This Constitution
This Constitution is an every-two-weeks podcast ordained and established by the Center for Constitutional Studies at Utah Valley University, the home of Utah’s Civic Thought & Leadership Initiative.
Co-hosted by Savannah Eccles Johnston and Matthew Brogdon, This Constitution equips listeners with the knowledge and insights to engage with the most pressing political questions of our time, starting with Season 1, focusing on the powers and limits of the U.S. presidency.
This Constitution
Season 4, Episode 2 | Splitting Sovereignty: How the Colonies Defended Local Control
Use Left/Right to seek, Home/End to jump to start or end. Hold shift to jump forward or backward.
Was the American Revolution really about breaking away from Britain? Or was it first a fight over who had the right to govern local communities?
In this episode, host Matthew Brogdon sits down with constitutional scholar Sean Beienburg to unpack the forgotten federalism debate at the heart of the American Founding. Long before the Declaration of Independence or the Constitution, Americans were already arguing that Parliament could not truly represent people living thousands of miles away. What began as a dispute over taxation quickly became a much deeper constitutional conflict about sovereignty, local self-government, and the dangers of concentrated power.
Together, Brogdon and Beienburg trace how ideas first argued during the Stamp Act crisis eventually shaped the Articles of Confederation, the Constitution, and the 10th Amendment itself. They explore why early Americans believed states retained most governing authority, how federalism helped anti-slavery movements spread across northern states, and why the Civil War debate over “states’ rights” is far more complicated than modern political narratives suggest.
The conversation also dives into prohibition, Reconstruction, the Progressive Era, and modern fights over marijuana, immigration, and federal authority, revealing how constitutional federalism continues to shape political battles across the ideological spectrum.
Tune in to discover why the struggle between local self-government and centralized power has been part of the American story from the very beginning.
In This Episode
- (00:15) Introduction Sean Beienburg
- (00:47) The American Revolution and local self-government
- (03:58) The British Constitution debate
- (06:40) Continuity from colonies to states
- (08:05) The First Continental Congress's Declaration and Resolves
- (11:20) Federalism in early state constitutions
- (14:18) The Massachusetts Constitution of 1780
- (17:54) British sympathy for the American argument
- (21:02) The Articles of Confederation
- (27:44) From the Articles to the Constitution
- (31:01) Federalism and the abolition of slavery
- (38:27) Federalism during the Civil War and Reconstruction
- (42:04) The "Lost Cause" narrative
- (42:51) Federalism in later American politics
- (45:43) Prohibition as a federalism debate
- (50:42) The enduring relevance of federalism
Notable Quotes
- (01:06) "The American Revolution is obviously about the idea of self-government, but the question is self-government by whom? And I think that if you look at the debates, what jumps out is that the grounds cited were about power being vested in the provincial, the colonial legislatures." — Sean Beienburg
- (08:56) "They're not saying give us representation in Parliament. They're saying: we are entitled to a free and exclusive power of legislation in their several provincial legislatures. This is the assertion that the English colonies in North America are self-governing states that are part of a broader empire." — Matthew Brogdon
- (13:34) "All of the northern state constitutions — the states that are rewriting a new one — they put this language in there. I've got the goods on this. Federalism, the idea that most stuff stays in-house at the states, is a value they assert repeatedly." — Sean Beienburg
- (17:07) "The Federal Constitution is only part of the people's constitution. If you want to know the rest of the Constitution that governs the people of the state of Utah, you'd have to go look at our state constitution." — Matthew Brogdon (citing Troy Smith)
- (35:06) "If you look at the secession manifestos from the Southern states, they are as angry or angrier at northern states invoking federalism against slavery, like they're mad that the northern states aren't participating in extradition or the Fugitive Slave act kind of stuff.." — Sean Beienburg
- (52:34) "Constitutional federalism is a part of all of our constitutional heritage, and I think we've sort of lost track of that. I hope that's something America will continue to rediscover." — Sean Beienburg
- (53:15) "Even if they might be disingenuous, they might get in the habit and decide they like it. Try it, you might like it. Constitutional federalism is a pretty good thing." — Sean Beienburg
Resources and Links
This Constitution
- Apple Podcast: https://podcasts.apple.com/us/podcast/this-constitution/id1771900485
- Spotify: https://open.spotify.com/show/0IQCq5DUPWlImiAdc4t3pf?si=85085b24b55b4130
- Website: https://www.uvu.edu/ccs/projects/this_constitution_podcast.html
- YouTube: https://www.youtube.com/@centerforconstitutionalstu8915/videos
Sean Beienburg
Matthew Brogdon
Matthew Brogdon:
[00:00 - 00:32]
We the people, do ordain and establish this Constitution. Welcome to This Constitution. I'm Matthew Brogdon, and I've got a special guest with us today, Sean Beienburg, who is an associate professor, teaches constitutional history and writes on federalism and the relationship between the states and the federal government at Arizona State University's School of Civic and Economic Thought and Leadership. Sean, welcome to the podcast.
