My focus is James Madison’s reflections upon federalism in the months prior to the Federal Convention in Philadelphia. My premise is that we can gain valuable insights into the origin of the American idea of federalism by examining this seminal framer’s thoughts on the subject as he prepared for the Convention in the summer of 1787. But before turning to Madison, it may be useful to remind ourselves about the overarching historical and intellectual context of thinking about federalism in the Founding Period.
Arguably there were two major aims of the American Framers in this period: first, to establish constitutional government compatible with the requirements of republicanism, and second, the creation of constitutional government consistent with the principle of federalism. No doubt they discovered a complex relation between republicanism and federalism, but of the two goals I would submit that the imperative toward federalism was the tougher of the two tasks. The reason is that the Americans already had a respectable prototype for republican separation of powers in an admittedly idealized version of the British Constitution. With respect to federalism, however, the source material for Americans was more arcane and the benefits less tangible.
In some sense, federalism in America was simply the inevitable product of the British imperial structure in North America. Distinct autonomous polities on the periphery bound to the center in a complex legal arrangement was as much a part of the American inheritance from the British Empire as constitutional monarchy. But even if the practical reality of federalism was impossible to ignore, thinking about federalism was still quite rudimentary in colonial America. Apart from Ben Franklin’s Albany Plan of Union from 1754 and Tom Paine’s outline of a colonial charter in the closing section of Common Sense, there was not a great deal of sophisticated federal theory for Madison to ruminate on. The great exception of course was Montesquieu, who offered some historical reflection on confederacies in Book 9 of his magisterial Spirit of the Laws. But for Montesquieu, confederacy had only ever really been thought of as a form of collective security among small ancient city-states. My point is that prior to the 1786-87 period the only actual model of federalism available to Madison was as an inheritance of British imperialism more or less crystalized in the highly de-centralized, and by then clearly struggling, Articles of Confederation.
Madison’s research on the history and practice of federalism was the pivotal moment in the evolution of American federalism. While Madison never really doubted that anything but a federal system of government would be adopted in the United States, it was during his preparation and reading for the Convention that he thought more deeply about the range of federal possibilities, than perhaps any other figure at the time. During the course of 1786 and early 1787, James Madison wrote a series of short, reflective papers based upon his historical research and his assessment of the American political experience under the Articles of Confederation. The writings I want to focus on are Madison’s “Notes on Ancient and Modern Confederacies” from the spring of 1786, as well as his “Vices of the Political System of the United States” and his Letter to George Washington both dating to the spring of 1787. The questions Madison grappled with in this period get to the heart of the complex relation between federalism and the Founding: Is federalism simply a necessary evil—a legacy of imperial governance—or is there a deeper philosophical commitment to an idea of political liberty only possible in the vestigial small republic? In addition, can the principle of federalism be integrated into a republican separation of powers, and are there advantages to doing so not available to a unitary republican government? These questions were to guide Madison’s studies at that time.
In “Ancient and Modern Confederacies,” Madison reflected upon a broad survey of historical examples of confederated polities. This research served both as an instrument of critique towards the existing Articles, but also as the blueprint for a positive vision of a distinctively American version of federalism. Among the several confederacies he considered three stand out: the Lycian Confederacy, the Amphyctionic League, and the Dutch or Belgic Confederacy. The Lycian Confederacy of cities of ancient southern Turkey is most notable as Montesquieu’s preferred choice for a confederacy. It had a relatively strong central government in which representation was based on a city’s size and wealth. Smaller cities were not truly self-governing because their administration was appointed by general authority. This would be the equivalent of the government of Massachusetts or Virginia having more to do with the election of the governor of Delaware than the people of Delaware themselves. Madison was critical of the Lycian model arguing that it is not really a federal republic at all because a proper federal system requires at least a minimal degree of self-government for its constituent parts. With this, Madison signified his indebtedness to, but also his break from, Montesquieu.
The Amphictyonic League was a defensive alliance centered in the ancient Greek city of Delphi, and each city was represented equally with two votes in the League Council. While the League had no system of uniform legislation, it did go beyond the American Articles of Confederation by providing for a centralized military force capable of exercising coercive power against the member cities. Madison judged that despite its official commitment to equality of members, the Amphictyonic League suffered from functional inequality as big cities bullied smaller cities given that delegates were directly tied to their home city and could not be impartial. Also, the military alliance failed because in reality the members were not willing to defend each other. If the Lycian Confederacy was inadequate because it gave up on the ideal of federalism, then we could say that the Amphictyonic League failed because while retaining federalism, it was not effective.
The major modern confederacy that Madison considered was the United Dutch Provinces created by the Treaty of Utrecht in 1579. The nine provinces formed a national States-General in which each province had one vote and the terms of office of representatives was determined by the government of the home province. The Grand Pensioner of the largest province Holland served as a kind of unofficial Prime Minister. Each province retained its sovereignty except with respect to declaring war and peace, establishing treaties, or imposing duties on trade with other provinces. Any measures of general taxation required unanimous approval of all provinces, and any amendment to the Constitution also required unanimity. Madison adjudged that unlike the Lycian Confederacy, the United Provinces had proven to be an effective military alliance against France. The real source of strength, however, lies in the office of the Stadtholder who is not a King, but a hereditary prince attached to the House of Orange and a military commander with immense prerogatives who is crucially not attached to any particular city’s delegation. Madison assessed that the stadtholder is effective, but hereditary office is incompatible with American republicanism. His main take away from the Dutch example is that the principal actor in the union must have a sense of agency independent from the Union—so the question is how to achieve this independent agency and still be republican? The second lesson from the Stadtholder example is Madison’s conclusion that there must be a national institution that can make the interests of the Union felt within each unit of the federation.
