American Federalism: History; G. C. Roche III

The immediate attempts at ex planation and definition of our new federalism published by thinking Americans in the early years of the Republic demonstrate this consensus. The Federalist, Dr. Roche, who has taught history and philos ophy at the Colorado School of Mines, now is a member of the staff of the Foundation for Economic Education. written by Hamilton, Madison, and Jay; Defense of the Constitutions, Thoughts on Government, and Dis courses on Davila, all written by John Adams; Letters of PubUcola, written by John Quincy Adams; and the Farewell Address of Wash ington - all emphasize defense of minority rights against majority dictatorship. They outline an American liberty based upon his torical precedent and limited gov ernment. Yet, the seeds of dissent were also present in the early Republic, with Americans of good will on both sides of the developing argu ments. One of these arguments is best seen in the controversy be tween the Hamiltonian and the Jeffersonian view of the new-lia. tion. Hamilton was the prQyliet of a new order, a rising ~neration of capitalism and thpburgeoning 45 46 THE FREEMAN January industrial revolution. Jefferson was the defender of the older agrarian order whose interests often seemed to conflict with an indus trial America. The dispute be tween Hamilton and Jefferson is common knowledge and is exten sively treated in virtually every history of our early years. What is more important, but frequently overlooked, is that Hamilton was a consistent advocate of the limi tation of political power as the best safeguard of liberty, in the sense that he shared with Jefferson a distrust of excessive popular con trol. Our history books are often so busy telling us of the differ ences between Hamilton and· J ef ferson that they overlook the Hamiltonian fear of unchecked ma jorities and overlook the J effer sonian acceptance of capitalism and the new industrial order that occurred after Jefferson became President.

Another classic quarrel of our early years also involved Jefferson. He and John Adams, both key figures in so many of the forma tive actions of the Republic, car ried on a dialogue that embraced all facets of the new federalism. This was a bitter debate. The testy, irascible, blunt Adams wrote SCffile letters to Jefferson that must have '.:l.corched the paper. J effer son' s re~onse was characteristic of the sage ~f Monticello. He took his revenge by understating his case and by pretending that the barbs of Adams had gone un noticed. Jefferson described Adams in a letter to a friend as "always an honest man, sometimes a great one, but sometimes absolutely mad." At the end of a friendship and feud covering well over half a century, it is symbolic of their re lationship that both men w,ere to die on the same day in 1826. It is even more symbolic that that day should have been July Fourth.

Checks and Balances The system of checks and bal ances praised by Adams in 1789 in his Defense of the A1nerican Const,itutions is largely an enun ciation of our American political tradition. At the time of the French Revolution, Adams de fended the American system and implied how different the Ameri can federalism was from the new system then developing in France: A despotism is a government in which the three divisions of power, the legislative, executive, and judi cial, are all vested in one man .... How did such despotisms come about? Helvetius and Rousseau preached to the French nation liberty, till they made them the most mechanical slaves; equality till they destroyed all 1967 AMERICAN FEDERALISM: HISTORY 47 equity; humanity till they became weasels and African panthers; and fratwt'nity till they cut one another's throats like Roman gladiators. 1 The doughty New England lawyer, like the rest of the Found ers of the American federalism, always strongly emphasized prac tical concepts, based on history, common law, and a basic distrust of self-proclaimed saviors of the world. In a letter to John Taylor of Caroline he outlined his faith in human nature as he saw it: That all men are born to equal rights is clear. Every being has a right of his own, as moral, as sacred, as any other has. This is as indubit able asa moral government in the universe. But to teach that all men are born with equal powers and facul ties, to equal influence in society, to equal property and advantages through life, is as gross a fraud, as glaring an imposition on the credul ity of the people as ever practiced by ... the self-styled philosophers of the French Revolution. For honor's sake, Mr. Taylor, for truth and vir tue's sake, let American philosophers and politicians despise it. 2 Liberty Under Law If America remains a nation where property and liberty are reasonably secure, if America re1 John Adams, Letters to Jefferson, 1817.

