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Federalism and the Founding: Toward a Reinterpretation of the Constitutional Convention

Published online by Cambridge University Press:  05 August 2009

Michael P. Zuckert
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Abstract

The issue of federalism at the Constitutional Convention was considerably more complex than it is normally taken to have been, and most of the prevailing understandings of the settlement of the federalism issue in the Constitution suffer from failing to appreciate that complexity. There were at least six rather distinct versions of federalism “on the table” in Philadelphia; most found embodiment in one or another of the major plans before the Convention, although two of the schemas that are especially important for understanding the final Constitution have gone almost entirely unrecognized because they were not incorporated in separate comprehensive plans. Neither the older view that the Constitution's federalism is a “bundle of compromises” nor the currently popular view that it is essentially a nationalist document with some few federal reservations holds up when examined in the light of the “federalisms” at the Convention.

Type
Research Article
Information
The Review of Politics , Volume 48 , Issue 2 , Spring 1986 , pp. 166 - 210
Copyright
Copyright © University of Notre Dame 1986

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References

Notes

1 Madison, James, “Preface to debates in the Convention of 1787” in The Records of the Federal Convention of 1787, ed. Farrand, Max (New Haven: Yale University Press, 1966), III:539Google Scholar. (Hereafter III Farrand, 539.)

2 Diamond, Martin, “What the Framers Meant by Federalism,” in A Nation of States, ed. Goldwin, Robert A. (Chicago: Rand McNally Publishing Co., 1963), pp. 26–28Google Scholar. See also Diamond, 's, “The Federalists' View of Federalism” in Essays on Federalism (Clarmont, 1962).Google Scholar

3 Cf. Montesquieu, , De L'Esprit des Lois, bk. 9Google Scholar; Federalist, No. 9.

4 This paper is not the place to pursue the issue, but it should be clear that I disagree with the view pressed by many that the version of the Articles finally adopted was substantially more confederal than the earlier, allegedly nationalistic Dickenson draft. The chief locus for the claim of a real difference is Jensen, Merrill, The Articles of Confederation (Madison: University of Wisconsin Press, 1948)Google Scholar, chap. 6. Cf. Solberg, Winton U., The Federal Convention and the Formation of the Union of the American States (Indianapolis: Bobbs-Merrill, 1958), p. lxxiGoogle Scholar, Murphy, William P., The Triumph of Nationalism: State Sovereignty, the Founding Fathers, and the Making of the Constitution (Chicago: Quadrangle Books, 1967), chap. 1Google Scholar; and McDonald, Forrest, E Pluribus Unum (Indianapolis: Liberty Press, 1979), pp. 38–39Google Scholar. More accurate is Wood, Gordon S., “Democracy and the Constitution” in How Democratic Is the Constitution, ed. Godwin, Robert A. and Schambra, William A. (Washington, D.C.: American Enterprise Institute, 1979), pp. 67.Google Scholar

5 Storing, Herbert, What the Anti-Federalists Were For (Chicago: University of Chicago Press, 1982), p. 49Google Scholar; cf. pp. 2, 14, 42, 44–49. Cf. Madison, James, “Notes on Debates, Feb. 21, 1787” in Papers of J. Madison, 9:291.Google Scholar

6 Main, Jackson Turner, The Antifederalists: Critics of the Constitution (Chicago: 1964), p. 180Google Scholar. The classic source for the “revisionist” view of the Confederation period is Jensen, Merrill, The New Nation (New York: Knopf, 1950)Google Scholar. A sensible review of the whole issue, giving weight to both sides, is Rossiter, Clinton's 1787: The Grand Convention (New York: 1966), chaps. 1–2Google Scholar; and Ketchum, Ralph, From Colony to Country (New York: Macmillan, 1974).Google Scholar

7 Madison, James, “Vices of the Political System of the United States,” 04 1781, Papers, 9:357.Google Scholar

8 Cf. Main, , Antifederalists, pp. 181–84Google Scholar; and Farrand, Max, The Framing of the Constitution of the United States (New Haven: Yale University Press, 1913), chaps. 3, 6.Google Scholar

9 Diamond, , “What the Framers Meant by Federalism,” p. 38Google Scholar. The clearest judgment on the issue is in McLaughlin, Andrew C., A Constitutional History of the United States (New York: Appleton-Century Co., 1935), p. 116.Google Scholar

10 Diamond, , “What the Framers Meant by Federalism,” p. 38Google Scholar; Main, , The Antifederalists, p. 285Google Scholar; cf. Wood, Gordon S., The Creation of the American Republic (Williamsburg: University of North Carolina Press, 1969), p. 547.Google Scholar

11 Main, , Antifederalists, p. 181Google Scholar. Cf. Farrand, , Framing of the Constitution, p. 89Google Scholar; Smith, David J., The Convention and the Constitution (New York: St. Martin's Press, 1965), p. 37Google Scholar; Warren, Charles, The Making of the Constitution (Boston: Little, Brown and Co., 1929), p. 221Google Scholar; Wood, Gordon, “Democracy and the Constitution,” p. 9Google Scholar. All references to Convention debates will be left in the text, identified by date, and volume and page numbers in the Farrand edition.

