by Clarence B. Carson, Fee.org
Several developments have contributed to making the meaning of federalism obscure. Some are old, some recent. Some may be more or less innocent; others are destructive of federalism itself. One of these that may be more or less innocent is the habit of referring to the United States government as the â€œfederal government.â€
Whether it is innocent or not, it does tend to confuse the unwary. These United States have a federal system of government. The system embraces both the general government and those of the states. Thus, both the United States government and the state government are correctly alluded to as â€œfederalâ€ governments.
When Felix Morley called attention some years ago â€œto the illogical practice of referring to the central government as the â€˜federal governmentâ€™,â€ he declared that the confusion was â€œdue to historical accident.â€ What he had in mind was that the supporters of the Constitution, when it was being considered for ratification, called themselves â€œfederalists,â€ and the government under examination â€œfederal.â€ From that beginning, he thinks, the idea of the genera] or central government being the federal government began to take hold.
That much is correct, but there is an additional reason: the Founders devised what was essentially a new system of government. It has come to be called federalism. But they were so intent upon promoting or preventing its ratification and acceptance that they neglected to devise logical appellations for it in general discourse. Before the devising of a federal structure, leagues or unions of more or less independent states were usually referred to as confederations.
The organizations over these leagues could be referred to as confederation governments. There is a comparable wordâ€”â€œfederationâ€-in use. But it would be inaccurate and misleading to refer to the United States government as the federation government. Such terminology would imply that the central government is over the states rather than over the people. Whereas, it has a jurisdiction over the people primarily.
People Are Governed
The distinctive feature of the federal system of government is that the general government acts directly upon the people. For example, the government is financed by taxes on persons, not by levies upon states. The government in question can be described with sufficient precision by calling it the United States, general, central, or national government. However, my purpose is not so much to reform the use of the language as to remove the confusion engendered by referring to it as the federal government. More on this point later.
Another source of confusion about federalism is the doctrine of statesâ€™ rights, as it is commonly called. In the first place, states have powers (as do all governments), not rights. In the second place, what is being disputed within the federal system of government when so-called statesâ€™ rights are asserted is the jurisdiction of the national government to act in some field.
It is important that states act to restrain the national government to the exercise of its powers within its allotted jurisdiction. They are most apt to do so in defense of their jurisdiction. But what is ultimately important in this is the rights of persons and the liberties of the people. It is easy to lose sight of this when the dispute is conducted in the name of â€œstatesâ€™ rights.â€
Rights belong to individuals in the American constitutional system. Any government (whether state or national) may misuse its powers so as to violate the rights of persons. It is exceedingly important, then, that the rights of persons not become identified with the powers of government, either national or state. That can easily become the means for the enlargement of the powers of government (one or the other, or both) at the expense of the rights of persons.
That can result from confusing either statesâ€™ powers with rights or treating jurisdictions as if any power that can be conceived falls in one or the other. These are confusions of the federal system that have become implicit in the statesâ€™ rights doctrine.