Our Founding Principles: The Beginning of the American "Experiment" | Eastern North Carolina Now

    The answer, the Founders believed, was minimal government with maximum individual liberty. And the way to achieve this was twofold: First, the Founders realized that most of the people's power would have to remain within the State and relegated to the individual State. Limited power would be ceded by the States to the federal government on matters that would relate on matters touching on the nation as a whole, such as national security, conducting relations with foreign nations, raising an army, entering into treaties, establishing policy with the Native Indians, regulating commerce among states so that certain states don't have too much of an advantage in trade compared to others. And second, the powers delegated to the government would have to be limited and clearly-defined.

    James Madison described the division of labor between the states and the federal government as follows: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the people, and the internal order, improvement, and prosperity of the state." [The Federalist Papers No. 45].

    The fixing of the American eagle in the center of the spectrum was designed to maintain this political equilibrium between people in the states and the federal government. The idea was to keep the power base close to the people. The emphasis was on strong local self-government. The states would be responsible for internal affairs and the federal government would confine itself to those areas which could not be fairly or effectively handled by the states. The term, or concept, that relates to this division or sharing of power between the states and government is called "Federalism." It is this sharing of power, with the bulk of power remaining closest to the people, that will protect individual liberty best.

    The concept of federalism makes sense when you consider the position of the individual states. Prior to the Constitutional Convention, the states were sovereign powers who viewed the idea of a strong centralized government with absolute distrust. They didn't want any entity exerting power over them, especially since they'd managed to exist for over 150 years successfully and independently. The colonies were established to allow the settlers in each state to worship and practice as they desired and to establish communities which embraced their religious principles. The colonists were people who came from England and other European countries where they were repressed religiously or persecuted for their beliefs. The states took their sovereignty and their local laws and customs very seriously. At the time of our independence from England, each state was a sovereign little nation. [We refer to them as "colonies" which denotes something relatively unstructured, but the fact is that they were basically independent nations. They each had their own government and they had no legal ties to the other states, except through any arrangements they may have made for trade and commerce]. The states (colonies) fought long and hard for their independence from Britain, a nation with a tyrannical government. They wanted to make sure that they did not create a new tyrannical government in its place. They didn't want to give up their rights as sovereign states and they certainly didn't want a federal government that was more powerful than them. They didn't want a federal government to tell them what they can and cannot due within their boundaries. In Article II of the Articles of Confederation, the Founders attempted to make this guarantee by preventing the federal government from taking too much power from the states. In Article II, our Founders provided: "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." (The Articles of Confederation failed because the states retained too much power and consequently, the central government lacked any meaningful enforcement power over them). At the Convention of 1787, the topic of states' rights versus government powers again dominated the discussion. The states intended only to give up just enough sovereign power to overcome the inadequacies of the Articles of Confederation and no more. One of the predominant arguments was over which rights the federal government would have and which rights the states would retain. It was this heated debate that eventually would cause the states to approach the Constitution with caution and take four years plus ten amendments (Bill of Rights) before they would ratify it.


    As Jefferson wrote: "I consider the foundation of the Constitution as laid on this ground: That 'all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people' (10th Amendment). To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible to any definition." In other words, Jefferson considered the Tenth Amendment to be the cornerstone of the Constitution and by extension, believed federalism (the division of power) to be the most important government feature in keeping the government restrained on behalf of the people.

    Justice Kennedy, in writing the opinion for the Supreme Court in Bond v. United States (June 2011), went into a detailed explanation of the importance of federalism to ordered and individual liberty. He wrote:

    "The federal system rests on what might at first seem a counter-intuitive insight, that 'freedom is enhanced by the creation of two governments, not one.' Alden v. Maine, 527 U. S. 706, 758 (1999). The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.

    The principles of limited national powers and state sovereignty are intertwined. While neither originates in the Tenth Amendment, both are expressed by it. Impermissible interference with state sovereignty is not within the enumerated powers of the National Government, see New York v. United States, 505 U. S. 144 (1992), at 155-159, and action that exceeds the National Government's enumerated powers undermines the sovereign interests of States. See United States v. Lopez, 514 U. S. 549, 564 (1995).

    Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-à-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.

    But that is not its exclusive sphere of operation. Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. "State sovereignty is not just an end in itself: 'Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.'" New York v. United States, 505 U. S. 144, 181 (1992) (quoting Coleman v. Thompson, 501 U. S. 722, 759 (1991) (Blackmun, J., dissenting)).

    Some of these liberties are of a political character. The federal structure allows local policies 'more sensitive to the diverse needs of a heterogeneous society,' permits 'innovation and experimentation,' enables greater citizen 'involvement in democratic processes,' and makes government 'more responsive by putting the States in competition for a mobile citizenry.' Gregory v. Ashcroft, 501 U. S. 452, 458 (1991).

    Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power.

    Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.

    The limitations that federalism entails are not therefore a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. [See New York, supra, at 181]. An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate." [Bond v. United States, pp. 11-13].

    The design of our government, as given to us by our Founders, was precisely to make sure that our fundamental rights will always be respected and protected. Everything about its design, from the preamble and reference to the Declaration of Independence, to the grant of limited and specific powers, to our Bill or Rights, to the Tenth Amendment, to the existence of three branches of government, and to our system of checks and balances speaks to the ultimate desire of our Founders to protect our fundamental liberties from government intrusion, both personally and economically.

