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.
Political Conservatism
A conservative believes that human nature, innately and deeply flawed, is a major cause of human suffering. At the same time conservatism is not misanthropic; indeed, it expresses great admiration for the constructs of society, such as tradition and government, provided that these can control people’s ambitions and hence their ability to do hann. It opposes philosophers’ wishes to rebuild the social order on grand conceptual blueprints and favors slow, pragmatic political reform grounded in familiarity with local conditions. Whether the reader believes this perspective to reveal an ambivalent view of humankind or simply a nuanced one, it is clear that the Constitution embodies all of these facets of conservatism. The division of powers between the federal government and the states, and within the federal government, is an expression of the pessimism infusing these beliefs.
Article I, Section 8 of the Constitution enumerates the powers States respectively, or to the people.” The upshot is that the states internal affairs. Congress has the power to pass laws, provide for national defense, regulate interstate and international commerce, establish the duration of copyrights and patents, coin or borrow money, and so on. Article II, Section 2 gives the president command of the armed forces and the power to appoint ambassadors, heads of departments, judges, and other officials. Article III sets up a judiciary to review cases dealing with the Constitution, treaties, and all other laws in the United States. And the Tenth Amendment provides, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The upshot is that the states and economic legislation, criminal justice, traffic laws, and marriage and divorce laws, for the Constitution does not assign these areas to federal control.
At first blush, the Founders’ wariness of their fellow man is not apparent, and so one may question whether the aforementioned provisions are, in fact, conservative. The answer is that limiting the powers of the federal government would limit the mistakes and abuses for which it could be responsible. Alexander Hamilton calls the human species “ambitious, vindictive, and rapacious.” Of course, this’problem would not disappear at the state level “humans are faulty no matter where they work” but at that level it has less potential for ruin. A bad economic or social policy imposed nationwide will cause more harm than the same policy imposed by only a few states. The federal government could also force good policies on the states, but the Constitution rejects this option, and in so doing, it reveals a cOnservative value. Since conservatives are pessimistic, they oppose untried plans when the status quo is satisfactory and would likely also oppose risking state autonomy for the chance that the central government will impose good policy. The prospect of a good result is attractive, but the prospect of a bad result is prohibitive.
The separation of powers that occupies Articles I-III of the Constitution implies a similarly guarded view of humankind. In allocating different responsibilities to different branches of government, the national charter indicates what sort of office or institution is most appropriate for its responsibilities. Yet it has no illusions that these responsibilities will be discharged perfectly, so each branch has the power to check the other branches in case the latter overstep their bounds. Article I, Section 7 allows the president to veto legislation he deems objectionable, yet allows Congress to override that veto by a two-thirds vote. Article II, Section 4 authorizes Congress to impeach a president or other executive officer for “high Crimes and Misdemeanors.” Hamilton adds in Federalist No. 78 that the judiciary can invalidate a legislative act that it finds repugnant to the Constitution. The judiciary relies on Congress for funding and on the president for enforcement of its decrees, so it will not likely supersede those branches by attempting to set its policy for the nation.
Here, the Constitution strives to make the best of one aspect of human depravity: the everlasting problem of ambition. James Madison, widely known as the father of the Constitution, argues that to concentrate all the powers of the general government in one that the human race will ever be saintly, and thus he suggests, “Ambition must be made to counteract ambition.” This is the purpose of the system of checks and balances in the Constitution. It follows Thomas Jefferson’s recommendation that “the powers of government.. be so divided and balanced among severa bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others.” Without such division and balance, the incentive for the federal government to curb its abuses of power would be much attenuated, for one does not apply ambition by proving how restrained one can be. If there were one branch of government and it were transgressing the bounds of its power, it could not be trusted to impeach itself or hold its own acts unconstittltional. But each branch can secure its own power by thwarting the abuses of the other branches.
Further evidence for the conservative foundations for federalism can be seen inthe many appeals to pragmatism made in The Federalist Papers. In Federalist No.3, John Jay argues that a single national government should speak for the states in regard to foreign affairsbecause it will be less likely to clash with foreign nations than an array of disunited states. Further, in the event of a clash, a relatively large and powerful country speaking with one voice has less to fear from other nations than would individual states. In other words, the federal government should exercise authority in this realm because it is best for the nation. Hamilton makes a similar argument with respect to federal control of interstate commerce in Federalist No. 22 and of state militias in Federalist No. 25. In fact, most of these papers are suffused with arguments of this sort, but these are confined to those relatively few subjects where national control would be more beneficial than state control. Instead of laying down a complete political philosophy and directing one body to enact it all, the Constitution renders to the federal government what is the federal government’s.
