Conservatism, centralization, and constitutional federalism

Modern Age, Wntr-Spring, 2004 by George W. Carey

MY PURPOSE IS TO SET FORTH and explore the ramifications of two different conceptions or paradigms of American federalism whose roots can be traced to The Federalist essays of both Hamilton and Madison. Certain conclusions flow from this analysis that, in my judgment, are important to the conservative approach and thinking about centralization. Perhaps the most significant of these stems from the apparent incongruity between the arguments and position of American conservatives, who lament the decline of federalism and the ensuing centralization, and the more traditional and theoretical arguments in conservative thought concerning the virtues of decentralization and the dangers of centralization.

My examination of The Federalist's teaching regarding federalism should help clarify the bases for the disputes that have arisen over its meaning since the inception of the American constitutional system. It should make clear, as well, that there is more than one legitimate interpretation of the Framers' understanding of the division of powers between the states and national government. It will, more importantly, provide the background for shedding some light on the nature of the disconnect between the traditional conservative concerns about centralization and those that figure most prominently in the American context. In fact, as I think my analysis will show, the conception of American federalism advanced by conservatives renders it extremely difficult to achieve the virtues associated with decentralization that are emphasized in conservative thought stretching back to Burke and Tocqueville.

Constitutional Federalism

We turn first to The Federalist and its teachings regarding the federal principle. For our purposes the most relevant of these relates to the "extent" of national power, a matter most tellingly discussed in Federalist no. 39. While Madison, the author of this particular essay, regarded the extent of powers of the national and state governments to be one of only five "tests" for determining the true federal character of the proposed Constitution, this test is the essence of federalism as it is understood today. In his brief discussion of the extent of powers. Madison sets forth the notion of divided sovereignty: the "jurisdiction [of the proposed government] extends to certain enumerated objects only, and leaves to the several states, a residuary and inviolable sovereignty over all other objects." (1) Hamilton in Federalist no. 9 set forth the same understanding: "The proposed constitution.... Leaves in their [the states'] possession certain exclusive, and very important, portions of sovereign power" (41). In both formulations the states are understood to possess a residuary sovereignty that cannot be "invaded" or infringed by the national government.

This divided sovereignty conception of federalism raises perplexing problems, not the least of which is whether, in the last analysis, sovereignty can be divided. Madison faces up to certain of the more obvious and immediate difficulties in Federalist no. 39 by way of tackling the question, what if controversies between the states and national government should arise over the extent of their respective jurisdictions?--controversies that, Madison believed, are inevitable. His answer is that a "tribunal," which "is to be established under the general government," should "ultimately ... decide." He is quick to add that this tribunal should make its decisions "impartially, according to the rules of the constitution." At the same time, he insists this tribunal should be "established under the general, rather than under the local governments" in order to avoid "an appeal to the sword, and a dissolution of the compact." This "position," he felt, was "not likely to be combated" (198).

To the innocent eye, it is not at all clear from the textual context that by "tribunal" Madison means the Supreme Court, though in his later correspondence he maintains that this was, indeed, his meaning. Nevertheless, his solution has obvious drawbacks. Can an institution of the national government render an impartial decision when the national government is itself a party to the dispute? This is a concern raised most effectively by the antifederalist Brutus during the ratification struggle and later echoed by Jefferson, Taylor, and, among others, Calhoun. Moreover, Madison's reference to "rules of the Constitution" is somewhat baffling in that it suggests there are agreed upon "rules" to be found in the Constitution that will help the "tribunal" in rendering an "impartial" decision. On this score, we cannot help but note that Justice Marshall found no such "rules" in rendering his decision in McCulloch v. Maryland (1819), the first major case involving competing jurisdictional claims. In sum, a second look at Madison's solution to the problems posed by divided sovereignty shows that it is not free from serious difficulties. As we shall see in short order, even profounder difficulties arise when we consider whether there can be any such thing as residuary state sovereignty, given the authority that national government must possess to defend the nation in time of war.