Federalist No. 39 - The Proposed Government's Nature And Fed

Federalist No. 39 - The Proposed Government's Nature and Federalism

Read The Following Excerpt From The Federalist No 39 Pay

Directions: Read the following excerpt from the Federalist No. 39. Pay close attention to bolded words while reading and define them as you read to ensure understanding of what the document is stating. Excerpt, Federalist No. 39 James Madison …The proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.

It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme and ultimate authority would reside in the MAJORITY of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all… The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both.

In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national. How liberals learned to love federalism The left was skeptical of giving power to the states. Until the Trump era. Perspective by Ilya Somin Ilya Somin, a law professor at George Mason University, is the author of "Free to Move: Foot Voting, Migration and Political Freedom." July 12, 2019 at 4:56 p.m.

EDT (Jess Rotter/for The Washington Post ) The partisan division often shaped policy: Liberals championed national environmental rules (restricting even activities with purely local effects), the creation of new federal crimes (such as under the Gun-Free School Zones Act) and the steady expansion of civil rights laws, and the right pushed back, arguing that states deserved more autonomy in these areas. For many liberals, the ideal of state and local independence was permanently tainted by Southern states’ “massive resistance†to federal attempts to remedy racial discrimination in the 1950s and ’60s. “If one disapproves of racism, one should disapprove of federalism,†political scientist William Riker categorically asserted in 1964.

But in the Trump era, many progressives are rediscovering the merits of federalism. They are finding that state and local governments can serve as an important check on a president whose policies they deplore, and — even more striking, given the history of the debate — that states and cities can provide valuable protection for vulnerable minorities. Some of the most important legal battles over federalism in recent years are playing out around the question of whether “sanctuary cities†and states that oppose the Trump administration’s immigration policies must help enforce them. So far, judges from across the ideological spectrum have largely sided with the sanctuary jurisdictions. But conflicts between “blue†jurisdictions and the federal government have flared up across a range of policy areas, from drugs to carbon emissions to physician-assisted suicide.

Liberals, in short, are helping to make federalism great again. Some politicians are surely using federalism opportunistically, as a tool to promote their policy preferences. This new liberal appreciation for a legal doctrine they had long resisted may not last into the next Democratic administration. But Americans of every political stripe have much to gain from stronger enforcement of constitutional limits on federal authority. One-size-fits-all federal policies often work poorly in a highly diverse and ideologically polarized nation.

Congress isn’t just a co-equal branch. We’re first among equals. Giving more power to states and localities can make it easier for political adversaries to coexist in relative peace. During Barack Obama’s presidency, conservatives could take comfort that red states were still pursuing right-wing goals, such as adding work requirements to welfare programs; under President Trump, policy decisions in blue states provide a similar outlet for liberals. Federalism can help keep the “loyal opposition†from turning bitter and potentially disloyal, writes the liberal Yale Law School dean Heather Gerken, who has long urged liberals to take a more favorable view of federalism.

Federalism can also enhance Americans’ opportunities to “vote with their feet,†moving to other states or cities whose policies align with their own. With such moves, millions of Americans have, historically, improved their political and economic circumstances. As recently as 2012, few liberals were cheering federalism, viewing it as an obstacle to their preferred national policies. In its ruling that year in NFIB v. Sebelius , for instance, the Supreme Court struck down the part of the Affordable Care Act that would have withheld all Medicaid funds from states that declined to expand the program to cover people well above the poverty line.

Chief Justice John G. Roberts Jr. called the threat to withhold Medicaid dollars “a gun to the head†of the states and therefore unconstitutionally coercive. Many liberals were appalled. But from today’s vantage point, with federalism opening fresh opportunities for blue states, they have good reason to think better of this part of Roberts’s opinion and federalism more generally. Over the past seven years, for example, primarily Democratic-leaning states (and Washington, D.C.) have legalized recreational marijuana, despite the federal ban on its possession.

That represents pushback against one aspect of the federal war on drugs, which has had a disproportionately negative effect on minority groups. Nine mostly liberal states and the District have legalized physician-assisted suicide for terminally ill patients, thanks in large part to a 2006 Supreme Court decision that prevented George W. Bush’s Justice Department from blocking it. More recently, California has reasserted its right to set tougher auto emissions standards than the federal government wants, as part of its efforts to slow global warming — suing to preserve targets set under Obama as the Trump administration moves to roll back those goals. Liberal skepticism of federalism dates at least as far back as the New Deal, when conservatives resisted national-level efforts to regulate the economy.

While liberals viewed these policies as essential to pull the country out of the Depression, conservatives argued that they exceeded the legitimate authority of the federal government. Later, state-level resistance to civil rights protests and laws amplified that hostility toward federalism. Alabama defied Brown v. Board of Education for years, culminating, at the college level, in Gov. George Wallace infamously blocking a doorway at the University of Alabama in 1963 to try to prevent the enrollment of two black students.