2 John Adams, Works, VI, 454. mains a government of laws, not of men, much of the credit for the development and defense of such a system is due to John Adams, whose concept of "Liberty under Law" presupposes a system of constitutionally limited govern ment, decentralized political power, and a deep and abiding faith in the American tradition of federalism, which in Adams' time was already approaching its two-hundredth birthday. Adams once wrote J efferson, "Whether you or I were right, Posterity must judge .... " He re ferred, of course, to the political differences that had developed be tween the Federalist party with which Adams had been associated and the Republican party of Jef ferson. Here again the bitter dis pute that took place in domestic American politics during the Na poleonic wars is a common subject of our history books. What is neg lected is the wide area of consen sus shared concerning American government even in the midst of these arguments. Adams and Jef ferson both favored local govern ment and institutions and sus pected· that good government often seemed to decline in exactly the same proportion as it moved fur ther from the people being gov erned.

Our history books sometimes neglect to tell us that Jefferson as 48 THE FREEMAN January well as Adams approved a balance of power between the national and sta te governments, that he spoke approvingly of The FederaiZist and was sympathetic to the· Constitu tion, even writing to Adams in praise of his Defense of the Con stitutions.Jefferson also feared an unchecked majority rule: "An elective despotism was not the government we fought for, but one which should not only be founded on free principles, but in ,vhich the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits without being effectu ally checked and restrained by the others/'3 Kentucky and Virginia Resolutions After the passage of the Alien and Sedition Acts by the Federal ists during the difficult days of the French Revolution, Jefferson and his close friend, Madison, developed the Kentucky and Virginia Reso lutions, landmarks in United States federalism and. in. the de velopment of the compact theory of the Constitution. In the Ken tucky Resolution Jefferson insisted that the Federal Constitution had created a limited national govern3 As quoted by Richard Hofstadter, T he American Political Tradition and the Men Who Made It (New York: Vintage Books, 1948),p. 29.

ment of certain definite and enu mera ted powers, reserving all other powers to the people and the states. In his lifetime, Jefferson repeatedly emphasized the close connection between decentraliza tion and liberty. He placed his faith in a qualitative rather than quantitative democracy, urging that a body of informed and cap able citizens, an aristocracy in the best possible sense of the word, was infinitely superior to a mere nose count that delegated all au thority to some political potentate. The American tradition of fed eralism was th us soundly launched. There were differences among our statesmen and think ers: agrarian capitalism versus industrial capitalism, Southern aristocrats versus New England professional men. Yet North and South, agrarian and industrialist, aristocrat and middle class, our Founding Fathers shared an abid ing distrust of excessively central ized authority and a basic faith in the American people, with their diverse interests and attitudes, as the true vitality of the growing tradition of American federalism.

Capitalism Encouraged One of the dominant historical forces at work almost from the in ception of the new Republic was the rapid expansion of a capitalist economy. The Industrial Revolu1967 AMERICAN FEDERALISM: HISTORY 49 tion and the unique opportunities available to an America with great room to grow were coupled with an aggressive and optimistic American spirit of individual re sponsibility and initiative. The de cisions of Chief Justice Marshall and the arguments of his contem poraries, such men as Justice Story and Daniel Webster, built upon the Hamiltonian vision of America as enunciated in The Federalist. Great stress was laid upon the sanctity of contract and of private property. It appeared vital to provide sufficiently central ized power to prevent the abuses of any of these concepts within the separate state governments. Thus, capitalism received great support from the political system. What centralization was neces.sary to preserve the sanctity of contract and of private property did not, however, conflict with the Ameri can tradition of federalism as it had developed. A government of separated, limited powers, a close adherence to the principles of Eng lish common law and tradition re mained very much in evidence.

Jackson's Role Of course, Americans were still having their political arguments. The entrenched localized capital ism represented by the Charles River Bridge, or by the Southern agrarians, did not always approve of the sweeping social changes which a rapidly expanding capital ism brough~ to America. Some scholars of the Jacksonian era, notably Arthur M. Schlesinger, Jr. in his Age of Jackson, have des scribed these domestic political and economic arguments of the time as though the Jacksonian movement were some sort of anti capitalistic New Deal crusade against the powers of entrenched wealth. This is most emphatically not the case. It is much more nearly correct to see the political conflicts of the era as a sort of "new" capitalism versus "old" capitalism struggle. The Bank of the United States, for example, was attacked not in an assault upon capitalism, but as a com plaint by a rising middle class against a monopoly situation that limited their own opportunities within a burgeoning capitalistic system.

