After reading and listening to numerous questions and comments about federalism from people on the Internet and on various talk radio shows, I’ve concluded that there is still a great deal of confusion about what exactly federalism is and what it is not.

Merriam-Webster’s dictionary defines federalism as:

“..the distribution of power in an organization (as a government) between a central authority and the constituent units — compare centralism.”

The same dictionary defines centralism as:

“..the concentration of power and control in the central authority of an organization (as a political or educational system).”

These are not perfect definitions for the purposes of this essay, but you’ll notice one thing. Neither definitions mention the 18th century American political factions that came to be commonly known as the Federalists and the Anti-Federalists. Rather, the definitions reflect a more worldwide understanding of the concept of true federalism, which favors the decentralization, rather than the consolidation of political power.

Pre-Ratification

Let me assure you that the principles of true federalism are not synonymous with the political platform of the American political party that originated in the 18th century and came to be known as the Federalists.

For example, on page 90 of his book, The Original Constitution: What it Actually Said and Meant, Robert G. Natelson points out how Alexander Hamilton, who is usually identified by most historians as a Federalist, “..did not share most of the Founders’ view that government should be strictly limited. In fact, he may have been a secret monarchist. Whether or not that was true, he certainly represented the ‘big government’ extreme on the American political spectrum of his day.”

I would call that an understatement in one sense. But either way, ask yourself, according to the definitions found in Merriam-Webster’s dictionary, would you classify Hamilton’s ideology as federalist or centralist?

Much earlier in the book’s preface Natelson defines some words whose meanings are very important if one is to understand the concept of federalism and have a meaningful discussion about our Constitution. He explains:

“The Federalists were participants in the public ratification debates who argued for adopting the Constitution. History has labeled (unfairly) their opponents as Anti-Federalists.”

So during the time of the ratification debates, perhaps it would have been more accurate and objective to refer to the two opposing camps in the debate as the Pro-Ratifiers and the Anti-Ratifiers, especially since those in favor of ratification, who came to be known as the Federalists, were anything but a homogeneous, monolithic group. In his book, The Politically Incorrect Guide to the Constitution, historian Kevin Gutzman maintains that there were actually three parties at the Philadelphia Convention:

“The first was the monarchist party, the chief exemplar of which was New York’s Alexander Hamilton. The monarchists were intent on wiping the states from the map and substituting one unitary government for the entire continent … The second party consisted of nationalists, people who – without ever avowing admiration for the monarchical form – wanted to push centralization as far as could reasonably be hoped … Finally, there was a cohort in the Convention of members insistent on proposing a reinforcement of the central government while maintaining the primary place of the states in the American polity – a truly federal, rather than national government (emphasis mine)” (pp. 22–24).

Another point that needs to be understood as well, is that those who were opposed to ratifying the Constitution were not opposed to federalism as it is correctly defined and understood around the world today. They were known as Anti-Federalists, simply because they opposed those who were incorrectly labeled Federalists, some of who were actually monarchists or nationalists. But alas, we will probably be forever stuck with the confusing and very biased terms “Federalist” and “Anti-Federalist”.

Robert Natelson points out an important fact however, about those who were pro-ratification, the so called Federalists, and those who opposed ratification, the so called Anti-Federalists:

“Certain basic political values and principles seem to have been fully accepted by Federalists and Anti-Federalists alike. The two sides differed only in the weight they gave to each, and—more importantly—on how well they thought the Constitution would promote them. Those who thought the Constitution would further those values and principles tended to be Federalists. Those who thought the Constitution subversive of those values and principles tended to be Anti-Federalists. But all agreed that the nation’s basic law should be structured to further those values and principles. They can be summarized under five heads:

(1) liberty, in the sense of Lockean natural rights,
(2) effective government,
(3) republican government,
(4) decentralization, and
(5) fiduciary government.”

Those who think of themselves today as the ideological heirs of, or who simply identify more with the so called Anti-Federalists, should always remember these five principles of government and work to promote them as a way to maximize agreement within the new states’ rights coalition that has recently emerged.

Post Ratification

But what happened to these two opposing camps after all original thirteen states finally did decide to ratify the Constitution?