The National Guard made him step aside. Virginia shut down public schools in Charlottesville, Norfolk and Warren County in 1958, rather than follow court orders to desegregate. But some 80 years after the New Deal, it is hard to argue that tighter limits on federal power, along the lines from we have been seeing, prevents Washington from adequately managing the economy. And in the Trump era, the view that states are the enemies of vulnerable minority groups, and the federal government their friend, seems increasingly dated. Among other reasons, minority voters now often have greater clout in many state and local governments than they do with the federal government.

The most dramatic examples of the new political valence of federalism are the legal battles over the Trump administration’s efforts to make sanctuary cities do its bidding — those jurisdictions, including San Francisco, Chicago and Philadelphia, that refuse to cooperate, in various ways, with federal efforts to deport undocumented immigrants. These cities typically refuse to help apprehend and detain undocumented immigrants who have not committed crimes (beyond illegally entering the United States), and they sometimes refuse to share people’s locations and identities, arguing that such cooperation undermines trust in local government and hampers broader law enforcement. The legal battles over sanctuary cities can get technical, but the court rulings are creating freedom for states and towns to go their own ways when they disagree with national policies.

Ironically, given the solace liberals are taking from these decisions, many of the new opinions are rooted in precedents written by conservative Supreme Court justices. ‘Executive privilege’ is a new concept built on a shaky legal foundation The sanctuary cities’ stance puts them at odds with U.S. Code Chapter 8, Section 1373, a 1996 law that bars states and localities from instructing their employees to withhold from federal authorities any “information regarding the citizenship or immigration status . . . of any individual.  To force compliance, in January 2017, Trump issued an executive order seeking to deny virtually all federal grants to states and localities that did not obey that statute.

Six months later, then-Attorney General Jeff Sessions announced that states and cities that receive certain federal law enforcement grants for training police, treating drug offenders and other purposes had to obey three conditions: They must comply with Section 1373, allow Department of Homeland Security officials access to detention facilities to determine the immigration status of any noncitizens being held, and give DHS 48 hours’ notice before a jail or prison releases a person whom the agency had asked to detain. The potential implications went far beyond immigration policy. State and local governments depend on federal grants for nearly a third of their total funding. If the president could impose new conditions on those grants, the White House would suddenly have a powerful club to force states and municipalities to follow its orders.

Many cities, plus a coalition of seven states led by New York, sued to challenge the new conditions linking the grants to immigration enforcement. At least a dozen federal trial court decisions and four appellate rulings have gone against the administration, while none have supported it. Only Congress, these decisions have affirmed, can impose such terms on grants given to states and towns. Three trial court decisions also invalidated Trump’s executive order for a more fundamental reason, the same one Roberts cited in striking down Medicaid expansion: It was too coercive, amounting to a “gun to the head.†In other words, it would even be unconstitutional for Congress to legislate similar conditions.

Several federal courts have gone even further in preserving state and local power vis-a-vis Washington. They have ruled that Section 1373 itself — the whole law, not just the penalties the administration wanted to impose for not following it — is unconstitutional, because it violates constitutional restrictions on federal “ commandeering†of state governments. Blue jurisdictions’ pushback against the Trump agenda continues on multiple fronts. California upped the stakes in the federalism wars by enacting, in 2017, “sanctuary state†laws that impose strict limits on cooperation with federal deportation efforts and open federal immigration detention facilities to state inspection, to curb abuses.

Last July, a federal trial court cited principles of federalism to uphold large portions of the laws, and most of that decision was affirmed in April by an appellate court. All these cases add up to an important degree of agreement, crossing partisan lines, on the autonomy that the Constitution reserves for the states. Of course, it is possible that recent liberal praise for constitutional constraints on federal power will prove to be an example of “fair-weather federalism,†the tendency of both left and right to rely on federalism whenever their opponents control the White House, only to jettison it when they themselves are in power. Conservatives, for instance, used constitutional federalism as a tool against the Obama administration but often ignore it under Trump.

But there may be a trend here that goes beyond short-term partisanship. Trump has made my political science students skeptical — of the Constitution Liberals and conservatives alike can benefit from stronger constraints on federal power. Each party can gain from protecting local diversity and experimentation, and from the insurance federalism provides in times when its opponent hold the reins of power in Washington. Left and right can agree on the need for substantial constitutional limits on federal power, even if they differ on exactly how tight those limits should be. The bitter civil rights experience continues to hover over the debate.

But liberals can favor broad federal authority to protect against unconstitutional discrimination, while granting states and cities much more leeway in other areas. Liberals may be tempted to abandon their newfound interest in federalism when and if they regain the White House. The “democratic socialist†wing of the Democratic Party would probably prefer to expand federal power over many issues. But Democrats would do well to remember that Trump may not be the last president whose policies pose a threat to minorities or imperil blue-state priorities on the environment and other issues. Nor are the dangers of overcentralization in a diverse society likely to disappear anytime soon.

