Beer1994

Beer1994 - TO MAKE A NATION ‘ The Re-disCOVery of...

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Unformatted text preview: TO MAKE A NATION ‘ The Re-disCOVery of American FederaliSm SAMUEL H. BEER THE BELKNAP PRESS OF HARVARD UNIVERSITY PRESS Cafnbridge, Massachusetts I London, England IntrOductiori: . ' The National Idea in American. Politics . THE NATIONAL IDEA is a way of 100king at American govern—- ment and American society. Itembraces a view of where the author— ity of governmentcomes from and a view of what it should be used for. As a concept ot authority, it' identifies the whole people of the- nation as the source of the legitimate powers of any and all govern- ments. As a concept of purpose, it tells us that we are one people and guides us toward what we should make of ourselves as a people. The national idea envisions one people, at once sovereign-and subject, . source of authority and substance of history, affirming, through conflict and in diversity, our unity of being and becoming. Because the natiOnal idea is also a democratic idea, these concepts of authority. and purpose are interdependent. Self—government 'is re- flexive. The people who govern are also the object of government. A government of the people, therefore, gets its legitimacy both from being a government by the people and from being a government for the people. Its citizens judge it by both standards, attaching value to the manner. in which their government is carried on and to the policies which. it pursues. ' . This theory of legitimacy is national and democratic. It is also federal. In the national perspective, although we are one people who enjoy a common life as one nation, we have set up not a unitary but a dual system of government. In establishing this system, the Amer.— ican people authorized and empowered two sets of governments: a general government for the whole, and state governments for the parts. The constitutional authority for the two sets of government is therefore coordinate. Neither created the other, and both are subject 1 2 Introduction to the same ultimate legitimating power, the sovereign people. And periodically the people in this constituent capacity amend these insti- tutions, by which in their governing capacity they direct the day—to- day affairs of the nation. ' From our revolutionary beginnings the national idea has been widely accepted as a description of historical fact and a theory of legitimacy of American federalism. The American political tradition, however, has also sustained another view. In this opposing view, one of these levels of government, the federal government, was brought into existence not by the act of a sovereign people but by a compact among sovereign states. From this compact theory inferences follow that radically contradict the conclusions of the national theory. While the national'theory has, on balance, had much the greater influence on thought and action, the compact theory has survived and continues even today to show itself 'in the feelings of citizens, the rhetoric of politicians, and the actions of‘ governments. When President Reagan took office-in I981, for instance, he pro— claimed a “new federalism.” Its central thrust was to cut back on the activities of the federal government by reducing or eliminating a vast number of programs, the principal cuts failing on federal aid to state and local governments. The President wished to do this because he judged these activities to be inefficient, unnecessary, and sometimes positively harmful. He also claimed that they were improper under the Constitution—not so much in the strict sense that they-violated specific provisions of our fundamental law as in the larger philosoph- ical and historical sense that they offended against the true meaning of the document. ' ' ' - In' his first inaugural address on January 20, I981, accordingly, President Reagan promised to “restore the balance between levels of government.” And while he did not elaborate his political philoso- phy, he made clear in a phrase or two his reliance uponthe compact theory of the Constitution to justify his new federalism. “The Federal government,” he declared at One point in his'address, “did not create the states; the states created the Federal government.” ' ' This allegation did not pass without comment. In response to President-Reagan’s use of the compact theory, eminent academic critics counterattacked in terms of the national theory. Richard P. The National Idea in American Politics 3 Morris of Columbia University called the President’s view of the historical facts “a hoary myth about the origins of the Union” and went on to summarize the evidence showing that “the United States was created by the people in collectivity, not by the individual states.” No less bluntly, Henry Steele Commager of Amherst College said President Reagan did not understand the Constitution, which in its own words asserts that it was ordained by “We, the People of the United States,” not by the states severally. An ardent liberal, he went on to argue that this view of the origin of the Constitution abun— dantly justified and even mandated the new purposes served by federal power in recent times.1 The argument between the President and the professors was not simply about history. Nor was it mainly about the constitutional authority of the federal and the state governments. Their primary disagreement was over public policy, specifically, the use of federal authority in recent years to expand the social and economic pro- grams of the welfare state, especially those dating from the “new federalism” of Lyndon Johnson. President Reagan had taken office as the champion of conservative attitudes that had been gathering force around the country for a generation. He articulated these attitudes in a distinctive vision of American society at home and abroad and in a set- of strategies for realizing that vision. Expressing in a new public philosophy the old and familiar values of rugged individualism, he sought to cut back the welfare state and to restore the free market—or in the language of political economy, to shift social choice from public choice toward market choice. Declaring in his first inaugural address that the excessive growth of the public sector in recent years meant that “government is notthe solution to our problem; government is the problem,” he proposed to “reverse” that growth. Intrinsic to this goal was his promise of another “new federalism” which would “restore the balance between levels of government.” The reduction of federal grant programs would at once help restore the federal—state balance and promote the free market. - - . Some critics called himuinsincere, claiming that when he said he wanted to restore the federal—state balance, what he really wanted to do was to cut federal spending on social and economic programs. 