Thanks for joining this episode of the No. 86 lecture series, which continues the conversation
in the 85 Federalist Papers about the role of Federalism.
Today’s episode features Professor Kurt T. Lash, who holds the E. Claiborne Robins
Distinguished Chair in Law at the University of Richmond School of Law.
He is the Founder and Director of the Richmond Program on the American Constitution.
As always, the Federalist Society takes no position on particular legal or public policy
issues; all expressions of opinion are those of the speaker.
Why did the Founders design a federalist system?
We’re talking today with Professor Kurt Lash, who discusses how federalism wasn’t
simply a theory in early America, but a demand.
How did the authors of the Constitution deliberately craft a system that would respect local authority
while establishing a national government with necessary powers?
Separation of powers and federalism are sometimes looked at as two separate theories.
Two different ideas of American Constitutional law.
In fact they're the same idea.
Federalism is itself another aspect of separation of powers.
Where as in one way you can look as separation of powers as only operating on a national
level.
Where the separation between the legislative, the executive, and the judicial branches.
But the Constitution also separates power along a vertical axis.
Where by the national government only gets certain limited, enumerated powers and the
states retain to themselves, the people in the states, retain to themselves all the authorities
that aren't delegated into the federal government.
And again this dispersion of power, prevents any aspect of government institutions under
the American Constitution from become tyrannical.
The federal government can not do everything it wants to do.
It must compete for the affections of the people.
As the federalist papers put it.
And by doing so it ensures the states have certain reserved powers, and they can actually
keep an eye on the federal government.
And can sound the alarm to the people in the several states whenever the federal government
transgresses its particular delegated authorities.
So they are in competition with one another.
Keeping an eye on their own local responsibilities, each of them trying to make sure the other
side does not transgress the boundaries of the Constitution.
How did the Founders balance the need for a strong central government with the sovereign
independence of the states?
Federalism, the division of power between the national government and the states, is
not just a constitutional theory, it was a demand.
It was a demand by the states at the time of the ratification of the original Constitution.
And it has to do with the fact that we could create a national government, a new powerful
national government.
But one that wouldn't overwhelm the independent existence of the people in the states.
The theory behind this and the reason for the demand actually goes all the way back
to the Declaration of Independence, in which the colonies announced that they were and
of right ought to be free and independent states.
The worry was with the drafting, and the proposal, and the ultimate ratification of the new Constitution
that this free and independent people's who had come together, and who and worked together,
and had cooperated with each other, both to win the Revolution and to coordinate their
efforts under the Articles of Confederation were not just creating a better government,
but possibly creating a government that would actually erase these independent people's
who had come to think of themselves as actual cultures, independent cultures.
At the same time there was pressure in the other direction, an idea that there was a
newly emergent American people, that we didn't have just common ideas, but we were a common
people.
These two ideas competed with each other, pressed against each other, and ultimately
out of compromise there emerged the federal Constitution that actually maintained both
ideas.
According to Madison the Constitution we got was neither hold national nor holy federal.
It had aspects of the creation of a brand new American people with a brand new national
government that would oversee some of the most important responsibilities of national
governments to protect this country and to protect the individual states in a very dangerous
world.
On the other hand it also preserved the independent exist and of the states, the people of Virginia,
the people of Massachusetts, the people of New York, who had their own cultures, their
own ideas, their own common religious beliefs, their own geography with it's own particular
problems and particular regulatory needs.
These independent local concerns would be preserved within the power of the independent
people's of the several states through the mechanism of limited delegated powers into
the hands of the national government.
It's powers would be few and they would be defined, whereas the reserved and retained
powers of the people in the several states would be numerous and indefinite.
Federalism is the division of power between the national government and the state governments.
In one respect, federalism is represented through the theory of limited enumerated powers,
the idea that the national government has only certain responsibilities, whether it's
over interstate commerce, over war and raising and supporting armies.
Everything that isn't listed as one of the enumerated responsibilities of the federal
government is reserved to the people in the states, everything from ordinary contract,
ordinary property law, early-on zoning, or where to park your horse, these were all local
concerns that were left to the people because it was not an enumerated responsibility given
to the hands of the federal government.
This of course was an absolutely critical division of power at the time of the adoption
of the Federal Constitution.
It was critically important to assemblies and the states that were debating the American
Constitution that they would retain authority and responsibility over matters that they
believed were their sovereign rights, sovereign rights that they did not plan to give into
the hands of the national government.