By the same token, the Constitution renders to the states what is the states,’ from a pragmatic viewpoint. On a number of subjects there is no pressing need for the states to pool their resources and submit to a central authority, and so the states have the exclusive power to deal with them. Bany Goldwater explains the practical benefits of this system: “[L]ocal problems are best dealt with by the people most directly concerned. Who knows better than New Yorkers how much and what kind of publicly-financed slum clearance in New York City is needed and can be afforded?…. Who knows better than Arizonans the kind of school program that is needed to educate their children?” The Founders must have known that the states’ judgment on these issues would be imperfect. But anyone else’s judgment would be worse, as abstract thoughts about how best to order society are a poor proxy for experience and familiarity with the subject of discussion. Hence, they accept, as the conservative does, the primacy of circumstances in setting policy.
Socioeconomic Conservatism
This brings us to two other aspects of conseIVatism in the constitutional design: the need for social and economic freedom and—in the words of conservative philosopher Russell Kirk—the” [a]ffection for the proliferating variety and mystery of human existence, as opposed to the narrowing uniformity, egalitarianism, and utilitarian aims of most radical systems….” The Constitution was written and ratified by men who believed that the ability to own property and reap the greatest possible benefits from one’s labor was indispensable to freedom. Article I,A§8confines federal control over commerce to that conducted between the states. By this means, the national charter prohibits the general government from standardizing economic policy throughout the nation. Local control preserves the freedom of communities to influence their social and economic milieux, while promoting diversity in the laws enacted that touch on these issues. Whether or not a conservative would approve of every law enacted by the states, this aspect of federalism at least warrants that the laws remain close to community values.
Social and economic freedom in this sense does not mean libertarianism. Because the United States ultimately derives its right to govern the citizens from their consent to its rule, one gets the impression that the most important right in a republic, the brightest mark of freedom, is the right to judicious and informed representation. ConseIVatism is therefore inclined to the position that a community that bans certain occupations, such as prostitution, that deeply offend social conventions, is none the less free than a community that permits them. The people of both communities are allowed to choose whether or not various activities should be permitted. At the state level, writes Madison, “Measures will…often be decided according to their probable effect. . . on the prejudices, interests, and pursuits of the governments and people of the individual States.” State legislators will embody their constituents’ values in the law, whether by proscribing or by permitting various acts. Iibertarianispl would insist that legislation of morality be abolished every-where, as that ideology is more individualistic and less cornmunitarian than conservatism.
In promoting the conservative conception of freedom, federalism also conseIVes the people’s faith in their system of government, a faith that is necessary if they are to be governed. To the extent that it allows the states to constrain individual freedom, it does so to preserve a higher value, the social order. Agovernment that declares the people to be sovereign, as the United States does, cannot be seen as imposing one view of life or economics on all the people, because many of them might not accept that view, and they will come to view the government as oveIbearing for imposing it. When the government enacts a given policy throughout the nation, for example, abortion on demand, itbecomes impossible for anyone to belong to the United States without living in a community that tolerates abortion. It is a policy that all communities are forced to accept. In a federalist system, people who dislike the policy that their state has enacted can move to a state that has enacted a different policy, which is far easier than moving out of one’s country.
Without embracing moral relativism, then, the socioeconomic conservatism of the Constitution blends political pragmatism with respect for the diversity of human opinion. Because Americans differ in their ideals, federalism accepts that states will adopt contrary policies on intensely controversial issues. Many would object to a system that allows (or fomids) states to ban abortion, pornography, gay marriage, prostitution, etc., but surely they would prefer this to an all-or-nothing scheme. Right-wing districts do not appreciate having to livewith left-wingpolicies, and vice versa. Yet,as Natianal Review editorJonah Goldberg observes, “under federalism, national minorities can still live like majorities in their own communities.” Allowing different states to have different policies does not indicate that there is no correct moral position on the issues, only that the issues are not so important that they must be decided in one way for the whole country, however strongly a minority objects. So the greater happiness promoted by allowing communities to control their own affairs has more practical value than imposing the right policies on fiercely unwilling districts.
