Content area
Full Text
INTRODUCTION
Some of the Founders' debates are familiar today, while others have passed out of public consciousness. The debate over states' role in our federal system is both.
In The Federalist Papers, Alexander Hamilton, James Madison, and John Jay painted states as the primary protectors of the people's liberty. That role is familiar. From elementary school, we learn that the Constitution divides power between the states and the central government to protect liberty.1 Even as the public continues to debate how power should be divided, this underlying purpose of federalism remains widely recognized.
But what does this mean? How do states protect liberty? what does it mean for states to "check" the federal government? The answers to these questions are surprisingly unfamiliar. Indeed, the specific ways that The Federalist Papers expected states to protect liberty have, to a large extent, passed from public consciousness.
In The Federalist Papers, Alexander Hamilton, James Madison, and John Jay (writing under the pseudonym "Publius") explained the theory of the Constitution to voters in New York. All government existed to "advance the public happiness."2 Governments thus needed to regulate in a way that respected their citizens' natural liberties. To ensure that the new American government would operate without violating these liberties, the Constitution divided sovereign power between separate governments, setting these governments in competition so that they could "watch[] and control[]" each other.3 Skeptical of the central government, the Constitution, explained Publius, gave states a much greater role in protecting liberty than the federal government. The lynchpin of Publius's constitutional theory -the way the people could give government enough power to be functional without giving it so much power that it would devolve into oppressive tyranny-was for states to check federal encroachment on individual liberty.4 States were the primary protectors of the people's liberty.
How would states carry out this role? This is where Publius starts to sound unfamiliar. Publius highlighted two specific ways in which states would protect the people from federal encroachment. First, states would exercise lawful power over the selection of federal officers, thereby influencing federal policy.5 Second, as watchdogs, states would sound the alarm whenever the federal government overstepped its bounds.6 Because Publius thought states would play a more important role in the people's lives than...