These were local concerns.
When it comes to the Federal Constitution, those local concerns, and the right, or the
retained right, to local self government is represented not just in the theory of limited
enumerated power, it's also represented in the Ninth and Tenth Amendments, amendments
which limit the construction of power of the federal government and reserved to the people
in the states all matters not given into the hands of the national government by the Constitution
itself When the Federal Constitution was first sent
to the states for ratification, it met concerns that this new national government ... which
had never been tested.
It was being brought into being for the first time ... would be tyrannical, that it would
overwhelm the concerns and the will of the people throughout the independent states.
In defense of the document, Federalists pointed to the fact that unlike state constitutions
and state governments, the federal government would have only limited enumerated powers.
This meant that it was going to be a very different kind of government than those operating
on a state level.
People ordinarily in the states invest their state governments with broad police powers,
or general powers to advance the health, safety, and welfare, and morals of the community.
It's a general, unlimited power to do whatever the state legislatures believe are proper
and helpful to the people subject only to being removed from government the next election
cycle.
In order to constrain power on a state government level, you would have to add a bill of rights.
You would have to have a very specific list of restrictions of things that the state government
cannot do because absent those bills of rights, it would be presumed a state government subject
to being thrown out of office at the next election cycle.
The federal government was not going to have that broad brief, that broad unlimited range
of responsibility to do whatever it thought was good, whatever it thought was in the people's
welfare.
No, that would make it just as broad in authority as states were, and it would have the result
of erasing the independent state responsibilities over local affairs.
So instead what they created was a national government of limited enumerated power.
It had to have some very extraordinary powers.
It had to meet some of the problems under the Articles of Confederation.
It need to have the power to tax.
There had been terrible problems in raising and supporting armies during the Revolutionary
War, with the raising monies being left to the states, and only some of the states meeting
that particular responsibility.
If this national government was going to be able to adequately protect the country in
a dangerous time in the world, then it was going to need to somehow fund its military
operations on its own directly without having to rely upon the states.
So it was given the power to directly tax, and it was given power over interstate commerce
to prevent trade wars from erupting between the different states.
It was given power to create commercial regulations and to negotiate commercial regulations with
other countries around the world.
These were certain responsibilities that would have to be centralized, they'd have to be
controlled at some type of central national governmental level.
But when it came to local affairs, those were not matters that should be given into the
hands of the national government.
Everything from religion to local speech.
Again to local contracting and local real estate, and local tort law and criminal law.
These were things that were believed best left to the people in the individual states.
So by limiting the responsibilities of this new national government to just those areas,
which had been problematic under the Articles of Confederation, we ensured that we created
a limited government, one that would not become tyrannical and which would continue to reserve
independent responsibilities to the people in the several states.
Soon after the ratification of the new Constitution, the question of federal power became an issue
in McCulloch v. Maryland.
Why is it a seminal case?
McCulloch is a Federalism case.
Would be a view of this particularly important and critical case through the lens of the
American division of power between the national government and the state governments.
And it's a good way to look at McCulloch, because it was tremendously controversial
in its implications of national power and what powers were going to be reserved and
protected by the judiciary to the control of the people in the several states.
The case itself involved the Bank of the United States.
This was the second bank; the first bank having been assigned into law and allowed to lapse
over time.
The Second Bank of the United States is created and it becomes, under challenged, as perhaps
exceeding the enumerated powers of the Federal government.
When the court decided this issue, it was deciding an issue that had been debated all
the way back to the original Philadelphia convention.
In the convention, they debated whether or not to grant the national government power
to charter corporations like an actual bank.
That discussion ended with the framers deciding not to give Congress that power.
Nevertheless, after the original Constitution was ratified, the first Congress decided to
charter a national bank and it was met with resistance by men like James Madison, who
argued that in fact, no, the Federal government was not to have power to charter these independent
organizations that could become the national bank.
And that in fact, it was wrong to use the necessary and proper clause in a manner to
so broadly expand the implied powers of the national government to allow it to effectuate
or to put into operation matters that the framers themselves had decided were not to
be in the hands of the Federal government.
Madison, in his speech against the original Bank of the United States, insisted that amendments
like the 9th Amendment and the 10th Amendment, guaranteed that there would be a narrow, or
appropriate construction of Federal power.
One that would continue to preserve the independent rights of the people in the states to decide
whether or not to charter a State bank.
