NOTE: This article originally appeared on FEE.org, written by George Charles Roche III, January 1, 1967. It is one of four on the topic of American Federalism.
Dr. Roche, who has taught history and philosophy at the Colorado School of Mines, now is a member of the staff of the Foundation for Economic Education.
A number of years ago, Richard Hofstadter made the point that the differences among key American political figures have been overemphasized, thus often disguising a wide area of agreement. As American federalism has been demonstrated in action during the past 180 years, it has been shaped and modified by our political conflicts, but the real essence of our American political tradition has been revealed quite as much by the area of agreement about ends and means underlying those conflicts.
The immediate attempts at explanation and definition of our new federalism published by thinking Americans in the early years of the Republic demonstrate this consensus. The Federalist, written by Hamilton, Madison, and Jay; Defense of the Constitutions, Thoughts on Government, and Discourses on Davila, all written by John Adams; Letters of Publicola,written by John Quincy Adams; and the Farewell Address of Washington — all emphasize defense of minority rights against majority dictatorship. They outline an American liberty based upon historical precedent and limited government.
Yet, the seeds of dissent were also present in the early Republic, with Americans of good will on both sides of the developing arguments. One of these arguments is best seen in the controversy between the Hamiltonian and the Jeffersonian view of the new nation. Hamilton was the prophet of a new order, a rising generation of capitalism and the burgeoning industrial revolution. Jefferson was the defender of the older agrarian order whose interests often seemed to conflict with an industrial America. The dispute between Hamilton and Jefferson is common knowledge and is extensively 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 limitation of political power as the best safeguard of liberty, in the sense that he shared with Jefferson a distrust of excessive popular control. Our history books are often so busy telling us of the differences between Hamilton and Jefferson that they overlook the Hamiltonian fear of unchecked majorities and overlook the Jeffersonian 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 formative actions of the Republic, carried on a dialogue that embraced all facets of the new federalism. This was a bitter debate. The testy, irascible, blunt Adams wrote some letters to Jefferson that must have scorched the paper. Jefferson’s response was characteristic of the sage of Monticello. He took his revenge by understating his case and by pretending that the barbs of Adams had gone unnoticed. 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 relationship that both men were 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 balances praised by Adams in 1789 in his Defense of the American Constitutions is largely an enunciation of our American political tradition. At the time of the French Revolution, Adams defended the American system and implied how different the American 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 judicial, 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 equity; humanity till they became weasels and African panthers; and fraternity till they cut one another’s throats like Roman gladiators.1
The doughty New England lawyer, like the rest of the Founders of the American federalism, always strongly emphasized practical 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 indubitable as a moral government in the universe. But to teach that all men are born with equal powers and faculties, to equal influence in society, to equal property and advantages through life, is as gross a fraud, as glaring an imposition on the credulity of the people as ever practiced by… the self-styled philosophers of the French Revolution. For honor’s sake, Mr. Taylor, for truth and virtue’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 remains 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 government, 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 Jefferson, “Whether you or I were right, Posterity must judge….” He referred, of course, to the political differences that had developed between the Federalist party with which Adams had been associated and the Republican party of Jefferson. Here again the bitter dispute that took place in domestic American politics during the Napoleonic wars is a common subject of our history books. What is neglected is the wide area of consensus shared concerning American government even in the midst of these arguments. Adams and Jefferson both favored local government and institutions and suspected that good government often seemed to decline in exactly the same proportion as it moved further from the people being governed.
Our history books sometimes neglect to tell us that Jefferson as well as Adams approved a balance of power between the national and state governments, that he spoke approvingly of The Federalist and was sympathetic to the Constitution, even writing to Adams in praise of his Defense of the Constitutions. 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 which 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 effectually checked and restrained by the others.”3
Kentucky and Virginia Resolutions
After the passage of the Alien and Sedition Acts by the Federalists during the difficult days of the French Revolution, Jefferson and his close friend, Madison, developed the Kentucky and Virginia Resolutions, landmarks in United States federalism and in the development of the compact theory of the Constitution. In the Kentucky Resolution Jefferson insisted that the Federal Constitution had created a limited national government of certain definite and enumerated powers, reserving all other powers to the people and the states. In his lifetime, Jefferson repeatedly emphasized the close connection between decentralization and liberty. He placed his faith in a qualitative rather than quantitative democracy, urging that a body of informed and capable citizens, an aristocracy in the best possible sense of the word, was infinitely superior to a mere nose count that delegated all authority to some political potentate.
