Founders View to Federal and State Powers


** The Founders' View
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** Does Federalism Work in a Pandemic?
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A Look at National Versus State Authority During an Emergency

In our federal system, both the federal government and the states have certain powers. So, who rules in a pandemic? In a federal system, the question of the appropriate and legitimate authority naturally becomes subject to political dispute.
Take the case in Georgia ([link removed]) , where plans for reopening during the pandemic brought deep skepticism and led the President (who had before seemed to favor a swift reopening of state economies) to criticize the plan.

Arguments pitting ‘health and safety’ against ‘jobs and the economy’ have been persistent. This has led to conflict between national and state governments about who should have authority ([link removed]) to handle the crisis.

The coronavirus pandemic has brought about a public dispute over the wisdom of federalism. What good is federalism in an emergency?

Who is in Charge in a Crisis?

In devising the Constitution, the Founders were faced with the task of creating a national government with the ability to gather resources (through taxes) and the power and agility to respond to emergencies (in particular, war). Second, if the Constitution was to embody the principles of the Declaration of Independence, it would have to also preserve the rights and liberties of individuals.

An obstacle to achieving the first goal, and also possibly the second, was the authority of the already existing state governments, whose power must in some sense be preserved for the United States to be successful. The Founders had in the forefront of their minds a chief weakness of the system that existed under the Articles of Confederation, namely, the lack of any kind of central authority: how does one devise a system that can respond quickly and effectively to emergencies ([link removed]) ?

Under the new Constitution, a loose federation of states, incapable by itself of the coordination and cooperation necessary for dealing with emergencies, would be supplemented by a national government:

"In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward." (
Federalist 22 ([link removed]) )

What Hamilton had chiefly in mind, of course, was the necessity of acting with energy and decisiveness in times of war: how else could this be achieved than through a strong national government led by a powerful executive?

Faced with our current crisis, we might wonder whether the same logic applies here as well. The ongoing pandemic is no less an emergency than a war, and it is national, indeed global, in scale.

The Advantages of Federalism
Some argue that such a crisis favors the power of the national government ([link removed]) , with its greater resources and capabilities of coordination and decisiveness, over the varying and often conflicting actions of the various states.

While there is some merit to this line of thinking, it ignores the fact that the Founders arranged for a strong national government at the head of a federal system. But when it comes to the administration of matters of health, safety, morals, and general welfare (the so-called “police powers” ([link removed]) ), they arranged it so that the states hold in many respects greater power and responsibility compared to the enumerated powers allowed to the federal government.

As Tocqueville wrote, “the government of the States remained the rule, and that of the Confederation [i.e., the federal government] became the exception.”

Take, for example, quarantine laws: while the federal government does possess the power to lawfully coerce individuals into quarantine (under a broad reading of the commerce clause), it is state quarantine laws that have been most commonly used and effective in
mitigating the spread of infectious disease ([link removed]) .

The Founders forged a compromise between those who wanted a strong central government and those who wanted to protect states rights by creating a federal system. Such a system has many potential advantages even, or especially, in a crisis. ([link removed])
In a situation where local conditions vary so widely, there is some sense ([link removed]) to having those with the greatest knowledge of those conditions to make the decisions. Extraordinary measures require popular support to be effective, and state leaders are in a better position ([link removed]) to gauge and respond to the demands of their constituents than national leaders.

Admittedly, federalism is not without its challenges, especially in a crisis. Indeed, giving states the power to make decisions for themselves means they also have the power to make bad, possibly deadly, mistakes. As Tocqueville writes, our system of government is “neither precisely national nor precisely federal ([link removed]) ” and in a crisis this can lead to confusion.

Nevertheless, the federal system outlined in our Constitution provides us with resources and capabilities that we would be wise to take advantage of even as we work to guard against its weaknesses.
JMC Board and Staff Send Our Warmest Wishes!
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Like so many of you, we are working virtually these days, and our spring meeting of the JMC Board of Directors was no exception. We have so many exciting things planned over the next year. Stay tuned!

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About the Jack Miller Center

The Jack Miller Center is a 501(c)(3) public charity with the mission to reinvigorate education in America's founding principles and history. We work to advance the teaching and study of America's history, its political and economic institutions, and the central principles, ideas and issues arising from the American and Western traditions—all of which continue to animate our national life.

We support professors and educators through programs, resources, fellowships and more to help them teach our nation's students.

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