When the European powers colonized the New World, land grants were made to various corporations and individuals. Those varied lands over time evolved into individual colonies, each with their own institutions. Most on the Atlantic seaboard eventually became the domain of Britain.
Along came the American Revolution which saw the British colonies improbably defeating Britain and winning independence. But independence for whom?
There were two major strains of opinion about that question.
On the one hand there was the view of people like Thomas Jefferson. They adhered to what might be called a republican perspective. (Note the small r.) They believed that thirteen individual states, tied together in a loose and voluntary confederation, each of whose governments were closer to the people, had won the right to be independent and sovereign states.
Given the fears of distant, centralized governments, born of the colonists' experiences with Britain, this republican perspective may have been the prevailing view of citizens in the new United States of America. The majority's republican ideology informed the adoption of the Articles of Confederation. It also explains why there was so much resistance to altering them in spite of their ineffectiveness.
A second view, which, according to Joseph Ellis in his new biography, was the view of George Washington, held that the compelling reasons for the struggle to gain independence had less to do with the philosophical niceties of republicanism than the desire to be an independent power. Washington and like-minded revolutionaries didn't share the republicans' fears of a strong central government that could override the policies and laws of individual states. Writes Ellis:
Washington regarded the American revolution as a movement to establish both American independence and American nationhood; indeed, he did not believe that you could have one without the other. Most of the officers in the Continental army shared this view, because they had also experienced the frustrations of trying to fight and win a war without a federal government empowered to provide resources in the reliable fashion of the British ministry. The fear that haunted Washington was not of excessive federal power reminiscent of Parliament's arbitrary and imperial policies, but rather that of a weak confederation reminiscent of the Continental Congress's woefully inadequate performance during the war.Washington, Ellis points out, in private correspondence expressed his contempt for the Articles of Confederation, adopted at the behest of the republicans. Washington felt that only a strong central government could help the newly independent states attain financial solvency and fend off destruction by other powers.
Eventually of course, a convention originally brought together for the purpose of strengthening the Articles of Confederation promulgated the United States Constitution. Patrick Henry, that devoted republican, condemned the new document, saying that he "smelt a rat." Thomas Jefferson, then in France, was initially quite cool to the Constitution as well. But eventually, the arguments which Alexander Hamilton and John Jay, dedicated federalists, and James Madison, then a bridge figure between the two major views, made in The Federalist Papers, prevailed.
The fact is that federalism and its concomitants, strong central government and states' rights, didn't necessarily result from a philosophically-driven argument about how the new nation could best govern itself, but from the exigencies of history. This is important to remember when considering the claims of Jonah Goldberg in an otherwise-brilliant recent column in the Manchester Union-Leader. There, Goldberg says:
For years I’ve been ranting that federalism is the greatest system ever conceived to maximize human happiness.Yes, probably. But it's only an accident of history, the result of our colonial past and the needs of two competing bodies of opinion to work out a compromise to keep an embryonic republic (Washington always referred to the new nation as an "empire") from imploding or being beset by foreign armies.
On becoming the country's first President, George Washington had to be careful not to offend republican sensibilities. While he wanted to establish the new central government as the highest governing authority of the country, he was respectful of the tenuous compromise between those advocating states' rights and those in favor of a strong central government embodied in the Constitution. He also needed to be careful not to show any signs of taking on the perquisites or trappings of royalty. (In spite of the great care Washington did show in this latter area, he was increasingly accused of being a latter-day King George during his second term.)
To say that Washington was reticent about legislative initiatives during his presidency would be an understatement. He tended to stay out of and above the fray of legislative wrangling, instead mostly operating as an other-worldly father figure. What this meant was that Washington's federalist views sometimes prevailed and sometimes didn't, depending entirely on who else was championing them.
When it came to establishing a unified national economy, something in which Washington believed, Secretary of the Treasury Alexander Hamilton was a firm, insightful, innovative, and perseverant advocate. Here, the federalist view defeated that of the republicans.