Sean Beienburg:
[00:32 - 00:36]
Terrific to be here. Terrific to spend some time with my buddy, Matt Brogdon.
Matthew Brogdon:
[00:36 - 00:46]
Well, we've been talking for years about the relationship between the states and the federal government, and we've had you on campus talking to our students about some of those issues.
Sean Beienburg:
[00:46 - 00:47]
You were very impressive.
Matthew Brogdon:
[00:47 - 01:05]
Well, I appreciate that you made a statement at one point during a talk you were giving to students that the American Revolution is about local self government in the empire. Can you explain what you mean by that? That's not what most people think when they think about the American Revolution, but.
Sean Beienburg:
[01:05 - 03:59]
Right. So I mean, the fundamentally, the American Revolution is obviously about the idea of self government, but the question is self government, sort of by whom? And I think that if you look at the debates, so they say, what's the debate about? Taxation without representation is sort of the classic version of that. But why? What did it mean that they weren't represented? And so one of the things that I find helpful is to go back and look at sort of what were the grounds that were being cited by the documents during and before the American Revolution? What were they saying the problems were? And so, for example, if you look, the first one that I think jumps out at me on this is the Stamp act resolves first in Virginia and then by the Stamp Act Congress and the Protesting in the 1765 Virginia Stamp act resolves, for example, they say the idea of taxation and basic governance should be understood as being vested in the provincial legislatures, the colonial legislatures. And you see the same thing pop up in the Fairfax resolves, you see the same thing pop. So there's various documents in this era that I think basically say, look, we are a part of the British Empire, we respect Parliament, but our understanding of the arrangement of this empire is, is one where power is distributed. And so this is fundamentally, I don't want to overstate this, but I think you can make a case to say really at least the early parts of the American Revolution, I would say later on still. But at the very least, the early parts are basically a constitutional debate about what is the nature of the British Empire. Is it one where power is fundamentally and almost exclusively established in Parliament, which is what the English think that it is or is power more distributed. And even the English understanding they have a strong tradition of localism. So it's not like the Americans just make this up. They not only have their political history of the 18th century, but they can draw on the same kind of logic of court and country party divisions, Right. That they think that power sort of, there's virtue in the local communities in the country, in the rural. Right. So there's threads that are already existing that the Americans can kind of weave together into basically sort of a tapestry or a fabric of. They understand it is basically the British government is making a move to change what they understood as the arrangement. And so in this case, you could also make a case to say, and I don't mean this in like the left right sense, they think of the American Revolution as a conservative one, protecting what they have seen as their local government prerogatives to basically be left alone, to tax themselves and to govern themselves. And so. And it creates this unfortunate escalating thing where, you know, they assert this and then the British feel obligated to assert parliamentary supremacy, and then the Americans push. And so it creates this escalating thing. But fundamentally, it's a debate about whether the empire is one of local government or concentrated government in Parliament.
Matthew Brogdon:
[03:59 - 04:06]
So you used a couple of terms in there that I think are really interesting that we should pull apart. One is, you said this is a constitutional debate.
Sean Beienburg:
[04:06 - 04:07]
It is a constitutional.
Matthew Brogdon:
[04:07 - 04:44]
And so we're talking about. You mentioned this in the. In the context of the Stamp Act, which controversy over that starts in the mid-1760s, so 10 years before the start of the American Revolution and before the Declaration of Independence, Americans are having this debate. And then, of course, when we get closer to the Revolution, the Acts of the Continental Congress, which produces Declaration of Resolves messages to the Crown, as well as later the Declaration of Independence. And by framing this as a constitutional debate, that suggests to the typical person, what constitution are we talking about?