Although Alexander Hamilton may have formed the Federalist Party near the end of the 18th century, a strong case can be made that Hamilton actually favored a mixed monarchy and that most of the Federalist Party’s supporters were actually nationalists. In the early 1790’s, newspapers started calling Hamilton supporters “Federalists”. Those who opposed Hamilton and supported Jefferson, usually called themselves “Republicans” and their party the “Republican Party.” Newspapers that promoted good relations with Britain, supported the Jay Treaty and favored Hamiltonian economic policies, would often refer to them as “Democrats” or “Democratic-Republicans”, in an attempt to associate them with the excesses of the French Revolution.

Looking back on the origins, development and eventual demise of the Federalists as a formal political party however, Thomas Jefferson wrote in 1822:

“An opinion prevails that there is no longer any distinction, that the republicans & Federalists are completely amalgamated but it is not so. The amalgamation is of name only, not of principle. All indeed call themselves by the name of Republicans, because that of Federalists was extinguished in the battle of New Orleans. But the truth is that finding that monarchy is a desperate wish in this country, they rally to the point which they think next best, a consolidated government. Their aim is now therefore to break down the rights reserved by the constitution to the states as a bulwark against that consolidation, the fear of which produced the whole of the opposition to the constitution at its birth. Hence new Republicans in Congress, preaching the doctrines of the old Federalists, and the new nick-names of Ultras and Radicals. But I trust they will fail under the new, as the old name, and that the friends of the real constitution and union will prevail against consolidation, as they have done against monarchism. I scarcely know myself which is most to be deprecated, a consolidation, or dissolution of the states. The horrors of both are beyond the reach of human foresight.”

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So let’s not allow ourselves to be confused by nick-names, old or new. Rather, we should do our best to discern the true aims of those who who were labeled as Federalists or Anti-Federalists. Likewise we should do the same with those who call themselves by the name of Republicans, or Democrats for that matter, but who often advocate the doctrines of those Jefferson described as the old Federalists, many of who actually tried to subvert the truly federal form of government established by the Constitution.

The task of patriots today is to do everything in their power to defeat the advocates of consolidated government, who would like more than anything else, to finalize Hamilton’s agenda and, “..break down the rights reserved by the constitution to the states as a bulwark against that consolidation, the fear of which produced the whole of the opposition to the constitution at its birth.”

During the Constitutional Convention, from May to September 1787, delegates from the colonies were to gather together for the express purpose of amending the Articles of Confederation to form a “more perfect union” (NOT a completely different union!). The men that met in Philadelphia, Pennsylvania, were under direct and limited orders from their states to attend the Federal Convention explicitly to preserve the federation and State rights and to correct the errors of the existing federal government for the limited purposes of handling foreign affairs, commerce among the states and common defense.

Yet, during that private and secret convention, there were men who proposed that a national system be established in place of their current federal system, destroying State sovereignty in direct contradiction to their orders. (Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, vol. 1, 2nd ed., [Philadelphia, PA, JB Lippincott, 1891], 121) Of course, the public was not aware of this fact until years after the ratification of the Constitution, when the notes taken in the convention were printed and released to the public.

Indeed, those who proposed such a national system of government (e.g., Alexander Hamilton, John Dickinson and James Madison) would not have the people of the states aware of this proposal for fear of outright rejection of the Constitution and for fear that they would remove their delegates from the convention altogether, giving no chance of success for the ratification of a new Constitution. It was hush-hush for good reason. In fact, Alexander Hamilton was so tactful on the subject that he did not even present his nationalistic notions as a constitutional proposal, but only as his ideas of what America should be. (Ibid., 123) Despite these proposals, in the end, it was a federalist system that prevailed–a union of states and not a union of people, whereby the states retained complete and absolute sovereignty over all matters not delegated to the federal government. The states were indeed co-equal with the federal government. So, what was it about the national system that was rejected during the convention?

The most notable proposal reveals the underlying foundation for all national principles: that is, the national government possesses superior sovereignty to force the states to submit to the laws made by the national government and to negate any State law it deems repugnant to the articles of union. This supreme power was proposed (but rejected) as follows during the Federal Convention: the to-be national government should possess the power to “negative all laws passed by the several states contravening, in the opinion of the national legislature, the articles of union, or any treaties subsisting under the authority of the Union.” (Ibid., 207) Hamilton, and his like, would have loved it had this national principle of supreme sovereignty been accepted by the delegates. Thankfully, it was not accepted. In fact, as the convention progressed, what became apparent to those who advocated for this national form of government is that their ideas would never be accepted and ratified.

