Conservatism, centralization, and constitutional federalism

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

Inherent Difficulties

Neither the constitutional or political understanding of federalism is free from difficulties, though they are of a different order for each. Constitutional federalism is incompatible with other, critical elements of Publius's thought. Hamilton regarded it as axiomatic that "the means ought to be proportioned to the end; the person from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained" (23:113). He repeats and expands upon this axiom a bit later in the essays: "the means ought to be proportioned to the end; ... every power ought to be commensurate with its object; ... there ought to be no limitation of a power destined to effect which is itself incapable of definition" (31:150). Clearly Madison shared this view: "No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it, is included" (44:235). Moreover, what Madison has to say about the powers of the national government and defense fits in nicely with Hamilton's views: "The means of security can only be regulated by the means and the danger of attack. They will in fact be ever determined by these rules, and by no others. It is vain to oppose constitutional barriers to the impulse of self-preservation" (41:209). In sum, the national government, given the end of providing for the common defense, may well have to use powers well beyond those that are specifically enumerated in the Constitution. Additionally, these powers and their extent cannot be anticipated in advance.

From this ends/means view, the constitutional for mulation of federalism with its stipulations of inviolable state sovereignty--which, as we have noted, is found at two distinct and pivotal places in Publius's discussion of federalism--is perhaps best understood as calculated to dampen antifederalist arguments relative to the subordinate role of the states under the proposed Constitution. Simply put, from what he does say about the means being commensurate with the end, it seems highly doubtful that Publius could subscribe to the notion of inviolable state sovereignty. Specifically, it seems clear that Publius would abandon the notion of an inviolable state sovereignty if preserving this sovereignty obstructed or impeded the efforts of the national government to provide for the common defense. The extent to which encroachments on the states' reserved powers would be necessary, given the ends entrusted to national authority and what the nature of these intrusions might be, Publius as much as tells us, cannot be foreseen. But it seems evident, from his discussion, that he would not be so imprudent as to subscribe to the doctrine of any state inviolable sovereignty which, in effect, says "never" to any federal encroachment of the states' domain, particularly when the survival of the nation might be involved.