Jackson himself was a western aristocrat whose primary appeal to a rising middle class was equal ity before the law and resistance to unwarranted centralization, whether in economics or politics. Nothing could make it clearer that the Jacksonian movement ,vas well within the dominant American tradition than the fact that upon John Marshall's death, Andrew Jackson appointed to the Supreme Court Chief Justice Taney to fill 50 THE FREEMAN January the vacancy, whereupon Taney served for nearly thirty years, from 1835 to 1864, producing a series of decisions steadily strengthening the contract clause of the Constitution. Jackson's chief opponent in the political arena, Henry Clay, was a consistent advocate of extensive capitalistic development. Daniel Webster also advocated such de velopments, and yet found no diffi culty in remaining close to the tra ditions of American federalism. As a rising young politician in the West, not too many years later, Abraham Lincoln consistently em phasized self-help, the growing West of his times, and the great social mobility of capitalism. All of these men, Jacksonian or Whig, consistently urged greater eco nomic opportunity for the individ ual and the sanctity of property and contract as the best safeguard of that opportunity. They envi sioned a government that enforced the rules of the game while leav ing open the widest possible aven ues for individual initiative and varied capitalistic development in a thoroughly decentralized frame work. As rising capitalists build ing toward modern America, the generations of pre-Civil War American political and economic thinkers continued to place their faith in the growing tradition of American federalism.

Southern Agrarianism While the North and the West went the way of industrial capital ism, the South, tied to the land and to its "peculiar institution" of slavery, went the way of agrar ian capitalism. A different strain of political thinking, southern agrarianism is also one of the formative elements of American political thought before the Civil War. Perhaps a no more simon-pure spokesman for the Southern agrar ian viewpoint could be found than John Randolph of Roanoke, an eccentric genius, unwilling to admit the slightest compromise with the new order. Randolph feared the results of excessive cen tralization and the impersonality of a government too far removed from the varieties of local experi ence. Discussing the House of Rep resentatives, he asked: "But, Sir, how shall a man from Mackinaw or the Yellow Stone River respond to the sentiments of the people who live in New Hampshire? It is as great a mockery - a greater mockery, than it was to talk to those colonies about their virtual representation in the British par liament. I have no hesitation in saying that the liberties of the colonies were safer in the custody of the British parliament than they will be in any portion of this country ,if all the powers of the 1967 AMERICAN FEDERALiSM: HISTORY 51 states as well as those of the gen eral government are devolved upon this House."4 Russell Kirk makes Randolph's attitude completely clear when he writes, "For Randolph, the real people of a country were its sub stantial citizenry, its men of some property, its farmers and mer chants and men of skill and learn ing; upon their shoulders rested a country's duties, and in their hands should repose its govern ment."5 It is John Randolph who developed much of the political framework later brought to frui tion by John Calhoun. The primary emphasis in that framework as it developed rested upon the doctrine of states' rights, a position not without validity. Indeed, an ear lier biographer of John Randolph, the almost equally eccentric and irascible Henry Adams, has sug gested that the doctrine of states' rights was in itself a sound and true doctrine: "As a starting point of, American history and constitu tional law, there is no other which will bear a moment's examination."

Randolph was especially critical of the commerce clause and the general welfare clause of the Con stitution. He predicted that the 4 Annals of Congress, (18th Congress, 1st Sess.), p. 1304. 5 Russell Kirk, Randolph of Roanoke (Chicago: Henry Regnery Co., 1964), pp.34-35. great extension of the power of centralized government would someday occur through these legal avenues. Time has proven ,him correct. Equality or Liberty Calhoun built upon these sup positions.The "Iron Man," pres sured by the necessity of the grow ing crisis that was to produce the Civil War, early came to grips with the problem of what consti tuted genuine equality and liberty. He warned that true liberty was compatible only with equality of opportunity and indeed was impos sible if an equality of condition were to be enforced: "N ow as individuals differ greatly from each other in intelli gence, sagacity, energy, persever ance, skill, habits of industry and economy, physical power, position and opportunity, - the necessary effect of leaving all free to exert themselves, to better their posi tion, must be a corresponding in equality, between those who may possess these qualities and advan tages in a high degree, and those who may be deficient in them. The only means, by which this result can be prevented are, eitber to im pose such restrictions on the ex ertions of ,those who may possess them in a high degree, as will place them on a level with those who do not; or to deprive them of 52 THE FREEMAN January the fruits of their exertions. But to impose such restrictions on them would be restrictive of lib erty,- while to deprive them of the fruits of their exertions, would be to destroy the desire of bettering their condition. It is, indeed, this inequality of condition between the front and rear ranks, in the march of progress, which gives so strong an impulse to the former to maintain their position, and to the latter to press forward into their files. This gives to progress its greatest impulse. To push the front rank back to the rear, or at tempt to push forward the rear into line with the front, by.the interposition of the government, would put an end to the impulse, and effectually arrest the march of progress."li Liberty, equality of opportunity, progress ... these are John Cal houn's· words, yet might just· as easily be the words of a J ackson ian entrepreneur. And how is the government to be kept from inter fering with· this· balance ?Cal houn's answer,well within the spirit of American federalism, was his "theory of the concurrent ma jority." Under other names, Cal houn's idea has long been the way we have actually run the American Republic .. and made our decisions.

