The delegation of power within a government is nothing new. As with many
other models that were used, there were a number of strengths that were
retained, and a number of potential weaknesses that were identified and the
delegation attempted to address. One such strength that was adopted in the
United States Constitution is the Supremacy Clause. The declaration that the
federal government shall be the prevailing law in the country does lend
strength to the government which many states were reluctant to accept in
the early constitutional era. Many politicians felt that the supremacy clause
was a direct contradiction to the sovereignty of the States but the rebuttal
was that by declaring federal supremacy on fundamental rights, States could
focus on the prosperity of the State and its citizens and people and allow the
federal government to control the political system. This delineation would
allow the States to remain popular amongst the citizens who may oppose the
work of the government and create loyalty by advocating for the people’s
liberties (Madison,1788).
With this separation of power from the supremacy clause arose bilateral
obligations from and to both the federal government and the state
government. As a means of checks and balances, there were written
obligations between the State and Federal governments just as there were
between the three branches of the federal government. One such obligation
is that the individual states would be entitled to a Republican-style
government. This obligation guaranteed a representative style of
government within each and every state. This obligation continued further
and determined that no one state could hold power or supremacy over
another. This equality better balanced the federal government and provided
a protected framework for the states to operate within. (Hamilton,1788).
Where the principles lie that establish the constitutionalism within the
government that McClellan discussed, is that although the federal
government has supremacy over the states, the power of the government
was derived from the states themselves. The states participated in the
democratic process of drafting and amending the constitution. Not only are
the states granted the power to make amendments, but they are also
granted the sole power to make an amendment. The federal government
does not possess the authority to amend the constitution without the
participation of the states. Once the input from the states was received, the
balanced system of federal government performed its duties. This includes
an overwhelming majority approval of the other states. As McClellan stated,
this not only affords the states to protect their own interests but also serves
as the ultimate checks and balances of the federal government in this
process (McClellan, 307).
Though the separation of powers was determined to be a concept adopted
by the founders, it did not come without recognizing many of the
weaknesses that it brought. One such weakness was the vulnerability to
abuse of power within one branch of government. How this was countered,
was the creation and implementation of a checks and balances system.
Much like the mixed and balanced concept of Great Britain and its
Constitution, the United States created the checks and balances between the
branches of government, which allowed some overlap in power from one
branch to the next (Wilson,1934). Not enough to overtake or gain a majority,
but enough to simply balance out any potential power threats. Many of
these checks and balances were derived directly from the Constitutions of
the states. These contributions to states’ constitutions were often developed
as a counter to a control of power over one branch or seat of government.
As McClellan mention, when the states framed their constitutions, some
legislators were bestowed an enormous amount of power which was
unchecked and reduced the roles of other government officials and
ultimately violated rights of the people (McClellan, 329).
Lastly, with so much interest in the best interest of the people individually,
the reality is that the people collectively may hold different interests. As
many founders mention, governments are comprised of and operated by
men, and men are flawed. The interests of the system of government must
also be protected and afforded rights similar to those of the individual.
These protections were created bi-fold by Republicanism creating an
external balance of powers on the government, and the doctrines, such as
separation of power, to create internal protection from the vulnerabilities
created by men.
Hamilton, Alexander, Madison, James. The Federalist Papers #51. New York,
NY: Dutton/Signet (1788)
Madison, James. The Federalist Papers #45. New York, NY: Dutton/Signet
(1788)
McClellan, James. Liberty, Order, and Justice: An Introduction to the
Constitutional Principles of American Government. 3rd ed. Indianapolis:
Liberty Fund, 2000.
The problems with the American Constitution’s supposed system of
division of powers is that by granting the general government the
Supremacy Clause (US Constitution, art. 6, cl. 2), the drafters provided the
federal government the tools to destroy the very individual State sovereignty
and relative independence the system was meant to protect. While
Tocqueville argued that any “A federal government, more than another government, must
desire to obtain the support of the judicial system, because it is weaker by its nature; and efforts at
resistance can more easily be organized against it. … To make citizens obey its laws, or
to repel the aggressions that would be directed against it, the Union
therefore had a particular need for courts.” (Tocqueville 2012, 232) but which
Tocqueville surprisingly posits that “Even more, each state is not only a
foreigner in relation to the Union, but it is also a daily adversary, since the
sovereignty of the Union can only be lost to the profit of that of the states.”
(Ibid., 233), but where, despite the specific, limited, and enumerated
supreme powers of the general government defined by the U.S. Constitution,
contests between the States and the federal government on such issues are
still decided in federal court, where a clear conflict of interest may very well
emerge (Ibid., 235).
Enter two problems for the continued sovereignty and relative
independence of the States, and by extension, protection of the rights of the
People: first, is the insulation of the federal government. Tocqueville argues
the more frequent and direct popular election of all State legislators when
compared to federal legislators leads those State legislators to be “tied
constantly and in the closest way to the slightest desires of their
constituents” which gave “a fierce and hasty character to the making of laws.” (Ibid.,
248f). But the indirect election of the Senate (at least prior to 1913) provided
a moderating influence in Tocqueville’s opinion, which “may at least
represent a superior degree of intelligence and discretion” and where “the
business of the Union is incomparably better conducted than that of any
individual State…more fair and more temperate than that of the States,…
more fraught with wisdom,…more durable and more skillfully combined,…
put into execution with more vigor and consistency” (Ibid.).
The second is the branches of the federal government can use their
supremacy clause powers to protect their own interests, regardless of the
logic with which such decisions would align with the intentions of the
Constitutional Conventioneers. Despite Madison’s assurances that States
would have a political power advantage over the federal government
because with the limited and enumerated powers defined for the federal
government, the States’ powers ‘‘extends to all objects which, in the
ordinary course of affairs, concern the lives, liberties, and properties of the
people, and the internal order, improvements, and prosperity of the State.”
(Hamilton 1788).
But as McClellan points out, because of the Supremacy Clause, the
Supreme Court has unilaterally determined the Tenth Amendment “is no
longer…a limitation on federal power” and so “much power formerly
controlled by the States has been shifted to the central government”
(McClellan 2000, 307). While in the 1941 Supreme Court decision of United
States v. Darby, the Justices determined the Tenth Amendments was “but a
truism that all is retained [by the States] which has not been surrendered”
but still is “not depriving the national government of authority to resort to all
means for the exercise of a granted power which are appropriate and plainly
adapted to the permitted end.” Indeed, the Justices go on to nail the Tenth
Amendment’s coffin lid shut when they declare, “Whatever doubts may have
arisen of the soundness of that conclusion, they have been put at rest by the
decisions under the Sherman Act and the National Labor Relations Act which
we have cited” (United States v. Darby 1941) in effect, giving the Supreme
Court –protected by the vesting of all judicial power in the United States in
the Supreme Court by Article III of the Constitution – the ability to reinterpret
the Constitution at their whim without realistic fear of being held
accountable, short of another rebellion by the States or the People.
Madison, James. January 26-28, 1788. “Federalist No. 45” Federalist Papers: Primary
Documents in American History. Washington, DC: Library of Congress.
https://guides.loc.gov/federalist-papers/text-41-50#s-lg-box-wrapper-25493409.
McClellan, James, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of
American Government Third Edition, Indianapolis, IN: Liberty Fund, Inc., 2000.
Tocqueville, Alexis de. Democracy in America: In Two Volumes. Indianapolis, IN: Liberty Fund,
Incorporated, 2012.
United States v. Darby, 312 US 100 (1941).
https://supreme.justia.com/cases/federal/us/312/100/#tab-opinion-1936943.
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