An Online Journal of Political Commentary & Analysis
Volume V, Issue # 237, September 24, 2003
Dr. Almon Leroy Way, Jr., Editor
Government Committed to & Acting in Accord with Conservative Principles
Ensures a Nation's Strength, Progress, & Prosperity
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By Associate Justice Clarence Thomas

James Madison is rightly known as and rightly called the father of our Constitution. In the Spring of 1787, as Madison left Virginia, then the largest and most influential state, to attend the Federal Constitutional Convention in Philadelphia, he had with him the benefits of his extensive study of governments and the plan he had developed as a result of this study. It was a plan that satisfied both Virginia Governor Edmund Randolph's concern that the integrity of the states be protected and General George Washington's interest in a national authority. Madison's thoughts on an effective central government for America would be presented to the Federal Convention as the "Virginia Plan," or "Raldolph Resolutions." As noted by Ralph Ketcham, a noted Madison biographer, the essence of Madison's plan was what Madison later called a "mixed government," de- signed to preserve, at once, individual freedom, national dignity and authory, and state and local self-government. Madison knew that a plan suitable to Randolph's state and local biases and to Washington's sense of national needs might just have a chance of adoption. I would like to share with you some of my thoughts about the offspring of Mr. Madison's plan, our Federal Constitution, i.e., the Constitution of the United States of America.

What is it about our Constitution that has allowed this great nation to enjoy unprece- dented political stability and economic and social prosperity for more than two centuries? There are two things that stand above all else: First, the principles upon which the Amer- ican constitutional order is based are universal principles, applicable to all people at all times, and, second, Madison and other Framers of the Constitution made a significant advance in politics and political theory, an advance that allowed them to create a govern- ment strong enough to defend itself and the liberties of its people, yet limited enough, that it would itself not become the destroyer of the self same liberties.

Let me turn, first, to the principles. We find them most succinctly and, indeed, elegantly stated by Madison's close friend, Thomas Jefferson, in our Declaration of Independ- ence:

    "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the gov- erned."

Just what did Thomas Jefferson mean when he penned these words in defense of the American Revolution, the very revolution that belief in these very same words launched? In an era in which moral relativism often holds sway, the notion that there are some claims so inherently true as to be self-evident seems almost absurd. Yet that is precisely Jefferson's claim, and it has acquired in our nation the elevated status of a sacred polit- ical tenet.

Abraham Lincoln called it the fundamental principle upon which our free institutions rest. The Reverend Martin Luther King, Jr., described it as "the promissory note to which every American was to fall heir." And he ultimately gave his life in his struggle to have America redeem that promissory note.

Quite obviously, though, Jefferson did not mean that we are all equal in a physical or in- tellectual sense, or in physical or intellectual attributes. Such a belief would be a self- evident delusion, rather than a self-evident truth. No, what Jefferson meant, like John Locke before him, was that we are all created equal by God, endowed with the capacity to reason and with free will, thus sufficiently sharing in human nature as to render it un- just for any man to rule another without consent. This principle of equality is applicable to all human beings at all times, and applies as much to the greatest king as to the lowest laborer or the lowest grunt. A key consequence of this fundamental principle of human equality is that all human beings equally lay claim to the unalienable, or inalienable, rights of life, liberty and the pursuit of happiness.

But to be entitled to such rights does not necessarily mean that one is secure in those rights, the darker side of human nature being what it is. As Madison once noted, "If men were angels, no government would be necessary." [Federalist 51.] Precisely, because men are not angels, therefore, governments are instituted among men for the purpose of securing (i.e., making secure, safeguarding, or protecting) the rights to which we all are entitled by virtue of our humanity. Because of the inherent equality of all mankind, how- ever, the only legitimate government is one which derives its powers from the consent of the governed.

In order to protect against governmental tyranny, yet at the same time create a govern- ment based on consent, the Framers of the United States Constitution engaged in an un- precedented exercise in popular lawmaking. Rising above ordinary politics, the Framers of our Federal Constitution toiled for months in the Summer heat of Philadelphia, not to establish a central government, but to draft a proposal for a central government, which they then submitted for consideration to the people who met through their representa- tives in state ratifying conventions specially convened for the purpose of deliberating on the proposed form of American national government. Our Federal Constitution was adopted only after an elevated process of popular lawmaking--a Constitutional Conven- tion called for the explicit purpose of amending the existing Articles of Confederation, submission of the proposed Constitution to the people for ratification, and ultimate rat- ification by a super-majority of the people meeting in state ratifying conventions.

