Federalist 39 Shows the Constitution Is Partly National and Partly Federal

Is the United States one nation or a union of states? Ask a room full of lawyers and you will get two answers and a request for a retainer. Ask James Madison and you get a better answer: it is both, in specific and countable ways, and if you lose track of which is which you will lose the argument about everything else.

That answer is Federalist 39, published in January 1788 when the ratification fight was at full heat. The Anti-Federalists had a charge they repeated in every state: the proposed Constitution was a "consolidation," a plan to dissolve the states into one great national government that would swallow them whole. Madison's reply was not to deny that the new government was more national than the Articles of Confederation. It plainly was. His reply was to break the question into parts and show, test by test, that the Constitution was national in some respects, federal in others, and a careful mixture in the rest. Every argument about federalism since, from the Tenth Amendment to the anti-commandeering cases to the modern grant programs, is an argument about where to draw the lines Madison drew in this paper.

First, is it a republic at all?

Before answering the consolidation charge, Madison takes up a prior question: is the proposed government really republican? He begins with a definition, because the word had been stretched to cover Venice, Holland and even Britain.

we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.

He adds a condition that excludes aristocracies in republican costume:

It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it

Then he applies the definition. The House is elected directly by the people. The Senate, as originally designed, is chosen by state legislatures, which are themselves elected. The president is chosen indirectly through electors. Judges are appointed by elected officials and hold office during good behavior. Every office traces back to the people, directly or indirectly, and every one is held for a limited term or on condition of good conduct. The Constitution also forbids titles of nobility and guarantees every state a republican form of government. It passes.

That definition is worth memorizing, because it answers a common confusion. A republic is not the opposite of popular government. It is popular government through representation, with power held for limited periods. The difference from pure democracy is explained in Federalist 10 Explains Why a Large Republic Tames Faction Best.

The five tests

Now the main event. Madison says that to judge whether the Constitution is national or federal, one must look at it from five angles: its foundation, the sources of its ordinary powers, the operation of those powers, their extent, and the authority by which future changes are made. Let us take them in order.

Test one: foundation

How is the Constitution to be established? By ratification. And who ratifies? Madison answers:

this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong.

Each state ratifies by its own convention. No state is bound unless it ratifies. A majority of the American people as a whole cannot bind a state that refuses; Article VII required nine states, and the Constitution operated only "between the States so ratifying the Same." So, Madison concludes, the act of establishment is federal, not national.

Verdict: federal. The Constitution was founded by the people of the several states, acting as states. That is why Rhode Island could hold out until 1790 without being bound in the meantime. The ratification sequence is told in From Delaware to Rhode Island, the Ratification Fight State by State.

Test two: sources of power

Where do the branches of the new government draw their authority? Here the answer is mixed.

• The House of Representatives draws its power from the people of America as individuals, in proportion to population. That is national.
• The Senate draws its power from the states as political and coequal societies, two senators each, chosen by state legislatures. That is federal.
• The president is chosen by electors allotted to the states by a compound ratio, partly by population and partly by the equal Senate count. And if no candidate gets a majority, the House picks the president with each state delegation casting one vote. That is mixed.

Verdict: partly federal and partly national. The Connecticut Compromise, adopted on July 16, 1787, is the reason; see The Connecticut Compromise Passed by One Vote on July 16, 1787.

Test three: operation

On whom does the government act? Under the Articles of Confederation, Congress acted on the states. It requisitioned money from them and could not collect it when they refused. Under the Constitution, the federal government acts directly on individuals. It taxes individuals, punishes individuals and binds individuals.

Verdict: national. This was the single biggest change from the Articles, and the main reason the Articles had failed. A government that can only make requests of states is not a government; it is a mailing list. The contrast is laid out in The Articles of Confederation Next to the Constitution, Side by Side.

Test four: extent

How far do the powers reach? Here is the line every federalist should know:

its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.

A national government in the full sense would have authority over every object of government. This one has authority over a list. Everything not on the list stays with the states, and Madison calls their sovereignty over it "residuary and inviolable."

Madison concedes a practical point here: disputes about the boundary between federal and state authority will be decided by a tribunal established under the general government. He defends this as necessary to prevent an appeal to the sword and to keep the compact from dissolving, and he says the decision is to be made impartially according to the rules of the Constitution.

Verdict: federal. The enumeration is the heart of it. The Tenth Amendment, ratified in 1791, put the same principle into words. We explore its drafting in The Tenth Amendment Left Out One Word, Expressly, and the Omission Mattered.

Test five: amendment

How can the Constitution be changed? If it were wholly national, a majority of the whole people could change it at any time. If it were wholly federal, every state would have to agree, as the Articles required. Article V requires neither. It requires proposal by two-thirds of both houses of Congress, or by a convention called on the application of two-thirds of the state legislatures, and ratification by three-fourths of the states.

Verdict: neither wholly federal nor wholly national. The states count as states, so it is not national. Unanimity is not required, so it is not purely federal.

Madison's summary

Then the paragraph that puts it all together, quoted in full because every word is doing work:

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 its ordinary powers 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.

