James Madison The Federalist, No.46
The American freedoms of religion, speech, press and assembly as protected and practiced were new to the world. Those contributions to the world’s political thought were uniquely American. So it is with the concept of federalism. The establishment of multiple layers of government with divided sovereignty over the same territory each responsible for different aspects of life was a unique American development as well.
Dictionary Definitions of Federalism Do Not Reflect American Federalism
According to Merriam-Webster: Federalism is the distribution of power in an organization (as a government) between a central authority and the constituent units. The Free Dictionary defines the term as: A system of government in which power is divided between a central authority and constituent political units.
The dictionaries speak of divided authority, but fail the mention the key to American Federalism. The American Constitution, uniquely in history divided “sovereignty”.1 By consent of the people “sovereignty” over subject matter was divided among governmental units.
The Declaration of Independence outlined the Natural Law basis for the legal establishment of the United States. Natural Law begins with a sovereign individual that for his own benefit grants certain aspects of his sovereignty to society.
Most definitions found about federalism skip straight to technical governmental organization.2 To understand American Federalism one needs to comprehend its Natural Law source, the purpose it was meant to fulfill3, and the method of establishment.
Federalism Divides Subject Matter Power, Not the Separate Functions of Power
The American Constitution separated the functions of government into three branches: legislative, executive and judicial. This separation is sometimes misunderstood to be an element of federalism. Federalism is not about separation of government functions. It is about a division of subject matter sovereignty between units of government rather than branches.
The Constitution’s Article I, section 2 provides that direct taxes be apportioned among the states, section 3 provides that state legislatures choose Senators (changed by the 17th Amendment), and section 8 defines the subject matter over which the central (federal) government is granted power. Article IV defines the relationship between the states and each other and the states and federal government. Article V defines the roles of the states and Congress in amending the Constitution. Article VI, which contains the Supremacy Clause sets forth a hierarchy of law. Taken together, these articles define the institutional structures of federalism.
At the Founding, authority for subject matters of law not addressed by the Constitution remained with the states, as granted to the states by the people.4 Any sovereignty not granted to the federal government or the states remains with the people.
This basic tenet of American Federalism was enshrined in the Tenth Amendment of the Bill of Rights:
“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.”5
Three Connecticut Towns Adopt a Constitution: Seeds of American Federalism
While most English North American colonists had continued to consider themselves British subjects, the physical separation resulted in a governing situation much different than that in England. In the early 17th century, England remained a unitary government6. Either the king or Parliament was the final word on all law, national or local.7 In North America, that began to change in 1620.
When the Pilgrims8 landed on Cape Cod in 1620 (no, it wasn’t Plymouth Rock), London’s practical ability to exercise sovereignty over the land claimed in North America was at best limited. The Pilgrims were however Englishmen, and in the Mayflower Compact describing how the colony would be governed, recognized themselves to be: “Loyal Subjects of our dread Sovereign Lord King James”.
By 1638, Thomas Hooker and about 100 others had left Massachusetts9 and founded Connecticut. On January 14, 163910 the Fundamental Orders of Connecticut were agreed to by representatives of the towns of Windsor, Hartford and Wethersfield. The Orders provided for a Governor, a General Assembly, other officers, the passage of laws and protection of individual rights. The Orders make no mention of England’s “dread Sovereign Lord King” or Parliament. The Fundamental Orders of Connecticut are generally recognized as the first written constitution11 in history.
The Orders made no mention of “loyal subjects” or a “dread sovereign lord”. The practice of local representative government in the North American English colonies had begun. The three towns had joined together under a central government and sown the seeds of American Federalism.12
Local Self-Government Becomes the American Norm
Though for the next 120 years England worked to exercise control and appointed royal executives and magistrates, colonial legal systems evolved from the Connecticut example. Americans grew accustomed to self-government and came to cherish the liberty and freedom that flourished when the principal governmental bodies were closest to the people. Local self-government with a loose association to a distant central government became the norm. Federalism, as it would come to be defined was the de facto13 form of organization.
England’s War with France Leads to Military Presence and Taxes
In the mid-17th Century, England and France were engaged in conflicts around the world. In the early 1750’s France was encroaching upon English claims in North America. In 1756, England formally declared war against the French in what would be known in the colonies as the French and Indian War. While the English prevailed in that conflict in 1763, there were two consequences: tremendous debt and a significant North American army.
