Winners and Losers, Then and Now
By J. Budziszewski, April 28, 2010 in Outside the Classroom

Americans are often said to be obsessed with their Constitution.  So be it.  Another old saw is that history is written by the winners.  That one is not so benign.  For all we know, the losers might have been partly right.  I think they were.

MadisonOf which winners and losers am I thinking?  Let it be confessed at the outset that James Madison is one of my heroes.  I hold Federalist #10, #51, #62, and #63 among the greatest of all works of political theory, and consider the opposing theories of "simple" and "efficient" government painfully naïve.  Madison's reasoning about virtues, interests, and passions; about factions, separation of powers, and checks and balances; about the perils of majority tyranny and the dangers of excessive legislation—all these things have deeply influenced my thought and my teaching.  I might add that the careless ad hominems that people who ought to know better cast against the Founding generation shock me in their dishonesty, and that the blithe way in which even people who appeal to the American Founding distort and misrepresent its principles scandalizes me. 

These views might seem to make me a Federalist.  Yet I find myself mourning the fall of the Anti-Federalists, who won for the nation the Bill of Rights but utterly failed to achieve their greater goal.

A pro-Federalist American historian once ridiculed the Anti-Federalists as "men of little vision" because of their fear that an ever-expanding central government would swallow up the powers of the states.  I confess that I have never understood why this fear of theirs should be counted against them.  If the historian's criticism was that they were wrong to predict such an outcome, then it is absurd, for the prediction has plainly come true.  If it was that they were wrong to dread such an outcome, then it is still hard to fathom, for the central government is now far more powerful than even the Federalists desired it to be.  When Congress contemplates a law, making rules about P in hopes of achieving result Q, few citizens ask any longer whether making rules about P really would bring about Q; fewer still worry about whether making rules about P is one of the things the Constitution allows Congress to do; and almost none worry about the fact that passage of federal rules about P will annihilate state policies on the subject, reducing every region and locale to a bland uniformity.  Instead they ponder how nice it will be to have Q.

One way to think of the conflict between state and central power is to consider the strategies the federal government has used to magnify itself at the expense of the states.  Among other things it has monopolized the authority to declare what the Constitution means; ignored the original purpose of the Tenth Amendment: to protect the concept of a government of enumerated powers; and claimed the benefit of the doubt wherever the Constitution is ambiguous about the line between state and federal power.  When these gambits have failed, it has sometimes resorted to sheer force.  Today, however, the stick is hardly necessary, for an even more powerful instrument has been found in the carrot.  Since the passage of the Sixteenth Amendment in 1913, the federal income tax gives the federal government a much more powerful engine for raising revenue than any state government enjoys; the share of wealth taken by government taxes is many times what it was when the colonists went to war with King George over excessive taxation.  This fountain of dollars makes it much easier for the federal government to get the states to do things than it ever was before, not by issuing commands, but by offering financial incentives.  Do you want a national takeover of the health insurance system?  Of the financial industry?  Of the production of automobiles?  Would you like a national set of educational regulations, or a centrally-mandated straitjacket for welfare policy?  Does it annoy you that anybody, anywhere, at any time, does things differently than Washington wishes them done?  Fear no more; cash-hungry state and local governments find the lure of lucre irresistible.  For the ever-greater sway of the national government over the states in our century, the strategy of carrot and stick—combined, of course, with greed—probably bears a greater responsibility than all of the other strategies put together.  The federal government is not only vastly more powerful than the "men of little vision" desired; it is vastly more powerful than anyone in the Founding generation desired.

So it is that, admirer of James Madison though I be, nevertheless I mourn, I lament, I decry the downfall of his Anti-Federalist opponents.  Like Cato, who closed every speech to the Roman Senate by saying "Moreover, I am of the opinion that Carthage should be destroyed," I am tempted to close every lecture by saying "Moreover, I am of the opinion that the centralized administrative state should be dismantled."  But of course one must never say anything like that.