    Cleon Skousen, author of The 5000-Year Leap, wrote a concise summary of the principles embodied in the Constitution: "A free people living in a civil society, working in self-interested cooperatives, and a government operating within the limits of its authority, promote more prosperity, opportunity and happiness for more people than any alternative ever devised by man." In looking at some of the failed regimes of history, it is easy to understand how our Founders came up with this magical formula.

    What Stengel and those of similar mind fail to appreciate is that the principles of government laid out in the Constitution were already "outdated" in 1787. For example, the Constitution's core concepts of separation of powers and federalism were already well-established features of republican governments in Greece and Rome.

    In light of this fact, why did the generation of men who lived at the time of the framing of the Constitution (including those who disagreed with its ratification) not disparage those ancient concepts as being "out of touch" with the needs of an 18th Century population, separated from the people of ancient Rome and Greece by over a millennium? They didn't make that point because, unlike TIME magazine, they understood that those principles of political philosophy were timeless and the statesmen of antiquity advocating those principles were men of sound understanding and not given to being tossed about by the ever-shifting winds of popular opinion. To build the Constitution of the United States upon a foundation as solid and reliable as those that supported the exemplary republics of Rome and Greece was an act of unquestioned good sense, regardless of how old those principles were."

    In summary, the Constitution guarantees We the People protection of our fundamental inalienable rights, provides that government will be limited in size and in scope, and promises that jurisdiction will be divided carefully between the States and a federal government to ensure the first two. If an answer or issue is not contained, even remotely, in the Constitution, then it is left to the judgment of the state and its legislators. The Constitution was never meant to restrict the people's power to govern themselves over the full range of policy area that the Constitution left available to them.

    Other regimes got into trouble when it doubted the people's ability to govern themselves properly and allowed the government to grow accordingly. Our Founders took great steps to prevent any ruler or representative from making such a judgment call.


    Every American should read the Constitution and read comments and documentary from the drafters as to why the Constitution was written as it was. A good start are Federalist Papers, the Anti-Federalist Papers, and the debates in the various state ratifying conventions (especially New York, Virginia, and North Carolina, the last three states to ratify). To paraphrase something that Supreme Court Justice Antonin Scalia once wrote, we should never apply a "fuzzy" meaning to the Constitution but rather, we should simply take the time to read it.


References:

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    Anti-Federalist Papers, Brutus I, from TeachingAmericanHistory.org. http://teachingamericanhistory.org/library/index.asp?document=849

    Elroy McKendree Avery and William Abbatt, A History of the United States and its People: From Their Earliest Records to the Present Time (Vol. 5), Harvard College Library, 1908 (Burrows Brothers Company).

    Patrick Henry's Speech to the Virginia Convention. http://nexuslearning.net/books/elements_of_lit_course5/speech_virginia.htm

    National Archives. http://www.archives.gov/exhibits/

    Diane Rufino, "Voter Reform: Progressive Voting Rights," March 12, 2011. http://forloveofgodandcountry.wordpress.com

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    Dick Arneson, John Locke's Second Treatise on Government, Chapters 1-4. http://philosophyfaculty.ucsd.edu/faculty/rarneson/Courses/IntroLocke.pdf
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    The Habeas Corpus Act of 1679. http://www.constitution.org/eng/habcorpa.htm

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    The Lee Resolution (1776). http://www.ourdocuments.gov/doc.php?flash=true&doc=1&page=transcript Scribe, "Richard Henry Lee: The Architect of Independence Must be Turning in His Grave," My Fair Point, Sept. 5, 2003. Referenced at: http://home.myfairpoint.net/vzeo1z2a/RHL.htm

    "Constitutional Topic: The Federalists and Anti-Federalists," US Constitution Online. Referenced at: http://www.usconstitution.net/consttop_faf.html
Skousen, Cleon, The 5000-Year Leap. American Documents Publishing, 1981.

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    Dwight R. Lee, "Liberty and Individual Responsibility," The Freeman, Volume 37, Issue 4, April 1987. Referenced at: http://www.thefreemanonline.org/columns/liberty-and-individual-responsibility/

    Stanley Kober, "The Spirit of Humility," The Cato Institute, Volume 17, Issue 2, 1995. Referenced at: http://www.cato.org/pubs/journal/cj17n2-8.html

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    Lewis Lehrman, "Mr. Lincoln and the Declaration," Mr. Lincoln and The Founders. Referenced at: http://www.mrlincolnandthefounders.org/inside.asp?ID=1&subjectID=1

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    Bond v. United States, 564 U. S. ____ (2011). Retrieved at: http://www.supremecourt.gov/opinions/10pdf/09-1227.pdf

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    Joe Wolverton II, "Time Magazine cover Story Asks: Does the Constitution Still Matter," The New American, June 24, 2011. Referenced at: http://www.thenewamerican.com/usnews/constitution/7989-time-magazine-cover-story-asks-does-the-constitution-still-matter

    Diane Rufino has her own blog For Love of God and Country. Come and visit her. She'd love your company.