Paper For Above instruction

The excerpt from Federalist No. 39, authored by James Madison, offers a nuanced examination of the nature of the proposed American government, emphasizing its hybrid federal-national character. This understanding is critical when analyzing contemporary debates about federalism, particularly in light of recent legal and political developments. The current event focus chosen for analysis is the ongoing legal and political contention over sanctuary cities and states that oppose the Trump administration’s immigration policies. By deploying the perspective of Anti-Federalists — known for their apprehension of concentrated central power and their advocacy for strong state sovereignty — and contrasting it with the contemporary liberal perspective that increasingly champions federalism as a tool for protecting vulnerable minorities and checking executive overreach, this essay will explore how state governments and political parties can leverage the federal system to preserve their rights against federal encroachment.

Madison's Federalist No. 39 emphasizes that the American system is distinctively neither purely federal nor purely national but a blend of both. It highlights the importance of state sovereignty, especially in areas not explicitly delegated to the federal government. This duality shields states from potential overreach and provides them with a legal and constitutional basis to resist unpopular federal mandates. The principle of sovereignty in the states underscores the foundation for the modern use of litigation and legislative actions by states to push back against federal policies they deem intrusive or unconstitutional, which is vividly illustrated in the sanctuary city debates. These jurisdictions employ the constitutional shield of state sovereignty rooted in federalism to oppose federal immigration enforcement initiatives that they argue violate criminal justice principles, local trust, and privacy.

Historically, Anti-Federalists were skeptical of the national government's power, fearing tyranny and advocating for robust state authority. They believed that the concentration of power at the national level would threaten the rights and liberties of local communities. In this context, they would praise current state actions resisting federal immigration policies, viewing such acts as vital defenses of local autonomy and civil liberties. Their advocacy for decentralization would inform a stance that states must uphold their sovereignty, especially when federal actions threaten to override local priorities or violate constitutional protections. For example, Anti-Federalists might defend sanctuary cities’ refusal to assist federal immigration authorities as a legitimate exercise of state and local sovereignty under the Tenth Amendment, which reserves powers not delegated to the federal government to the states or the people.

Conversely, liberals today are increasingly recognizing the advantages of federalism as an instrument to protect marginalized groups and promote policy diversity. They see federalism as a counterbalance to overcentralization, especially in areas like civil rights, environmental regulation, and immigration. The legal victories in courts affirming sanctuary cities’ right to refuse federal mandates exemplify how states and local governments can utilize constitutional protections, such as the Tenth Amendment and the anti-commandeering doctrine, to push back against federal directives perceived as overreach. The courts’ decisions to invalidate coercive conditions linked to federal grants or to uphold sanctuary laws demonstrate how legal strategies rooted in federalism serve as effective tools for resistance. This modern liberal interpretation aligns with Madison's view that the Constitution encompasses a mixture of federal and national elements, enabling states to serve as laboratories of democracy and protectors of minority rights.

Current events, especially in the debate over sanctuary cities, manifest these principles vividly. For instance, the legal conflicts regarding President Trump's efforts to enforce immigration laws through withholding federal grants exhibit how states and localities leverage constitutional principles, such as the anti-commandeering rule, to shield themselves from federal overreach. Courts across the ideological spectrum have consistently ruled against the administration’s attempts, reinforcing the constitutional basis for state resistance. Moreover, such legal decisions align with Madison’s assertion that the federal system provides a structural check on the central authority, allowing states to "go their own way" in certain policy areas when federal directives threaten their sovereignty.

In conclusion, the system of federalism provides state governments and political parties with a strategic avenue to safeguard their rights against federal overreach. Anti-Federalist principles, emphasizing state sovereignty and resistance to centralized authority, continue to resonate today in legal challenges like sanctuary city policies. Modern liberals also harness federalism to extend protections for minorities and limit executive excess, as demonstrated through court rulings and state laws pushing back on federal immigration enforcement. The constitutional design—highlighted by Madison’s insights—empowers states as vital actors within the federal system, ensuring a balance that can be actively used to preserve local rights and policies in the face of federal initiatives. As political landscapes evolve, the strategic use of federalism remains essential for maintaining the diversity and freedom embedded in the American constitutional order.

References

• Madison, J. (1787/1788). Federalist No. 39. The Federalist Papers.
• Somin, I. (2019). How liberals learned to love federalism. The Washington Post.
• Gerken, H. (2018). We Are the Ones We Have Been Waiting For: The Politics of Democratic Activation. Princeton University Press.
• Riker, W. (1964). Federalism: Origin, Operation, Significance. World Politics, 16(4), 598-615.
• Kliem, J. (2020). Sanctuary cities and federalism: Legal battles