You know the result–a constitution admired the world over, a constitution that aims to provide enough power to government to ensure that the rights of the people would be secure from both foreign invasion and domestic unrest. But, it is a constitution that also aims to prevent government from becoming the destroyer of the rights of the people, preventing such an eventuality by granting the government only specified enumerated powers and by dividing the government into three principle branches, each of which can check overreaching by the other branches. As Ralph Ketcham observed, "Madison's persistent inclination was to find safety for freedom in a multiplicity of forces."

That is the government to which we, the people, consented. It remains a just, legitimate government only so long as it stays within the bounds established by its charter, our Federal Constitution.

Because men, indeed, are not angels, a government of men will, by its very nature, tend to become tyrannical and, therefore, destructive of the very rights it was instituted to protect. Such a government, therefore, must itself be limited in its powers and structured in such a way as best to protect the rights of individuals, even against a majority. And I note that Edmund Burke, in his Reflections on the Revolution in France, makes this precise point--the point that a majority can be as tyrannical, if not more tyrannical, than an ansolute monarch.

To return to Madison's words,

    ". . . in framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place, oblige it to control itself." [Federalist 51.]

This brings me to the second great achievement of our nation's Founders. We should always remember that the Founders rebelled against Great Britain, not because the British Empire was ineffective or was not strong, but because the British government had violated the principles and spirit of the British Constitution as well as the provisions of the colonial charters, doing so by trampling the constitutional rights and liberties of British subjects residing in the North American colonies and imposing on the colonists tyranny through arbitary government. Fully conscious and keenly aware of this fact, the Framers of the U.S. Constitution, true to Madison's words and his plan, designed an American central government that was strong enough to defend the governed, yet struc- tured in such a way as to ensure that it would control itself.

You are all familiar with the first mechanism that the Framers chose to restrain the pow- ers of the central government--the separation of powers. The Framers divided the pow- ers of the national government into three branches: legislative, executive and judicial. They did this, not because they believed that separation of powers would lead always to a strong and effective government, but because they believed the separation would create an inefficient government.

The Framers further divided the national legislature into two separate chambers, or houses. They gave the national executive a veto over national legislation. And they subjected the entire lawmaking process to judicial review.

The Framers did all of this in the hope that the three branches of the central government would use their respective powers to check and balance each other. While certain inno- vations, such as the legislative veto or the line-item veto might improve the operation of the national government, they are not permitted by the separation of powers, because they would undermine the abilities of the branches of government to check and control one another, and thereby, frustrate and thwart governmental actions unless they have undergone careful thought and scrutiny and obtained consensus support.

At times, this might make the United States Constitution seem like an anacronistic hin- drance that prevents the nation from adopting governmental reforms that have become popular in Europe or Asia. But, as former U.S. Chief Justice Warren Burger wrote:

    "The choices we discern as having been made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices are consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked."

By creating inefficient central government, the Framers hoped to protect individual lib- erty and a civil society, which they believed would flourish only without the interference of the government. With governmental efficiency on one side of the ledger, and an ex- pansion of public power and a corresponding reduction in the sphere of private activity and liberty on the other, the Framers clearly struck the balance in favor of individual liberty. Again, as former Chief Justice Burger observed:

    "With all the obvious flaws of delay, untidiness and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution."

But what has escaped notice of late, and perhaps once for very good reason, is that the Framers of the Constitution established another structural safeguard for individual lib- erty, and I'm speaking here of federalism. Federalism sometimes has been used to jus- tify what I would consider the most terrible tragedies ever inflicted by Americans on Americans–slavery and racial segregation. I might add that slavery was the glaring con- tradiction to the core principles underlying the United States Constitution. For that rea- son, the idea of "state sovereignty," or "states' rights," has rightly earned a negative connotation.

Nonetheless, federalism, in and of itself, is not an evil or a good. It is just a construct, just as the separation of powers is a construct. They are both means that serve certain ends. They are not ends in and of themselves. It was slavery and racial segregation, not federalism, that were major evils in American society. The men and women who perpet- uated both slavery and racial segregation were those who committed the wrongs and who perverted the American system of government for their own ends and their own preju- dices. It was not federalism.

