Transcript Federalism: - Northern Illinois University

Federalism
Hamilton v. Jefferson
and
McCullouch v. Maryland
Elderhostel
September 25, 2006
Artemus Ward
Department of Political Science
Northern Illinois University
Federalism Defined
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What is federalism?
Federalism describes a system of
government in which sovereignty is
constitutionally divided between a central
governing authority and constituent political
units such as states.
The division of power between the United
States government and the state
governments has been an ongoing divisive
issue in American politics since the founding.
The Articles of Confederation
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Adopted by Congress in 1777, it
combined the Thirteen Colonies
of the American Revolutionary
War into a loose confederation.
Still at war with England, the
colonists were reluctant to
establish another powerful
national government. Jealously
guarding their new
independence, the Continental
Congress created a loosely
structured unicameral legislature
that protected the liberty of the
individual states at the expense
of the confederation.
The Articles in Practice
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While calling on Congress to
regulate military and monetary
affairs, for example, the Articles of
Confederation provided no
mechanism to ensure states
complied with requests for troops
or revenue. At times, this left the
military in a precarious position.
Perhaps the most important power
that Congress was denied was the
power of taxation: Congress could
only request money from the
states. Understandably, the states
did not generally comply with the
requests in full, leaving the
confederation chronically short of
funds. The states and the national
congress had both incurred debts
during the war, and paying
congressional debts became a
major issue.
The Constitution: Is the National
Government too Powerful?
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Necessary and Proper Clause:
Congress has the power “To make
all Laws which shall be necessary
and proper for carrying into
Execution [its] Powers, and all
other Powers of the United States.”
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.”
Comparing the Articles with the Constitution
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Articles of Confederation, Article II. “Each state retains
its sovereignty, freedom, and independence, and
every power, jurisdiction, and right, which is not by
this Confederation expressly delegated to the United
States, in Congress assembled.”
United States Constitution, Amendment X. “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.
What happened to the word “expressly”? Does it
matter?
Two Views of the Constitution:
Justice Joseph Story in Martin v. Hunter’s
“The Constitution of the United
Lessee (1816)
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States was ordained and
established not by the States
in their sovereign capacities,
but emphatically, as the
preamble of the Constitution
declares, by "the people of the
United States." . . . The
Constitution was not,
therefore, necessarily carved
out of existing State
sovereignties, nor a surrender
of powers already existing in
State institutions.”
Two Views of the Constitution:
James Madison in a Resolution
of
the
“That this Assembly doth explicitly
peremptorily declare, that it
Virginia Assembly (1798) and
views the powers of the federal
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government, as resulting from the
compact, to which the states are
parties; as limited by the plain sense
and intention of the instrument
constituting the compact; as no
further valid that they are authorized
by the grants enumerated in that
compact; and that in case of a
deliberate, palpable, and dangerous
exercise of other powers, not
granted by the said compact, the
states who are parties thereto, have
the right, and are in duty bound, to
interpose for arresting the progress
of the evil, and for maintaining within
their respective limits, the
authorities, rights and liberties
appertaining to them.”
Bank of the United States
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On the urging of Secretary of the
Treasury Alexander Hamilton,
Congress passed a bill
establishing a national Bank of
the United States.
When the bill arrived on
President Washington’s desk, he
did not sign it immediately. He
wanted to ascertain whether
Congress could create a bank
since it lacked explicit
constitutional authority to do so.
He asked Hamilton, Secretary of
State Thomas Jefferson, and
Attorney General Edmund
Randolph for their opinions on
the bank’s constitutionality.
The United States Bank, Philadelphia
Thomas Jefferson, “Opinion on the
Constitutionality of a National Bank” (1791)
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“To take a single step beyond the boundaries . . .
Specially drawn around the powers of Congress, is to
take possession of a boundless field of power, no longer
susceptible of any definition.”
“It is known that the very power now proposed as a
means [a national bank], was rejected as an end, by the
Convention which formed the constitution.”
The enumerated powers “can all be carried into
execution without a bank. A bank therefore is not
necessary, and consequently not authorized by the
[necessary and proper clause].”
