Federalism: Why & How, Part 2 of 4

Part 2: Why and How Did the Framers Invent a Federal System?

Key Points: American federalism was set up to replace what proved to be a weak and ineffective confederation. The states pulled together when threatened by Great Britain but, when confederated, they were unable to manage a local rebellion and were frustrated by other issues, including trade and navigation disputes.  Coming up with a replacement was not easy because there was a lot of distrust among state leaders. There were three big issues: how much power to give a new national government without enabling tyranny, the balance of power between slave states and free states, and the balance of power between small versus large states. Their answer to the first and second questions was a Constitution that created a strong federal government with narrowly defined powers while leaving the states generally sovereign in all other powers, including whether to allow slavery.  Their primary solution to the tension between small and large states was to create the U.S. Senate, where each state has equal representation, compared to the U.S. House, where large states have more seats than small states.   

Why: The Articles of Confederation Couldn’t Be Sustained

Why did the farmers invent a federal system?  The story necessarily begins with the states.  After the Declaration of Independence in 1776, the thirteen formerly British colonies became the first states. The leaders of the new states wanted to avoid anything like the British tyranny they had just defeated.  In trying to avoid that abuse, they had reshaped their new state governments in ways that gave the most power to the people through their elected legislators. State executive offices were intentionally made weak by assigning executive powers to multiple leaders or committees.[i],[ii] 

The Second Continental Congress created the Articles of Confederation (1781-1789) in order to promote their common defense (Article 3) and bind them more tightly together.  These Articles were the beginning of what would eventually become our system of federal government.

The Articles of Confederation were meant to preserve the autonomy of the states (Article 2).  The Articles, therefore, lacked any powers to overrule any kinds of policies by individual states. The Articles did not include any central executive authority.[iii] There was no authority to levy taxes or regulate commerce. Congress could ask the states for money but, after the War of Independence, few were willing to comply.  Without tax revenue, the Confederation accumulated debt and could not pay the Revolutionary soldiers for their service.

The Confederation worked well in the face of a foreign enemy but was revealed to be too weak to deal with a 1786 event called Shays’ Rebellion. The state of Massachusetts had been making unrealistic demands of farmers, many of whom had been poorly compensated for their service in the revolutionary war.  Those farmers rebelled against the state government. When the rebels planned to attack a confederation armory, Congress had no resources to stop it. Instead, Congress had to rely on the Massachusetts governor to raise his own militia to end the rebellion.  The powerlessness of Congress under the Articles of Confederation convinced many of the men who would become our Constitution’s framers that the Articles of Confederation needed to be reformed or replaced.

The framers chose to solve the problem by writing a new constitution in 1787.  Many of the arguments for the new constitution, and for federalism specifically, can be found in the Federalist Papers. Many of the benefits listed in the Federalist Papers were directly aimed at the problems of the Confederation: that a “confederate republic” would allow the governance of a large territory such as the thirteen colonies (No. 9), an insurrection in one state would not easily spread in a large republic (No. 10), that advantages in foreign commerce could be gained from acting in concert on foreign policy backed by a navy (No. 11), that a national government with the power to tax (as the Confederation could not) would be able to collect revenues more efficiently (No. 12), that a national government can more efficiently handle some functions such as coastal defenses and thus relieve the states of some burdens (No. 13).

The states ratified that Constitution in 1788, and it lives on today. It was amended under pressure from the Anti-Federalists in 1791 to include a Bill of Rights and amended 17 more times since then.  (History.com provides a short history of the Constitution.) The following section reviews how the framers used the Constitution to create our system of federalism.

How: The Constitution Requires Divided and Shared Powers

The framers did not simply sit down together and invent a new system of government. There was a lot of distrust about what kind of system the framers might devise. They needed to find solutions that most people would willingly accept. One of the main challenges the framers faced was how to find a way between those who favored a national government strong enough to enforce its own laws and those who feared the tyranny of such a government over the states and the people.  There was also distrust between large, populous states and small states and between slave states and free states.  To overcome these problems, the framers engaged in serious and lengthy debates that led to a lot of new thinking.

The first part of their solution was a constitution that created a strong federal government with narrowly defined powers while leaving the states generally sovereign in all other powers. 

The federal government was made strong in just a few roles. In Article 1, Section 8, the Constitution assigns enumerated powers to the federal government.  These powers include levying and collecting taxes, borrowing, issuing currency, declaring and making war, raising a militia to prosecute wars, putting down insurrections, conducting foreign diplomacy, and regulating foreign, interstate, and tribal commerce. 

