by Clarence B. Carson, The Freeman

Originally published in January, 1983

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 “federal government.” 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 “federal” governments.

When Felix Morley called attention some years ago “to the illogical practice of referring to the central government as the ‘federal government’,” he declared that the confusion was “due to historical accident.” What he had in mind was that the supporters of the Constitution, when it was being considered for ratification, called themselves “federalists,” and the government under examination “federal.” 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 word—“federation”-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 states’ 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 states’ 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 “states’ rights.”

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 states’ 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 states’ rights doctrine.

A Mistaken Use of the States’ Rights Arguments

How easy it is to fall into this trap is illustrated in the opinion accompanying a Supreme Court decision announced in 1936. The case was The United States vs. Butler in which the main provisions of the Agricultural Adjustment Act were nullified. The majority opinion was written by Justice Owen Roberts. (It should be noted that Justice Roberts did not linguistically confuse jurisdiction with rights, but he did rely on the states’ rights argument in such a way as to ascribe powers to the states which they neither claimed nor possessed.)

Justice Roberts based his decision upon the fact that the act provided for taxing food processors in order to purchase the compliance of farmers with the programs it outlined. His main conclusion was stated in these words: “Congress has no power to enforce its commands on the farmer to the ends sought by the Agricultural Adjustment Act. It must follow that it may not indirectly accomplish these ends by taxing and spending to purchase compliance. The Constitution and the entire plan of government negative any such use of the power to tax and to spend as the act undertakes to authorize . . . .” Then, as if it were an afterthought, he appended this dictum: “A possible result of sustaining the claimed federal power would be that every business group which thought itself under-privileged might demand that a tax be laid on its vendors or vendees the proceeds to be appropriated to the redress of its deficiency of income . . . .” This last is about as close as he came to dealing with the violation of the rights of individuals involved.

Even so, he was within shouting distance of the issue in the points he made that are quoted above. But then he dragged in the dubious issue of the alleged intrusion of the provisions of the act upon the jurisdiction of the states. He went on at length about the dangers to the states of such action. At one point, Justice Roberts concluded that the “Congress cannot invade state jurisdiction to compel individual action; no more can it purchase such action.” At another point, he declared that if the principle of the act were accepted, Congress could invade the reserved jurisdiction of the states and accomplish the “total subversion of the governmental powers reserved to the individual states.” The proponents of the act, Justice Roberts said, were trying to claim that the Constitution “gave power to the Congress to tear down the barriers, to invade the states’ jurisdiction, and to become a parliament of the whole people . . .” This claim flew in the face of the 10th Amendment, he charged.

In short, Justice Roberts did his best to bring the whole weight of federalism to bear on his position with what were spurious arguments about the jurisdiction of the states. If the act was not authorized by the Constitution, it was irrelevant whether or not it violated the jurisdiction of the states. That any or all states had power to pass any such act is nowhere proved.

The 10th Amendment does not disclose a single power possessed by the states. Rather, it disposes of the question as to whether the general government has some reservoir of powers not otherwise enumerated. (It doesn’t.) And, if a state does not have the power to pass such an act, it would be no trespass upon its jurisdiction for the general government to pass one. He does not even explore the possibility that the states might be prohibited from passing such acts by the United States Constitution, for which an excellent case could be made. The most that can be said for the argument is that Justice Roberts grabbed the states’ rights ball when it came floating by and ran with it with all his might.

None of this is said in derogation of jurisdictional claims of the states, of the decision the Supreme Court reached, nor of the powers of reasoning of the court. Rather, it is to illustrate the results of the confusion of federalism inherent in the states’ rights doctrine and some of its cor ollaries.

Subordinating the States

But the greatest confusion about federalism and threat to its survival has come from the concerted effort for more than half a century to turn the states and their dependent organizations into administrative units of the national government. The way was eased for this by the habit of referring to the national government as the “federal government.” Off-the-mark talk about states’ rights has had little more impact than dogs have upon the moon by barking at it. State organizations have been most effectively turned into administrative units in connection with the development of the welfare state.

