Federal Centralization
History 21 (1)
January 12, 1925
Dorothy A. Johnson
Bibliography
Bryce, James: The American Commonwealth
Haines and Haines: Principles and Problems of Government
Harper and Brothers - 1921Ogg and Ray: Introduction to American Government
Century Co. - 1922West, Henry L.: Federal Power; Its Growth and Necessity
George H. Doran Co. - 1918
Federal Centralization Federal centralization, or the greater strengthening of our national government, is a problem which is becoming of greater significance as the United States becomes a greater world power economically and politically. At the close of the war with England the thirteen colonies found themselves possessed of the liberty they had fought for, but otherwise in a not too enviable position. From the point of view of protection alone it was perfectly obvious that the colonies could not exist as separate states independent of each other. Some sort of confederation or union was inevitable. Long before the colonies gained their independence they realized the added protection and strength gained by confederation. In 1643 the New England colonies formed a confederation for the purpose of better dealing with three problems: (1) protection against common foes, (2) the relation which citizens of one colony should bear to another colony, and (3) the treatment of fugitives from justice in another colony. In 1690 the New England colonies and New York, Virginia, and Maryland made another attempt at a confederation. There was no kind of real union in these acts, but the seed of Federalism was planted.(1) That a sentiment of union was growing was evident, but the real test was yet to be met. The pocket book is always a sensitive spot, and the states were not ready to grant any taxing power to a central legislative body. At the Albany Congress in 1754 Benjamin Franklin proposed a grand council of the colonies; with members apportioned roughly according to population and presided over by a President General. So far this might have been acceptable, but Franklin also made the startling provision that this grand council was to lay and levy general duties, imposts, and taxes.(2) This was considered too revolutionary. In the Articles of Confederation, which made a "firm league of friendship" of the colonies, the people allowed themselves to be called the "United States of America", but were still unwilling to allow Congress to assess them for taxes,(3) which is probably an indication that the term "united" meant very little to the Americans at that time.
The next step in the growth of union of the states was the Constitution. The framers of our Constitution did not create a sovereign state when they affixed their signatures to the document they had drawn up. It was not in their power to do so. Whether or not the government they created was that of a federal state or a confederation of states at that time is a question which has not yet been decided. no modern American entertains the delusion that his country is a confederation, but the exact relation of the states to each other was no so clear in 1787. Everyone recognized that the states were not mere administrative areas, like the French provinces, nor subordinate governmental arealÊ with limited autonomy conferred by the central government, like the English counties. The states were conceded to be "distinct, original, indestructible political entities, with extensive inherent powers." But did this mean that the states were sovereign, or subordinate to the national system?(4) Bryce says that the framers of the Constitution had no theory of state, but were content to base their constitutional ideas on law and history.(5) To them the idea of divided sovereignty presented no difficulties, and when asked to state where the ultimate controlling authority lay, they answered, "with the people".(6) There was a widely shared conviction that the national state was being set up, and the idea was by no means unopposed. Only thirty nine out of sixty five delegates to the Constitutional Convention signed the Constitution. Elbridge Gerry wrote of the Constitution, "Sic transit gloria Americana". Alexander Hamilton, one of the strongest advocates and supporters of a national state, together with Madison and Jay, wrote the Federalist papers to meet this hostile sentiment.(7) There was no wide spread feeling for union among the states at that time, but it was perfectly evident to all thinking Americans that the government under the Articles of Confederation was too weak, disorderly, and inefficient to endure any longer. There was no authority to attend to foreign affairs, and Congress was powerless to raise money for current expenses. There was much jealousy among the states as shown by the fact that New York passed laws to keep out firewood from Connecticut and garden truck from New Jersey. There could be no national credit while national authority did not exist.(8) So present exingencies [sic] proved more potent than abstract theories and the Constitution was adopted. West, in Federal Power; Its Growth and Necessity, says that with the writing into the Constitution of such phrases as "general welfare", "lay and collect taxes", and "regulate commerce among the states", the future of the nation as a federal state was inevitable.(9) But the struggle between the "states' righters" and the nationalists was by no means over, for the text of the Constitution is ambiguous enough to allow for considerable difference of opinion as to interpretation.
The States Rights' school, led by Jefferson, and later by Calhoun, adhered to a doctrine having the following points:
1. That the colonies, on winning independence, became independent sovereign states.
2. That these states entered into a league under the Articles of Confederation without in anywise sacrificing that sovereignty.
3. That the Constitution conferred more powers on the central government but did not alter the basis or character of the union.