4 Introduction No doubt he was mainly interested in the impact of his policies on American society. But that is no reason for saying that he was not also interested in reducing what he thought was excessive centraliza- tion of power in' the federal system. In American politics, thinking about federalism has usually had those two aspects: a' concern with both the pattern of authority and the pattern of purpose, with the balance of power between levels of government and with the policies for which that power is used. When President Reagan called in the compact theory to lend support to his views on public policy, he was doing what its adherents before him had often done. In their way the nationalists had done the same, right from the days when Alexander Hamilton, as Secretary of the Treasury, set the course of the'first administration of George Washington. ‘ The Promise of Nationkood Like the other founders, Hamilton sought to establish a regime of republican liberty, that is, a system of government'which would protect the individual ' rights of person'a‘nd property and which would be founded upon the consent of the governed. He was by no means satisfied with the legal framework produced by the Philadel— phia Convention. Fearing the states, he would have preferred a much stronger central authority, and, dis‘trusting the common people, he would have set a greater distance between them and the exercise of power, He was less concerned, however, with the legal framework than with the use that would be made of. it.2 He. saw in the Consti- tution not only a regime of ‘ liberty, but also and especially the promise of nationhood. ' He understood, moreover, that this promise of nationhood would have to be fulfilled if the regime of liberty itself was to endure. The scale of the countryalmost daunted him. At the Philadelphia Con- vention, as its chief diarist reported, Hamilton “confeSSed he was much discouraged by the amazing extent of Country in expecting the desired blessings. from any general sovereignty that could be substi— tuted.”3 This fear echoed a common opinion of the time. The great Montesquieu had warned that popular government was not suitable for a large and diverse country. If attempted, he predicted, its coun- The National Idea in Arnerican Politics 5 sels would be distracted by “a thousand private views” and its extent ' would provide cover for ambitious men seeking despotic power.4 ' - One reply to Montesquieu turned this argument on its head by declaring that such pluralism would be a source of stability. In his famous Federalist to JamesMa‘dison argued that the more extensive republic, precisely because of its diversity, would protect popular government. by making oppressive combinations less likely. As elab- orated by Madison, Hamilton, and other champions of the new regime, their hopes for a more extensive republic rested on more than its premise of a mechanical balance of groups. Hamilton sum-’ marized these views in the farewell address that he drafted fOr ' Washington in 1796. Its theme was the importance of union“ if the regime of liberty was to survive. This union would not c0nsist merely in a balance of groups or a consensus of values, and certainly not merely in a strong central government or a common framework of constitutional law. It would be rathera condition of the American people, uniting them by sympathy as well as-interest in what Wash-' ington termed “an indisS‘olublecommunity of interest as one na- tion.“ ' ' Hamilton’s nationalism was expressed not only in his belief that Americans _w.ere"‘one people” ratherthan thirteen separate peoples but even more emphatically in his commitment to governmental activism. This concern that the American people must make vigorous use of their central government for the tasksof nation—building separated him sharply from Thomas Jefferson, Washington’s Secre- tary of State, who leaned toward the compact theory. The classic expression of this difference of opinion between the two members of the cabinet—the champion of federal power and‘the champion of states’ rights—~was their conflict over the proposed Bank of the United States. Jefferson feared that the bank would corrupt his cherished agrarian order and discovered no authority for it in the Constitution. Hamilton, believing that a central bank was necessary to sustain public credit, to promote economic development, and—in his graphic phrase—“to cement more closely the union of the states, ” found in a broad construction- of the “necessary and proper” clause ample constitutional authorization.6 ' Should the words “necessary and proper” be construed narrowly, 6 Introduction- as Jefferson said, or broadly, as Hamilton advised? A generation later the question came before the Supreme Court in McCulloch 12. Mary- land (1819).7 Speaking for the Jeffersonian reply, appellants ad— vanced the theory that the Constitution was a' compact of sovereign states and therefore should be strictly construed, in order to safe- guard state power against the federal government. In the Court’s decision, however, John Marshall argued from the national theory that the Constitution was “ordained and established” directly by the people of the United States and concluded in almost the same words used by Hamilton that the crucial phrase “necessary and proper” should be broadly construed to mean not “indispensable” but “ap- propriate.”3 Looking back today and recognizing that the words of the disputed clause could bear either construction, but that American government could never have adapted to the needs of a complex modern society in the absence of the doctrine of implied powers, the reader must feel relieved that at this critical moment in the develop ment of our juristic federalism the national idea prevailed. _ Hamilton was not only'a nationalist and centralizer, he was also an elitist. Along with the bank, his first steps to revive and sustain the public credit were the full funding of the federal debt and the federal assumption of debts incurred by the states during the war of independence. These measures had their fiscal and economic pur- poses. Their social impact, moreover, favored the fortunes of those members of the proPertied classes who had come to hold the federal and state obligations. This result, while fuil'y understood, 'was inci- dental to Hamilton’s ultimate purpose, which was political. As with the bank, that purpose was to strengthen the newly empowered central government by attaching to it the interests of these influential members of society. Hamilton promoted capitalism, not becausehe was a lackey to the capitalist class—indeed, as he once wrote to a close friend, “I hate moneying men”9—--but just the opposite: his elitism was subservient to his nationalism.ID ' In the same cause he was not only an elitist but also an integra- tionist. I use that term expressly because of its current overtones, wishing to suggest Hamilton’s perception of how diversity need not be divisive but may lead to mutual dependence and union. Here The National Idea- in Arnerican Politics 7 again he broke from Jefferson, who valued homogeneity. Hamilton, on the other hand, planned for active federal intervention-to diversify the economy by the development of commerce and industry. His great report on manufactures is at once visionary and far-seeing— “the embryo of modern America,” a recent writer termed it.11 7 The economy he foresaw would be free, individualist, and compet-I