Sean Beienburg:
[04:44 - 04:45]
Right?
Matthew Brogdon:
[04:45 - 04:52]
So if Americans are saying Parliament's doing something unconstitutional, what did that mean? Right?
Sean Beienburg:
[04:52 - 06:40]
And this context, and this is in fact why there's a divide, because the British government famously has no formal written constitution, right? So they mean constitution in the small C sense of what are the principles and ideas and documents and that build and form our society. And so that creates certainly a lot more wiggle room and interpretation. And why, as you know, John Marshall says in Marbury Madison, you write a constitution to make a lot of this stuff more explicit, because when the Americans say, look, the Americans and The Brits both agree the glorious revolution of 1688 and 89 is our sort of major founding moment of what we think of as English liberty. Obviously it has earlier antecedents, the English Civil war, Magna Carta, etc. But they both want to point to this as this is what true English liberty is. But yeah, we have an English Bill of Rights, they're both going to point to that. But the British are going to say the legacy we take from that is that Parliament is supreme over the King. And that's what being freedom. Freedom means basically having an elected legislature as where sovereignty is vested and that's how to protect liberty. And the Americans understand the English, the Glorious Revolution as having a much more local component because the American theater of that there is an American theater of that revolution which is effectively expelling an effort by the British monarchy to consolidate the colonies into something that could be more centrally administered. So when they're looking around and saying what's our traditions, what are our histories, what are the ideas? They both are looking at the same time period but slightly different events to then say the traditions mean X, Y and Z. And so the British, it's not unreasonable, they're going to say, yeah, the legacy is Parliament is supreme, but the Americans are going to say, no, the legacy is that we don't want concentrated power in that same way. And that's really what English liberty is about. And those are both defensible interpretations. They're both very defensible interpretations.
Matthew Brogdon:
[06:40 - 07:21]
And so if that's true though, that means that when we moved from British colonies into a union of states with the Declaration of Independence and then later with our Constitution and so forth, if that's true, that states were just keeping their self governing capacity they had under the British Empire and now possessing that within the context of American Union, that gives us a much more sort of parallel, a much less radical change. That's right, right. You know, the most compelling piece of evidence I think for a view like that is that Connecticut, I think it's Connecticut chooses not to write a new constitution initially.
Sean Beienburg:
[07:21 - 07:22]
Several of them don't. Several of them don't.
Matthew Brogdon:
[07:22 - 07:27]
Yeah, they just keep the fundamental orders of Connecticut, which I think is from like 1630s.
Sean Beienburg:
[07:27 - 07:28]
Yeah, 1630s.
Matthew Brogdon:
[07:28 - 08:04]
Sometime in the 1630s. So they've got a constitution they wrote for themselves in the 1630s and then they have a charter that the crown had given them later in the 17th century, around this time that you're talking about the Glorious Revolution, all the upheaval in England and they thought we can Just keep those. We don't need to write a new state constitution. These are adequate for us to be a state as a member of the American Union of States. So this is a very interesting piece of evidence. I also wanted to talk to you about this line. So the First Continental Congress, which precedes the Second Continental Congress, which we think of, as we all know, for the Declaration.
Sean Beienburg:
[08:04 - 08:05]
Yep.
Matthew Brogdon:
[08:05 - 08:27]
Had produced, among other things, the Declaration and resolves of the First Continental Congress. This is sort of the culminating document that they publish. Interestingly, at least one version of this document that was put out by a printer was titled A Bill of Rights. There was actually a version of the Declaration of Resolves that was printed. I can't remember if it was in Boston or Philadelphia that actually titled it
Sean Beienburg:
[08:27 - 08:30]
A Bill of Rights, which draws on that English tradition.
Matthew Brogdon:
[08:30 - 08:30]
That's right.
Sean Beienburg:
[08:30 - 08:31]
Yeah.
Matthew Brogdon:
[08:31 - 08:58]
But the Declaration resolves, the fourth resolution says this, that the foundation of English liberty and of all free government is a right in the people to participate in their legislative council. And as the English colonists are not represented and from their local and other circumstances cannot properly be represented in the British Parliament. So that's interesting, right? They're saying, not only is it when they say no taxation without representation, they're not saying give us representation in Parliament.
Sean Beienburg:
[08:58 - 08:59]
That's exactly right.