The last sentence in Article 1, Section 8 adds that Congress shall have authority “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”  This Necessary and Proper Clause is the basis for Supreme Court rulings that give Congress the implied powers necessary to implement the enumerated powers.[iv]

Overall, the framers meant this list of powers to be just enough to remedy the problems in the Articles of Confederation. Adding more powers would have lost the support from people who feared potential tyranny from an overly powerful national government.  Thus, the states would continue to set and administer policy for most aspects of Americans’ daily lives.

The Tenth Amendment to the Constitution says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  These powers are often referred to as reserved powers. They include all authority and functions of state and local governments. Examples include election laws and administration, policing, education, health, environmental regulation, and business regulation. 

The Tenth Amendment does not mean that the states can do anything they wish. On the one hand, the Supremacy Clause in Article 6 of the Constitution asserts the Constitution and constitutionally permitted federal laws and treaties are the supreme law of the land. Note also that the Supremacy Clause was the foundation of the Marbury v. Madison (1803) ruling, which found federal judges have the authority to declare a law unconstitutional. 

On the other hand, the framers did explicitly limit the states in a few areas. While each state can maintain its own militia, Article 1, Section 10 denies states the right to maintain their own standing professional armies or navies. The same article also says the states may not negotiate foreign treaties, create their own coin money,[v] make laws allowing contracts to be broken, grant titles of nobility, make ex post facto laws, or make bills of attainder by which legislatures convict people of crimes. (The last three powers are also denied to Congress by Article 1, Section 9.)

The system the framers set up is often referred to as dual federalism.  It is a system of divided sovereignty where the federal government exercises a narrow range of constitutionally delegated powers independently of the states, and state governments exercise the powers reserved to them independently of the federal government.[vi]  However, the Constitution also created shared powers. These so-called concurrent powers include powers to legislate, establish banks and corporations, tax, borrow, confiscate property (only for public use and only with compensation to owners), and operate judicial systems.  Thus, in summary, the Constitution established a system of divided and shared powers.

The framer’s second challenge was dealing with the tension between the small and large states. When the framers drafted Article 1, they intended that an elected legislature would decide the laws of the land.  However, resistance quickly arose to the initial proposal to assign each state seats in proportion to their populations.  Leaders of the less populated states feared the larger states would dominate them.  Some sort of protection for small states would be necessary to gain support from small state leaders for the new Constitution.

Their solution was to create a Congress composed of a Senate and a House of Representatives.  Each state would have equal representation in the Senate, with two senators each (Article 1, Section 3).  The House of Representatives would have seats in proportion to the population of each state (Article 1, Section 2).[vii] No legislation could be made law without the agreement of the House, the Senate, and the President (Article 1, Section 7).  In this way, the smaller states could gain leverage in the Senate over the larger states in the House.  The decision to create this bicameral (two-house) Congress is referred to as The Great Compromise.

It is worth noting also that the Constitution originally empowered the state legislatures under Article 1, Section 3 to choose whom they wanted to represent their states in the Senate.  This power was transferred to state citizens in 1913 when a sufficient number of states ratified the Seventeenth Amendment.

The apportionment of seats in the House of Representatives by state populations was initially tainted by the “three-fifths” compromise with the slave states.  Under the compromise, three-fifths of each enslaved person would be counted for determining shares of direct taxation and representation in the House of Representatives.  This arrangement was revoked after the Fourteenth Amendment defined citizens as all persons born in the United States of America or naturalized to it.

Article 4 of the Constitution has a lot to say about the nature of American federalism.