From comparative historical study, Madison later turned to critical analysis of the American experience of federalism with the Articles of Confederation. In the spring of 1787, Madison penned his “Vices of the Political System of the United States.” The parallel between this and his earlier historical study of confederacies is quite clear. The problems of the Articles are essentially the problem of confederacies as such. Madison listed a dozen or so major vices of the Articles but these reduce to three main kinds of flaws. There is the vice of performance failures according to which the state governments refuse to pay or delay in paying requisitions to the national government, and when the states frequently fail to honor treaties made by the United States. These are sins of omission. The second major kind of vices are encroachment failures by which the state governments are doing things they are not supposed to do, especially interfering with each other by imposing duties on trade. These are sins of commission. The third kind of vice are opportunity costs or things that could be done to benefit the entire country if only there was a functioning national government. The overarching themes of Madison’s criticism of the Articles related to the centrifugal forces in America, which he felt were even more powerful than in the Dutch United Provinces, and perhaps most importantly, his conclusion that the state governments have shown themselves to be largely unstable and unjust inasmuch as private rights are in danger in most of the American states in absence of a national government to defend them.
In his Letter to George Washington also written in April 1787 at the same time as he was composing the “Vices of the Political System of the United States,” Madison emphasized that another major vice of the Articles is that it was not ratified by the people in all of the states, but only in some of them. The result is that in some states the Articles is only one state law among many because it bears no special authorization from the sovereign people. As such, state laws which have been authorized by the people assume a kind of moral priority over the national constitution. It is in this letter to Washington that Madison first formulated his vision of a federal republic that involves neither pure consolidation, nor pure confederacy. Pure consolidation would be incompatible with American political traditions and the British colonial legacy. On a more theoretical level, pure consolidation would clearly repudiate the principle that both the states and federal governments reflect popular sovereignty. Madison’s rejection of pure confederacy in this letter is more complicated. He argues first of all that federalism must reject the perfect equality of states as enshrined in the Articles. Madison further concludes that the national government should have “positive and complete” authority in everything that requires uniformity such as taxes, trade, defense and naturalization. Most importantly, Madison took this opportunity to provide Washington with a general outline of what he called the national government’s veto or “negative in all cases whatsoever on the legislative acts of the states, as heretofore exercised by the kingly prerogative.” Madison emphasized to the future first president that this national veto of state legislation was “absolutely necessary” to make a federal republic truly work.
Why did Madison believe the national legislative veto was so important? The main reason was that the traditional mixed regime was not available as a solution to the problem of unjust government in America. Hereditary families and unelected officials with no popular role in their appointment would be simply inconsistent with the spirit of the American Revolution and the American people, but there seems to be no internal or external restraints on unjust government without recourse to non-republican elements that are illegitimate. The national legislative veto was Madison’s attempt to combine legitimacy and effectiveness by giving traditional monarchical power to an institution both federal and republican, so that the national government could act in the interests of the whole. This is not a consolidated national government with sole positive legislative power, but rather a federal negative power ensuring that the national government is essentially part of the legislative process in each state. Later in Federalist 10 Madison would explain why he believed a national majority would be more disinterested and solicitous about private rights than state legislatures. But by then, of course, his beloved national legislative negative will have been rejected by the Constitutional Convention in Philadelphia.
Madison envisioned an idea of federalism that is a flexible, innovative concept that produces political arrangements that are in principle subject to constant renegotiation: in the American context, a mixture of national and federal elements is federalism. Perhaps the fruition of Madison’s reflections upon federalism in the Founding Period most clearly manifests in his argument in Federalist 39. Here he defended the new Constitution against opponents by arguing that the federal republic is “in strictness neither a national nor a federal Constitution, but a composition of both.” How did Madison formulate this compound structure? First, he claimed that while the Constitution was ratified by the people—not the state governments—the people were understood as comprising the distinct and independent states to which they belong. The same principle of combination can be seen in the national legislature in which the lower house upheld the principle of proportional representation (i.e. a national principle), while the Senate accepted the states as “political and co-equal societies.” Likewise, while the national legislative power is a consolidated national power that is the supreme legislature in the land, the United States Constitution also stipulates that the national legislature’s jurisdiction only extends to certain objects leaving the state governments to their own jurisdictional sphere. Finally, we see the principle of mixture in the executive branch in which the Electoral College reflects the federal principle, even as the impeachment power includes modalities that are primarily national (i.e., the House majority vote to impeach) and powers primarily federal, namely, the Senate’s two-thirds vote for removal.
While there is no doubt that the United States Constitution, which produced arguably the first modern federal democratic republic, was the product of extensive negotiation and compromise involving many voices, I hope to have demonstrated that James Madison’s reflections on federalism in the months prior to the Convention is certainly one of the major formative influences.
Lee Ward is a Professor of Political Science at Baylor University. He has published widely in the areas of political theory and American Political Thought. His most recent book is ‘Recovering Classical Liberal Political Economy: Natural Rights and the Harmony of Interests,’ which is forthcoming from Edinburgh University Press in the spring of 2022.