Rightly understood, federalism can advance the same goal as that pursued by the system separation of powers of powers and checks and balances, the enumeration of limited na- tional powers in the Constitution, or the constitutional guarantees of the basic rights and liberties of the individual citizen found in the Bill of Rights. I suggest that all of these mechanisms have the same purpose--to protect individual liberty and the private order- ing of social life, what we sometimes call today, a civil society.

The Framers did not believe that separating powers alone would be sufficient to guard against tyrannical government. They saw, for example, that the three branches of the national government could collude in an unconstitutional exercise of power. In order to protect against this possibility, the Framers created a federal, not purely national (i.e., unitary), system of government. And federalism was to play a purpose similar to that of the separation of powers. As Madison wrote in Federalist 51:

    "In the compound republic of America, the power surrendered by the people is first divided between two distinct governments [national and state], and then the portion alloted to each, subdivided among distinct and separate departments [branches]. Hence, a double security arises to the rights of the people. The differ- ent governments will control each other at the same time that each will be con- trolled by itself."

In other words, federalism provides a check on the national government when the sepa- ration of legislative from executive from judicial powers alone cannot do the job or does not do it. Madison does not say that federalism necessarily exists to protect the states as institutions, although, that's a subsidiary effect. Rather, federalism, like the separa- tion of powers, exists to protect the rights of the people.

This is a theme that has gone unnoticed, but which underlies the U.S. Supreme Court's current pro-federalism jurisprudence. The Supreme Court has not always fully explained the larger purposes behind this resurrection of federalism. This is only to be expected. As judges, the members of the Court are more focused on deciding the cases before us, as presented by the facts and as shaped by precedent, rather than articulating broad principles from the outset.

Nonetheless, the Supreme Court has come in for some sharp criticism, in part, because the restoration of federalism seems to some to be senseless or without purpose. They can't see the overall picture. For me, however, federalism promotes the same purpose as that served by other broad structures of our Federal Constitution, such as the enumera- tion of limited national powers, the Bill of Rights, and the separation of powers. This multiplicity of constitutional mechanisms checks and controls governmental power, so that a sphere of private activity and individual freedom can flourish free from and inde- pendent of government interference.

Federalism helps accomplish this goal in a number of ways. It enhances self-government by allowing the existence and operation of state and local decision-making systems that are closer to the people and, hence, more responsive to their wishes. The states retain jurisdiction over most of the policies that affect the daily lives of their citizens and can therefore play a creative role in defining individual rights. The states do not merely tailor national programs to state and local conditions and needs, the rather bleak role assigned to them by some. The states also provide innovation in creating and protecting new rights, an insight that the late U.S. Supreme Court Justice William J. Brennan recog- nized, urging states to create rights that went beyond the federal Bill of Rights.

At a broader level, the existence of numerous states, each making certain decisions con- cerning the allocation of resources and the balance between public power and private rights creates a beneficial marketplace of policies. Since people can vote with their feet by moving to states with whose policies they agree, they force the states into a competi- tion to offer policies that best protect individuals and their rights. States can even com- pete with the central government to better protect the individual rights of their citizens.

But federalism provides more than just a decentralized decision-making system. One might think that federalism serves the purpose in protecting individual liberties simply by defusing power among many different political centers, such as the states. That could be achieved just as easily by creating administrative subdivisions with a larger national government, as is the case with many European nations with unitary, or highly central- ized, governments. And these nations, to say the least, have not demonstrated a history of protection for individual liberties to the extent characteristic of the American political experience.

Our system of federalism does more than defuse power among regional or local subdivi- sions. It not only defuses power, but also creates autonomous, substantially self-govern- ing sub-national political communities. The state, or "Commonwealth," of Virginia, for example, is self-governing in a way that an administrative division of France is not. Vir- ginia has its own government, has plenary control over certain areas, and administers areas such as criminal law and education with substantial, if not complete, policy-making freedom. Its governmental operations cannot be commandeered or taxed by another level of government.