  • Section 3 of the Article sets down rules for admitting new states to the union.[viii] Those rules, along with various enabling acts, were a big part of American history, especially regarding the issue of slave states and free states in the period leading up to the civil war.  They remain relevant today. For example, in May 2021, several counties in Oregon voted to secede and join Idaho.[ix] Article 4, Section 3 requires such changes to be approved by the legislatures of both states and by Congress.
  • The Article confers benefits for membership in the Union by guaranteeing protection from invasion and internal violence. 
  • It also includes some obligations. 
    • Importantly, Section 4 (known as the Republican Guarantee Clause) limits each state to a republican form of government.[x]  Alexander Hamilton and James Madison interpreted elections as the essential characteristic of republican government (Federalist 52 and Federalist 57).  Thus, no state can be governed by a king, a dictator, or military officers.[xi]  If any of these were tried, Section 4 would require the federal government to restore a republican form of government. For the same reason, the federal government cannot depose a duly elected state republican government.
    • Section 1 of the Article requires each state to give a measure of respect to the laws and institutions of the other states. This article is often referred to as the Full Faith and Credit Clause. The Article requires that the laws, public records, and court decisions – from each state – should receive the same full faith and credit – in every state – that they have in the state they came from. What it means in practice can be complicated. See this link for a good discussion. 
    • Section 2 of the Article says, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”  The intention is to prohibit states from discriminating against people who are from “out of state.” Even so, the states remain free to discriminate in favor of their own citizens with regard to voting rights and some activities like recreational hunting and fishing. The Privileges and Immunities Clause is not controversial today, but it was highly debated when slavery was legal because, among other things, it could determine whether a slave owner could expect to keep his slaves when crossing with them into a free state. For more on the history of this clause, click here and here.

Section 2 also requires that “A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.”  In addition, “No Person held to Service or Labor in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labor, but shall be delivered up on Claim of the Party to whom such Service or Labor may be due.”  Until the Thirteenth Amendment was ratified in 1865, the last clause of Article 4, Section 2, was used to require the return of escaped enslaved people.

© Center for Free, Fair, and Accountable Democracy

July 2021

This booklet is to be used only for civic education.

It may be copied and distributed only for non-profit, non-partisan, educational purposes and only with proper credit to the Center for Free, Fair, and Accountable Democracy.

Written by Peter Alexander and Douglas Addison
for the Center for Free, Fair, and Accountable Democracy.

Principle Reviewers:

John Kincaid, Robert B. and Helen S. Meyner Professor of Government and Public Service,
Director of the Meyner Center for the Study of State and Local Government,
President of the Center for the Study of Federalism
Lafayette College

Mark J. Rozell, Dean and Ruth D. and John T. Hazel Chair in Public Policy,
Schar School of Policy and Government,
George Mason University

Internal Reviewers:

Cheryl Cook-Kallio, Review Board

Mark Molli, Advisory Board

The reviewers are not responsible for any errors of omission or commission.

CFFAD is a non-profit organization providing non-partisan civic education.

Cover image: U.S. Department of Commerce, Economics & Statistics Admin., U.S. Census Bureau


END NOTES

[i] McKenzie, C. (1942). The problem of the executive. Washington University Law Review, 27(3). See pp. 350-352. Available at: https://openscholarship.wustl.edu/law_lawreview /vol27/iss3/4

[ii] There were exceptions, such as New York.

[iii] The Congress annually elected an individual who served as the President of the Congress.  The President of the Congress chaired the Committee of the States when Congress was in recess, and performed other administrative functions. All executive powers were controlled by Congress.  The full text of the Articles are here: https://www.ourdocuments.gov/doc.php? flash=true&doc=3&page=transcript

[iv] In McCulloch v. Maryland (1819), the Supreme Court held that Congress has implied powers derived from those listed in Article I, Section 8.

[v] State banks issued notes tantamount to paper money until the National Banking Acts of 1863 and 1864 taxed them out of existence.  https://www.senate.gov/artandhistory/history/common/civil_war/NationalBankActs.htm

[vi] Kincaid, J. (2017). The eclipse of dual federalism by one-way cooperative federalism. Arizona State Law Journal, 49, 1061-1089. See p. 1062.

[vii] The apportionment of seats in the House of Representatives by state population requires a regular census.

[viii] The Constitution does not address the possibility of secession. Most constitutions do not.

[ix] The nation’s history is full of examples of states or parts of states wanting to secede, even before the civil war.

[x] Rozell & Wilcox (2019) point out that the requirement for a republican form of government would not rule out a state wishing to establish a parliamentary system. In fact, the Constitution allows a wide variety of institutional differences in how state governments are structured and function (see pp. 43-47). 

[xi] As James Madison noted in Federalist 43, The Guarantee Clause does not require any particular form of republican governmental structure.  In Pacific States Telephone & Telegraph Co. v. Oregon (1912), the Supreme Court has refused to invalidate various forms of partial direct democracy permitted by state law, such as popular initiative and referendum.  For more discussion on Article 4, Section 4, see https://constitutioncenter.org/interactive-constitution/interpretation/article-iv/clauses/42