History proves with absolute certainty that a national government and its assuming principles were rejected, not only by the framers of the US Constitution, but also by those who sent delegates to the Federal Convention and who ratified the US Constitution at their State conventions. More important than the limited powers of the federal government, the people of the states rejected the nationalist doctrine that the federal government had the power to negate State laws that it deemed contrary to the Constitution. (John Taylor, New Views of the Constitution of the United States, [Washington DC, 1823], 15).

So, how is it that while the people of the states expressly forbade the federal government from interfering with the internal affairs of the states the federal government can now control nearly every facet of life within the states and the states supposedly can do absolutely nothing about it? Most attorneys who think they know so much about America’s history and the US Constitution would say, “The United States Supreme Court is given the power to say what the Constitution means and that over the years, they have interpreted Congress’ power to reach the internal affairs of a State.” It is the “living Constitution” idea, simultaneously coupled with nationalistic doctrine, which proclaims that the actual meaning of the Constitution can change over time, and that such change is constitutional and does not deny the people their freedom protected under the compact of the Constitution.

Interestingly, the “living Constitution” idea is only used when it promotes a constitutional “construction” that expands and empowers the federal government and neuters the State governments. The “living Constitution” idea (advanced by the British Parliament) in fact is the very notion that caused America’s War for Independence. (Claude Halstead Van Tyne, The Causes of the War of Independence, Volume 1, [Boston, MA: Houghton Mifflin Company, 1922], 235, 237)

The ludicrous proposition of a “living Constitution” begs numerous critical questions involving the very foundation of a free society, not the least of which is this: If the meaning of the Constitution can change over time, why did the Constitution’s framers spend nearly five months debating which words should be placed in the Constitution? More than that, why would the framers be so emotionally, mentally, intellectually and intensely involved in the question of what form of government we will have: national or federal?

How can it be that the judiciary branch of the federal government, which is not even politically responsible to the people or the states whatsoever (and only ever so slightly to the other federal branches), has the sole and complete power to say that the states have no power to interpret and comport to the US Constitution as they deem constitutional, when that same power was expressly rejected to the national government during the convention? After all, Hamilton and Madison both admit throughout the federalist papers that the states have complete and absolute sovereignty regarding the powers retained by them and granted to them by the people of each State, just as any foreign nation would. Both Hamilton and Madison admit that the only check on power is another independent power and thus, the only real power that could check federal power was State power. They even expected that the states would use their sovereign and independent power to the point of being the voice and, if necessary, the “ARM” of the people to implement a common defense against the federal government.

Both Hamilton and Madison admit that the federal government can never force the states out of existence and can never strip them of their rights and powers possessed prior to the ratification of the US Constitution, except as delegated to the federal government. They even refer to the states’ right of self-defense in this regard to resist federal tyranny. Was this mere “bait and switch” rhetoric to get the people of the states to ratify what they thought was a pure federal system? How can the states possess the absolute sovereign power to check federal tyranny when they are bound to submit to the federal government’s interpretation of the Constitution? The two positions are necessarily incompatible with each other. To say that you have power, so long as I say you have power is to deny your power altogether.

Quite obviously, in no place does the Constitution grant to the federal government (in any branch) superior sovereignty over the states. Instead, the Constitution requires ALL parties to it (State and federal) to comply with the Constitution, as it is the supreme law of the land. All the framers agreed that federal government and federal law do not equal the “supreme law of the land.” Both the federal government and the federal laws are bound by the terms to which all must comply. Thus, all parties must be watching each other to ensure each is complying with the compact. And as was admitted by even the most ardent nationalist (i.e., Daniel Webster) of America’s earlier history, each party to a COMPACT has the sole right to determine whether the other party has complied with the compact.

But over the years, a political idea contrary to our original federal system was adopted–not through open discussion and consent, but by fraud and force. This position states that whatever the federal judiciary rules equates to the “supreme law of the land” and the states must comply therewith, regardless of whether the federal law usurps the power the states retained under the Constitution. What the nationalists were unable to obtain through honest and open debate during the conventions they have obtained through the erroneously construed “supremacy” clause of the Constitution.

