurpations by either sphere of government unconstitutional and void. If, however, the Court fails to do so, or is ineffective in doing so, it is up to the people to preserve the federal balance by whatever means necessary. In particular, the people are able to oppose usurpations by one side by throwing their weight into the opposite scale. However, Publius believes that such usurpations are highly unlikely. More often than not, Publius expects that the “line” between the two spheres of government will fall somewhere within the constitutional boundaries. For this reason, there will be few constitutional controversies necessitating the involvement of the Supreme Court. Instead, the federal balance will usually be a political matter, with the scales tipping in the direction of the people’s predilections. Thus, in the day-to-day operation of government, the federal balance is in the hands of the people, and only occasionally will the issue come before the Court.
What is interesting about Publius’ understanding of the federal balance is how well it describes the history of federalism in America. Publius anticipates that, at first, the federal government will not be able to extend its authority very far into matters of “internal concern” due to the preference the people will have for their state governments. Accordingly, for about the first hundred years after the adoption of the Constitution, the Supreme Court rarely dealt with a case involving an invasion of states’ rights by the federal government. The federal government tended to stay out of the business of the states as much as possible. However, Publius also predicts that the powers of the federal government might grow and extend into areas of local concern to the states if the people come to regard the national government as efficient and trustworthy. Indeed, the second half of American history since the adoption of the Constitution has seen a dramatic increase in the powers of the national government at the expense of the states, and it seems that this has been generally supported by the American people. Yet Publius would probably be surprised at the degree to which the attitude of the people has turned in favor of the federal government in roughly the last hundred years. The majority of people in America today expect so much out of the federal government that the federal balance now regularly approaches and oversteps its constitutional boundaries, resulting in increased controversy and more frequent appeals to the Supreme Court to settle those controversies. The problem with this is that the Court cannot always be trusted to preserve the federal balance as intended by the Founders. In light of the expansive construction of the Interstate Commerce Clause maintained by the Court throughout most of the twentieth century, Publius’ observation in Federalist No. 78 seems prophetic:
But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.
It is for this reason that Publius regards the people as the ultimate guardians of the Constitution and hopes that they will “take care to preserve the constitutional equilibrium between the general and the State governments.”
WORKS CITED
Carey, George W. 1989. The Federalist: Design for a Constitutional Republic. Chicago: University of Illinois Press. Diamond, Martin. 1992. As Far as Republican Principles Will Admit. William A. Schambra, ed. Washington, D.C.: The AEI Press. Rossiter, Clinton, ed. 1999. The Federalist Papers. New York: Mentor Books. Storing, Herbert J., ed. 1981. The Anti-Federalist. Chicago: University of Chicago Press.