The American tradition of federalism was thus soundly launched. There were differences among our statesmen and thinkers: 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 abiding distrust of excessively centralized 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.
One of the dominant historical forces at work almost from the inception of the new Republic was the rapid expansion of a capitalist economy. The Industrial Revolution and the unique opportunities available to an America with great room to grow were coupled with an aggressive and optimistic American spirit of individual responsibility and initiative. The decisions of Chief Justice Marshall and the arguments of his contemporaries, 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 centralized 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 necessary to preserve the sanctity of contract and of private property did not, however, conflict with the American tradition of federalism as it had developed. A government of separated, limited powers, a close adherence to the principles of English common law and tradition remained very much in evidence.
Of course, Americans were still having their political arguments. The entrenched localized capitalism represented by the Charles River Bridge, or by the Southern agrarians, did not always approve of the sweeping social changes which a rapidly expanding capitalism brought 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 complaint 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 equality before the law and resistance to unwarranted centralization, whether in economics or politics. Nothing could make it clearer that the Jacksonian movement was 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 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 developments, and yet found no difficulty in remaining close to the traditions of American federalism. As a rising young politician in the West, not too many years later, Abraham Lincoln consistently emphasized 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 economic opportunity for the individual and the sanctity of property and contract as the best safeguard of that opportunity. They envisioned a government that enforced the rules of the game while leaving open the widest possible avenues for individual initiative and varied capitalistic development in a thoroughly decentralized framework. As rising capitalists building 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.
While the North and the West went the way of industrial capitalism, the South, tied to the land and to its “peculiar institution” of slavery, went the way of agrarian 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 agrarian 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 centralization and the impersonality of a government too far removed from the varieties of local experience. Discussing the House of Representatives, 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 parliament. 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 states as well as those of the general 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 substantial citizenry, its men of some property, its farmers and merchants and men of skill and learning; upon their shoulders rested a country’s duties, and in their hands should repose its government.”5 It is John Randolph who developed much of the political framework later brought to fruition 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 earlier biographer of John Randolph, the almost equally eccentric and irascible Henry Adams, has suggested that the doctrine of states’ rights was in itself a sound and true doctrine: “As a starting point of American history and constitutional 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 Constitution. He predicted that the 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 suppositions. The “Iron Man,” pressured by the necessity of the growing crisis that was to produce the Civil War, early came to grips with the problem of what constituted genuine equality and liberty. He warned that true liberty was compatible only with equality of opportunity and indeed was impossible if an equality of condition were to be enforced:
“Now as individuals differ greatly from each other in intelligence, sagacity, energy, perseverance, skill, habits of industry and economy, physical power, position and opportunity, — the necessary effect of leaving all free to exert themselves, to better their position, must be a corresponding inequality between those who may possess these qualities and advantages in a high degree, and those who may be deficient in them. The only means by which this result can be prevented are, either to impose such restrictions on the exertions 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 the fruits of their exertions. But to impose such restrictions on them would be restrictive of liberty,— 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 attempt 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.”6
Liberty, equality of opportunity, progress… these are John Calhoun’s words, yet might just as easily be the words of a Jacksonian entrepreneur. And how is the government to be kept from interfering with this balance? Calhoun’s answer, well within the spirit of American federalism, was his “theory of the concurrent majority.” Under other names, Calhoun’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 many separate entities that local and regional principles, programs, and interests, representing the tremendous 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 industrial capitalism of the North and West and the agrarian capitalism of the South. Yet, in a number of ways the political values to which both North and South appealed before the Civil War had much in common. Both espoused limiting the sphere of governmental action, both favored diffusion of power, both favored wide opportunities 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 federalism: 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 driven by a small but intractable Northern abolitionist minority into wrapping the institution of slavery in the protective cloak of American federalism. Most Northerners 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 existed and Southerners who wished to set up an almost identical federal system within which the institution of slavery would be protected. 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 before and during the war epitomize the Northern insistence upon the traditional American attitude toward limited government and individual opportunity. In 1858 he commented, “As I would not be a slave, so I would not be a master. This expresses my idea of democracy.” In 1861, he defined democracy as “a government of the people, by the same people.” Nothing in such sentiments conflicts withthe basic intent of Calhoun’s concurrent majority. The great question 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?”