Matthew Brogdon:
[08:59 - 09:34]
They're saying we can't be represented in Parliament. Parliament can't possibly represent people all the way over here. So what's the result then? They say they are entitled to a free and exclusive power of legislation in their several provincial legislatures. So this is, you know, this assertion that the English colonies in North America are self governing states that are part of a broader empire. There's some sort of inherent legislative power that's housed there. So this sounds very familiar. It should sound very familiar to us.
Sean Beienburg:
[09:34 - 09:35]
It does, it should.
Matthew Brogdon:
[09:35 - 09:55]
In terms of the American Constitution, where else do we find an expression of this? In a way, what we're asking is where do we find the pattern for our Union, the federalism, if we want to use the technical term that comes into use, but for our Union, the relationship between states and the federal government before our Constitution.
Sean Beienburg:
[09:55 - 14:00]
I just want to say, like the Declaration of Resolves is one of my favorite documents in American constitutional history. So it pleases me immensely that we can talk about that, because it is, everybody knows that. And most of it's the same as the Declaration of Independence, which, most of which is basically a set of British legal indictments. Right. Count one, they took away the jury. Count two, they closed up judges. Right. But the political Theory, as you noted, is not only this idea of localism and the idea of an exclusive authority. They're not even saying they're sharing this authority for local government and taxation with Parliament, they're saying it's an exclusive thing. And you pointed out one of the other sections that I think is really important. They cannot be represented. This isn't just give us 10 seats in parliament. This is anticipating one of the virtues of constitutional federalism. Constitutional local government. Diverse local circumstances shape the capacity and the interest in things. Right. What kinds of products you choose to tax makes a big difference based on whether you can produce those kinds of products or not, for example. Right. So localism, the idea that, you know, they understand their situation better. And even if you have somebody over there saying here's what it's like in Massachusetts Bay, the rest of the people can sort of intellectually hear that, but they can't viscerally understand it in the same way. So they anticipating one of these core defenses of federalism. So yeah, you made my day in citing, citing that text. But again, you see it that is basically picking up an argument that you'd seen in 1765 in the stamp act, both the Virginia and the state level. But you also see it since you were mentioning the state constitutions in the Declaration of Independence or as they're getting ready to spool that up, they tell the states, get ready, we're going to start governing ourselves. And so some of the states, like in Connecticut, they more or less just like scratch out governor appointed by the king, but otherwise they basically keep it the same. And, and some of the other states really want to do something exciting because they say this is a new potential moment, even if we think local government is an old thing, like maybe we want to redesign an institution. And so they write state constitutions and you know, George Mason's is produced before for Virginia, before the Declaration. Pennsylvania's comes out about concurrently. And Pennsylvania declares very similarly to the language you cited from the Declaration resolves. They say effectively we reserve every right, every power. You know, the idea of they use the term con law, nerdery term police powers or internal polity, but that basically just means default governing authority. We reserve these rights to ourselves, except where we have delegated them to Congress by whatever we're going to do to delegate that originally that, you know, that will end up being the Constitution. But we reserve the rights to govern ourselves except where we have handed power except to the central government, which again, fundamentally is the opposite understanding of how the British understood the empire which is Parliament can delegate power to the colonies and it can take it back. And they're saying, no, this is reversed. We understand first the British Empire and now our free republic, our free compound republic to be one where most power stays at the state level. So you see that pop up in the Pennsylvania Constitution. You see it pop up in 1780 in the constitution that John Adams writes for Massachusetts. You see it pop. New Hampshire borrows it from Massachusetts. You see an allusion to this in the north or the New York Constitution. You see Vermont. And then it becomes a state in 1791 and they do a new constitution in 93. They say the same thing strikingly, a few sections after a provision that, as far as I know, is the first explicit guarantee of a prohibition against slavery in a state constitution. So just as an aside, we have this narrative. Federalism is. Or, you know, states rights or whatever is a concession to the South. No, all of the northern state constitutions, the states that are rewriting a new one, they put this language in there. If you want to get really technical, I wrote an article about it a few years ago collecting all this. It was boring, but it's like, I've got the goods on this. I'm not just making these states up, but the states in their state constitutions asserting their fundamental political values, assert this idea repeatedly saying, yes, this is in fact a limited government. Most stuff stays in house at the states. Local government is a value we hold.