12 Madison, to Randolph, , 8 04 1787Google Scholar, Papers, 9:369Google Scholar. For a more detailed discussion of Madison's thinking before the convention see Zuckert, M., “Madison's ‘Middle Ground’”Google Scholar; Brant, Irving, James Madison: Father of the Constitution. (Indianapolis: Bobbs-Merrill, 1950), pp. 13–14Google Scholar, and Hobson, Charles F., “The Negative on State Laws: James Madison, the Constitution, and the Crisis of Republican Government,” William and Mary Quarterly, 3rd series, 36:220–21.Google Scholar

13 Randolph, to Madison, , 27 03 1787Google Scholar, Papers, 9:369Google Scholar. Madison seems to have succeeded very well with Washington also, who “appears to have supported Madison's views in particular” during the Convention: McLaughlin, , A Constitutional History of the United States, p. 149.Google Scholar

14 Rossiter, , 1787, pp. 191–94Google Scholar. The basic Hegelian plot also runs through Kelly, Alfred H. and Harbison, Winfred A., The American Constitution, 5th ed. (New York: Norton, 1976), chap. 5, esp. pp. 115–16Google Scholar; Roche, John P., “The Founding Fathers: A Reform Caucus in Action,” American Political Science Review, 55 (1961), 28–29CrossRefGoogle Scholar; Mitchell, Broadus and Mitchell, Louise Pearson, A Biography of the Constitution of the United States, 2nd ed. (New York: Oxford University Press, 1975), pp. 54–56Google Scholar; Hobson, , “The Negative on State Laws,” pp. 218, 226, 228, 230–32Google Scholar; Murphy, , The Triumph of Nationalism, pp. 145–56Google Scholar; Brant, , James Madison, chaps. 1–6Google Scholar; Mason, Alpheus T., The States Right Debate, 2nd ed. (Englewood, New Jersey: Prentice-Hall, 1964), pp. 30–60.Google Scholar

15 Diamond, Martin et al. , The Democratic Republic, 2nd ed. (Chicago: Rand McNally, 1968), p. 54Google Scholar. Brant, , James Madison, p. 87Google Scholar. The tendency to understand the Convention in this manner seems especially characteristic of post-New Deal studies. Earlier students, such as Farrand, Warren, and McLaughlin, are much more cautious in their assessment of the Virginia Plan. Just as the Civil War generation read the Convention notes with their particular set of concerns in mind, so does the post-New Deal generation find in the intentions of the Framers justification for the nationalist exercise of powers by the federal government in our time. Wood, , Creation of the American Republic, p. 472–73, 525–32.Google Scholar

16 Madison, to Randolph, , 8 04 1787Google Scholar, Papers, 9:369Google Scholar; Madison, to Washington, , 16 04 1787Google Scholar, Papers, 9:383.Google Scholar

17 Diamond, , “What the Framers Meant by Federalism,” p. 35Google Scholar. The honor of inventing the phrase “partly national, partly federal” seems to belong to Oliver Ellsworth (29 June).

18 Ibid., p. 33

19 Ibid., p. 31.

20 Cf. McHenry's somewhat broader version of this point (I Farrand, 26) with the later discussion of enumerated powers (II Farrand, 615–16).

21 Cf. Abraham Baldwin's account of the consensus on powers at the Convention (Stiles, , Diary, III Farrand, 168–69).Google Scholar

22 Madison, to Tyler, John, III Farrand, 526–28Google Scholar. Cf. Madison's essentially similar explanation in a letter dating from 1831: “The extent of the powers to be vested, also tho' expressed in loose terms, evidently had reference to limitations and definitions, to be made in the progress of the work, distinguishing it from a plenary and Consolidated Government” (Madison, to Trist, N. P., 12 1831, III Farrand, 517).Google Scholar