In 1763, King George III issued a proclamation limiting colonists from moving west of the Appalachians. In April, 1764 Parliament enacted the first14 of a series of laws affecting the colonies to address England’s war debts. British soldiers were employed for enforcement and Parliament passed a law15 requiring colonists to provide quarters, food and drink for the soldiers.
The series of Parliamentary actions to assert British authority over the colonies culminated in the 1766 Declaratory Act.16 The act put a firm de jure end to the de facto federalism that existed in the colonies with these words:
“… colonies and plantations in America have been, are, and of right ought to be… subordinate unto, and dependent upon the imperial crown and parliament of Great Britain… And be it further declared …, That all resolutions, votes, orders, and proceedings, in any of the said colonies or plantations, …are hereby declared to be, utterly null and void to all intents and purposes whatsoever.”
The Revolution to Prevent a Revolution
With The Declaratory Act, Parliament decimated the informal federal relationship between England and the colonies that had developed since The Fundamental Orders of Connecticut 127 years earlier. Britain revolutionized the relationship and acted to emaciate the established American institutions of self-government. In certain respects, the American Revolution was fought to preserve these institutions from Britain’s revolutionary actions.
As with any great historical event, the American Revolution resulted from multiple complex causes, but the desire to preserve of a system of strong local autonomy resulting in protections for individual liberty and freedom was assuredly a contributing factor. The unnamed colonial experience with an informal federalist model foreshadowed 1789 and the establishment of American Federalism in the Constitution.
The Constitution’s division of “subject matter jurisdiction” between government units to protect individual Natural Rights is discussed in Part II.
1 Sovereignty, in the context of a government, has come to mean: supreme authority within a territory. The idea that subject matters of sovereignty could be divided among governmental units operating within the same geography was an American development. The needed philosophical precursor to this was the Natural Law concept of “individual sovereignty” as expounded upon by John Locke, a favorite of the Founders. With sovereignty belonging to individuals, individuals were free to grant different elements of it to different entities, much like any other item of property a person owns.
2 Examples of technical elements: Federal authority over foreign affairs and war. State authority to regulate speed limits, license local business, and regulate highways.
3 The Constitution’s purpose is not something that needs to be guessed at. It’s found in the Preamble. The Preamble sums up five introductory purposes with its final denoted purpose: “secure the Blessings of Liberty to ourselves and our Posterity”
4 State constitutions, while generally overlooked, are also grants of authority from the people. State governments have only those powers given in their constitutions. The people, essentially each individual, retain whatever sovereignty has not been granted to the governments through the state and federal constitutions. Those grants of power can be likened a power of attorney. That principle relates to the famous Ayn Rand quote: “The Smallest Minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities.”
6 A “unitary government” is one ruled entirely by a central authority, which exercises sovereignty. In early 17th Century England, the king remained sovereign and granted authority to local officials or recognized nobles, but ultimate authority resided with the central government in London. The king’s authority was being eroded by Parliament and this erosion would continue until Parliament became the supreme English legal body. The complex relationships of England, Scotland, Ireland and Wales aside, an entity in the nature of a “state” sharing sovereignty with the central government was not within the English experience.
7 This was the stated de jure situation, though from a de facto standpoint, various nobles exercised great authority in their areas. While technically a noble exercised authority at the sufferance of the king, the king often needed to consider a local noble’s sensibilities when making a decision.
8 In flight from religious persecution, the Pilgrims had left England for Holland in 1608, but nevertheless remained loyal Englishmen.
9 Hooker and his group had found the civil life of Massachusetts to limited democratically.
10 Due to a curious historical quirk, the document reads January 14, 1638. By modern calendars, the date would be January 24, 1639. Conversion from the Julian to the Gregorian calendar necessitated the 10 day difference. At the time England’s New Year began on March 25th, not January 1st, so by the calendar at that time it was 1638, but when modernized it was 1639. Whew. England changed its official calendar in 1751.
11 In 1959, Connecticut officially adopted the nickname of “The Constitution State”.
12 The Fundamental Orders, served principally as Connecticut’s Constitution until 1818. Of historical interest, the United States Constitution went into effect in 1789, 150 years after the Orders were adopted.
13 A circumstance that exists in accord with existing law is considered de jure. A circumstance that exists in reality, but is not authorized by law is de jure.
14 In England it was called the American Revenue Act of 1764; in the colonies it was called the Sugar Act.