Natelson: New evidence of how our Constitution was meant to work

September 9, 2019 By Rob Natelson

Judging by the promises of presidential candidates, you might think the federal government is designed to fix whatever ails us: health care, education, crime, infrastructure, the common cold.
But the Constitution doesn’t grant the federal government such unlimited authority. And neither Congress nor the presidency nor the courts were created to exercise it.
The Constitution fashioned the federal government to address a limited number of activities, contained in the document’s “enumerated powers.” The remainder were exclusively the domain of state and local government and the private sector. This system of divided authority is called “federalism.”
As explained below, newly published documents from America’s founding offer more insight into how federalism was supposed to work.
When the proposed Constitution became public on Sept. 17, 1787, Americans could see that the list of powers the Constitution granted the federal government was a generous one. It encompassed nearly the entire scope of national defense and foreign affairs. It embraced certain key economic functions, such as patents, copyrights, and trade flowing across political borders. It included authority in certain cases to prevent states from abusing their own citizens. The list also included authority to hold the union together.
But the framers recognized that most problems weren’t problems the federal government could, or should, solve. That is why they left most areas of life to the exclusive responsibility of state and local governments and the private sector.
Despite the Constitution’s federal structure, many in the founding generation didn’t think it limited the central government sufficiently. They wanted to be able to govern themselves in their own states and local communities. They didn’t want Congress or federal judges or officials imposing uniform policies on the entire country.
These members of the founding generation had good reasons for fearing centralized power. They knew their history: Concentrated power usually grows into oligarchy or dictatorship. They questioned whether Congress would have the information or judgment necessary to tailor laws for every nook and cranny in the nation. They recognized that when government remained local, citizens enjoyed more say in how it was run. If someone was severely disaffected with state policies, he always could move to a different state.
This option of moving away is a vital safety valve. Without it, there is no practical way to vent anger among persistent political losers. Anger gives rise to hate: Hate fosters divisiveness and repression and, and in extreme cases, civil war.
Indeed, modern federal efforts to impose uniform “solutions” on the entire nation may be a leading cause of today’s toxic political environment.
The perception that the Constitution endangered local self-government was a central reason many Americans—perhaps a majority—initially opposed it.
The Constitution’s advocates knew that unless they reassured the dissenters, the public would never adopt it. So they promised that once the government was functioning, they would offer constitutional amendments to further limit central power. They honored that promise. The amendments are known as the Bill of Rights.
But advocates of the Constitution also adopted another course of action less known today. They gave speeches and wrote articles explaining to the people how the Constitution limited federal power. Sensing the need to be specific, they listed government functions that would be outside the federal sphere. These would be the exclusive province of state governments and the private sector.
The Constitution’s advocates further reassured the public that if the central government passed laws exceeding its authority, the courts would declare them unconstitutional.
Most of the advocates issuing these lists were lawyers. They knew that the courts give great respect to representations about a law from the law’s sponsors.
Some of the advocates who issued lists of nonfederal powers remain famous today. Among them were James Madison, Alexander Hamilton, and John Marshall (long before he became chief justice). Others are less known, but their essays were popular during the debates over the Constitution: Tench Coxe of Pennsylvania, Alexander Contee Hanson of Maryland, James Iredell of North Carolina, and others.
Coxe may have been the most widely read among the general public. He was a Philadelphia businessman who served in the Confederation Congress (1789) and later as our first assistant secretary of the treasury.
Most of Coxe’s essays have long been freely available, but until recently four were hidden from all but constitutional scholars. But those four finally were re-published earlier this year.
Coxe’s essays itemize many of the activities over which the Constitution granted the federal government little or no jurisdiction. Among them were social services (i.e., care for the poor and health care), education, religion, real estate, local businesses, most roads and other infrastructure, nearly all criminal law matters, and most civil court cases.
When people believed government should regulate those areas, the Constitution mandated that they turn to state and local government. No fleeting national coalition would be permitted to dictate to the entire country.
Until the 1930s, the courts voided any measure exceeding the federal government’s enumerated powers. During the New Deal, this began to change. Although many believe that the change occurred because President Franklin Roosevelt threatened the Supreme Court, modern research suggests there were other reasons.
In any event, the Constitution’s plan of federalism stopped operating as Coxe and other founders designed it. But reading Coxe’s essays enables us to recapture how federalism was supposed to work.