23 Madison, to Taylor, , III Farrand, 529.Google Scholar

24 Brant, , James Madison, pp. 35, 101Google Scholar; cf. II Farrand, 17.

25 Randolph, Edmund to the Speaker of the Virginia House of Delegates, 10 10 1787 (III Farrand, 126–27)Google Scholar. For further evidence on Madison's view, see his discussion of the powers of the general government in his letter to Jefferson, , 24 10 1787Google Scholar, Papers, 9:212–14.Google Scholar

26 The degree to which the Virginia Plan remains federal in character can be seen from its continued heavy reliance on a requisition power for revenue. Cf. Randolph, on 21 May (I Farrand, 19, 25)Google Scholar, Sherman, on 6 June (I Farrand, 133; cf. 143)Google Scholar; and especially the debate on 11 June (I Farrand, 207), and Paterson, on 16 June (I Farrand, 259)Google Scholar. Cf. Madison, to Washington, , Papers, 9:383Google Scholar; to Jefferson, , 24 10 1787Google Scholar, Papers, 9:208Google Scholar; Wilson, on 11 June (I Farrand, 205–208)Google Scholar on additional sources of revenue. And consider Madison's comments on 28 June (I Farrand, 447) with his comments on the general welfare clause (III Farrand, 483; IV Farrand, 85)

27 Diamond, , “What the Framers Meant by Federalism,” pp. 31, 32, 33Google Scholar; Democratic Republic, p. 54.Google Scholar

28 Madison, to Stevenson, Andrew, 25 03 1826, III Farrand, 473Google Scholar (emphasis added). Cf. Madison, to Trist, N. P., 12 1831, III Farrand, 516–18Google Scholar. Madison, to Tyler, John, III Farrand, 524–31.Google Scholar

29 Madison, to Jefferson, , 24 10 1787Google Scholar, Papers 9:208Google Scholar. Madison, , “Notes on Nullification, ‘1835–1836.’” in WritingsGoogle Scholar, ed. Hurst, , 9:606–607.Google Scholar

30 Madison, to Washington, , 16 04 1787Google Scholar, Papers, 9:383.Google Scholar

31 Papers, 9:205Google Scholar. Cf. also Madison's letter to Jefferson, on 6 09 1787Google Scholar, Papers, 9:162–64Google Scholar. Also Wood, , “Democracy and the Constitution,” p. 16Google Scholar; Hobson, , “The Negative on State Laws,” p. 216, 230–31, 233.Google Scholar

32 Consider also Madison's discussion of the British imperial constitution in his letter to Jefferson, of 24 10 1787Google Scholar, Papers, 10:211.Google Scholar

33 Jefferson, to Madison, , 20 06 1787Google Scholar, Papers, 10:64Google Scholar. Cf. Madison, to Jefferson, , 19 03 1787Google Scholar, Papers, 9:318Google Scholar; Hobson, , “The Negative on State Laws,” p. 216Google Scholar. Consider the comments of Gerry and Williamson in the floor debate on the negative.

34 The only place where this is at all properly recognized is Hobson, , “The Negative on State Laws.”Google Scholar Also cf. Wolfe, Christopher, “On Understanding the Constitutional Convention of 1787,” Journal of Politics, 39 (1977), 73–118.CrossRefGoogle Scholar

35 Madison, to Jefferson, , 24 10 1787Google Scholar, Papers, 10:212–14.Google Scholar

36 Brant, , James Madison, p. 43.Google Scholar

37 Diamond, , “What the Framers Meant by Federalism,” pp. 35, 38.Google Scholar

38 All quotations are from the letter to Jefferson, of 24 10 1787Google Scholar, but similar statements appear in letters to Washington, Randolph, etc.

39 “Vices of the Political System of the United States,” Papers, 9:357.Google Scholar

40 Ibid.

41 Madison, to Washington, , 16 04 1787Google Scholar, Papers, 9:383.Google Scholar

42 An important witness to Madison's not seeking the nationalist route to the extended republic is Mason's testimony in the Virginia ratifying convention (III Farrand, 330–31).

43 Cf. however Brant's thoroughly implausible attempt to discount this statement (James Madison, pp. 88–89).Google Scholar

44 Madison, to Jefferson, , 24 10 1787Google Scholar, Papers, 10:214.Google Scholar

45 Madison, to Washington, , 16 04 1787Google Scholar, Papers, 10:214.Google Scholar

46 Cf. Diamond's judgment that the compound is inherently unstable in “The Federalists' View of Federalism” especially. Diamond follows Hamilton in this judgment, but Madison seems to have been far more hopeful of the potential stability of a well-constructed compound.

47 III Farrand, 304.