itive. The federal government, however, would take action to make it more likely that entrepreneurs invested their money in ways most advantageous to‘ the national welfare. Bounties; premiums, and other aids, in addition to a moderately protective tariff, would be em- ployed to develop industry, along with a federal commission to” allocate funds. There would be federal inspection of manufactured goods to protect the consumer and to enhance the reputation of American goods in foreign markets.12 The purpose was to' make the country rich and powerful. At the same time, the interdependence of agriculture and industry and especially of SOuth and North would enhance the union. The outcome, writes a biographer, would be to make the United States “one nation indivisible, bound together by common wants, common interests and common prosperity?”l3 = Hamilton is renowned for his statecraft—for his methods of using the powers of government for economic, political, and social ends; But that emphasis obscures his originality, which consisted in his conceptualization of those ends. His methods were derivative, being taken from the theory and practice of state-builders of the seven; teent'h and eighteenth centuries from Colbert to Pitt. Hamilton used this familiar technology, however, to forward the unprecedented attempt to establish republican government on a continental scale.“ In his scheme, the unities of nationhood would sustain the authority of such a regime. By contrast, those earlier craftsmen of the modern state in Bourbon France or Hohenzollern Prussia or Whig Britain could take for granted the established authority of a- monarchic and aristocratic regime. They too had their techniques for enhancing the attachment of the people to the prince. But in America the people were the prince. To enhance their attachment to the ultimate govern- ing power, therefore, meant fortifying the bonds that united them as a people. If the authority of this first nation—state was to suffice for 8 Introduction its governance, the purpose of the state would have to become the development of the nation. This was the essential Hamiltonian end: to 'make the nation more of a nation. The Trial of Sectionalism The national idea, so launched by statesmen of the federalist persua- sion, confronted three great trials: the trial 'of sectionalism, culminat— ing in the Civil War; the trial of industrialism, culminating in the great depression and the New Deal; and the trial of racism, which continues to rack our country today. In the course of the struggle with sectionalisrn, John C. Calhoun defined the issue and threw down the challenge to nationalism when he said: “the very idea of an American People, as constituting a single community, is a mere chimera. Such a community never for a single moment existed—neither before nor since the Declaration of Independence.” This was a logical deduction from the compact the— ory, which in Calhoun’s system made of each state a “separate sovereign communityfim . - 7 - His leading opponent, DanielWebster, has been called the first great champion of the national theory of the union.16 If we are thinking of speech rather than action, that was true, since Hamilton’s contribution, while earlier, was more in the realm of deeds than words. Webster never won the high executive power that he sought, and the cause of union for which he spent himself frequently suffered defeat during his lifetime. But the impact on history of words such as his is not to be underestimated. “When finally, after his death, civil war did eventuate,” concludes a biographer, “it was Webster’s doc— trine, from the lips of Abraham Lincoln, which animated the North and made its victory inevitable.”17 Webster gave us not only doctrine but also imagery and myth. He was not the narrow legalist and materialistic whig of some critical portraits. And if his oratory is too florid for our taste today, its effect on his audiences was overpower—- ing. “1 was never so excited by public speaking before in my life,” exclaimed George Ticknor, an otherwise cool Bostonian, after one address. “Three or four times I thought my temples would burst with the gush of blood.” Those who heard him, it has been ’said, “expe- The National Idea in American Politics 9 rienced the same delight which they might have received from a ‘ performance of Hamlet or Beethoven’s Fifth Symphony.”IE Poets have been called the “unacknowledged legislators of the world.” This legislator wasthe unacknowledged poet of the republic. ' To say this is to emphasize his style, What was the substance of his achievement? Historians of. political thought usually and cor—' rectly look first to his memorable debate with Senator Robert Hayne of South Carolina in January I830.19 Echoing Calhoun’s deductions from the compact theory, Hayne had stated the doctrine of nulli— fication. This doctrine would deny to'the federal judiciary the right to draw the line between federal and state authority, leaving such ' questions of constitutionality to be decided—subject to various qual- ifications—by each state itself. - In reply, Webster set—forth with new boldness the national theory. of authority. Asking what was the origin of “this general govern-- ment,” he concluded that the Constitution is not a compact between the states. It was not established by the governments of the several states, or by the people of-the-s‘everal states, but by “the people of the United States in the aggregate.” In Lincolnian phrases he called it “the pe0ple’s Constitution, the people’s government, made for the people, made by the people and answerable to the people,”- and clinched his argument for the dependence of popular government on nationhood with the memorable and sonor‘ous coda, “Liberty and union, one and inseparable, now and forever.” These later passages of his argument have almost monopolized the attention of historiansof politicalthought. Yet it is in an earlier and longer part that he- developed the Hamiltonian thrust, looking not to the origins butto the purpose of government. These initial passages of the debate had not yet focused on the problems of authority and nullification. The question was rather. what to do with a great na- tional resource—the public domain, already consisting of hundreds of millions of acres located in the states and territories and owned by the federal government. Large tracts had been used to finance internal improvements—such as roads, canals, and schools—mas envi— sioned by Hamilton and ardently espoused by the previous President, John Quincy Adams.20 ' ' When Webster defended such uses, citing the long-standing agree- 1 0 Introduction ment that the public domain was for “the common benefit of all the States,” Hayne made a revealing reply.