The debate over the federal Constitution that raged from 1787 into 1788 was fought over a number of concerns, but none was more important than the divisions of power between the states and the federal government.
Not far below that was the concern about the power of the president. That founding debate is underlying our response to the current crisis.
The Articles of Confederation, often referred to as America’s “First Constitution,” were criticized for not centralizing enough power for government to be effective. The American Revolution was fought under that basic, decentralized structure, but it proved continuously frustrating to George Washington and those attempting to keep an effective army in the field.
The central government had no authority to raise taxes directly but had to rely on the states to raise and submit tax payments. There was no independent executive.
The advocates for the proposed Constitution, referred to as “The Federalists,” argued for a stronger central government, with powers enough to be effective in the core responsibilities of government.
The opponents, often called the “Anti-Federalists,” feared centralized power and advocated for a continually weak central government, favoring public authority to be wielded by the state governments who were closer to the people with more knowledge of local circumstances. Power exercised locally would be safer and more appropriate to the situation on the ground, they argued.
The COVID-19 crisis is playing out this founding debate again.
The Anti-Federalist elements are alive and well in our decentralized response. State governors are making decisions for their people with the best local knowledge available to them. The Trump administration is encouraging states to take the lead in caring for the health and safety of their citizens, as was intended by the structure of federalism built into the Constitution.
On the other hand, the president’s declaration of the state of emergency and the role being played by the Federal Emergency Management Agency (FEMA) and the U.S. Centers for Disease Control and Prevention (CDC) and the rest of the federal government is the kind of response the Federalists such as Alexander Hamilton and George Washington would’ve hoped for from the central government with adequate power.
In Federalist Paper No. 70, Hamilton argued that “energy in the executive is a leading character in the definition of good government.” The nationalization of part of our response is possible only because the Federalists won the argument for an energetic and efficient national government.
As we move forward through these perilous times, it’s important that we recognize this ingenious balance at the heart of our constitutional system.
There are those calling for ever-more centralized responses and ever-more central control. In nearly every press conference, at least one reporter asks why the federal government hasn’t made its basic recommendations into nationwide orders. Someone regularly asks why the president hasn’t exercised the emergency powers he put onto the table, and someone else challenges the president to use government force against companies to compel them to manufacture medical supplies.
In this critical time, let’s not forget a couple of core principles that inform our constitutional order and that inspired the great debate during 1787–1788 that has shaped the United States since.
First, decisions are best made by private citizens on the free market during most circumstances. When pundits demand the president engage the power of government to force corporations to produce products, even though the administration gives evidence that private companies are voluntarily stepping up, they have lost track of this essential value.
Most of the time, the free market works. Free decisions will lead to necessary products being produced and to them being distributed where they are most needed. Only when the market and freedom fail, should the government step in with force.
Second, when governmental decisions need to be made, they should be made by the level that has the most local information and is in most direct contact with the people affected. This is the structure built into the system—health and safety are primarily the responsibility of the states. The governors have stepped up and are leading with strength and resolve. Only out of absolute necessity should the administration make edicts for the entire nation.
Third, this is one of those moments in national life when Hamilton’s wisdom becomes apparent. In times like these, we need energy in the executive to coordinate natural resources and act decisively. We must be careful on this one, with executive power being so prone to abuse, and must ensure that whatever extraordinary actions are taken during such a crisis do not become routine.
The United States is in a perilous time and our Constitution is steering us through it. In many ways, we are living through a “Federalist Moment,” when the wisdom of the Constitution as it balanced power and levels of governmental authority can be seen clearly.
We must all keep this history, these values, and our Constitution’s requirements in mind as we make our way through the challenges ahead.
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