More precisely, as the national government became more and more involved with redistributing wealth, state organizations, particularly counties, became instruments of much of the distribution. For exam-pie, state welfare agencies (called by a multiplicity of names nowadays) administer a great variety of programs funded by the national government. Over the past three decades, too, the courts of the United States have asserted increasing and widespread authority over agencies funded primarily by the states, such as schools, prisons, mental institu tions, colleges, and what have you. There should be no doubt that there have been large scale intrusions upon the jurisdictions of the states.

The confusion has been further compounded in recent years by what has been called the “New Federalism.” Currently, the phrase is being used by the Reagan Administration to designate the plan to turn over some welfare programs to the states, to disentangle some state-national joint efforts by having the national government take over the funding of them entirely, and to reduce national controls over grants made to states by the government. But the idea of a New Federalism had been around for several years before Reagan became President.

The late Nelson Rockefeller proposed doing something to revive federalism in a book published in 1962, entitled The Future of Federalism. At the beginning of his second term, President Richard Nixon advanced the idea of having the national government aid in the recovery of federalism. About all that came out of that was the practice of providing large grants from the central government under the rubric of revenue sharing. What these various proposals and plans have in common is the notion that federalism can be restored to its full vitality by action of the national government. That may well be the problem rather than the solution. At any rate, it has succeeded thus far more in confusing than in clarifying the meaning and function of federalism.

The main point I wish to make about the function of federalism is that it is a system for the protection of the liberties of people and the rights of individuals. The freedom of a people consists in the voluntary use of their property and faculties to their chosen ends. The Founders of the United States generally understood well something that is universally the case: that government is ever the greatest potential threat to freedom of action. The liberties that prevail consist of those acts not prohibited by law and those rights of individuals that governments are forbidden to violate and are enjoined to protect from all intruders. In short, the precondition of extensive liberty for a people is limited government. It is, then, as a device for limiting government that a federal system of government performs its most valuable function. But to grasp the full implications of this, the meaning of federalism needs to be clearly stated as free of confusion and complications as possible.

Two Governments in Power

A federal system of government is one in which two governments have jurisdiction over the inhabitants. In this country, the two governments are those of the states and of the United States. Both governments have sanctions, that is, may use force upon the inhabitants. Both have enforcement officers and courts. This system is sometimes referred to as one of dual sovereignty. The phrase is, however, misleading, and when carried very far leads to conflicts for which there is no resolution short of the destruction of such independence as one or the other governments may have.

The term sovereignty came into currency in the modern world in the 16th century. Monarchs came to be referred to as sovereigns. The concept was used to buttress absolute monarchy. It means the supreme, or ultimate authority, over a land, state, or country. The United States does not have a monarch, or king; literally, it does not have a sovereign. It goes deeper than that, however. Neither the Constitution of the United States nor the constitutions of the states vest supreme authority in any man, any group of men, or the people as a whole.

It is the genius of American federalism that government is limited, not supreme. Sovereignty is a mischievous notion, an improper analytical tool for describing government in this country. It sends people in quest for an authority which can only exist in defiance of the constitutions of the states and of the Constitution of the United States.

Federalism is best understood, not as a political concept, but as a legal concept, which is what it is. Sovereignty is a political concept (an absolutist authoritarian one, at that); jurisdiction is a legal concept. Thus, the conclusion that in the United States the states have a jurisdiction, and the United States has a jurisdiction.

Defining the Jurisdiction

The Constitution of the United States, aside from describing the method of selection of its officers and the inner workings of the government, is mainly concerned with defining the jurisdiction of the government that it authorizes. Also, it denies jurisdiction to the states in cer tain areas, prohibits states to act in certain ways, and reserves powers to the states, and rights to the people. Before offering some proof for this and delineating the jurisdictions, however, there are two basic points that need to be nailed down.

The first is to show why state governments are federal governments as well as the United States. These United States have a federal system of divided jurisdiction in government. Severally, the states exercise authority over persons in one of these jurisdictions. The United States government exercises authority in the other. Both, therefore, are federal governments. To acclaim one as the federal government to the exclusion of the other is to deny, implicitly, that we have a federal system of government.

The other point has to do with the independence of the state governments of the central government and the powers of action independent of state governments by the United States government. That is not to say that each does not rely on the other in important ways—they do—but to affirm that their operations as governments are independent. Indeed, the independence of the states stands on more solid historical ground than does that of the national government.

