In Defense of Federalism: The Conservatism of the Constitution

At a time when the principles of federalism are in disrepair, it is important to recall the centrality of these principles to our constitutional heritage and their intimate relationship with conservative thought. Today, of the two major political parties in the United States, it is the Republican Party that is identified with states’ rights. That a good deal of the Republican base lives in the South, the part of thiS country with the strongest historical tie to states’ rights, may be the cause of this identification. It is equally likely, however, that this association stems from conservatives’ attachment to the Founding Fathers’ design and a desire on their part, and hence on the part of the politicians whom they elect, to preserve it. If that attachment exists, it is not without reason, for the Constitution of the United States, and the system of qualified states’ rights which it enacts, is a truly conservative plan for government.

Before proceeding, it may be well to clarify some key terms. The conservatism of the American system of government does not consist entirely in the broad discretion that it gives the states to enact policy, but in the system of federalism generally, of which the doctrine of states’ rights is a central part. Federalism is “the allocation of power between states the state and federal governments.” Because early Americans and their representatives feard a strong central government, they wanted the national charter to give only specific powers to that government, leaving the states to resolve most issues in their own unique ways within their repsective jurisdictions. Having witnessed the failure of the Articles of Confederation, which lacked a strong national government, they understood that there had to be a stable administrative core for the United States to remain united. Centralization in some degree was perforce necessary, but, fearing for their liberty, the Founders wanted to ensure that the new regime would centralize no more power than it needed to survive.

It follows from all of this that states’ rights in a federal union cannot be absolute. Implicit in the distribution of some powers to the federal government and other powers to the states is the recognition that when the central government acts within the bounds set by the Constitution, the states must submit. Otherwise the powers assigned to the three branches of the federal govenunent would be meaningless. Thus, states have the right to do whatever the Constitution does not forbid them to do, but nothing more. They have no right to allow slavery today, since that institution has been abolished by amendment. Nor can the federal government overstep its more sharply defined boundaries; it can only do what it is specifically authorized to do, and only in such manner as was authorized. In the followmg analysis of federalism, therefore, it will be necessary to take into account the separation of powers between the three branches of the federal government, because that separation functions as one of many important limitations on the central government.

There are three forms of conservatism that the Constitution enacts: political conservatism, which is suspicious of human nature and endorses limits on government to reflect this attitude; socioeconomic conservatism, which emphasizes freedom and considers the rights to make contracts and hold property to be essential; and temperamental conservatism, which is skeptical of change and attempts to restrain it.