Justice Roberts, by his vote on the ‘Affordable Care Act’ has completed the transition from a ‘Federal’ government to a ‘National’ one. The distinction is quite important. And we’ve just completed our transition from the former to the latter.
In historical US political theory, a ‘federal’ system was one of a central government with limited delegated powers, with all other powers not delegated nor otherwise restricted from, belonging to the states (and the people thereof). The states are sovereign in most areas, and generally speaking, the central government may only rarely reach out into the lives of the citizens of the sovereign states. This notion of federalism brought us the phrase (heard often when I was young, but rarely now as there is no context for it) “Don’t make a federal case out of it.” That is, make the dispute so large that the central government had jurisdiction over it.
A national government, on the other hand, placed full power in the central government with states being, effectively, administrative divisions. Generally speaking, these administrative divisions are similar to counties in US States—they have some delegated power, but they can be trumped by the state government (assuming nothing in the state constitution stands in the way).
The Founders worked out a complex system of checks and balances that, in their view, would protect individual liberty and promote freedom. The three branches of the Federal system were meant to balance each other. The tripartite system balanced a popularly elected House, a Senate with members appointed by the State Legislature and a President elected by representatives appointed by the States (the ‘Electoral College’). In addition to this arrangement the Constitution provided for a federal government with strictly limed powers delegated by the States and reserved all other powers to the states, or to the people (c.f 10th Amendment).
There have been lengthy publications on this topic, and it does not make sense to reprise everything here. I will suffice to use the words of Publius in the Federalist Papers to show what the proponents of the new Constitution meant by what they proposed.
Writing in Federalist 39, James Madison says (whilst discussing the character of the government under the proposed Constitution):
The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.
He is arguing that while there are characteristics of a ‘national’ government in the proposed constitution, it is still properly federal, in that the power is centralized in the national legislature. In Federalist 51, Madison affirmed the separation of powers between the branches AND between the states:
In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. [emphasis added]
The two distinct governments that Madison refers to are the Federal and State governments. And the Federal government was one of strictly limited, delegated powers. Madison writes in Federalist 45:
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 former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. 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 properties of the people, and the internal order, improvement, and prosperity of the State.
The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.
Sadly, when discussing these new powers just a few paragraphs later, Madison misread the character of the clause that would be a major factor in the undoing of limited federal power:
If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. [emphasis in the original]
Oh that he had worried more about it and apprehensions had arisen. For as we shall see later in this series, this lowly phrase was the main undoing of personal liberty and limited government. Before we get to that, we need to examine other events that occurred long before the Commerce Clause was abused…the first of which had Madison center stage.
NOTE: Some will argue that the ‘Medicare’ decision (7-2 stating that the Federal Government could not withhold existing funds to force expansion of the program) is a limitation on Federal power. It is, but it is so insignificant (only applying to existing, well-entrenched, costly programs) that in reality, the states are still not free of irresistible coercion by the Federal government. More on this later.
For all posts in this series, follow this link: End of the Republic