- If that was the rule, said he, how could one justify “voting away immense bodies of these lands— for canals in Indiana and Illinois, to the Louisville and Portland Canal, to Kenyon College in Ohio, to Schools for the Deaf and Dumb.” “If grants of this character,” he continued, “can fairly be considered as made for the common benefit of all the states, it can only be because all the states are interested in the welfare of each—a principle, which, carried to the full extent, destroys all distinction between local and national subjects.”21 ' Webster seized the objection and set out to'answer it. His task was to show when a resource belonging to the Whole country could legitimately be used to support works on “particular roads, particu- lar canals, particular rivers, and particular institutions Of education in the West.” Calling this question “the real and Wide difference in political opinion between the honorable gentleman and myself,” he asserted that there was a “common good” distinguishable from “local goods,” yet embracing such particular projects. Senator Hayne, he said, “may well ask what interest has South Carolina in a canal in Ohio. On his system, it is true, she has no interest. On that system, Ohio and Carolina are different governments and different countries . . . On that system, Carolina has no more interest in a canal in Ohio than in Mexico.” For Webster, reasoning from the national theory, on the contrary, “Carolina and Ohio are parts of the same country, states, united under 'the same general government, having interests, common, associated, intermingled.”22 In these passages the rhetoric is suggestive, but one would like a more specific answer: what is the difference between a local and a general gobd? Suddenly Webster’s discourse becomes quite Concrete. His approach is to show What the federal government must do by demonstrating what the states cannot do. Using the development of transportation after the peace of 1:815 for illustration, he shows why a particular project within a state, which also has substantial benefits for other states, will for that very reasOn probably not be undertaken by the state within which it is located. ' ' “Take the instance of the Delaware breakwater,”’he said. (This was a large artificial harbor then under federal construction near the The National Idea in American Politics 11 mouth 'of Delaware Bay.)23 “It will cost several millions of money. ' Would Pennsylvania ever have constructed it? Certainly never, . . . because it is not for her sole benefit. Would Pennsylvania, New Jersey and Delaware have united to accomplish it at their joint expense? Certainly not, for the same reason. It could not be done, therefore, but by the general government.”24 The example illustrates a standard argument of political economy for centralization. Where the effects of government activity within one jurisdiction spill over into other jurisdictions, there is a case for central intervention to promote this activity, if it is beneficial, or to restrain it, if it is harmful. This spillover argument is one criterion of the “common good,” and, as Webster pointed out, its logic calls for action in such cases by the government representing the whble country. J - ‘ = Hayne was right to shrink from the logic of this argument. FOr its logic does mean that in a rapidly deve10ping economy such as that of America in the nineteenth century, increasing interdependence would bring more and more matters legitimately within the province of the federal government. But logic was not the only aspect of Webster’s argument that Hayne was resisting. In the spirit of Ham- ilton, ,Webster did perceive the prospect of increasing interdepend- ence and recognized that it could fully realize its promise of wealth and power only with the assistance of the federal government. More- over, he looked beyond the merely material benefits that such inter- vention would bring to individuals, classes,and regions toward his grand objective, “the consolidation of the union?” This further criterion of the common good could under no circumstances be reconciled with Hayne’s “system.” Like Hamilton, Webster sought to make the nation more of a nation. As he conceived this objective, however,'turning his imagina— tion toward the vistas of social possibility being opened by the rising romantic movement of his day, he portrayed far more perceptively than-the Federalists the power of sympathy as well as interests to unite the nation. By “consolidation” Webster did not mean only attachment to the union arising from economic benefits. Indeed, be blamed Hayne for regarding the union “as a mere question of pres- ent and temporary expedience; nothing more than a mere matter of 12 Introduction profit and loss . . . to be preserved, while it suits local and temporary purposes to preserve it; and to be sunderedwhene'ver it shall be found to thwart such purposes.”26 The language brings to mind the imagery of another romantic nationalist, Edmund Burke, when in his famous assault upon the dry rationalism of the eighteenth century he proclaimed that “the state ought not to be considered as nothing better than a partnership agreement in a trade of pepper and coffee, calico or tobacco, or some other such low concern, to be taken up for a little temporary interest, and to be dissolved at the fancy of the parties,” but rather as “a partnership in all science; a partnership in all art; a partnership in every virtue, and in all perfection?” , Setting forth his conception of the nation in a later formulation, Webster echoed Burke’s words and phrasing even more exactly: “The Union,” he said, “is not a temporary partnership of states. It is an association of people, under a constitution of government, uniting their power, joining together their highest interests, cementing their present enjoyments, and blending into one indivisible mass, all their hopes for the future.”28 For Webster as for Burke, the nation was held together not only by calculations of self—interest, but also by sentiments of “public affection.” . Webster articulated this conception most vividly not in Congress or before the Supreme Court but at public gatherings on patriotic occasions. There the constraints of a professional and adversarial audience upon his imagination were relaxed and his powers as a myth—maker released. Consider what some call the finest of— his occa- sional addresses,29 his speech at the laying of the cornerstone of the Bunker Hill Monument on June 17, 182 5. As in his advocacy and in his debates, his theme was the union. What he did, however, was not to make an argument for the union but to tell a story about it—a story about its past with a lesson for its future.30 The plot was simple: how American union foiled the British op— pressors in 177 5. They had thought to divide and conquer, anticipat- ing that the other colonies would be cowed by the severity of the punishment visited on Massachusetts and that the other seaports would be seduced by the prospect of gain from trade diverted from Boston. “How miserably such reasoners deceived themselves!” ex- The National Idea in American Politics 13 claimed the orator. “Everywhere the unworthy boon was rejected‘ with scorn. The fortunate occasion was seized, everywhere, to show to the whole world that the Colonies were swayed by no local interest, no partial interest, no selfish interest.” In the imagery of Webster, the battle of Bunker Hill was. a-‘metaphor of that united people. As Warren, Prescott, Putnam, and Stark had fought side by side; as the four colonies of New England had on that