The Constitution had left the organization of the federal legal system and how it related to the laws of individual states fairly vague. Washington wanted a strong body of unified federal law with little variation, if any, among the legal codes of the states. But he could not and did not push his view. In the absence of any spear-carrier for federalism, the states were given tremendous judicial latitude. So, the doctrine of states' rights was firmly established in legal matters.
For much of the country's history, I think it's fair to say that the notion of states' rights has been a convenient tool for those who may not have had particular passions for the doctrine, but wanted to thwart specific federal policies. Thomas Jefferson, for example, authored legislation passed in two different states, claiming that individual states could prevent the enforcement of federal statutes within their domains. Jefferson's notion of "popular sovereignty" was repudiated. Later, in the struggle for civil rights for African-Americans, some advanced the cause of states' rights as a means of thwarting that struggle.
Beginning in the late 1940s, signaled by Truman's integration of the Armed Forces and Hubert Humphrey's successful fight to include a strong civil rights plank in the 1948 Democratic platform, the Democrats, genetic heirs of the republicans, came to be seen as enemies of states' rights. Increasingly, Democrats favored using the federal government to address a broad array of issues that might once have been considered the exclusive purview of state governments (i.e., education, voters' rights). Democrats were also seen as advocates of using the federal judicial system to do much more than what their opponents claimed that the Constitution envisioned for the federal government.
The 1964 nomination of Barry Goldwater as the Republican presidential candidate, signaled that their party, the genetic heirs of the federalists (the progression was federalists to Whigs to Republicans), were the advocates of states' rights. Unlike their Democratic counterparts, the Republicans advocated a limited federal government that took a hands-off view of what they saw as state perquisites and responsibilities. They also wanted federal judges who took a "strict constructionist" view of the Constitution, refusing to invent law and always taking into account the "original intent" of the document's framers.
Notice that these were the views of the "ins" and the "outs," respectively. While Richard Nixon succesfully won the White House in 1968 and 1972, he always had to deal with Democratic majorities in the Congress and federal judiciary still full of Roosevelt, Truman, Kennedy, and Johnson appointees. (In fact, it wasn't until ten years ago, that the House came under the control of the Republicans.) The Republicans were the congenital "outs" and as Goldberg notes in his column, speaking for persons of his own conservative views:
As conservatives have known for decades, federalism is the defense against an offensive federal government.But now the worm has turned. A "conservative" administration is pushing policies that are seen by some as intrusive. "Liberals" are trying to combat President Bush by appealing to federalism and the doctrine of states' rights. Some conservatives, like Goldberg are disappointed by what they see as decidedly un-conservative use of power to achieve conservative ends. He writes:
The bad news, alas, is that conservative support for federalism has waned at exactly the moment they could have enshrined the ideal in policy. Just last week, the Bush administration argued against California’s medical marijuana law. Bush is also moving ahead toward a constitutional prohibition on gay marriage. After decades of arguments that Washington should stay out of education, Bush has made it his signature domestic issue.
It’s not that the White House doesn’t have good arguments for its policies. But it is impossible to restore federalism unless you start by allowing states to make decisions you dislike. Otherwise, it’s not federalism, it’s opportunism.
Another example of what Goldberg is talking about may be the current battle over the clean-up of nuclear wastes at the Hanford nuclear reservation in Washington State. The Bush Department of Energy is suing the State of Washington because of a state ballot initiative passed there which, essentially, regulates what the federal government does with the materials there. It's popular sovereignty all over again, it would seem.
What would George Washington, Thomas Jefferson, James Madison, Alexander Hamilton, Harry Truman, Hubert Humphrey, and Barry Goldwater think about all of this? I have no idea. But I do know two things:
(1) People tend to adhere to the doctrine of states' rights most fiercely when the other guy is in power;
(2) Our arguments about states' rights and federal power would probably not be so pronounced if the thirteen colonies that won their freedom from Britain had originally been one colony. Proof again that history matters.