Because the states have wide latitude in dealing with social and economic issues, they will not necessarily practice laissez-faire capitalism, and hence the reader may reply that the Constitution has not necessarily endorsed a conseIVative position on economics. In response, it is useful to note that Article I, Section 10 of the Constitution forbids the states to “pass any . . .Law impairing the Obligation of Contracts….”No state, in other words, may relieve debtors of their obligation to pay back creditors, or interfere with previously made contracts in other ways because it dislikes the great size of the fortune that one party stands to make from the contract. On the other hand, states can shrink that fortune after it is made by levying progressive income taxes and redistributing the revenues to the poor. So the Constitution does not require that the states allow inequalities of wealth, pethaps because it was enacted when property qualifications for voting were pervasive, leaving little reason to suspect that one’s wealth might be endangered within one’s own state.
One can make the case that economic conservatism would benefit indirectly from allowing the states to provide alternatives to that conservatism.In the early twentieth century,the Supreme Court struck down numerous pieces of state social and economic legislation, and continued on this course until about 1937, during the New Deal period.# Had the Court allowed state experimentation over a period of decades, this could have demonstrated that such legislation was bad policy—vindicating economic conservatism. By preventing experimentation without allowing it a fair trial, while the Great Depression raged on, the Court may have created pressure for President Franklin D. Roosevelt to try these programs at the federal level. Tills made it seem, when the nation finally recovered from the Depression, that these federal programs were responsible for the recovery, and so it is the New Deal that appears to be vindicated in history’s eyes. The Court’s attempt to require the states to accept economic conservatism may be responsible for the federally imposed constraints on economic conservatism, which persist to this day, in every state. So there is a conservative case for allowing the states to experiment with the alternatives.
Further, it is important to note that anticonservative economic legislation would be most thoroughly carried out by a centralized national government, since it would have control over the whole country, not just over one state. And the Constitution does guard against the danger of such legislation by assigning the federal government no power to ratify it. For example, Congress cannot nationalize corporations or tracts of land, Fidel Castro-style, because the Fifth Amendment requires that it provide “just compensation” when it takes private property “for public use.” Further, the Constitution does not merely bar the national government from imposing socialism. Even public charity is beyond the federal government’s reach. That government’s powers are confined to those mentioned in the Constitution, and public charity is nowhere mentioned in the document. Madison argues that any powers reserved to the states must be denied to the central government, and “The powers reserved to the several Stateswill extend to all the, objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people….”
The states may choose to enact programs analogous to Medicaid and Temporary Assistance to Needy Families, if they wish, but they are not required to, and ifthey do not make that choice, the national government is not permitted to make it for them. Perhaps the reader will respond that Article I, Section 8, in authorizing Congress to “provide for the . . . general Welfare of the United states,” does empower it to establish these programs. But Madison counters, in Federalist No. 41, “For what purpose could the enumeration of particular powers be inserted, ifthese and all others were meant to be included in the preceding general power? Nothing is more natural nor more common than first to use a general phrase, and then to explain and qualify itby a recital of particulars.” In brief, to view the General Welfare Clause as committing to the federal government powers beyond those explicitly conferred would leave no reason for the 17 following clauses in Article I, Section 8, as Congress would have the power to enact any policy at all that it deemed beneficial. The Constitution therefore does protect economic conservatism from federal interference.
Temperamental Conservatism
The Constitution appreciates the value of stability, as the difficulty of amending it makes clear. Indeed, it is fair to assert that the very purpose of a constitution is that those who enact it believe in temperamental conservatism. They believe that certain rights held by citizens and certain limitations on the power of the central government are important enough that a law should be enacted to conserve them. However, a constitution should also have provisions for amendment, lest its rigidity prevent it from meeting unexpected needs. ArticleVof the Constitution lays down the process by which the document can be amended. In the first stage of this process, either two-thirds of both houses of Congress must propose an amendment, or two-thirds of the state legislatures must call for a constitutional convention. (The latter option has not yet been selected, though it still can be.) In the second stage, three-fourths of the state legislatures must vote to ratify the proposed amendment, whereupon it becomes part of the Constitution for the nation as a whole.