Put it in a table, which is what Madison would have done if newspapers in 1788 had printed tables:

Why the mixed character matters

Here is why this is not an antiquarian exercise. Almost every federalism argument in American history happens because one side treats the Constitution as wholly national and the other as wholly federal. Madison's answer is that both are wrong, and the specific test that applies tells you who wins.

Consider four examples.

The Seventeenth Amendment, 1913. It changed the Senate from a body chosen by state legislatures to one elected directly by the people. In Madison's second test, that moved the Senate from the federal column toward the national column. Whatever you think of the change, it removed the states as governments from any direct role in choosing a branch of the federal government. Conservatives who debate its repeal are arguing about Madison's second test.

U.S. Term Limits v. Thornton (1995). The Supreme Court held, five to four, that states may not add term limits to the qualifications for members of Congress. The majority treated Congress as a national institution belonging to the people of the whole nation. Justice Clarence Thomas, in dissent, argued that the people of each state retained the power to set additional qualifications for their own representatives, because the Constitution was ratified by the people of the states. Justice Anthony Kennedy, concurring with the majority, wrote that the framers "split the atom of sovereignty." That case is Federalist 39's first test argued in front of nine justices.

New York v. United States (1992) and Printz v. United States (1997). In these cases the Court held that Congress may not commandeer state legislatures or state executive officers to carry out federal programs. The reasoning is Madison's third test. The Constitution operates on individuals, not on states. Having given the federal government the power to act directly on citizens, the framers took away any need, and any warrant, to order state governments around.

McCulloch v. Maryland (1819). Chief Justice John Marshall emphasized that the Constitution was ordained by the people, not by the state governments, to defeat Maryland's tax on the national bank. He was right that the federal government is supreme within its sphere. But he also wrote that the government is one of enumerated powers. Both halves are Federalist 39: national in operation, federal in extent.

The objection: a lawyer's distinction

The strongest objection, stated fairly, goes like this. Madison's mixed-government analysis was a ratification-season argument meant to reassure skeptics. In practice, the national half has eaten the federal half. The Supremacy Clause and federal courts settle boundary disputes in Washington's favor. The spending power lets Congress buy state compliance it cannot command. And Madison himself conceded that a federal tribunal would decide the disputes. So the "residuary and inviolable sovereignty" of the states is a phrase, not a fact. Better to admit that we have a national government and stop pretending.

The answer, point by point.

1. A description of drift is not a refutation of design. That the national half has grown does not show Madison was wrong about the Constitution. It shows the Constitution has been read in ways it should not have been. The remedy is to correct the reading.
2. The federal half still wins cases. New York and Printz are federal-half victories. So is NFIB v. Sebelius (2012), where a majority of the Court held that Congress could not threaten to take away all of a state's existing Medicaid funds to force it to accept the expansion. These are not dead letters.
3. The structure still bites. Senators represent states, and each state has two regardless of population. Amendments still need three-fourths of the states. Every presidential election is decided state by state. The federal column has fewer entries than it once did, but it is not empty.
4. Madison anticipated the tribunal problem. He did concede that a federal court would draw the line, and the Anti-Federalists warned it would be biased; see Brutus Warned in 1788 That Unelected Judges Would Swallow the States. But a tribunal bound by an enumerated Constitution can be held to it. The answer to bad judging is better judging, not abandoning the enumeration.

The verdict: the mixed Constitution is a design, not a slogan, and the design is still in force wherever someone has the nerve to insist on it.

What it means for your state capital

For a family, the practical meaning is that a large share of the decisions that shape daily life belong, by design, to the states and the people: most criminal law, family law, property law, schools, licensing and local government. When federal policy reaches into those areas, it usually does so through a grant with conditions attached, which is the federal government buying with your tax dollars what it could not order outright. Your state legislators are the officials who decide whether to take that money and its conditions.

That makes state government one of the most important offices most Americans ignore. Federalist 39 says the states hold a "residuary and inviolable sovereignty." A sovereignty nobody exercises tends to be claimed by someone else. If you want to see what a confident state can do with it, look at the arguments in Federalism Lets Fifty States Experiment, and the Constitution Planned It, and for the constitutional backstop when Washington will not limit itself, A Convention of States Is the Founders' Safety Valve, Weighed Honestly.

The case in brief

1. Madison answered the consolidation charge by testing the Constitution five ways: foundation, sources of power, operation, extent and amendment.
2. It is federal in foundation and extent, national in operation, and mixed in the sources of its power and in the amendment process.
3. The enumeration of powers leaves the states a "residuary and inviolable sovereignty" over everything not listed.
4. Modern federalism fights, from the Seventeenth Amendment to Term Limits, New York, Printz and NFIB, are arguments over which of Madison's tests applies.
5. The national half has grown, but the federal half still wins when citizens and states insist on it, and the design remains the law.

What you can do: find out which federal grant programs your state accepts and what conditions come with them, then ask your state legislator in writing whether each condition is one the legislature would have chosen on its own.