Some of the framers argued that federalism combined with republicanism could help reduce the risks of tyranny by a majority or by a national government.
James Madison expected that tyranny by a majority within the federal government should be difficult in a federal republic. He argued the inclusion of many states and people into a large federal republic would translate into so many different opinions that it would be very difficult for a majority faction to form. He also thought the longer distances between people in a large republic would add to the challenge of organizing a majority faction. Madison makes these arguments in Federalist 10.
Application: Do you believe Madison’s logic holds in today’s era of instant communication and rapid transportation? Why or why not?
Tyranny can also be reduced by the many ways power is divided by the Constitution. In Federalist 38, Madison argued that the interests of any national majority that might form in the House would be balanced against the interests of the individual states in the Senate. George Washington is said to have told Thomas Jefferson that the framers had created the Senate to “cool” House legislation in the same way that a saucer can be used to cool hot tea.1
Madison explained in Federalist 51 that the division of powers between the federal government and the states, under the Constitution’s model of dual federalism, should make tyranny unlikely:
“… the power surrendered by the people, is first divided between two distinct governments,” and “[h]ence a double security arises to the rights of the people. The different governments will control each other …”
— James Madison, Federalist 51
Many years later, Thomas Jefferson explained,
“The way to have good and safe government, is not to trust it all to one; but to divide it among the many, distributing to every one exactly the functions he is competent to. Let the National government be entrusted with the defense of the nation, and its foreign and federal relations; the State governments with the civil rights, laws, police and administration of what concerns the states generally; the Counties with the local concerns of the counties, and each Ward direct the interests within itself. It is by dividing and subdividing these republics from the great National one down thro’ all its subordinates, until it ends in the administration of every man’s farm and affairs by himself; by placing under every one what his own eye may superintend, that all will be done for the best.”
— Thomas Jefferson to Joseph C. Cabell, February 2, 1816
The division of powers between the Office of the President and Congress should reduce the possibility of presidential tyranny in the case of cooperative federalism. The risk is reduced because the goals, funding, and conditions attached to federal grants-in-aid to the states are controlled only by Congress.
The anti-commandeering doctrine established by the Supreme Court offers some protection against congressional tyranny. Under this doctrine, the federal government may not impose duties upon state legislators or executive officials.2 In Prigg v. Pennsylvania (1842), the court said states were not obligated to enforce the 1793 Fugitive Slave Act. Printz v. United States (1997) found that the Brady (Gun Control) Act violated the Tenth Amendment to the Constitution because it attempted to commandeer state sheriffs to perform background checks.
History shows, however, that federalism is no guarantee against tyranny. The states’ control over elections, education, and land-use zoning played a significant role in the tyranny against people of color in many states during the Jim Crow era. The federal government contributed to racialized discrimination as well. Examples include the Sanford v. Dred Scott (1857) and Plessy v. Ferguson (1896) decisions by the Supreme Court and the racialized segregation mandated by the Federal Housing Administration, which refused to insure mortgages in and near Black American neighborhoods. The continued impact of federal and state laws on racial equity and justice remains contentious today.
Application: Federal systems can be harnessed for authoritarian purposes. For example, in the Russian Federation, the president can and has directed the selection of regional governors.3 In Venezuela, the ruling party made the national legislature almost powerless – except for its control over elections administration – which they then used to take over most state and local offices.4,5 Are there any specific aspects of American federalism that you believe could help or hinder authoritarians?
Image: James Madison.
1. See https://www.monticello.org/site/research-and-collections/senatorial-saucer
2. Congressional Research Service (2018). The Supreme Court Bets Against Commandeering: Murphy v. NCAA, Sports Gambling, and Federalism. LSB10133.
3. Landau, D., Wiseman, H. J., & Wiseman, S. R. (2019). Federalism for the Worst Case. Iowa L. Rev., 105, 1187.
See also https://www.reuters.com/article/us-russia-elections/putin-signs-law-to-allow-him-to-pick-russian-governors-idUSBRE9310GR20130402 and https://www.reuters.com/article/us-russia-politics-governor/putin-names-new-governor-of-restive-russian-region-hit-by-protests-idUSKCN24L1F7
4. Brewer-Carías, A. (2010). Dismantling democracy in Venezuela: The Chávez authoritarian experiment. Cambridge University Press.
5. Landau et al (2019).