James Madison noted that in this and several other matters, “The State governments will have the advantage of the federal government.” As proof, he pointed out that “The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former.” His meaning was that elections occur within states, and that the general government depends upon the states to come into being. “On the other side,” he continued, “the component parts of the State governments will in no instance be indebted for their appointment to the direct agency of the federal government . . . .” Moreover, some of the states existed before the United States. True, after the adoption of the Constitution, states are admitted to the union by act of Congress. But they come into being at their own instance, draw up their own constitutions, and select their own officers. Their independence of the general government, then, is antecedent to it.

The important point, however, is that both the government of the union and the states are distinct and separate entities. They are governments in their own right, neither being the creation of the other. Devotees of the states have sometimes argued that the United States was created by the states. Not so, however. The states did send delegates to the Constitutional Convention, and they did hold elections for the consideration of ratification of the Constitution. But the latter dele gates were chosen by the electorate, and the preamble to the Constitution refers to “We the people” as the origin of the government. In any case, both governments possess the essentials of separateness, distinctness, powers, and independence to be considered governments in their own rights.

Local Governments

By contrast, local governments are not independent governments. Except for the District of Columbia, all local governments are creatures of the states. They come into being by authority of the states, and derive such powers of governments as they exercise from the states. They are not, then, a part of the federal system of government, but rather a part of state government. Or, to be absolutely precise, they are linked to federalism only by their, ties to state governments.

If the independence of the state and United States governments were all that could be said about federalism, however, it would be a fearful and monstrous system of government. To have one independent government over the inhabitants is bad enough, but to have two would be intolerable, if each or either could exercise its power without restraint. That is not the case, however. Both governments are restrained, restrained by each other by the delineation of their separate jurisdictions, the denial of powers to one or the other or both, and by the specified manner in which they are to exercise their powers. Their independence of each other is important, because it provides a safeguard against intrusion by either into the jurisdiction of the other. But it is of even greater importance that in the assignment of jurisdictions both governments are limited and restrained. It is these restraints that protect the liberties of the people.

The bulk of these restraints are found in the United States Constitution. In the first place, the United States government was never granted all the powers that it might be claimed are inherent in government itself. It was granted only a limited jurisdiction to deal with certain objects of government. These powers were described in general terms in the following ways at the time of the debate over the ratification of the Constitution. John Jay, speaking in the New York state convention, maintained that the powers were largely restricted to the following objects: “They comprehend the interests of the states in relation to each other, and in relation to foreign powers.” James Madison observed that “the powers of the general government relate to external objects and are but few.” Again, he emphasized that “The powers delegated by the proposed Constitution to the federal government are but few and defined.” In the Virginia convention, Edmund Pendleton argued that the genera] government was to act “in great national concerns, in which we are interested in common with other members of the Union . . . .” At another point, and more heatedly, he insisted that the government authorized was not clothed with all powers of government. “It only extends,” he said, “to the general purposes of the Union. It does not intermeddle with the local, particular affairs of the states.”

Specified Limited Powers

It is not necessary, however, to rely solely upon the comments and descriptions of contents by the Founders to learn that the Constitution granted only limited powers to the general government. The document speaks for itself in this regard. The powers of the government were enumerated in several places in the Constitution, above all, in Article I, Section 8. For example, such powers as these are granted:

To define and punish Piracies and Felonies committed on the high Seas and Offences against the Law of Nations.

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. To raise and support Armies . . . .

To provide and maintain a Navy.

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.

In the most general terms, then, the Constitution provided for a general government to conduct foreign relations, to settle disputes among the states, and to facilitate trade and intercourse among the peoples of the states.

Further, the United States government is prohibited to do some things. For example, “No Bill of Attainder or ex post facto Law shall be passed.” “No Tax or Duty shall be laid on Articles exported from any State.” “No Title of Nobility shall be granted by the United States . . . .” and so on. The government is further restricted by amendments, such as the Fourth, which reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”. Beyond all these, there is a blanket limitation contained in the 10th Amendment: “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.”

