James Madison continues his discussion of the balance of power between the state and federal governments in Federalist 46. This is perhaps the most “populist” paper in the entire series as Madison implies that the citizens ultimately will decide where the balance of power will reside. Right off the bat, Madison says, “Notwithstanding the different modes in which they are appointed, we must consider both of them as substantially dependent on the great body of the citizens of the United States.” He continues:
The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other.
A couple of intertwined points need to be made about the preceding quotation. The state and federal governments will not necessarily be rivals because, ultimately, the same body of citizens will be selecting the leadership of both governments. It is not as though entirely different electorates will be electing these different bodies. In light of American history, this is mostly true. If we look at the 2010 elections, for example, we see Republicans gaining massively in both state and Congressional races. Even if we look at the south where locally Democrats have managed to survive in most states even as Republicans have become dominate in federal elections, the local Democrats are much more conservative than they are even in state Congressional delegations. Therefore the philosophic makeup of the people that citizens elect on a local level will largely be similar to those they advance to federal office.
Secondly, Madison suggests that both state and federal government will ultimately reflect the popular will. As we will see later, if the people favor a more active federal rather than state government, that is due to the desires of the electorate.
As both Madison and Hamilton have argued in previous essays, Madison posits that the people will tend to favor their more local government. He notes that even during the American Revolution and its immediate aftermath, American citizens showed a greater partiality towards their state.
It was, nevertheless, invariably found, after the transient enthusiasm for the early Congresses was over, that the attention and attachment of the people were turned anew to their own particular governments; that the federal council was at no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens.
It is here that Madison suggests that any enlargement of federal power will be due to popular desires.
If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due; but even in that case the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.
Again, if the federal government becomes more favored over time, it will be because that is what the people have chosen. This is a point that I believe is often overlooked, especially by those of us who believe that the enlargement of federal powers is a bad thing. As much as we may bemoan this development, we cannot deny that this has happened not because of some nefarious conspiracy, but because voters have tacitly endorsed these changes at the ballot box.
Madison continues, arguing that even federally elected officials will actually favor their home states:
The prepossessions, which the members themselves will carry into the federal government, will generally be favorable to the States; whilst it will rarely happen, that the members of the State governments will carry into the public councils a bias in favor of the general government. A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States. Every one knows that a great proportion of the errors committed by the State legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the State, to the particular and separate views of the counties or districts in which they reside. And if they do not sufficiently enlarge their policy to embrace the collective welfare of their particular State, how can it be imagined that they will make the aggregate prosperity of the Union, and the dignity and respectability of its government, the objects of their affections and consultations?
And once again Madison has been proven more right than wrong. Even today Representatives and Senators fight to protect their local turf – isn’t that what the debate over pork has been about? On the other hand, the homogenization of politics has mitigated some of the localism that was more prevalent a century ago. I would also suggest that an event Madison could not foresee – the 17th Amendment and the direct election of Senators – has dampened this “localist” spirit.
So what happens when state and federal powers collide?
If an act of a particular State, though unfriendly to the national government, be generally popular in that State and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty. On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.
It’s hard to view the first few sentences without thinking of the numerous times that the federal government has encroached upon state authority without too much of a general lament. Does Arizona ring any bells for you? On the other hand, it is notable that on the issue of state remedies for federal encroachment of authority a certain word is not mentioned above. Re-read the second half of the selection above. Madison speaks of states transmitting their disapproval and uniting in voice to beat back the federal government. We see here the foundations of the doctrine of interposition that Madison would lay out in his draft of the Virginia Resolutions in the 1790s. That being said, Madison says nothing here about states nullifying federal law. Bandied together the states could do much to disrupt federal action, but there is nothing here to suggest that Madison approves of outright nullification – mainly because he doesn’t actually approve of nullification, and he never would.
Madison discounts the possibility that the federal government would destroy the state governments through force of arms. Instead, an ideological change on the part of the people would account for a growth in federal authority. Moreover, the people would always have a means by which to protect themselves against an attempted federal military takeover of the states.
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
The reason the people of the United States can be more secure in their liberty than the people of Europe is because they have the right to bear arms. As long as local militias can get together and have the freedom to arm themselves for protection, they can beat back federal forces.
It is at this point in the series where we move into specifics about the Constitution. We’ll see what James Madison has to say about the structure of the new government starting with Federalist 47.
Donald R. McClarey
Paul Zummo
Almost Chosen People 