Two years before the end of the Revolutionary War on March 1, 1781, the Articles of Confederation were officially put into effect. While the articles still established a small national government, there were a decentralizing document that put more power in the hands of individual states. There was no national currency, Congress could not collect taxes from the states, Congress could not draft soldiers, and Congress could not control commerce between the states.
For the Federalist faction, this was a weak constitution and a stronger one was needed. A constitutional convention convened in 1787 and drafted a new governing document. In 1788, Alexander Hamilton and John Jay published The Federalist Papers, which outlined the need for a stronger constitution for a stronger national government. The Federalists would get their wish on June 21, 1788, when the Constitution was ratified after long debate and votes by the states. What changes were made and were they centralizing or decentralizing? This is the question that must be answered.
The Decentralizing Aspect
The Constitution was nowhere near as decentralist as the Articles of Confederation. Both the Federalists and the Anti-Federalists had to make a slew of compromises to make the other faction happy. One of these compromises was the Bill of Rights (the first ten amendments to the Constitution). This was a set of rights that certain founders believed were inherent and shouldn’t be violated by the federal government.
The Tenth Amendment stated:
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.
This made it very clear to the Federalists that even though the states may not have as much power as they did under the Articles of Confederation, states would still have a form of self-governance. Other amendments would also try to protect the rights of the individual: the Second Amendment gave the right to bear arms so that individuals may protect their rights to speech, assembly, and religion and fight against a tyrannical government.
Thomas Jefferson in a letter to William Crawford in 1816 gave his beliefs on secession:
If any state in the union will declare that it prefers separation with the 1st alternative, to a continuance in union without it, I have no hesitation in saying, “Let us separate.” I would rather the states should withdraw, which are for unlimited commerce and war, and confederate with those alone which are for peace and agriculture. I know that every nation in Europe would join in sincere amity with the latter, and hold the former at arm’s length by jealousies, prohibitions, restrictions, vexations and war.
While the states still have a government, any separation of power from a national government is decentralization and a step closer to liberty. Secession itself would be made unconstitutional in 1869, when the Supreme Court ruled in Texas v. White that the United States “is an indestructible union from which no state can secede.”
This is the ultimate problem with the Constitution. Since it is the supreme law of the land, any provision that enhances the power of the federal government has supremacy over all states.
The Centralizing Aspect
Two major changes under the Constitution were that Congress could regulate commerce between the states and that the federal government would be the sole minter of money.
Article 1, section 10 of the Constitution states:
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts.
This section of the Constitution would cause a lot of grief for future generations. The expansion of money unbacked by gold or silver would first cause the recession of 1819, and the inflation of silver coins and certificates would spark the recession of 1893. The amendments are not exempt from violations either; in fact, just ten years after the Constitution was ratified, the Sedition Act passed by the Federalist Congress made it illegal to publish any scandalous or malicious writing against the government.
The individual states could do nothing about this because article 4, clause 2 of the Constitution contains up the Supremacy Clause, which provides that the Constitution, federal laws made pursuant to it, and treaties made under its authority constitute the supreme law of the land. It provides that state courts are bound by the supreme law; in case of conflict between federal and state law, the federal law must be applied. Even state constitutions are subordinate to federal law.
In response to the Sedition Act, Thomas Jefferson and James Madison drafted the Kentucky and Virginia Resolutions, which would grant states the power to nullify federal laws they deemed “unconstitutional.” Madison’s resolution actually passed the state legislature, but this resolution proposed the idea of interposition of the law, meaning states can prevent the federal government from enforcing a law in their borders but cannot nullify the law outright.
But in 1958, the Supreme Court in Copper v. Aaron, rejected the idea of interposition and stated that only federal courts can decide if a federal law is unconstitutional. In effect, only a federal entity—whose judges are nominated by the president and confirmed by a majority vote by a federal congress who more than likely belong to the same party as the president—can decide if a federal law is unconstitutional.
The Constitution is not a decentralizing document. It has not only proven itself to be centralizing and biased in many aspects, but has also failed to prevent further centralization and rights violations. The Sedition Act would not be the last time the federal government attempted to silence its critics. Abraham Lincoln silenced pro-Southern newspapers, the Espionage Act of 1917 made it illegal to critique American involvement in World War I, and the 2001 PATRIOT Act legalized the unwarranted search, seizure, and arrest of US citizens. In the end, the Constitution has been a useful tool for those who wish to expand their power by ignoring it or amending it.