Jamelle Bouie

A month before he arrived in Philadelphia as one of 55 delegates to a convention called to amend the Articles of Confederation, James Madison — then a 36-year-old representative to the Congress of the Confederation from Virginia — wrote a detailed critique of the existing American government, homing in on what he thought was its most glaring weakness: the states themselves.
His “vices of the political system of the United States” included the “failure of states to comply with the constitutional requisitions” (meaning they refused to contribute to the general fund), the “encroachments by the states on the federal authority” (“examples of this are numerous, and repetitions may be foreseen in almost every case where any favorite object of a state shall present a temptation”), “trespasses on the states on the rights of each other” and “want of concern in matters where common interest requires it.”
“How much has the national dignity, interest and revenue suffered from this cause?” Madison asked. “Instances of inferior moment are the want of uniformity in the laws concerning naturalization and literary property; of provision for national seminaries, for grants of incorporation for national purposes, for canals and other works of general utility, which may at present be defeated by the perverseness of particular states whose concurrence is necessary.”

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  1. shinichi Post author

    The Whole Point of the Constitution Was to Weaken the States

    by Jamelle Bouie

    https://www.nytimes.com/2022/03/15/opinion/madison-constitution-states-rights.html

    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.

    A month before he arrived in Philadelphia as one of 55 delegates to a convention called to amend the Articles of Confederation, James Madison — then a 36-year-old representative to the Congress of the Confederation from Virginia — wrote a detailed critique of the existing American government, homing in on what he thought was its most glaring weakness: the states themselves.

    His “vices of the political system of the United States” included the “failure of states to comply with the constitutional requisitions” (meaning they refused to contribute to the general fund), the “encroachments by the states on the federal authority” (“examples of this are numerous, and repetitions may be foreseen in almost every case where any favorite object of a state shall present a temptation”), “trespasses on the states on the rights of each other” and “want of concern in matters where common interest requires it.”

    “How much has the national dignity, interest and revenue suffered from this cause?” Madison asked. “Instances of inferior moment are the want of uniformity in the laws concerning naturalization and literary property; of provision for national seminaries, for grants of incorporation for national purposes, for canals and other works of general utility, which may at present be defeated by the perverseness of particular states whose concurrence is necessary.”

    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.”

    Madison’s deep frustration with the states was most evident in his call for a federal “negative in all cases whatsoever on the legislative acts of the states as the king of Great Britain heretofore had.” And while this did not make it into the final version of the Constitution, other provisions to curb the power of states did.

    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 is not for nothing that opponents of the Constitution singled out its treatment of the states as an egregious assault on the freedom of the American people. “To the antifederalists the Constitution represented a repudiation of everything that Americans had fought for,” the historian Gordon Wood writes in “The Creation of the American Republic, 1776-1787.” “In the context of conventional 18th-century political thought the Constitution obviously represented a reinforcement of ‘energy’ at the expense of ‘liberty,’ a startling strengthening of the rulers’ power at the expense of the people’s participation in the government.”

    One rejoinder here is simply the 10th Amendment to the Constitution, which says that “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.” This, for many conservatives, is an affirmation of the rights of states, one that proves the intent of the framers to protect the authority of state governments.

    But for Madison, who wrote the amendment, it was a “superfluous” recapitulation of the principle that the federal government was one of enumerated, not inherent, powers. He saw “no harm in making such a declaration,” if it would assuage opponents worried, as the historian Pauline Maier wrote in “Ratification: The People Debate the Constitution, 1787-1788,” “that the Constitution failed to give states sufficient protection to guarantee their continued existence.”

    And to ensure that it would not upset the balance of power established in the Constitution, Madison rejected the input of state ratifying conventions, which wanted the amendment to specify the “expressly delegated” powers of the United States. In the absence of that “expressly,” the new national government could, and would, take a broad view of its powers over the country and the states.

    Why does this matter? What, if anything, does it have to do with the present? Well, to start, it is a useful corrective in light of emerging theories like the independent state legislature doctrine I mentioned before, which rests on a states-centric view of the Constitution that falls apart on cursory contact with the history in question.

    Beyond the issue of tendentious legal theories lies the unresolved question of the states. Not only are we living at a moment when several states are moving with speed to curtail the right of their residents to obtain an abortion or live as a sexual minority, but we are also living at a time when the Supreme Court is working to curtail the ability of Congress to intervene on questions of voting rights, on top of the steps the court has already taken to limit the ability of Congress to bind and coerce the states on certain issues of national policy.

    Remembering that the Constitution was written in significant part to weaken and undermine state governments is, I think, the first step toward asserting the power of Congress not just over the states but also over institutions, like the courts, whose power has run far ahead of our system’s checks and balances.

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