This is a laborious process, and deliberately so. It requires a supermajority before Congress can legitimately do such things as set policies traditionally left to state control. Madison argues that Article V “guards equally against that extreme facility,which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate [an] amendment….” In other words, it provides the states with their own remedy, in case their representatives in Congress go off and “marry the natives,” disregarding the informed sentiment of state leaders and expanding unconstitutionally the federal government’s power. They need not rely on their federal representatives to propose an amendment, Hamilton explains. Should enough of the states feel that the federal government is growing beyond its limits, he continues, those states can call for a convention to amend the document and Congress has no authority to refuse. At that moment, three-quarters of the states can amend the Constitution to rein in their national government.
Conservatism is on display in Article Vs implicit acceptance that there can be no perfect solution to the problems envisioned. The amendment process offers a remedy for the worst abuses of the federal government’s power, but not every abuse. It is unlikely, for e~ample, that the states would propose a constitutional convention in response to the passage of the federal Gun-Free School Zones Act of 1990, which, as a crime bill dealing solely with state schools, exceeded Congress’ constitutional authority. This is entirely proper, for amending the Constitution is a drastic measure, and should not be frivolously exercised. A habit of amending the document whenever the federal government exceeds its rightful powers might cheapen the document, rendering it like a sledgehammer to be brought out to intimidate the national government, and with the possible side effect of preventing members of Congress from using good independent judgment. The Founders would detest this: they want federal legislators to “refine and enlarge the public views.”
So the Constitution again reaches for the pragmatic solution, balancing flexibility,which counsels some amendment process, with stability,which counsels that this process not be made too easy. The goal is to make change difficult, but practicable: two-thirds of both houses of Congress, or of the state legislatures, is required for the first stage, rather than four-fifths or a unanimity. Stability, of itself, would seem to be the paramount value for a conservative, but again recall the importance of circumstances. Just as conservatism does not favor “liberty” in the abstract, neither does it believe that one must favor every situation that promotes stability. Suppose, for instance, that Congress attempts to blot out the divisions between the national government’s three branches, producing what Madison regards as “the very defInition of tyranny.” In such a case,’ the states would be well-advised to vote for a constitutional convention, and it would be to their benefit that the Framers did not so honor stability as to prevent the states from initiating an amendment.
Accordingly, this document captures the conservative disposition with respect to change. It understands the positive role that change can play while understanding equally well its potential for disorder. As Edmund Burke famously observes, “A state without the means of some change is without the means of its conservation.” One should pay close attention to the word some. A conservative does not approve of changing every aspect of a society completely, or else nothing is conserved. Conservatism wishes to hold on to an essential core, at the least. For this reason, the Constitution is more conservative than the Articles of Confederation. Article XIII of those Articles provided the means for totally nullifying the Articles: first, an agreement in Congress to rescind the Articles,and next, the declaration of every state legislature that it no longer wished to belong to the Confederation. There is no such escape clause in the Constitution. In addition, Article VI of the Constitution declares that document to be “the supreme Law of the Land.” While much of the document may be changed over the years, it thus may not be discarded completely. Whatever shape it ultimately takes, the Constitution counts itself among the “permanent things” in the American culture, and this, perhaps, is its most conservative aspect of all.
Conclusion
On a superficial reading, the Constitution is simply an organization plan for our government. Tersely written, and dealing only with the powers of the federal government and the states, the document nonetheless contains several conservative beliefs. It shows great caution in assigning power to the national government, and equally great caution in removing power from the state and local governments. In showing such caution, it reflects on the strengths and the frailties of humankind: the wisdom and beneficence, on one hand, and the ambition and cruelty, on the other hand, of which our species is capable. By dividing the nation into federal and state governments, and recognizing the states’ broad power to make policies suitable to their diverse communities, it acknowledges that no one plan for government, or batch of policies, can fully satisfy people’s diverse wants. And it holds that change should be cautiously made, lest it leave the document’s structure in doubt, yet should be made when necessary. Having conserved the social order for 216 years while enshrining these beliefs, the Constitution surely is a conservative document and the system of federalism it ordains is one well worth defending.
