The Founders' Design · Lesson 5 of 7
Few and Defined: The Federal Design
The founders did not create one all-powerful government. They created two layers, and they listed what the national one was allowed to do.
The Constitution was written to fix a government that had failed. Under the Articles of Confederation, ratified in 1781, the national Congress could not collect taxes, could not regulate trade between the states and could barely act without near-unanimous agreement. When farmers in western Massachusetts rose in Shays’ Rebellion in 1786 and 1787, many leaders concluded the country needed a stronger center.
But they did not want to trade one tyranny for another. The design they reached is called federalism: a national government with real but limited powers, and states that keep the rest.
A List, Not a Blank Check
Article I, Section 8 lists what Congress may do: lay and collect taxes, borrow money, regulate commerce with foreign nations and among the states, coin money, establish post offices, declare war, raise armies, and a handful more, ending with the power to make laws necessary and proper for carrying the listed powers into effect.
The point of a list is what it leaves out. Madison explained the plan to skeptical readers in plain terms.
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.
The Supreme Law of the Land
Limited does not mean weak. Where the national government acts within its powers, it wins. Article VI says so directly.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.
The phrase that carries the weight is in pursuance thereof. Federal law is supreme when it is made under the Constitution. The same article requires state officials and judges to swear an oath to support the Constitution, binding both layers to one higher law.
The Tenth Amendment
Many Americans wanted the federal design written down in so many words. The Tenth Amendment, ratified in 1791 with the rest of the Bill of Rights, did exactly that.
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.
Note the final words: or to the people. The reserve does not belong only to state governments. Some powers belong to no government at all.
Two Layers of Protection
Madison saw the two layers as a safeguard for liberty. In Federalist No. 51 he described a double security: power is divided between two distinct governments, and then divided again among separate branches within each.
In daily life, the result is that most of the law you meet is state law. Contracts, property, family matters, most crimes, traffic stops and landlord disputes are mainly governed by your state. Federal law sets the outer frame and the guarantees that apply everywhere. Knowing which layer governs a question is often the first step in understanding it.
Sources
Every quotation in this lesson is from a primary source. The founding documents are published by the National Archives; the Federalist Papers and the founders' letters are in the public record.
- The Articles of Confederation (1781)
- The Constitution of the United States (1787): Article I, Section 8; Article VI
- The Tenth Amendment (1791)
- James Madison, Federalist No. 45 and No. 51 (1788)
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