What the federal government was denied through constitutional debate and ratification the nationalists have procured through masquerade, subterfuge and trickery. America has been duped into accepting a national government, not by interpolation, but by deceptive “construction.” If the federal government has the power to usurp its powers without a countermanding power checking its encroachments, where is the genius in our framers’ form of government?

Was this form of government the form that best secured our happiness and freedom? And if our framers in fact bequeathed to us a federal system, whereby the states were co-equal with the federal government in sovereignty and power regarding their powers, then where comes the notion that we now have a national system, whereby the states are mere corporate branches of the federal government? Where were the constitutional debates on that subject? Where was the surrendering of sovereignty by the states, which can only be done through expressed and voluntary consent? Where was the right of the people to establish the form of government most likely to effect their safety and happiness? Do we just accept the fact that our form of government can change over time without express and legal action being taken to effect that change? God forbid!

In 1776, the colonies rejected the European (nationalist) form of government. In the UNITED STATES, the people of the states ardently believed that their freedoms would be best protected if each of their agents (State and federal) possessed equal power to check the other against encroachments of power and freedom. This was the “more perfect union” of the US Constitution. How could the founders have suggested that the US Constitution was a “more perfect union” as a nationalist system, when the nationalist system was the very system they seceded from and rejected? That is nonsense!

Ironically, the very document that was designed to perpetuate these principles of federalism has in fact been de-constructed to destroy those same principles, leaving us with the very form of government that our framers and the Constitution’s ratifiers rejected. In the end, if the people of the states do not once again reject this national form of government and assert and defend the principles of federalism–the principles upon which America was founded–then this supposed federal power of constitutional “construction” will in fact be our freedom’s destruction.

Tim Baldwin is an attorney who received his Juris Doctor degree from Cumberland School of Law at Samford University in Birmingham, Alabama. He is a former felony prosecutor for the Florida State Attorney’s Office and now owns his own private law practice. He is author of a soon-to-be-published new book, entitled FREEDOM FOR A CHANGE. Tim is also one of America’s foremost defenders of State sovereignty. See his blog.

Texas Gov. Rick Perry rattled cages when he suggested that Texans might at some point become so disgusted with Washington’s gross violation of the U.S. Constitution that they would want to secede from the union. Political hustlers, their media allies and others, who have little understanding, are calling his remarks treasonous. Let’s look at it.

When New York delegates met on July 26, 1788, their ratification document read, “That the Powers of Government may be resumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same.”

On May 29, 1790, the Rhode Island delegates made a similar claim in their ratification document. “That the powers of government may be resumed by the people, whensoever it shall become necessary to their happiness: That the rights of the States respectively to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same.”

On June 26, 1788, Virginia’s elected delegates met to ratify the Constitution. In their ratification document, they said, “The People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will.”

As demonstrated by the ratification documents of New York, Rhode Island and Virginia, they made it explicit that if the federal government perverted the delegated rights, they had the right to resume those rights. In fact, when the Union was being formed, where the states created the federal government, every state thought they had a right to secede otherwise there would not have been a Union.

Perry is right when he says that there is no reason for Texas to secede. There are indeed intermediate actions short of secession that states can take. Thomas Jefferson said, “Whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”

That suggests that one response to federal encroachment is for state governments to declare federal laws that have no constitutional authority null and void and refuse to enforce them.

While the U.S. Constitution does not provide a specific provision for nullification, the case for nullification is found in the nature of compacts and agreements. Our Constitution represents a compact between the states and the federal government.

As with any compact, one party does not have a monopoly over its interpretation, nor can one party change it without the consent of the other. Additionally, no one has a moral obligation to obey unconstitutional laws. That’s not to say there is not a compelling case for obedience of unconstitutional laws. That compelling case is the brute force of the federal government to coerce obedience, possibly going as far as using its military might to lay waste to a disobedient state and its peoples.

Finally, here’s my secession question for you. Some Americans accept and have respect for the Tenth Amendment, which reads, “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.”

Other Americans, the majority I fear, say to hell with the Tenth Amendment limits on the federal government. Which is a more peaceful solution: one group of Americans seeking to impose their vision on others or simply parting company?

Born in Philadelphia in 1936, Walter E. Williams holds a bachelor’s degree in economics from California State University (1965) and a master’s degree (1967) and doctorate (1972) in economics from the University of California at Los Angeles.