Tags: History, Political Science, American Founding, Federalist Debate, American Politics, Bureaucracy, Tax & Spend, American History, Early Republic (1789-1820), Bill of Rights, Alexander Hamilton, James Madison, US Constitution, The Founders, Federalism, State's Rights

Lee Trepanier on May 10, 2010 at 4:59 am

I wonder what you think about the resurrgence of states' rights rhetoric, such as in the Tea Party Movement, and whether it is a contemporary articulation of the concerns of the anti-Federalists. Although states' rights advocates used to be associated with segregation, they seem today to articulate a concern about the centralized administrative state, whether it is in health care or government bail-outs.

J. Budziszewski on May 10, 2010 at 8:00 am

The Tea Party people do resist some manifestations of the centralized administrative state. Let us hope that this turns out to be a principled rather than a selfish resistance, based on an intelligent distinction between the powers reasonably reserved for the sake of the common good to the state governments, and the powers reasonably delegated for the sake of the common good to the federal government. The temptation is to oppose breaches of the line of distinction when they help another group at the cost of one's own group, but support them when they help one's own group at the cost of someone else's group.

Another problem is that two different kinds of decisions are involved. One is which tasks government as such may undertake. After this has been decided, the other is which of the tasks should be undertaken at the state level and which at the federal. One could imagine a movement which merely opposed the centralized administrative state in favor of local administrative states. That would not be much of a gain.

Students tend to view the balance of state and federal power through the lens of the most recent crisis. Segregation was bad (true); it should have been brought to an end (true); what brought it to an end was federal power (true); therefore only federal power could have brought it to an end (non sequitur); therefore federal power is always good (another non sequitur).

Peter Haworth on May 13, 2010 at 10:37 pm

The problem, of course, is there is no real effective way to put the proverbial cat back in the bag once you begin allowing the federal government to transcend its constitutional boundaries. In allowing the federal government to encroach upon the states' Tenth Amendment Rights (such as their police powers) through using "convenient" and "loose" constitutional construction (e.g., tortured interpretations of the Fourteenth Amendment or laughable extensions of the Commerce Clause) for the sake of advancing the righteous ends, we have weakened the needed constitutional limitations on federal power aimed at abusive ends. This problem is further compounded by the fact that there is no real effective realization of the subsidiarity principle when it comes to exchanges of power between the federal and state levels; it is only a one-way transfer- i.e., the federal government doesn't seem to give it back after it has wrestled it away from the states. Subsidiarity would only be realized if there was a flexible transfer of power to the most efficient level; for many political and power-protecting reasons such flexibility does not occur.

Last updated on May 13, 2010 at 10:40 pm.
J. Budziszewski on May 14, 2010 at 10:15 am

Yes, I agree. Even more distressing is that the EU gives lip service to subsidiarity in the same way that we give lip service to federalism.

about the author

J. Budziszewski
J. Budziszewski

Dr. Budziszewski (Ph.D. Yale, 1981) is a professor in the Departments of Government and Philosophy at the University of Texas at Austin.  An authority on natural law, he is especially interested in moral self-deception -- how we tell ourselves that we don't know what we really do.  He also studies problems that arise at the four-way intersection of political and ethical philosophy and theology, for example the status of natural law in Christianity, Judaism, and Islam; the relation between faith and reason; the problem of religious toleration; the incoherence of liberal "neutrality"; and whether the old saw that civil society is more secure on the "law but solid" ground of selfishness than on civic virtue is true or false (can we really have a better government than we deserve?).

Author of numerous articles in both scholarly and popular periodicals, Dr. Budziszewski also has numerous books to his credit, including Written on the Heart: The Case for Natural Law (1997, winner of a 1998 book award from Christianity Today), The Revenge of Conscience: Politics and the Fall of Man (1999), What We Can't Not Know: A Guide (2003), Evangelicals in the Public Square (2006), and The Line Through the Heart: Natural Law as Fact, Theory, and Sign of Contradiction (2009). His newest work, On the Meaning of Sex, will be published in November 2011 by ISI Books.