Over at the New York Times, Jamelle Bouie states a historical fact that is often ignored in the interminable discussions of federalism, that the Constitution was designed to eliminate much of the power of the states.
It’s obvious when it is finally presented to you: The power of the state was supreme under the Articles of Confederation, and the US Constitution was designed to roll back this power.
The next time someone blathers about states rights, remind them what the Constitution was designed to do.
In fact, you could argue that it was its primary purpose:
As millions of Americans see it, the Constitution was written to protect and extend the powers and prerogatives of the states. It established a “limited” national government and preserved, for state governments, any number of rights and responsibilities.
The whole point of the Constitution, in this view, is to restrain the federal government as much as possible. If there is one reason, beyond partisanship, that anyone is attracted to a plainly deficient idea like the independent state legislature doctrine (which I wrote about last week), it is that it’s in line with the widespread belief that state governments have pride of place within the American constitutional order.
But this is a misunderstanding. Even in the age when state governments were more independent and autonomous than they are today — the nearly 80 years between ratification and Appomattox — it was still understood that states were subordinate to the federal government. In turn, the federal government had considerable power to act on and influence the states. Why else would the statesmen of antebellum South Carolina develop a theory of nullification, if not to challenge the prevailing view that states were bound to submit to the will of the national government?
Go back a little further, to the first years of the American republic, and you will see that one of the key goals of the Constitution was to curb the power of the states and leash them to the broader authority of a new national government led by a powerful legislature and an unusually strong elected executive.
In a letter to Edmund Randolph, then serving as governor of Virginia, Madison said outright that an “individual independence of the states” is “utterly irreconcilable with the idea of an aggregate sovereignty.” And while it may be impractical to try to achieve a total “consolidation of the states into one simple republic,” Madison thought that the convention should nonetheless try to find a middle ground that “will at once support a due supremacy of the national authority and leave in force the local authorities so far as they can be subordinately useful.”
Congress’s broad and nearly unlimited power to levy taxes, its limitless power to raise and maintain an army, its power to regulate interstate and foreign commerce and its general grant to do whatever is “necessary and proper” to fulfill its obligations are all a direct response to the weakness of the articles and the way that weakness empowered states to run roughshod over common interest.
The supremacy clause — “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding” — is likewise a product of the framers’ desire to bring state governments to heel as much as possible.
It’s not that often that you read something that makes you smack your head and think, “Of course, why didn’t I realize it earlier,” particularly on the Times editorial page.