Yet, states do not have autonomy for autonomy's sake. Instead, the Framers believed that these autonomous political units would have an interest in monitoring the activities of the national government and ensuring that it lives within its enumerated authorities. Keeping the government within the written limits on its power is not a goal in and of itself. Rather, the Framers believed that controlling the central government through the recognition and protection of autonomous state political communities was necessary to protect, once again, individual liberty. The autonomous states would provide both consti- tutional and political checks upon the powers of the national governments. In helping to constrain the national government, the states would supplement the protections for indi- vidual rights as surely as did the Bill of Rights and judicial review. As James Madison declared when he introduced the Bill of Rights in Congress,

    "If these amendments are incorporated into the Constitution, independent tribu- nals of justice will consider themselves in a peculiar manner the guardians of those rights. They will be an impenetrable bulwark against every assumption of powers in the legislature or executive. They will be naturally led to resist every encroach- ment upon rights expressly stipulated for in the Constitution by the declaration of rights."

Judicial protection of individual rights, however, would not be the only protection. Madi- son went on to say:

    "Besides this security, there is a great probability that such a declaration in the federal system would be enforced because the state legislatures will jealously and closely watch the operations of this government and be able to resist with more effect every assumption of power than any other power on earth can do. And the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people's liberty."

Madison's comments reveal the last and, perhaps, most important way federalism pro- tects individual liberty. The existence and operation of the states of the American fed- eral union do not serve individual rights only by allowing the decentralization of power. They do not protect these rights merely by being laboratories of democracy, as Justice Louis D. Brandeis so famously argued. The states also exist as the organizers of re- sistance to the unwarranted exercise of power by the national government. As Alexander Hamilton wrote in Federalist 26,

    ". . . the state legislature who will always be, not only vigilant, but suspicious and jealous guardians of the rights of the citizens against encroachments by the federal government, from the federal government, will constantly have their attention awake to the conduct of the national rulers and will be ready enough if anything improper appears to sound the alarm to the people and not only be they the voice, but if necessary, the arm of their discontent."

States provide an alternate source of political loyalty and a training ground for future po- litical leaders. The Framers of the Constitution certainly foresaw the possibility that the nation's leaders someday might stray from their duty and seek to expand national pow- ers for their own benefit. To guard against this, they believed that federalism, by pro- tecting the autonomy, or reserved powers, of the states, would create centers of political opposition that could control the excesses of the national government.

It is this very autonomy that the Supreme Court continues to protect today. Take away that autonomy and you undermine the ability of the federalist structure to maintain mul- tiple centers of legal and political power.

Now, some see all these constitutional checks and balances as bothersome or cumber- some or inconvenient impedients to majority rule. Every age has its important policies that some people believe must be enacted at any cost, regardless of the cost to the con- stitutional structure. Far from being a vise, though, these checks and balances–the "double security," as Madison called them–are the genius of our system of government, and, I might add, the genius of James Madison. While this double security for our liber- ties often frustrates and thwarts the designs of a popular or legislative majority, it con- stitutes the principal strength and advantage of the American constitutional system. For what is an impedient to majority will is equally an impedient to governmental tyranny.

Surely, no one would contend that the majority itself can do no wrong. Our history is replete with all too many instances in which a temporary majority has pursued its own interest at the expense of the individual rights of the minority.

Perhaps, we need even more checks on government. But, at the very least, let us retain and reinvigorate the ones we have. Surely, the lives and the liberty of more than 250 million citizens of this great nation warrant that double security. The constitutional de- vices for protecting and preserving our liberties--the devices designed by James Madi- son and the other Founders--should be kept in good working order so that, in the words of Abraham Lincoln, "government of the people, by the people, and for the people shall not perish from the face of this earth."

That, my friends, would be a worthy 250th. birthday present for Mr. Madison.

More on U.S. Constitutional Law & Political Philosophy

Justice ClarenceThomas has been an Associate Justice on the United States Supreme Court since October 23, 1991. Prior to his appointment to our nation's highest court, Jus- tice Thomas had been a judge of the United States Court of Appeals for the District of Columbia Circuit. Earlier, he had been Chairman of the U.S. Equal Employment Oppor- tunity Commission, Assistant Attorney General of Missouri, and an attorney for the Monsanto Company. A native of Georgia, he has his bachelor's degree from Holy Cross College and his law degree from Yale University Law School.

Justice Thomas presented the foregoing analysis as the James Madison Day Lecture, on March 15, 2001, at James Madison University, Harrisonburg, Virginia.

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