Limits to State Powers

The jurisdiction of the states was conceived as being much more comprehensive than that of the United States at the time of the drawing of the Constitution. The Constitution does prohibit certain powers to the states. For example, “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin money, emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”

There are further prohibitions on the states in amendments, the most general of which are to be found in the Fourteenth, and the central ones are embodied in these words: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its juris diction the equal protection of the laws.” Beyond such prohibitions, however, the main powers of government over the lives of persons were reserved to the states.

James Madison stated the case for the residual powers of the states this way. “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 properties of the people, and the internal order, improvement, and prosperity of the State.”

State Constitutions Also Limit

It should be noted, however, that the states are further restrained by their own constitutions, and most of these have much more extensive restrictions than are contained in the United States Constitution. Moreover, as already noted, since the time of Madison, further extensive pro hibitions on the states have been added to the Constitution. Thus, it is correct to say that both the United States and state governments are limited and that neither possesses all those powers which may be conceived as inherent in government itself.

The object of this limitation, indeed, the highest object of federalism itself, was the rights of individuals and the liberties of the people. Alexander Hamilton put it this way: “This balance between the nation and state governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights, they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits, by a certain rival-ship, which will ever subsist between them.”

From our perspective, it is easy to conclude that Hamilton was wrong, at least in part, in his prediction. He was right, of course, in holding that the national government would defend its jurisdiction from intrusion by the states. He was right, too, in maintaining that this would provide security against states’ encroaching upon the rights of the individual. It has worked that way historically, and it is still working that way. But what of that “rivalship” of the states over their jurisdiction and the security that was supposed to afford against concentration of power in the central government and its violation of the rights of the people?

Aside from clamors about “states’ rights” and an occasional suit by some state in the courts of the United States, the states appear to be paper tigers. They are largely unable either to protect their own jurisdiction or the rights of their inhabitants from the central government. Either Hamilton was wrong or something has happened in the interval.

An Important Balance

It will be my position that Hamilton was right about the Constitution as it then stood. To understand why, it is necessary to look at the structure of the government and how it has been changed so as to effect the power of the states to defend their jurisdiction. The answers to two questions should lay open to view the crucial structure of the government. First, what branch or organization in the central government was crucial to the defense of the jurisdiction of the United States? While all the branches play a role in it, the ultimate power for the defense lies in the Supreme Court. By its power of review of legislation, both national and state, where a constitutional question is raised, it can vigorously and effectively assert and defend the jurisdiction of the United States.

Second, in what branch of what government is there an organization with the power and under the control of the states to defend the jurisdiction of the states? There is no such organization today. There has not been one in the United States since 1913. Until 1913, the United States Senate had power to do it (and it still does), and state legislatures had crucial leverage over the Senate. That leverage was removed in that year by the 17th Amendment. The amendment provided for the direct election of Senators.

In the original Constitution, Senators were elected by the legislatures of the states. In effect, the state governments had representatives in Congress; they were the members of the Senate. The Senate is well placed in the government to defend the jurisdiction of the states, if it will and must. It can refuse to pass any bill which intrudes upon the jurisdiction of the states. Moreover, Supreme Court, indeed, all court, appointees of the United States government, have to be approved by the Senate. Presidents, too, have large incentives to get along well with the Senate, for all their major appointees and all treaties must be approved by the Senate. Further, trials of impeachment, including judges, are conducted before the Senate.

Since 1913, state legislatures have had little or no effective control over Senators. No longer do they have to please the state legislatures to be reelected. State governments are no longer represented in the central government. It is not surprising, then, that the great growth and expansion of power of the national government have occurred since 1913. The main balance wheel for the states in the Senate no longer operates to restrain it. The courts have ever more vigorously asserted and expanded the jurisdiction of the United States, and the presidents and Congress have not been far behind.

That is not to say that federalism is meaningless today. It is still used to restrain the states. Moreover, the states still retain much jurisdiction, or portions of it, thanks largely, I suspect, to the voters. But the central government is no longer restrained significantly by federalism. It has become the government, indeed, the federal government, as we acknowledge in our references to it.

If the above analysis is correct, federalism can hardly be restored by redistributing welfare programs. It will hardly be revitalized, in any case, by federal aid or revenue sharing. It will only be able to perform its salutary function of protecting its jurisdiction so as to defend the rights of its inhabitants when it has a means for doing so within the general government itself. Looked at that way, the election of Senators by state legislatures was a good idea.

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