By now, I've made the point a few times that today's Tea Partiers have more in common with the original Antifederalists than with the actual framers of the Constitution. The Antifederalists wanted governance to remain primarily with the states, and while the Federalists certainly wanted more centralized federal governance than the Antifederalists, they still paid strong lip service to the idea that states would retain substantial power. The problem, some two centuries later, is that they were pretty much wrong about how that would play out—and nowhere is this more clear than in James Madison's Federalist 45.
Let's set the stage, though, by glancing at Antifederalist 45, written by "Sydney." He writes:
It appears that the general government, when completely organized, will absorb all those powers of the state which the framers of its constitution had declared should be only exercised by the representatives of the people of the state; that the burdens and expense of supporting a state establishment will be perpetuated; but its operations to ensure or contribute to any essential measures promotive of the happiness of the people may be totally prostrated, the general government arrogating to itself the right of interfering in the most minute objects of internal police, and the most trifling domestic concerns of every state, by possessing a power of passing laws "to provide for the general welfare of the United States," which may affect life, liberty and property in every modification they may think expedient, unchecked by cautionary reservations, and unrestrained by a declaration of any of those rights which the wisdom and prudence of America in the year 1776 held ought to be at all events protected from violation.Viewed from a 2011 vantage point, this seems rather hyperbolic—Sydney asserts that the diminuition of state power will "destroy the rights and liberties of the people" and that seems incorrect. But it's surely the case that as the federal government has grown larger and more centralized that state governments have nonetheless also grown bigger and more expensive—and, in a lot of cases, funded by the federal taxpayer instead of just local folks.
Federalist 45 is part of Madison's attempt to defend against this charge, and there are two things to note here. A) He resorts to shameless demagoguery. And B) in making the arguments about why states would retain substantial power, he was wrong about just about everything.
The evidence for A) comes when Madison offers his first argument. So you say the states are going to lose their power, huh? Why do you hate the troops?
If that sounds like exaggeration on my part, here's what Madison actually wrote:
Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?If Sean Hannity claims the mantle of the Founders today, this is why it can sound plausible: Madison certainly sounds like a blowhard here. He opens not with a defense of the Constitution, but an attack on the motives of the Antifederalists—some of whom surely must've had some vested interests in the primacy of state governments, but some of whom opposed the Constitution based on their love of "peace, liberty, and safety."
But ugly political attacks always have been and always will be with us. For our purposes, it's more notable that Madison was really, really wrong in his central defense against the Antifederalists. Sure, he said, the Constitution empowers the federal government more than the Articles of Confederation—that's why we made it! But even under the Constitution, he says, "the State government will have the advantage of the Federal government."
It's easy to look at the landscape today and conclude Madison was wrong. That's the simple part. More complex is why Madison ended up being wrong.
Madison notes that the president will ultimately be put in office by the Electoral College, which is an agglomeration of the states. The Senate, at that time, was appointed by state legislatures. And even the House of Representatives, while directly chosen by the people, would be "under the influence" of folks who were powerful at the local level. Madison:
Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them. On the other side, the component parts of the State governments will in no instance be indebted for their appointment to the direct agency of the federal government, and very little, if at all, to the local influence of its members.The Senate, of course, is no longer appointed by the legislatures. And while the election of the president and the House of Representatives remains much the same now as it was originally envisioned, I see little evidence that President Obama or any of his recent predecessors have attempted to ingratiate themselves with local state governments—appealing, instead, to the voting citizenry of those states. That's not quite the same thing.
The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States. There will consequently be less of personal influence on the side of the former than of the latter.In 2009, the federal government had 4.43 million employees. The states, collectively, had a total full-time equivalent of 4.399 million employees. It's not a runaway win for the feds, but it's a lot closer than Madison envisioned—but then again, he was addressing a country that had a population of about 3 million people.
It is true, that the Confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the States; but it is probable that this power will not be resorted to, except for supplemental purposes of revenue. ... Should it happen, however, that separate collectors of internal revenue should be appointed under the federal government, the influence of the whole number would not bear a comparison with that of the multitude of State officers in the opposite scale.In other words, the states will have more power because A) the federal government probably won't collect taxes from its citizens—an odd argument, considering the unlimited power of taxation is a central, critical feature of the new Constitution—and B)the states will have a lot more tax collectors. We know how A) turned out. What about B)?
Another close call. It's difficult to find precise numbers, but the IRS in 2010 had 94,000 employees; the 50 states had a full-time equivency of 169,066 working in "financial administration"—and if I had to hazard a guess, I'd believe a fair number of those would be involved in administrative tasks other than tax collecting. But I'd welcome the knowledge of anybody who knows the numbers better than I do. In any case, the state advantage in this realm isn't as clear-cut as Madison believed it would be.
It's easy to imagine a Madison defender's response to this: The federal government doesn't look like what he envisioned! Why are you holding this against him? And my answer is this: While Madison relied on the Constitution's structure to keep the federal government in check, he also relied greatly on the culture. He expected that because people live locally, they'd naturally govern locally. He was wrong. And since strict adherence to an originalist vision Constitution is sometimes defended from the standpoint that the Framers based their construction of government in timeless truths about human nature—well, it stands to reason that if they were a little bit wrong about that, maybe that originalist vision doesn't hold up so well either.
Then again, it's true that maybe I'm playing a double game here. I've tended to analyze the Federalist Papers using the libertarian ideal as the standard, all while looking for ways to justify advancing liberal causes. Not exactly coherent of me. But I think there's some justification to this: Republican rhetoric often adheres to that libertarian ideal, even if the governance doesn't. Since it doesn't, it seems to me we're haggling over arbitrary boundaries rather than staring at each other from across a canyon, as often seems to be the case if you watch cable news.
But if you're a liberal who is looking to the Federalist Papers to justify a welfare state that some conservatives and libertarians suggest is unconstitutional—and if it's not enough to you that the Framers were pretty good at going beyond the limitations of text, even without seeking amendments to that text—there's hope to be found in Federalist 45. The "general welfare" isn't just a nice phrase in the preamble to the Constitution; it's the whole purpose of government. Madison:
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. Were the plan of the convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, 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.Social Security, Medicare, and Medicaid are nowhere to be found in the Constitution. Yet we have every indication that abolishing these agencies would be adverse to the happiness of the majority of the public. I've already said that if it's a choice between Social Security and the Constitution, I'd probably take Social Security. Reading James Madison today, I'm not so sure he wouldn't make the same choice.