4. That any state had the right to withdraw from the union if it considered that the terms of the compact were being violated by the co-states or by the government they had set up.(10) As far as the general attitude of the people was concerned, the first two points were undoubtedly true. This might also be said of the third point, but time has proved that the Constitution did "alter the basis and character of the union." The victory of the North in the Civil War proved the fallacy of the last point, and it is also significant that nowhere in debates in the federal and state constitutional conventions was the right of secession ever asserted.(11)
Over against this doctrine was that of the Nationalists. Webster, in his speeches in reply to Hayne, sums of the Nationalist argument as follows:
1. That the Constitution was established not by the states but by the people of the United States.
2. That sovereignty, indivisable [sic], was lodged in the people as an aggreate [sic] whole.
3. That the union was indestructible.
These are truisms to us, but they were not quite true then, for the people regarded the states as sovereign, and the Constitution as a compact among the states. Even Madison, in number 39 of the Federalist papers, said that the "assent and ratification" provided for was to be given by the people as composing distinct and independent states, and that the act establishing the Constitution was not a national but a federal act.(12)
Illustrative of the growth of federal sentiment was the reception given to the protest of Virginia and Kentucky against the Alien and Sedition Laws. These laws were to give the President power to expel dangerous aliens and to punish treason. The protest of Kentucky was, in effect, a contention that a citizen owed his first allegiance to his state. This principle was to be further exemplified at the outbreak of the Civil War, but at the time the other states were inclined to disagree with Virginia and Kentucky, showing that the people had become inoculated with the federal idea.(13) The States' Righters won an apparent victory in the election to the Presidency of Thomas Jefferson, in 1800, but the Federalists executed a coup d'etat in getting control of the Judiciary, supposed to be the weakest branch of the government. John Marshall, appointed Judge of the Supreme Court by President Adams just before the close of the latter's term, was thoroughly imbued with the idea that "in union there is strength", and through his decisions and interpretations of the Constitution he made the Supreme Court a bulwark for Federalism.(14)
The period between the death of Marshall and the Civil War was notable for a marked indisposition on the part of the American people to meet squarely the issue of a centralized government. The national spirit was growing, but the states still held a high place in the national affections as the nucleus of the union. As for the Civil War itself, it was the supreme struggle between the states as units and the nation as a whole. The slavery question was merely a most important issue. Secession was only the occasion of the war. The real cause lay in the unwillingness of the southern states to surrender their legal sovereignty to the sovereign state which they refused to recognize as such. It is interesting to note that not only at this time but throughout the history of the struggle between Federalism and the rights of the states the contestants were the agricultural southern states on one hand and the industrial northern states on the other. Manufacturing necessitates close trade relations. It was natural, therefore, that a stronger feeling of union should have grown up in the North than in the South where the states were more independent economically.
The War brought an exercise of federal power far beyond what even Hamilton could have imagined. Lincoln went so far as to say that the states never had been free and independent colonies, but that union had created the states. The people became more and more familiar with the omnipotence of the federal government. The outcome of the Civil War proved the sovereignty and the doom of the doctrine of states' rights were sealed.(15)
The Civil War gave the American people their first chance to see what their government could do when given the authority to act. They saw that the best results were achieved by direct methods, so immediately several important reforms were presented to the government for execution. The first was the substitution of a national banking system for the unsafe and troublesome operation of state banks. No direct law could have done this constitutionally, but Congress made use of its taxing power, and in 1864 levied a tax on state banks so heavy that they were literally crushed by the burden. The suppression of the lottery evil, through control of the mails, a national quarantine for cholera in 1898, and the Food and Drug Act of 1906 were indications of the steady growth of federal authority and the confidence of the people in that authority.