Power is to be diffused through so 6 John Calhoun, Disquisition on Gov e'rnn~ent, Works, I, pp. 56-57. many separate entities that local and regional principles, programs, and interests, representing the tre mendous diversity of American society, are able to work together at some times and yet check one another at other times, allowing national business to go forward, and yet avoiding suppression of anyone's legitimate action for the benefit of anyone else. The Civil War Admittedly, a wide gulf existed in some instances between the in dustrial capitalism of the North and West and the agrarian capi talism of the South. Yet, in a num ber of ways the political values to which both North and South ap pealed before the Civil War had much in common. Both espoused limiting the sphere of governmen tal action, both favored diffusion of power, both favored wide oppor tunities for individual differences and individual opportunities. In a word, both continued to do their thinking within the tradition of American federalism.

Yet, there remained a difficult road ahead for American federal ism: the Civil War. The problem of slavery was being driven so far into the foreground that it could not much longer be ignored. The Southern agrarians were being dri ven by a small but intractable Northern abolitionist minority in1967 AMERICAN FEDERALISM: HISTORY 53 to wrapping the institution of slavery in the protective cloak of American federalism. Most North erners were also concerned with slavery, but in a very different way. The threat of the expansion of slavery into the new territories as this nation grew seemed to the average Northerner to menace his free institutions, both economic and political. When the war finally came, the abolitionists who had done so much to bring it about were no .longer in the forefront. The struggle came to be between Northerners set on maintaining their federal system as it had ex isted and Southerners who wished to set up an almost identical fed eral system within which the in stitution of slavery would be pro tected. The underlying concepts of American federalism were thus espoused by both North and South, even as the struggle of section against section was carried out.

The statements of Lincoln be fore and during the war epitomize the Northern insistence upon the traditional American attitude to ward limited government and in dividual opportunity. In 1858 he commented, "As I would not be a slave, so I would not be a master. This expresses my idea of democ racy." In 1861, he defined democ racy as "a government of the peo ple, by the· same people." Nothing in such sentiments conflicts with the basic intent of Calhoun's con current majority. The great ques tion that needed to be answered, again in Lincoln's words, was, "Must a government, of necessity, be too strong for the liberties of its people, or too weak to maintain its own existence?" States'Rights The history books often don't emphasize the fact that states' rights had a history of great strength in the North as well as in the South, as for example in the Hartford Convention of 1814. Meanwhile, the South maintained a strong sentimental and intellec tual attachment to the Constitu tion until the very eve of the Civil War. Both sides espoused the same tradition in political theory; the trouble came rather from a sec tional conflict over differing socio logical concepts. As Daniel .Boor stin has phrased it: "The North and the South each considered that it was fighting primarily for its legal rights under the sacred Fed eral Constitution ... As. often in American history, a great political conflict was taking the form not of a struggle between essentially dif ferent political theories, but be tween differences of Constitutional emphasis .... The Civil War seces sionist argument -like that of the Revolution, could be carried on in such a conservative vocabulary, 54 THE FREEMAN January because both events were, theo eetically speaking, only surface breaches in a firm federal frame work. Because of this, they both implied, win or lose, the continued acceptance of the existing struc ture of local government."7 The Reconstruction era, for all its senseless crimes and abuses by both the North and the South, demonstrated a remarkable reinte gration of the South into the American Constitutional system.