Matthew Brogdon:
[14:00 - 16:18]
I've heard you point out that if you look at provisions in early state constitutions that expressly give voice to this view of state sovereignty and limited federal power, it's overwhelmingly a characteristic of New England constitutions. And Pennsylvania, a little bit of middle state Pennsylvania, New York, but not really particularly a feature of southern constitutions. I have the language from the Massachusetts Constitution in 1780 is really interesting to me and is a nice bridge between the Revolution and the Constitution because it says in the. This is the fourth item in the sort of Bill of Rights that comes at the beginning, which was the standard form. State constitutions usually started the sort of bill of rights statement of political principles, liberties and other things. And they list this. It says, the people of this Commonwealth have the sole and exclusive right of governing themselves as a free, sovereign and independent state. That language is, funny enough, a kind of combination of the language of the Declaration resolves the first Congress and the Declaration of Independence. This notion of a sole and exclusive right of governing themselves, and then that language of free and here free, sovereign and independent in the Declaration of Independence These colonies are, and of right, ought to be free and independent states. Exactly right. So Adams is stitching together all this language, and then he reaches forward, seemingly, to what will eventually be the 10th Amendment right and includes this provision. And the people, as commonwealth do and forever hereafter shall exercise and enjoy every power, jurisdiction, and right which is not or may not hereafter be by them expressly delegated to the United States of America in Congress assembled. So that's a reference to a provision of the Articles of Confederation which Congress has written at that point and will be emulated in the Federal constitution, with the 10th amendment making very clear that the federal government is one of delegated powers. The states are governments of reserved powers. Anything that's not given to the federal government, we assume stays with the states. And that way, the state constitutions provide this bridge. It's not actually just the Federal Constitution doing all the work.
Sean Beienburg:
[16:18 - 17:05]
I mean, as we've talked, as people have pointed out, the US Constitution and the state constitutions are each incomplete documents by themselves. They are supposed to be read in parallel and in tandem. And there's parts that appear in the one and don't appear in the other. There's more kind of political theory, language like this. What are our fundamental political values? That's in the state constitutions. You know, the US Constitution's preamble is more of a list of kind of policy goals. Right. We want security. We want, say, we want these things. And so this is exactly a place where you would expect to see something like this. And this is partly, I think, probably partly why the architects of the original Constitution, like, don't think they need this language in here because it's already sort of implicit. But the ratifying conventions, as you said, say, look, you keep telling us this. We understand this is not really a concession. So we write us this 10th amendment anyway, and the ratifying conventions request that.
Matthew Brogdon:
[17:05 - 17:26]
Yeah. Our friend Troy Smith likes to say that the Federal Constitution is only part of the people's Constitution, because in any given state here in Utah, part of our Constitution is the Federal Constitution. We can go read it. It's one we share with the rest of the country. And then if you want to know the rest of the Constitution that governs the people of the state of Utah, you'd have to go look at our state Constitution.
Sean Beienburg:
[17:26 - 17:27]
That's right.
Matthew Brogdon:
[17:27 - 17:44]
So for any given community in this country, the Federal Constitution's only part of the story. So this really is an excellent illustration of that. You get this principle that's perhaps not thoroughly described in The Federal Constitution? Not initially. It's one of the reasons we have to add the 10th amendment, to try
Sean Beienburg:
[17:44 - 17:47]
to specify with the 9th is supposed to be sort of its parallel.
Matthew Brogdon:
[17:47 - 17:54]
But although I've jumped the gun a little bit, I would actually like us to talk about the Articles Confederation in a minute. Because actually, can we.
Sean Beienburg:
[17:54 - 18:02]
Before we jump to the Articles, can I back up to one thing that I think is worth noting? There are actually Brits who think that the Americans get it right.
Matthew Brogdon:
[18:02 - 18:03]
Oh, that's a great point.
Sean Beienburg:
[18:03 - 18:33]
Like Edmund Burke, prominently. The historian Jack Greene has written about this and I think has a new book coming out in a year or so about this. So this isn't just like the Americans are screaming in the wind, these crazy ideas. There are Brits that say actually they do have a pretty good read of constitutional history and they're not out of their mind, or at least it's a defensible take. So I just think that's worth emphasizing. Again, this is a really sophisticated debate within British constitutional principles that have a legacy. This isn't just the Americans suddenly making this up.