day stood together with “one cause, one country, one heart”; so also “the \. feeling of resistance . . . possessed the whole American people.” So much for'Calhoun and his “system”! From this myth of war Webster drew a lesson for peace. “In a day. of peace, let us advance the arts of peace and the works of peace . . . Let us develop the resources of our land, call forth its powers, build up its institutions, and see whether we also,.in our day and genera— tion,'may not perform something worthy to be remembered.” ' With his Own matchless sensibility Abraham Lincoln deployed the doctrine and imagery of Webster to animate the North during the Civil War. In his message to Congress of July 4, 186 I, Lincoln justified his use of the “war power” of the federal government to put down the rebellion in a lucid and uncompromising version of the nationalist Viewuof the origins of__ the Republic: Originally some dependent colonies made the Union, and, in turn, the _ Union threw off their old dependence for them, and made them States . . . The Union, and not themselves separately, produced their indepen—H dence and liberty. By conquest or purchase the Unidn gave to each of them Whatever independence or liberty it has, The Union is older than any of the States, and, in fact, it created them as States.31 ' 1 From this it followed that “the States have their status in the Union, and they have no other legal status. If they break from this, they can only do so against the law and by revolution.” There could therefore be no constitutional right of secession, nullification, inter- position, or, indeed, of What was called not many years ago “massive resistance” by any one or- morestates. Short of revolution, as he had said in his first inaugural address, states, like individuals, must rely on the democratic process under the Constitution for the protection of their rights. “A majority held in restraint by constitutional checks 14 Introduction and limitations, and always changing easily with deliberate changes of popular opinions and sentiments,” he concluded in a memorable formulation, “is the only true sovereign of a free people.” That people, in short, was not only the sovereign authority which gave both states and nation a frame of government in the Censtitution, it was also the authority which went on to govern them under that framework.32 No-less for Lincoln than for his nationalist predecessors the na— tional idea was also a perspective on public policy. In the same message of July 4, 186I, to Congress he further justified his use of the war power in this statement of purpose: ' This is essentially a people’s contest. On the side of the Union it is a struggle for maintaining in the world that form and substance of government whose leading object is to elevate the condition of man— to lift artificial weights from all shoulders; to clear paths of laudable pursuit for all; to afford all an unfettered start, and a fair chance in the race of life.33 If this purpose were to be realized for “all” the nation, it was not enough simply to defeat secession. Positive steps had to be taken for “a new birth of freedom.” During the very war years Lincoln not only gave slavery the death blow; as the heir of the Hamiltonian vision of commercial and induStr'ial development, :he also presided over the enactment of federal intervention in the “fields of banking and currency, transportation, the tariff, land grants to homesteaders, and aid-to higher educations”:4 ' ' . In seeking to legitiinize secession, Jefferson Davis replied with a forceful statement of compact theory. Like Lincoln, he identified the source of the Constitution’s authority byra view of its origins. The federal government, he said, was not established directly by the people of the United States but by a compact among the several states. Under the Constitution, which sets forth the terms of this compact, as under the: “close alliance.” and “Confederation” among the rebellious colonies, “each state,” he argued, “was, in the last resort, the sole 'judge as well of its wrongs as of the mode and measure of redress.” For these reasons the nature of the Constitution itself justified the snuthern states, when, provoked by the northern The National Idea in American Politics 15 states’ “persistent abuse of the powers . .' . delegated to Congress,” 1 they resumed “all their rights as sovereign and independent States and dissolved their connection with the other States of the Union.”35 President Davis did not contend that no power to impose customs duties on imports had been vested in Congress by the Constitution. Relying on the compact theory, he charged that the Congress had abused its constitutional authority. The power to impose custom duties, he claimed, could properly be used only for revenue, not for protection. The northern states, however, exploiting their preponder- ance in Congress, had put through a protective tariff, which enriched their commercial and (manufacturing classes at the expense of the ' agricultural South. By “the tyranny of an unbridled majority,” they had invaded the “constitutional liberties” which the fundamental law, if prpperly construed, would protect. Finally, they had attacked interests of “transcendent magnitude” by “impairing the security of property in African slaves,” whOSe labor had become“absolutely necessary for the wants of civilized man.” In the eyes of the South,_the stakes were not only self—government, feasible only in a decentralized system, but also individual liberty, economic well-being, and civilization itself. For Jefferson Davis as for Abraham Lincoln, these wider perspectives gave meaning to the law of American federalism, lending it legitimacy, resolving its ambigu- ities, defining its purpose,rand arousing passions that raised armies and sustained them at great sacrifice by soldiers and civilians through four years of war. ' The Impact of Indystrt'alism The Lincolnian program set the course of national development for the next several generations. An enormous expansion of the econ— omy propelled America into the age of industrialism, which in due course engendered its typical problems of deprivation, inequality, and class conflict. ' A Republican, Theodore Roosevelt, first attempted to cope With these problems in terms of the national idea. Throughout his public career, an associate has written, Roosevelt “kept one steady purpose, the solidarity, the essential unity of our country . . . All the details 'of 16 . Introduction his action, the specific policies he stated, arise from his underlying purpose for the Union.” Like other progressives, Roosevelt was disturbed by the rising conflicts between groups and classes and sought to offset them by timely reform. In this sense integration was TR’s guiding aim, and he rightly christened his cause “The New Nationalism.” Effective advocacy of this cause, however, fell to an— other Roosevelt a generation later, when the failings of industrialism were raising far greater dangers to the union. None of the main points in Franklin Roosevelt’s famous inaugural address of March 4, 1933, can be summarized without reference to the nation. The emergency is