Did the Founding Fathers Believe in a Strong Federal Government? You Betcha.

 If there’s one thing that we know about the Founding Fathers,  it’s that they didn’t want a weak national government.

But there was a group who wanted a weak national government. They were called the anti-Federalists, and they were appalled by the proposed Constitution.  These believers in  small-government fought tooth-and-nail against adoption of the Constitution. They lost.

If the supporters of the Constitution had wanted a government “small enough to drown in a bathtub” (in the words of Grover Norquist), they already had one before the Constitution was even conceived.  The Articles of Confederation gave Congress few powers and made it procedurally almost impossible to exercise even those.  Norquist would have been thrilled: there was no tax power at all.

If he’d been around, Norquist presumably would have opposed the Constitution for authorizing new taxes.  Today’s tea party members would surely have been opponents of the Constitution as well. The Constitution is, first and foremost, a grant of power to the federal government. The Founding Fathers consciously sacrificed state sovereignty in the interests of national unity.

The whole point of the Constitution was to make the federal government much stronger than it had been.  The Constitutional Convention left no doubt on that score.  It explained its goals at the same time it made the Constitution public. Here are some key statements:

The friends of our country have long seen and desired, that the power of making war, peace, and treaties, that of levying money and regulating commerce, and the correspondent executive and judicial authorities should be fully and effectually vested in the general government of the Union . . .

It is obviously impractical in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. . .

In all our deliberation on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our Union . . .

These statement are from a letter signed by George Washington after being unanimously endorsed by the Constitutional Convention. Nowhere does it say: “our goal was to make the federal government as small as possible.”

The text of the Constitution bears out the letter by promising among other things  a “more perfect Union” that would “promote the general Welfare.”  The Constitution also gives Congress an impressive list of powers.  The list includes the well-known powers to “regulate Commerce . . . among the several states” and to collect taxes to provide for “the general Welfare of the United States.”  But it also includes a host of other powers: raising an army, establishing uniform national laws on naturalization and on bankruptcy, coining money and regulating its value, issuing patents and copyrights, and making treaties. On top of that,Congress can make laws that don’t fall within this list of powers but are “necessary and proper” to carry them out.  The Europeans are currently suffering from the failure to give the EU similar powers.

What about the states? Whenever Congress exercises its powers, its legislation becomes “the supreme Law of the Land,” regardless of opposition by the states.  States also lost aspects of sovereignty such as the ability to enter agreements with foreign powers, to issue their own money, and to decide all  cases involving their own laws.

Knowing that the Framers wanted a strong national government doesn’t tell us exactly how strong.  There’s no way of know what they would have thought about specific modern legislation, environmental or otherwise.  But we shouldn’t hand the opponents of the Constitution a belated victory.  Libertarians and ultra-conservatives may want federal power to be microscopic.  But our Constitution embodies a different vision.

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

READ more