Matthew Brogdon:
[18:33 - 18:45]
Oh, that's interesting. Can you spell that out a little bit? What is it about the American argument that people in Great Britain. You mentioned Burke. I think Green Greene writes a lot about pamphlet. Pamphleting.
Sean Beienburg:
[18:45 - 18:48]
That's what he's collecting now too, in England.
Matthew Brogdon:
[18:48 - 18:54]
So he's looking at. People are writing political pamphlets debating political issues in Britain at the time.
Sean Beienburg:
[18:54 - 19:07]
And there are also, I mean, some of the. Some of the British generals and officers that are sent over. Some of them had spent time in America before. And folks in Britain, some of the cases have wondered whether the British generals, like weren't all into it because they were American sympathizers.
Matthew Brogdon:
[19:07 - 19:10]
Well, that is literally true. One of them, I think it's how.
Sean Beienburg:
[19:10 - 19:11]
I think it's how. Correct.
Matthew Brogdon:
[19:11 - 19:12]
How. Brothers.
Sean Beienburg:
[19:12 - 19:13]
Yeah. The brother. Yeah.
Matthew Brogdon:
[19:13 - 19:14]
Was in Parliament.
Sean Beienburg:
[19:14 - 19:14]
Yeah.
Matthew Brogdon:
[19:14 - 19:18]
Before he was sent to the States and was a little bit of a pro American.
Sean Beienburg:
[19:18 - 19:19]
Yeah.
Matthew Brogdon:
[19:19 - 19:27]
Member of Parliament. This is fascinating. Yeah. So you know, Americans, we love to argue about the Constitution and if it's on constitutional law, we're going to win.
Sean Beienburg:
[19:27 - 19:29]
That's why you write a constitution.
Matthew Brogdon:
[19:29 - 20:17]
That's why we wrote a con. It is worth noting in this regard. You mentioned Marbury versus Madison earlier. We sort of passed over it. But John Marshall importantly doesn't say that you have to have a written constitution to have a constitution. He says if you want judicial review. Right. If you want courts to enforce your constitution, then you need to write it down. It needs to be written law. But there's nothing to stop you from having a set of constitutional rules that are understood as a matter of custom and can be enforced as long as you don't expect courts of law to run around enforcing them for you. That's what they're doing here. You've got legislative assemblies sending arguments to other legislative assemblies, making an appeal to the monarch, you know, arguing about these constitutional arguments. None of them particularly expected that there was a court somewhere that they could all walk into and settle the issue.
Sean Beienburg:
[20:17 - 20:53]
That's right. But there is also an issue of depending on what's your protocol for changing the constitution, which is under the Britain Parliament. I mean the House of Lords is a fundamentally bicameral system until it's not right, which is done by an act of Parliament. Whereas you have to have much, much more buy in. I mean, maybe that's a rule, a question about how difficult is the rule of constitutional change. But it's not just judicial enforceability. It's a question of basically entrenchment because things that are customs cannot be customs anymore when you change your practice for a few years. And that's in some sense also part of what the American debate is about originally.
Matthew Brogdon:
[20:53 - 21:12]
This really means something for theories of change. How do you know if you changed your constitution or not? That's hard to know if you don't have a formal amendment process. So let's talk about the Articles of Confederation for a moment. Our first attempt to implement this, the Declaration of Independence, assumed that there was a union of states, right?
Sean Beienburg:
[21:12 - 21:18]
Congress itself a union of independence. I mean, it's just like this weird kind of mix, right?
Matthew Brogdon:
[21:18 - 22:23]
These united colonies are and of right ought to be free and independent states. So as later in a debate over nullification secession, you get various efforts to describe what is happening here. Things like they declared their independence as free and independent states, but they did so unitedly, you know, as one people, even though they were organized into separate states. So there's this very fumbly effort we have as Americans to try to figure out how best to describe the situation. But however our favorite way is to describe it, when we publish the Declaration of Independence, we are a union, it's Congress. And you mentioned Congress had already been urging states to adopt new institutions or even constitutions before they ever declared independence. Congress had taken up arms well before, you know, George Washington had been commander in chief of the armed forces for a year before the Declaration of Independence. So there is this interesting ambiguity. We have a union, but it's made up of free and independent States, but we are somehow a union.