The Civil War had to be fought, perhaps, but both sides remained so much within the American tra dition of federalism that the basic concepts of the American political fabric remained largely intact. Racial Problems Remain Since the American Civil War, the racial problem left as a legacy of slavery continues to. plague both the South and the. American fed eraL system. In a case before the Supreme Court several years ago, Justice Frankfurter attacked "some recent suggestions that the Constitution was in reality a deft device for establishing a central ized government. . . ." Recalling Louis Brandeis' remark that the separation of powers was adopted "not to promote efficiency, but to preclude the exercise of arbitrary 7 Daniel Boorstin, The Genius of Amer ican Politics (Chicago: University of Chicago Press, 1953), pp. 122; 124-25. power," Frankfurter concluded with a suggestion we might all re member: "Time has not lessened the concern of the founders in devis ing a federal system which would likewise be a .safeguard against arbitrary government. The great est self-restraint is necessary when that federal system yields results with which a court is in little sympathy."8 The racial problem is still with us (as are innumerable other prob lems as well) but it ill-behooves us to destroy the American tradition of federalism in the course of at tempted "solutions" to our prob lems. After all, that American tra dition of federalism has itself proven to be the greatest problem solver the American Republic has ever found.

Since the Civil War, a large part of American economic· and polit ical success has been the result of the wide social diffusion of power traditional in America. The churches, business, labor, agricul ture, and political parties, have all exercised a measure of authority within the system, outside of gov ernmental control. State and local governments also serve to limit centralizing tendencies as they ex ercise their authority. Congress is composed of Senators and Repre sentatives elected by localities and states and often representing na8 Bartkus v. Illinois, March 30, 1959.

1967 AMERICAN FEDERALISM: HISTORY 55 tional interest only in the sense that all.of their separate and wide ly varied regional interests pro duce a national amalgam of opin ion. It is behind this protective shelter of diffused and dispersed political power constituting the American federal system that the private individual has operated. It is this basic American tradition of an individual citizen freed from undue centralization of power that has provided the tremendous pro ductivity and social mobility of the nation. The Melting. Pot Another example of this social mobility achieved through the de centralization. of political power would be the record of the Ameri can immigrant. America is often referred to as a "Melting Pot," yet many of the various nationalities that make up our national popula tion retain a wide variety of cul tural differences with great pride. This cultural diversity is protected by the American federal system.

On the other hand,· in a political sense America has been a "Melting Pot." Many of the Europeans com ing to these shores have brought with them some of the more radi cal political beliefs of their home land, yet upon arriving here have been absorbed into moderate polit ical life. America has shown the world that the "consensus through diversity" of political life possible under federalism opens so many social and economic doors to so many people that radical political answers are no longer either nec essary or desirable. This blend of political stability and economic and social progress made possible through the diffu sion and localization of power was noted as a basic American institu tion by Tocqueville well over 100 years ago. He pointed out that state and local governments had come first in America and that the national government had been de signed later for special purposes.

In his careful study of local gov ernment institutions in the United States he found that "municipal institutions constitute the strength of free nations . . . [because] a nation may establish a free gov ernment, but without municipal in stitutions it cannot have the spirit of liberty .... However enlight ened and skillful a central power may be, it cannot of itself embrace all the details of the life of a great nation. Such vigilance exceeds the powers of man."9 The papers of the Founding Fathers, especially The Federal ist, are filled with approval of pop ular rule, so long as that popular rule is locally oriented. Even the ~) Alexis de Tocqueville, Democracy in America (New York: Vintage Books, 1958), pp. 63; 93.

56 THE FREEMAN January national government in its Con gressional wing was to be a series of popularly elected senators and congressmen, each representing a small segment of the total political body. This heterogeneous repre sentation is still with us and has produced what Willmoore Kendall describes as the "Two Majorities" within national politics. Even though the Presidential majority produces a single executive author ity, the congressional majority puts up the money and passes the laws that allow that Presidential authority to be exercised, thus giv ing regional and local representa tion in all its diversity a powerful voice on the national scene. A Changing Pattern Just as regional diversity and the political authority accorded it were seen by Tocqueville as the very root and branch of American self-reliance and therefore of American greatness, it has also been productive of such senti ments as that epitomized by the moral rectitude of Grover Cleve land in his assertion that "the les son should be constantly enforced that though the people support the Government, the Government should not support the people."lo Somehow in our own time a stu dent of contemporary society can not help but wonder whether or not there may be quite a number of Americans who no longer seem to espouse such attitudes. It some times appears that all too many citizens seem more interested in what the government can do for them than in their own self-reli ance. Certain elements within our society, especially in the late nine teenth and twentieth centuries, have gradually developed a philos ophy of government quite different from the American tradition of federalism. ~ 10 Grover Cleveland, Veto Message, February 16, 18870 An atoticle to appeat· next month will deal with the erosion of American F ede'ralisnt.