national because of the “interdepend— ence of the various elements in, and parts of, the United States.” Our purpose must be, first, “the establishment'v‘of a sound national econ— omy” and beyond that “the assurance of a rounded and permanent national life.” The mode of action must be national, conducted by the federal government and carried out “on a national scale,” helped “by national planning.” No other thematic term faintly rivals the term “nation” as noun or adjective in emphasis. Democracy is men— tioned only once; liberty, equality, or the individual not at ails"6 Franklin Roosevelt’s nationalism was threefold. First it was a' doctrine of federal centralization, and in his administration, in peace as well as war, the balance of power in the federal system swung sharply toward Washington. Second, Roosevelt called not only for a centralization of government but also for a nationalization of poli— tics. In these years a new kind of mass politics arose. The old rustic and sectional politics gave way to a new urban and class politics dividing electoral forces on a nationwide basis.” The third aspect of Roosevelt’s nationalism was expressed in his policies. Those policies do not make a neat package and include many false starts and failures and ad hoc eXpedients. Yet in their overall impact one can detect the old purpose of “consolidation of the union.” During the very first phase of the New Deal, based on the National Industrial Recovery Act, this goal was explicit. In its declaration of policy, the act, having declared a “national emergency,” called for “cooperative action among trade groups” and “united action of labor and management” under “adequate government sanctions and The National Idea in American Politics 17 supervision.”8 Engulfed in red, white, and blue propaganda, the NRA, after a first brief success, failed to achieve that coordinated effort and had virtually collapsed by the time it was declared uncon— stitutional in r 9 3 5. The second New Deal which followed, however, brought about fundamental and lasting changes in the structure of the American government and economy. The paradox of the second New Deal isthat although at the time it was intensely divisive, in the end it enhanced national solidarity. The divisiveness will be readily granted by anyone who remembers the campaign of I93 6. The tone was set by Roosevelt’s speech accepting the Democratic nomination. In swollen and abrasive hy— perbole he promised that, just as 1776 had wiped out “political tyranny,” so 19 36 would bring “economic tyranny” to an end. The “economic royalist” metaphor that was launched into the political battle by this speech expressed the emerging purpose of the'New Deal to create a new balance of power in the economy by means of a series of basic structural reforms.39 The Wagner Act was the most important and characteristic. Utilizing its protections of the right to organize and to bargain collectively, trade unions swept through industry in a massive organizing effort. Despite bitter and sometimes bloody resistance in what can only be called class war, over the years not only practices but also attitudes were altered. The life of the working stiff was never again the same. The Rooseveltian reforms expressed a “politics of civic inclu— sion.”40 In their material aspect they brought about a distribution of benefits and a redistribution of power in favor of certain groups. No less important was their symbolic significance as recognition of the full participation of these groups in the common life of the nation. Industrial labor and recent immigrants won a degree of acceptance in the national consciousness and in everyday social intercourse that they had not previously enjoyed. In Roosevelt’s appointments to the judiciary, Catholics and Jews were. recognized as never before. He named the first Italo-American and the first blacks ever appointed to the federal bench. As Joseph Alsop has observed, “the essence of his achievement” was that he “included the excluded.”‘11 “Remember, remember always,” he reminded the DAR, “that all of us . .. . are descended from immigrants and revolutionists.” 1 8 Introduction By this time, a great switch in the attitude of the political parties toward federalism had taken place. The conservatives, who under the names of Federalist, Whig, and Republican had been partisans of national activism, took up the cause of the old Democrats, who from the days of Jefferson had espoused states’ rights. The Challenge of Racism None of these conflicts in nation—building is ever wholly terminated. Sectionalism still flares up from time to time, as between frostbelt and sunbelt. So also does class struggle. Similarly today, the cleavages between ethnic groups that boiled up with a new bitterness in the 19605 are far from being resolved. In this nation of immigrants, “ethnicity” has been an old and fundamental feature of our politics. In the sixties the new word came into use to signify new facts as ethnic identity gained as a ground of claims and denials. “From the mid-sixties,” one writer has reported, “. . . the ethnic identity began to gain on the general American identity. Indeed the very term ‘American’ became depreciated in the late 1960’s.“2 Once again the question whether we were one nation and one people was put in doubt. - The issue is not just ethnicity but race. To be sure, ethnic pluralism is a fact—there are said to be ninety-two ethnic groups- in the New York area alonew—but this broad focus obscures the burning issue, which is the coexistence of blacks and whites in large numbers on both sides. That question of numbers is crucial. In other times and places one can find instances of a small number of one race living in relative peace in a society composed overwhelmingly of the other race. “Tokenism” is viable. But the facts rule out that solution for the United States. So also does the national idea; What we are attempting under its imperatives has never been attempted by any country at any time. It is to create within a liberal, democratic framework a society in which a vast number of both black and white people live in free and equal intercourse, political, economic, and social. It is a unique, a stupendOus demand, but the‘national idea asks nothing less. For John F. Kennedy and Lyndon Johnson, the question was, first The National Idea in American Politics 19 of all, civil rights. This meant securing for blacks the legal and' political rights that had been won for whites in other generations. But the problem of civil rights, which was mainly a problem of the South, merged with the problem of black deprivation, which was especially a problem of northern cities. Johnson’s “poverty program” typified the main thrust of the Great Society measures which‘he built on the initiatives of Kennedy. To think of these measures as con—' cerned simply with-“the poor” is to miss the point. The actual- incidence of poverty meant that their main concern would be with the living conditions and opportunities of blacks, and especially those who populated the decaying areas of the great urban centers swollen by migration from the South to the North during and after World