The Pitfalls of Federalism
When America’s founding fathers created the federal system of governance for the United States in 1787, they were worried about the potential concentration of power in a central entity that might usurp the authority of the individual states and undermine democracy. Today, the problem has reversed.
James Madison described the founding fathers’ intent in The Federalist 51, “In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each (is) subdivided among distinct and separate departments.” By using the concepts of federalism on the one hand and separation of powers on the other, a new central authority could be created capable of governing effectively without threatening the independence of the newly freed states.
Although debate in the Constitutional Convention and the subsequent ratification process was couched primarily in philosophical terms, significant political considerations existed that had to be accommodated. Based on their colonial experiences and their significant economic and social differences, all states approached the challenge of creating a new nation with some skepticism and a determination to protect their own interests.
Slavery played a significant role in shaping the structure of Congress as well as the presidential election process. The Southern states, fearing the survival of their “peculiar institution,” continued to exercise outsize influence until the Civil War. Even after the conflict ended, the Southern states continued to take advantage of the federal system of governance to oppress their African American citizens.
Generally speaking, the federal political system of the founding fathers has survived intact. But while the size and scope of the national government has expanded significantly, its power has not increased correspondingly. What is the explanation for this situation?
When the federal political system was put place, the population of the entire United States was less than four million people. The population, at least the “voting” population, white and male, was homogenous. Not allowed to voter were the more than 600,000 slaves, mostly held in five states: Georgia, Maryland, North Carolina, South Carolina and Virginia. The most populous, Virginia had 747,610 people, approximately 40 percent of them slaves. Delaware possessed the smallest population, 59,094, 15 percent of them slaves.
Allowing for the counting of slaves as three-fifths of a person, Virginia wound up with ten seats in the US House of Representatives, or one for every 63,056 computed residents, while Delaware was given one seat for its computed count of 55,539. Both states were allotted two senators in the US Senate, as were each of the other eleven states. The 10-1 ratio between Delaware and Virginia was the greatest in the US Senate.
While a credible argument can be made that this allocation of representation was not democratic, the lack of absolute fairness was judged acceptable given the political stakes and the relatively modest discrepancies. Over time circumstances developed expanding the discrepancies and changing the nature of the political stakes.
An initial problem was the failure to provide any objective criteria for the admission of new states. While Article IV, Section 3 of the Constitution gives Congress the power to admit new states to the union, it does not spell out any specific requirements. In the Northwest Ordinance of 1787 new states were supposed to have at least 60,000 inhabitants before being eligible for statehood, but that milestone was rarely imposed. In fact, two (Ohio and Indiana) of the five states originally covered under the Northwest Ordinance did not reach that population target before joining the union.
Over the years states have been admitted with populations ranging from less than 7,000 (Nevada, 1864) to more than 1,500,000 (Oklahoma, 1907). During a span of two years, 1889-1890, a Republican-controlled Congress admitted six new states, ranging in population from 62,500 (Wyoming) to 357,000 (Washington). The 2020 population of three of those states (North Dakota, South Dakota and Wyoming) continue to justify only one member of the US House of Representative. Two, Idaho and Montana, have populations currently justifying two members. Only Washington has grown significantly and has ten members of Congress. Each of those six states has two senators.
Exacerbating the discrepancies in representation is the rigid limit on the number of seats in the US House of Representatives. Under Article I, Section 2, of the Constitution, Congress has the power to set the number of representatives as long as each state has at least one and the number shall not exceed one for every 30,000 people. But Congress has refused to expand the number of representatives since 1911, when the population of the United States was 92,000,000.
Consequently, as the United States has grown in population, now exceeding 320,000,000, the relative representation of those states enjoying the most growth has diminished. The thirteen states with the smallest number of people contain 14,618,613 people today, but they have 20 representatives in the US House and 26 in the US Senate. By contrast, California, New York and Texas, the three largest states, have nearly 90,000,000 residents but only 116 representatives and only 6 in the US Senate.
Not only is the influence of the smallest states outsize in Congress, but their impact on the Electoral College can be decisive. The thirteen states with less than 15 million inhabitants cast 46 electoral votes for president, while the 90 million residents in the three largest states are allowed only 126 electoral votes.
But the threat of the federal political system to democratic governance does not result solely from the failure of the system to allow for fair representation of all US citizens. It also is caused by the explosion within the system of political entities, each claiming the right to exercise some degree of authority.
Americans vote for political officeholders every year. Congressional races are limited to every two years and the presidency is at stake every four years. There are, however, more than a half million state and local offices that must be filled and many are not elected at the same time as federal officers. These include county and municipal offices, school boards, and special purpose districts. Even judges are elected in many states.
Since the division of authority among all these political entities is subject to continuous revision, American voters frequently find that election results do not necessarily produce the anticipated consequences. The insidious practice of gerrymandering which impacts both state legislatures and Congress enhances the likelihood of even greater disconnect.
America’s federal system is not likely to be eliminated. States serve an essential role in a nation as large and as diverse as the United States today. But growing unfairness in representation, constant squabbling over governance authority and frequent elections without meaningful resolution of important issues, all produce a witch’s brew of instability and disappointment, providing a perfect environment for corporate lobbyists and wealthy elites anxious to stymie active government at all levels.
Political leaders in all parties need to recognize the challenge the country faces. It cannot be met by ultimatums or boycotts. It requires a willingness to listen to all Americans and to make reforms that allow for an honest effort to accommodate differences. The failure to meet this challenge will eventually lead to an erosion of trust among the nation’s citizens, not only in federalism, but in democracy itself.