And he also pointed to the 10th Amendment as guaranteeing that these rights would be
reserved to the people in the states.
He lost the argument.
The First Bank of the United States was signed into being anyway.
The Second Bank of the United States was actually signed into operation by Madison himself.
Madison this time conceding that the political argument had gone against him.
But he insisted that he had never changed his views of the proper construction of the
American Constitution.
This being such a debated controversy, it's not surprising that it ended up in the hands
of the Supreme Court in the case McCulloch against Maryland.
In that case, Chief Justice John Marshall gave a very broad interpretation of necessary
and proper powers, to the point that it would allow Congress to do anything that was convenient.
Anything that seemed to be in the goodwill of Congress to try and advance one of its
enumerated powers.
Whether its particular choice was enumerated or not.
It also indicated, according to John Marshall's opinion, that it would be inappropriate for
the courts to second guess Congress' decision as to whether or not a particular means was
necessary or proper.
When James Madison heard about McCulloch against Maryland, he insisted that John Marshall had
misrepresented the original theory of the Constitution.
In his detached memorandum, James Madison objected to the reading of Congressional power
as being one so broad that it effectively took the courts out of the game and removed
the courts from their very important and critical role in guaranteeing a line between matters
given into the hands of the national government and matters to the hands of the state government.
McCulloch v. Maryland was, in fact, an extremely broad reading of national power and one that
continued to be debated throughout the antebellum period and even to this day.
McCulloch against Maryland, in its construction of enumerated power, calls in to question
the very theory through its very broad interpretation of necessary and proper powers.
Necessary and proper involve the implied powers of Congress.
Yes, you have the power to raise and support armies, but in doing so, does that imply,
for example, the power to create a flag that those armies would follow?
Or to create uniforms or uniforms of a particular color?
Well, of course it does.
Those additional matters, of course, are implied in the original grant of enumerated responsibilities.
But implied powers can be kind of a game by which you continually construct your powers
and extend them and extend them, to the point that you actually eradicate the idea of limited
constraining power in the first place.
For example, you could say that Congress has power to regulate interstate commerce.
That could imply that Congress has power to ensure that commerce is properly conducted.
That could imply that Congress has power to make sure that people are educated in the
proper means and operations of commerce.
That could imply that Congress has power to control the schools and the education of the
young.
And actually to invalidate any school that doesn't carry the imprimatur of the national
government.
On and on it can go.
The Federal government could use its implied powers to construct its authority and extend
its authority to the smallest and most daily activity that we're involved in.
Does this mean that the necessary and proper clause does nothing to constrain the federal
government?
Does McCulloch against Maryland go as far as implying that we no longer have a theory
of narrow, specifically enumerated powers?
It was a debated issue.
Some people during the antebellum period, argued that it did obliterate the idea of
narrowly enumerated Federal power.
Others took a more narrow interpretation of McCulloch against Maryland and they read it
through the lens of the Federalist papers.
They actually reconciled McCulloch against Maryland's reading of the necessary and proper
clause with the Madisonian theory of Federalism.
And maintaining the line between the national government and the states.
There are ways that McCulloch against Maryland can be read in a narrow way, preserving the
theory of narrowly enumerated Federal power.
But it's also possible to read it through a Nationalist lens.
And that's a debate we're still having.
Expressly delegated power, as long as we're talking about the American Constitution, would
be powers given into the hands of government institution by way of a specific text.
Presumably a text in the Constitution.
In the case of the Federal government, you'll find the majority of these powers in Article
1, Section 8.
They're found in other places as well.
There are powers granted to enforce the 13th Amendment, the 14th Amendment and the 15th
Amendment.
But the idea is still the same: the Federal government can take no action whatsoever unless
it can find a text in the Constitution that authorizes that particular action.
That implies that there are some things which are not granted.
There are some texts that are not included and don't give delegated power into the hand
of the Federal government.
Under the American dualist-federalist system, that means that if the power isn't given into
that government, it's reserved.
And the power of the people of the several states to continue to exercise on their own
independent authority, until such time as they delegate it into the hands of the Federal
government.
When and if they do so, they'll have to do so through a text.
A text that actually gives the national government particular powers.
Thank you for listening to this episode of the No. 86 Lecture series: Continuing the
Conversation in the 85 Federalist Papers about the proper structure of government.
The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging
discussion and critical reflection relative to how each subject is widely understood and
taught in law schools and among law students.
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