War II.43 ‘ These programs were based on the recognition that membership in one ethnic group rather than another can make a great difference to yOur life chances. In trying to make the opportunities somewhat less unequal, they sought to bring the individuals belonging to dis- advantaged groupsmas was often said—“into the mainstream of American life.” The rhetoric of one of Johnson’s most impassioned Speeches echoes this purpose. Only a few days after a Civil rights march led by Martin Luther King had been broken up by state troopers in full view of national television, he introduced the Voting Rights Act of I96 5 intoCongress. Calling upon the myths of former wars, like other nationalist orators before him, he harked back to Lexington and Concord and to AppOmattox Court House in his summons to national effort. ' - “What happened in Selma,” he continued, “is part of a larger movement which reaches into every section and state of America. It is the effort of American Negroes to secure for themselves the full blessings of- American life.” Then, declaring that “their cause must be our cause too,” he closed with a solemn echo of the song of the marchers: “And . . . we . . . shall . . . overcome?“- From the defeat of “massive resistance” mounted by the advocates of states’ rights to the many victories for civil rights on the legal front, the effort of this new federalism to consolidate the union has made substantial progress. Still, no one would 'say that our state- craft—poverty programs, affirmative action, busing—has been ade-' 20 Introduction quate to the objective. Indeed, the very basis of that statecraft in our political culture has come under attack. In the name of “multi— culturalism,” activists claiming to speak for black and other ethnic groups have revived the ideal of segregation in a new form. In their rhetoric the metaphor of the “melting pot,” in which the various ethnic identities are assimilated into an American identity, is rejected in favor of a “mosaic society” in which old identities are preserved and made central to the social, economic, and political life of those sharing them. “Instead of a nation composed of individuals making their own free choices,” writes Arthur Schlesinger, Jr., “America increasingly sees itself as composed of groups more or less indelible in their-ethnic character. The national ideal had once been 3 pluribus unum. Are we now to belittle unum and glorify pluribus? Will the center hold? Or will the melting pot yield to the Tower of Babel? “45 Federalism and Political Theory so much for a brief sketch of the fortunes of the national idea in American political history. What is the connection of this idea with our federal arrangements? Intrinsic to this way of looking at democratic nationalism in Amer- ica is a theory of federalism. This theory is about the division of authority between the federal and the state governments and about the purposes which this distribution of power is expected to serve. It is a theory in'the sense that it is a coherent body of thought describ- ing and justifying the federal system in the light of certain fundamen— tal principles. These are the principles of democracy and nationality on which the Constitution as a whole is based. The thrust of my argument is that this curious arrangement of a constitutionally pro- tected vertical division of power is an intentional and functional institution—not an historical accident or the upshot of mere compro- mise—of the self-governing American people as they seek over time to make and remake themselves as a nation. The significance of this theory as a choice among possible regimes is brought out by the contrast with compact theory. From the view- point of compact theory, federalism and nationalism, the states and the nation, are opposed. This is opposition in a quite fundamental sense: not merely a conflict between state government and federal The National Idea in American Politics 2.1 government but between state and nation as political communities. For, if the center of political life is in each of the separate states of the nation, it cannot be in the nation as a whole. Or, to put the matter even more bluntly, in so far as the compact model is a correct description, the true nation in America is not the United States but the separate states of which it is composed. We are not one people but several. Radically different conclusions follow from the Opposing view of the location of our nationality, the source of our democracy, and the function of the federal—state division of authority. In contrast with compact theory, national theory takes a far more generous view of the powers and responsibilities of the federal government. Through- out our history, it has informed and supported the broad against-the narrow construction of the constitutional power of the federal gov- ernment. National theory, however, is not merely a doctrine of cen- tralization. As its advocates at the time of the founding continually emphasized, the national point of view not only tolerates but indeed requires a federal arrangement. ' . In this conception the American republic is one nation served by two levels of government, the object of both being to protect and advance the well—being of the nation. The'states are not rival com- munities carved out of the greater jurisdiction which, although they are incapable of real material or moral independence, seek to act on an exclusive and inward—looking concern for their distinct interests. Like the federal government, state governments also express the national will. The nation can use both levels or either level of gov— ernment to make itself more of a nation: that is, to make the United States a freer, wealthier, more powerful,'and indeed more virtuous human community. Federalism is not a humdrum matter of public administration but a serious question of political philosophy. The conflict of ideas on federalism between the conservative President and liberal professors illustrates the point. It also calls for further inquiry. The task of this book, accordingly, is to clarify and amplify the national theory of American, federalism. Its approach is through the history of ideas. That means looking at intellectual origins, primarily how the leading minds at the time of the founding of the American republic explained what they were trying to do, with particular attention to the topic of 22 ‘ Introduction federalism. The thought of these advocates of popular government itself descended from a long and controversial past. If we are to get at the meaning of what they said and the significance of their choice, we will need to look at that past. ' The book has three parts. First, we shall look at the authoritarian and corporatist themes which dominated Western political thought in the centuries before the rise of modern republicanism. Nowadays the American founders are sometimes criticized for failing fully to appreciate and to institutionalize the values of contemporary liberal democracy. It should put these criticisms in context and reveal the radicalism and audacity of the founders when wesee the profound depth of their departure from the old hierarchic