“The constitution allows only the means which are
‘necessary’ not those which are merely ‘convenient’ for
effecting the enumerated powers. If such a latitude of
construction be allowed to this phrase as to give any
non-enumerated power, it will go to every one, for there
is no one which ingenuity may not torture into a
convenience, in some way or other, to some one of so
long a list of enumerated powers. It would swallow up all
the delegated powers, and reduce the whole to one
phrase . . . Therefore it was that the constitution
restrained them to the necessary means, that is to say, to
those means without which the grant of the power would
be nugatory.”
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Alexander Hamilton, “Opinion as to the Constitutionality
of the Bank of the United States” (1791)
“This general principle is inherent in the very
definition of government, and essential to every
step of the progress to be made by hat of the
United States, namely: that every power vested
in a government is in its nature sovereign, and
includes, by force of the term, a right to employ
all the means requisite and fairly applicable to
the attainment of the ends of such power, and
which are not precluded by restrictions and
exceptions specified in the Constitution, or not
immoral, or not contrary to the essential ends of
political society.”
“What was the precise nature or extent of this
proposition [to establish a national bank at the
Convention], or what the reasons for refusing it,
is not ascertained by any authentic document, or
even by accurate recollection.” [Even if it were
known, it would not matter because] “whatever
may have been the intention of the framers . . .
that intention is to be sought for in the instrument
itself.”
“[A bank] has a relation, more or less direct, to
the power of collecting taxes, to that of borrowing
money [etc.].”
McCulloch v. Maryland (1819)
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Because of inefficiency and
corruption, the United States
Bank was very unpopular,
and many blamed it for the
nation’s economic problems.
As a result, Maryland sought
to regulate and tax the
branch located in Baltimore.
James McCulloch, a bank
official, brought suit.
Can Congress establish a
bank?
Can a state tax/regulate an
instrument of the national
government?
The United States Bank, Philadelphia
James McCulloch
McCulloch v. Maryland (1819)
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Chief Justice John Marshall
“Among the enumerated powers, we do
not find that of establishing a bank. But
there is no phrase in that instrument
which, like the articles of confederation,
excludes incidental or implied powers;
and which requires that everything
granted shall be expressly and minutely
described. Even the 10th amendment,
which was framed for the purpose of
quieting the excessive jealousies which
had been excited, omits the word
‘expressly.’”
“Its nature requires that only its great
outlines should be marked, its important
objects designated, and the minor
ingredients which compose those
objects be deduced from the nature of
the objects themselves. . . we must
never forget that it is a constitution we
are expounding.”
McCulloch v. Maryland (1819)
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Chief Justice John Marshall
“Although, among the enumerated powers of
government, we do not find the word ‘bank,’ we
find the great powers to lay and collect taxes;
to borrow money; to regulate commerce.... But
the constitution of the United States has not left
the right of Congress to employ the necessary
means for the execution of the powers
conferred on the government to general
reasoning. To its enumeration of powers is
added [the necessary and proper clause].”
“Let the end be legitimate, let it be within the
scope of the constitution, and all means which
are appropriate, which are plainly adapted to
that end, which are not prohibited, but consist
with the letter and spirit of the constitution, are
constitutional.”
“The power to tax involves the power to
destroy. . . . [the states] may tax all the means
employed by the government, to an excess
which would defeat all the ends of government.
This was not intended by the American people.
They did not design to make their government
dependent on the States.”
Aftermath
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The nationalist views articulated by Hamilton and
Marshall eventually succumbed to the states-rights
views of Jefferson with President Andrew Jackson’s
appointment of Roger Taney as Chief Justice.
Subsequently, the pendulum has swung back and
forth in the United States between a more nationalist
interpretation and a more states-rights interpretation
of the Constitution.
For example, in Hammer v. Dagenhart (1918),
Justice William R. Day wrote: “In interpreting the
Constitution it must never be forgotten that the
nation is made up of states to which are entrusted
the powers of local government. And to them and to
the people the powers not expressly delegated to
the national government are reserved.”
Conclusion
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Federalism disputes have been continually present
throughout American history.
Many issues can be viewed through the lens of
federalism: i.e. abortion.
Does federalism have an ideological dimension? Are
both liberals and conservatives consistent in their views
on federalism no matter what the issue? Do
conservatives always take a state’s rights position and
do liberals generally take a nationalist stance?
Consider the Supreme Court’s decision in Bush v. Gore
(2000) or their holding in the California medical
marijuana case Gonzales v. Raich (2005).