A still stronger indication was the use of governmental authority to control railroads and trusts. The growth of railroads in this country was phenomenally rapid, and they had become so powerful that they imagined themselves beyond control. High rates and poor management caused country wide dissatisfaction and resentment against railroad domination and the Granger movement in the middle west in the early eighties was an expression of that feeling. So the Interstate Commerce Commission Law was passed in 1887, to be followed by the Clayton Act of 1907 and the Transportation Act of 1920. As an outcome of the great industrial development in the United States, some great corporations, such as the Standard Oil Company, the Sugar Trust, the Steel Trust, and others, had secured monopolies by foul means, or, in legal terms, had formed combinations in restraint of trade. By this time popular comfidence [sic] in the efficacy of federal action had grown so great that there was not a whisper about state rights when the Sherman Anti-Trust Act was passed in 1890.(16)
All these reforms had not passed unchallenged for the states were still loth [sic] to give up their cherished importance and authority. But the Supreme Court, still the bulwark of Federalism, and sympathizing with thespirit [sic] which lay behind these reforms, made their execution much easier and quicker by upholding the constitutionality of the laws in as many cases as was reasonably possible. It is interesting to note here, in the light of recent Third Party propaganda about the unprogressive and anti-social spirit of the Supreme Court, that out of five hundred and sixty three decisions rendered between 1887 and 1911 on questions involving social justice laws, all but three were affirmative, upholding the laws.(17)
We have seen how these United States have grown from a confederation of thirteen weak colonies to a federal state with a strong centralized government. A far more interesting problem to consider is what the future will bring forth. The feeling of state loyalty has not disappeared, though national loyalty is undoubtedly stronger. The entrance of the United States into the World War marked the beginning of an even greater growth of federal power than was witnessed in the nineteenth century.(18) Political and industrial conditions which formerly tended to separatism and states' rights have been profoundly modified by modern industrial developments, and history has shown that a federal government tends to become national and unitary.(19) Will our state lines eventually be obliterated entirely? There are certainly factors at work in our national life which tend in that direction. One of the strongest of these is the ever increasing number of citizens who are either foreign born or of foreign parentage. Our adopted citizens are accustomed to a national state, and naturally transfer their allegiance to the nation, and not to any one state. Another strong factor is the growing popular interest in international affairs which will tend to broaden the political outlook and break down the narrower state loyalty.
There are many arguments to favor a change from a federal to a national state. Perhaps the greatest defect of a federal government is its complexity. There are so many officials that confusion and waste are bound to result. Then there is a great lack of unity. Workers for social legislation realize how difficult it is to get reform in a country where each state passes its own social laws. The lack of uniformity in marriage laws in our states is little short of criminal. When one state in the union has such lax marriage laws that it has become the center for divorces for the entire country, there is obviously something wrong. The southern states are backward in all kinds of social legislation, and the Child Labor Amendment is a good example of how difficult it is to get any sort of direct country wide reform by federal action, owing to the great difficulty of amending the constitution of a federal state.
We are learning slowly, that we cannot be well governed by forty nine organs of government at once. Washington recognized that truth one hundred and thirty seven years ago.(20) But we must also realize that too much centralization is fraught with evil. The lists of bureaus and commissions connected with the executive department seem to indicate a very bureaucratic government, and the steps from a bureaucracy to a oligarchy and then to an autocracy are not long nor difficult. The bad elements of Socialism thrive under a strongly centralized government. It is probable that some day the states will bear the same relation to the union as the counties do to the states. Our descendents [sic] will not have the same reverence for the Constitution that we have inherited. If these checks on the government are to be removed, we must provide others, or our democracy will be lost. The solution is, of course, to make the government more truly popular. The President has too much power at present through the distribution of patronage. The use of patronage should be reduced to a minimum, and the President's term should be lengthened, with no possibilities for reelection. This would give the President more time to work out his policies for the good of the country, and remove the incentive to work for reelection. An executive department responsible to the legislative is the next step. We cannot adopt a cabinet government yet, but it certainly would be possible to have a great deal more cooperation between the executive and legislative departments than exists at present.(21) In every discussion of political reform the ultimate problem is the education of the people politically. This is a large country, and the people have widely diversified interests, but we cannot have good government of any sort, federal or unitary, until the people are wide awake to their duty as citizens and are ready to make a good government.
1. West, Henry L., Federal Power; Its Growth and Necessity pages 16-19.
2. ibid page 21.
3. ibid page 24.
4. Ogg and Ray: Introduction to American Government page 145.
5. Bryce: The American Commonwealth v. 3 page 535.
6. op. cit. Ogg and Ray pages 147-148.
7. op. cit. West: page 35.
8. ibid page 25.
9. ibid page 31.
10. op. cit. Ogg and Ray: page 145.
11. ibid Ogg and Ray: page 147.
12. ibid page 146.
13. op. cit. West: page 39
14. ibid page 41.
15. ibid page 60.
16. ibid pages 68-77 chapter 6.
17. ibid page 134-136.
18. ibid preface
19. Haines and Haines: Principles and Problems of Government page 256.
20. op.cit. West: page 26.
21. ibid pages 200-206.[Professor graded the paper as a C, and commented, "You write your paper much too much from the historical p.o.v. & much toolittle from that of the Constitution & of law - You should show that parts of Const. have been literally interpreted & why &c"]