James Madison, in Federalist 45, asked:
“We have heard of the impious doctrine in the Old World that people were made for kings, not kings for the people. Is this the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the view of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object.”
He further stated:
“Were the Union itself inconsistent with the public happiness, it would be [his advice], to abolish the Union. In like manner, as far as the sovereignty of the states cannot be reconciled to the happiness of the people, the voice of every good citizen must be, ‘ Let the former be sacrificed to the latter.’”
He also provided examples historically where federal power exceeded its intended bounds, but made the argument that the Constitution, with its safeguards, would blunt such federal growth—a hope that, unfortunately, has not held.
This is where we are today…the federal government, without question, is superseding the state governments, and any attempt to rectify the situation, bringing back to the states the power that belongs to them, is met with resistance, charges of authoritarianism, and outright disobedience by government officials , or citizens who simply do not understand what the Constitution says about State vs. Federal power.
Much of this confusion is engendered by lax education on the Constitution itself, along with the desire, over time, for a government to become the caretaker of the people. This is nothing new historically, as governments inevitably drift toward some form of authoritarianism—not the classic definition where there arises a dictator—but where the federal government (in this case) assumes more and more power over time, despite the best efforts of some government officials and the population itself.
This phenomenon is outlined in an outstanding book on the subject by Paul Rahe entitled Soft Despotism, Democracy’s Drift, in which the author traces, historically, attempts at democracy and their inevitable failures. This is true even in the birthplace of democracy,[1] in ancient Greece, where, over time, the Greek version of direct democracy fell to the vested interests of a select few, becoming, ultimately, a form of oligarchy.[2]
Rahe argues the primary reason lies within the citizenry. Over time, citizens become complacent, less engaged, coming to rely more and more on government services and becoming more passive, less willing to participate in civic virtue. This leads to the natural expansion of government as government, like many things, abhors a void, and will rush to fill it as has been happening since at least 1913 in this nation.[3]
Once again, Madison addresses this tendency as well in Federalist #45 when he states:
“We have seen, in all the examples of ancient and modern confederacies, the strongest tendency continually betraying itself in the members, to despoil the general government of its authorities, with a very ineffectual capacity in the latter to defend itself against the encroachments.”
But, Madison also goes on to state shortly after that precautions against the usurpation of power by the federal government have been taken, insisting the state governments, unlike earlier systems such as Feudalism where locality became more important, each power in our government, the federal and state, will have their powers delineated, a stark contrast to the past.
Further, Madison goes on to state, “The State governments may be regarded as constituent and essential parts of the federal government; while the latter is nowise essential to the operation or organization of the former.”
Meaning, the states have the capacity to operate on their own, without the federal government, but the reverse is not true. Even in elections, the states are primary—neither the President, nor members of the House, nor even the Senate[4], can exist without the states and their people sending them there.
Interestingly, Madison predicted the states would enjoy more power than the federal government as the latter’s power would be concentrated in defense and “danger,” while the state governments would enjoy more power during peacetime, a condition more common, he thought, than war.
This is where the rubber meets the road.
With United States entanglements worldwide, something President Washington warned against, the notion of war and “danger” is much more pronounced, thereby giving the federal government impetus to extend its power via taxation and other means. Further, states, via bloc grants, etc., and reliance on federal funds have abrogated some of their powers over the years to the federal government, becoming reliant upon it more than was outlined in the Constitution, a document which assumed states would be loath to give up their independence to the federal body.
Some of this was unavoidable—the size of the nation being incomprehensible at the time in both physical size as well as population playing a role. However, such constitutional interpretations by the Court, such as Marbury vs. Madison, where the Court gave itself the power of judicial review[5], as well as legal decisions such as McCulloch vs. Maryland (1819)[6], and United States v. Curtiss-Wright Export Corp. (1936)[7], granted the federal government “implied powers” in concert with the Necessary and Proper Clause, along with the notion of “inherent powers,” powers granted the federal government simply because it is a sovereign government.
Many of the problems we, as a nation, are facing today are because we’ve strayed so far from what the Constitution outlined, we have no way back. Hamilton, in Federalist 23 predicted something like this when he said:
“The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense.”
Therein lies the crux—common defense—Hamilton knew over time the basic foundations of the federal government power would expand, defense being one of them, but he didn’t, nor did any of the Founders, envision what we have today—the federal government threatening to withhold funding so many states rely upon in order to force them to do the federal government’s bidding, or the population clamoring for the federal government to do what states should be doing. WE THE PEOPLE are responsible for allowing the power of the federal government to expand, and both parties, though more pronounced in today’s Democratic Party, both parties have enabled this trend over the decades, and both seem willing to allow it to continue.
The 9th and 10th Amendments will not longer be relevant, and my be now, as so many have no idea what they are or what their intent was, rendered, it seems, as little more than footnotes in our Constitution.
Where’s the constitutional crisis?
Right in front of our noses.
[1] It should be noted there are two basic types of democracy: direct democracy wherein the body of the people make decisions “directly,” and representative democracy, wherein the population chooses “representatives” from within their ranks to be their proxy within the government.
[2] In the classic sense, Oligarchy means “rule by few,” not what the current political pundits like AOC and Bernie Sanders are postulating. There were many iterations of oligarchy in ancient Greece, and though Athens remained the best example of a democracy, it, too, fell victim to its partial dissolution.
[3] The Wilson administration is chiefly responsible for the significant expansion of federal power, with FDR building upon that notion. By the mid-20th century, Lyndon Johnson’s Great Society greatly expanded such powers, and the federal government, like a balloon, has grown ever since, with tepid attempts to shrink it back to the size outlined in the Constitution.
[4] Upon Madison’s writing, the state Houses were to elect federal Senators. This was changed to direct election by the people in 1913.
[5] Marbury v. Madison gave the Court the power of judicial review—something not in the Constitution. The assertion here is that the decision was the first shot across the bow of federal government expansion—giving the Court the power to decide matters of Constitutional import, and thereby, via later decisions, expanding federal power over time.
[6] Chief Justice Marshall used the Necessary and Proper Clause to uphold the creation of a national bank.
[7] The Court ruled that the federal government has inherent powers in foreign affairs, not derived from the Constitution but from national sovereignty, expanding federal and executive authority, especially in cases of international relations.