tradition which, although greatly weakened, still informed British rule at home and in the colonies. The chapter on Aquinas should convey something of the imaginative scope and intellectual power of that tradition against which republican thought rebelled and in contrast with which it defined itself. For access to the thought of the precursors of the American upris— ing against the hierarchic tradition and to the republican mind which had originally broken with that mentality, we shall turn to the spokesmen of the failed republican revolution of the English seven- teenth century, the Commonwealth. In these writers, and especially James Harrington, we shall find not only the individualistic, demo- cratic, and national premises of republican thought but also the embodiment of these values in institutions of constitutional, repre- sentative, and federal government strikingly like those championed by the American leaders of 1787. ' In the second part of the book, we pass from these contrasts and comparisons to the reassertion of many of the essentials of Common- wealth republicanism by the colonists in their criticism of British rule and their proposals for reform. The purpose of this cornparison of similars is not mainly to show influence. It is rather to explore the implications of the premises of republican thought as they were ever more forcefully asserted in the demands of the American dissidents. These developing ideas reached a logical conclusion in 1776 when Tom Paine drew up his ultimatum demanding an independent, na— tional, and distinctly federal republic. The National Idea in American Politics 23 Part three presents the conception of the national and federal republic which won its substantial victory with the framing and ratification of the Constitution. This formulation of national theory is found chiefly in what was said and written by Madison and Hamilton, strengthened by James Wilson’s elaboration. Again the national view is clarified by the contrast with compact theory which, as expounded by Montesquieu, was advanced by the opponents of the Constitution. ' One may well ask why it is necessary to go to all this trouble of looking into history in search of theory when we already have 'at hand the authoritative document which ordains the federal—state allocation of power. The reason is that the Constitution, for all its splendid eighteenth—century lucidity, displays much blank space". Whether one is trying to say what is the law of American federalism or what is the proper use to be made of that law, one can hardly arrive at an unambiguous conclusion without explicitly or implicitly- supplementing the argument by drawing on a framework of theory. American-federalism is. at once a system of law and a structure of power. It has both a juristic and a behavioral aspect.'As a system of law, it is a- government in which the allocation of authority between levels is secured bysome exceptional legal protection.46 That last point is the crux. Federalism is not mere decentralization, even where ‘ decentralization is substantial and persistent. Any polity except the very smallest will have territorial subdivisions. In a unitary system the bodies-governing these subdivisions will receive their authority- from the ordinary statutory law of the central government. The distinctive thing about a federal system is thatthe authority of these bodies is .assured by a law which is superior to the statutory law- of the center and which indeed is also the source of authority of that law. Decentralization is constitutional, not merely statutory. That is, as in the United States, the division of authority between the two levels of government is set out in a legal document which can be amended only by a process of consent wider than and different from the process required for the ordinary statutory law of the central government. ' 7 ‘ By themselves,‘ the words of this legal source, the Constitution, do not tell us what the law is. Our verbal federalism does not unambig— 24 Introduction uously determine our juristic federalism. A classic example is that fundamental controversy over the meaning of the “necessary and proper” clause. As we have seen, the Hamiltonian reading won out only with the aid of the national theory of authority and purpose. But even when the words have been given a clear legal meaning, the result, our juristic federalism, still leaves open the question of how governments will actually use these constitutionally legal pow- ers. As a structure of power, American federalism is this actual- pattern of use of constitutional authority by the governments of different levels. The law of the Constitution, even when clearly determined, however, does not say‘ Whether or how far that authority should be exercised. Our juristic federalism does not unambiguously determine our behavioral federalism. With regard to the federal—state allocation of authority, peOple may agree on the same “juridical map,” to use Harry Scheiber’s graphic phrase, yet strongly differ on the actual extent of power that may be legitimately exercised under its authorization. Jefferson Davis, as we observed, did not deny the power of Congress to levy custom duties. Construing-those powers, however, in the light of-the compact theory, he found the protective tariff so illegitimate and obnoxious as to support the case for seces‘ sion. "A government may or may not use its duly. authorized powers. They may lie dormant for years, only to be revived with-“transform- ing effect. For instance, the power conferred on Congress by the Constitution to spend for-“the general welfare” was-recognized by Alexander Hamilton and other worthies of the early republic.47 It was-not greatly used, however, until the twentieth century when, thanks especially to programs inaugurated by the Great Society, federal grants in aid to state and local governments brought about a rapid and marked centralization of power. Without a significant change in our juristic federalism, a “new federalism” in the behav- ioral sense came into existence.48 A generation later, President Reagan proclaimed another “new federalism,” although in a sense opposite to the “new federalism” of the johnson years. By a reduction of intergovernmental aid, he achieved a significantshift in the federal—state balance of power.49 Accepting much the same juristic federalism but calling upon two The National Idea in American Politics 25 opposing strands of theory, the two Presidents found the rhetoric to legitimate two different patterns of power and policy. Whether one tries to think about federalism or to do something about it, one cannot avoid acting on theory. It would seem reason- able, therefore, to try to state that theory as clearly and fully as possible. The excursion into history of ideas attempted in this book is intended to be a help in this task. This reconstruction of nationalist thought presents, I believe, a past which is usable today, while re- maining faithful to that past as it actually was. ...
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Beer1994 - TO MAKE A NATION ‘ The Re-disCOVery of...

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