James Madison, Theophilus Parsons and Thomas Jefferson all agreed – the states are a powerful and essential check on federal power.
When ratification of the Constitution was still up in the air, James Madison and others wrote a series of papers about how things would work. In one, Federalist #46, Madison laid out a clear plan – a blueprint – for what was needed to keep the federal government in check when words on paper wouldn’t do the job.
Surprisingly, James Madison didn’t advise using as a first response to federal overreach – what are known as the most vaunted parts of the American system. That is, voting bums out, suing in federal court, or demanding that federal politicians repeal their own laws.
Instead, James Madison advised a series of four actions by individuals and states.
1. Protest on a large scale. Madison called it “disquietude of the people”
2. Noncompliance. Madison recommended disobedience in general and “a refusal to cooperate with officers of the Union.”
3. Outspoken Governors. Madison advised what he called “frowns of the executive of the State” to build awareness in the general public.
4. State legislation. Madison said “legislative devices” should be used in the states. That is, passing resolutions or bills as needed to counter federal power.
James Madison told us that using these steps together in multiple states would be extremely effective against the federal government. He wrote that doing so
“present obstructions which the federal government would hardly be willing to encounter.”
This advice was written in a time when the federal government did very little. Today, when the federal government is active in nearly all areas of life, James Madison’s blueprint will have far more impact and success than it did in his day.
That’s because Washington D.C. relies on support and cooperation from the states for almost everything. As the National Governor’s Association put it, states are partners with the federal government on “most federal programs.”
Partnerships don’t work too well when half the team quits.
In other words, if individuals and states protest and refuse to participate on a wide scale, there’s very little the federal government can do about it.
A little-known Founder from Massachusetts made the case, just like James Madison did, that the states were the strongest check on federal power should they work together to oppose it
Theophilus Parsons wrote that the state legislatures were, “superior to all the parchment checks that can be invented.”
In other words, no matter how you try to balance federal power among various federal branches, they’re all still part of the same entity, the federal government. And if