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 intellectual attachment to the Constitution until the very eve of the Civil War. Both sides espoused the same tradition in political theory; the trouble came rather from a sectional conflict over differing sociological concepts. As Daniel Boorstin has phrased it: “The North and the South each considered that it was fighting primarily for its legal rights under the sacred Federal Constitution… As often in American history, a great political conflict was taking the form not of a struggle between essentially different political theories, but between differences of Constitutional emphasis…. The Civil War secessionist argument — like that of the Revolution, could be carried on in such a conservative vocabulary, because both events were, theoretically speaking, only surface breaches in a firm federal framework. Because of this, they both implied, win or lose, the continued acceptance of the existing structure of local government.”7
The Reconstruction era, for all its senseless crimes and abuses by both the North and the South, demonstrated a remarkable reintegration 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 tradition 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 federal 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 centralized government….” Recalling Louis Brandeis’ remark that the separation of powers was adopted “not to promote efficiency, but to preclude the exercise of arbitrary power,” Frankfurter concluded with a suggestion we might all remember: “Time has not lessened the concern of the founders in devising a federal system which would likewise be a safeguard against arbitrary government. The greatest 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 problems as well) but it ill-behooves us to destroy the American tradition of federalism in the course of attempted “solutions” to our problems. After all, that American tradition 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 political success has been the result of the wide social diffusion of power traditional in America. The churches, business, labor, agriculture, and political parties, have all exercised a measure of authority within the system, outside of governmental control. State and local governments also serve to limit centralizing tendencies as they exercise their authority. Congress is composed of Senators and Representatives elected by localities and states and often representing national interest only in the sense that all of their separate and widely varied regional interests produce a national amalgam of opinion. 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 productivity and social mobility of the nation.
The Melting Pot
Another example of this social mobility achieved through the decentralization of political power would be the record of the American immigrant. America is often referred to as a “Melting Pot,” yet many of the various nationalities that make up our national population retain a wide variety of cultural 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 coming to these shores have brought with them some of the more radical political beliefs of their homeland, yet upon arriving here have been absorbed into moderate political 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 necessary or desirable.
This blend of political stability and economic and social progress made possible through the diffusion and localization of power was noted as a basic American institution 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 designed later for special purposes. In his careful study of local government institutions in the United States he found that “municipal institutions constitute the strength of free nations… [because] a nation may establish a free government, but without municipal institutions it cannot have the spirit of liberty…. However enlightened 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.””
The papers of the Founding Fathers, especially The Federalist, are filled with approval of popular rule, so long as that popular rule is locally oriented. Even the national government in its Congressional wing was to be a series of popularly elected senators and congressmen, each representing a small segment of the total political body. This heterogeneous representation 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 authority, the congressional majority puts up the money and passes the laws that allow that Presidential authority to be exercised, thus giving regional and local representation 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 sentiments as that epitomized by the moral rectitude of Grover Cleveland in his assertion that “the lesson should be constantly enforced that though the people support the Government, the Government should not support the people.”¹º
Somehow in our own time a student of contemporary society cannot help but wonder whether or not there may be quite a number of Americans who no longer seem to espouse such attitudes. It sometimes appears that all too many citizens seem more interested in what the government can do for them than in their own self-reliance. Certain elements within our society, especially in the late nineteenth and twentieth centuries, have gradually developed a philosophy of government quite different from the American tradition of federalism.
An article to appear next month will deal with the erosion of American Federalism.
1 John Adams, Letters to Jefferson, 1817.
2 John Adams, Works, VI, 454.
³ As quoted by Richard Hofstadter, The American Political Tradition and the Men Who Made It(New York: Vintage Books, 1948), p. 29.4 Annals of Congress, (18th Congress, 1st Sess.), p. 1304.
5 Russell Kirk, Randolph of Roanoke (Chicago: Henry Regnery Co., 1964), pp. 34-35
6 John Calhoun, Disquisition on Government, Works, 1, pp. 56-57.
7 Daniel Boorstin, The Genius of American Politics (Chicago: University of Chicago Press, 1953), pp. 122; 124-25.
8 Bartkus v. Illinois, March 30, 1959.
9 Alexis de Tocqueville, Democracy in America (New York: Vintage Books, 1958), pp. 63; 93.
10 Grover Cleveland, Veto Message, February 16, 1887.