“Federalism” and Federalist 59 – 61
Writing on the eve of the midterm elections, it’s difficult not to read in this installment of Original Meanings and Federalist essays the foretaste of our present discontent. Rakove notes that even as they embraced the intellectual labors of defending and explicating the merits of the still-unratified Constitution, both Madison and Hamilton harbored doubts “that the Convention had in fact solved the dilemma of divided sovereignty in a way that would give the Union the decided advantage over the states” (189). With a handful of congressional districts and senate elections likely to determine the political course of the next two years in Washington, we can see that the founders were not cynical in their concerns. Still, they hoped that “the outbreaks of factious behavior would be safely quarantined within the boundaries of individual states” (190). In the age of aggressive gerrymandering and the Senate’s filibuster, however, we know that’s just not the case.
The “boundaries of individual states,” much like the boundaries of individual countries in the age of transnational threats and global profits, seem to matter little. And we humbly remember that even a half-million-vote strong plurality did not ensure Al Gore’s victory in 2000 against a statistically insignificant loss in Florida; four years later, a small margin in Ohio resulted in an Electoral College defeat for John Kerry. Individual states can and do matter in shifting the national political climate. The so-called Tea Party movement derives much of its popular enthusiasm and rhetorical arrogance from that very notion.
Rakove underscores another important conflict in this discussion of “divided sovereignty”: “How would the states be protected in those areas where their authority and that of the Union overlapped, or where these two levels of government competed directly for the loyalties of the people” (193)? We needn’t look far for examples. Some governors have provoked admiration and ire by refusing to accept federal stimulus dollars attached to the American Recovery and Reinvestment Act of 2009. It remains to be seen how these decisions will be rewarded at the ballot box. Other states have filed lawsuits against the federal government for onerous new obligations associated with health care reform. Fed up with congressional gridlock on comprehensive immigration reform and the border patrol’s imperfect record, Arizona launched the most aggressive illegal immigration enforcement policy on record, prompting a lawsuit from the Department of Justice. Meanwhile, undocumented residents fled to Colorado – where the next-most aggressive policy reigns – by the thousands. And as always, California’s debates about gay marriage and the legalization of marijuana, by virtue of the state’s enormous population and status as the world’s seventh largest economy, find influence well beyond state lines. Not much of a “quarantine” indeed.
One final note about taxation commands our attention. In a political climate where mainstream politicians debate the minutiae of fair taxes, flat taxes, progressive taxes, hidden taxes, and which ones should be cut and for whom, it’s useful to recall a particular worry shared by the Federalist writers: “[assuring] readers that the national government would rarely invoke its powers of direct taxation but rely instead on customs duties, which were commonly regarded as the most productive and least painful sources of revenue” (194). The current imbroglio concerning whether to extend the Bush-era tax cuts for all Americans or just 98 percent of Americans speaks to the historical narrowness of our political consciousness and ignores the basic inefficiency of income-based taxation, a scheme the founders could scarcely imagine occupying our political obsessions. Neither were they totally innocent of the possibilities inherent in the republican model to devolve toward plutocracy. In Federalist 60, Hamilton asks a poignant question regarding federal authority: “Will it lean in favor of the landed interest, or the moneyed interest, or the mercantile interest, or the manufacturing interest? Or, to speak in the fashionable language of the adversaries to the Constitution, will it court the elevation of the ‘wealthy and the well-born,’ to the exclusion and debasement of the rest of the society” (368)? Given the huge – and thanks to the Citizens United Supreme Court decision, of undisclosed origin – sums of money being channeled into this year’s political campaigns, Hamilton’s anxiety remains as relevant as ever.