Sean Beienburg:
[22:23 - 22:35]
And you can do this in the halfway defense of the Brits. They can say, see, this is why you can't have sovereignty divided. We know where sovereignty is. It's in Parliament. We don't have to have this. Like, is it totally united? Is it quasi? Like.
Matthew Brogdon:
[22:35 - 22:37]
So, yeah, you can't split the atom
Sean Beienburg:
[22:37 - 22:49]
of sovereignty, which the Americans try to do that in a theoretically sort of messy way, but in the end, I think the institutions that result end up being better. But it is actually sort of a theoretically difficult thing.
Matthew Brogdon:
[22:49 - 23:16]
They're trying to see that argument now. I just sat in a seminar with a couple of folks arguing over whether powers attributed to the federal government in the Constitution are actually limited or not. And there's been, you know, Richard Primus has a book out arguing essentially the enumeration of powers doesn't mean what you think it means in the Constitution. And really, if you read the Constitution carefully enough, we have a federal government of unlimited powers.
Sean Beienburg:
[23:16 - 23:18]
Right. I've seen. I've seen that argument. Yes.
Matthew Brogdon:
[23:18 - 23:32]
And there are a number of people willing to advance this argument. And that really was sort of the British argument, in a way, responding to Americans. But the way you describe it is actually there were plenty of Brits at the time, even in Parliament, who were saying, no, Parliament's power is not unlimited.
Sean Beienburg:
[23:32 - 23:47]
Or at least the experience that the Americans had of this, that we've given them charter rights, We've given them. So even if it's unlimited domestically, like, they don't want to make that concession. Yeah, but that the experience of British constitutionalism is a little more complicated in that sense.
Matthew Brogdon:
[23:47 - 24:13]
So our first effort to reflect the reality of this Union is the Articles of Confederation. So to what degree do you think the Articles of Confederation is successful at embodying the nature of this Union? If we take the argument advanced in the Declaration resolves of the First Continental Congress and take what's going on in 1776, does Congress succeed in crafting a constitutional document that actually reflects the Union?
Sean Beienburg:
[24:13 - 26:04]
Yeah, I mean, I guess in some sense it's hard to say because there is that ambiguity in the first place. And so this is where I think that Madison's analysis of the Articles in both his vices on the Constitutional system MEM Memo, which is basically him reflecting on both the Articles and on the state constitutions, it's worth emphasizing that he has both in mind, but also in Federalist 39. So, I mean, just for the listeners, like the Articles of Confederation has a set of limited, enumerated powers that look similar. It has, as you said, a 10th Amendment language. So it has a scope of powers that looks in some sense similar, but institutionally right. It doesn't have its own courts, it doesn't have its own executive enforcement. And so, you know, as Madison says, the shift from the Articles to the Constitution is taking the best parts of the Articles, which the mad. The argument that Madison's making, you know, whether Madison. I'm not a Madison scholar, and there's a whole debate about does Madison switch sides? Is he really a states rights and then he sort of a nationalist that switches to states rights? I'm going to punt on that question. I'm not a Madison scholar. But Madison argues, and I think he's right about this, that the major change from the Articles to the US Constitution is not switching from a federal system to a unitary system. The pitch in so many of the Federalist Papers is we recognize you want a stronger government, but we also recognize you don't want a strong government at the federal level. It still needs to be fundamentally limited. And so the pitch in the Federalist Papers is we've taken the parts of the Articles that worked, but we've actually given it its own executive power. We've given it because the. Originally, the plan wasn't to throw out the Articles wholesale. It was to fix a few things. But the Articles had that unanimous amendment procedure that meant Rhode island could just basically veto it by abstention. And so then they realized, look, we're going to rewrite it. We might as well do a little bit more under the hood.
Matthew Brogdon:
[26:04 - 26:13]
So at this point, the Articles have got a few powers given to the federal government. They say war, international commerce, some other items.
Sean Beienburg:
[26:13 - 26:18]
The post office, if it's only paying for its own taxes because we don't want an independent tax exemption.
Matthew Brogdon:
[26:18 - 26:48]
That's right. That's right. And then a statement that says the states under the Articles reserve every power, right and jurisdiction which is not expressly delegated to the United States. And expressly meaning, you know, in black and white on the page, like very clearly there's no implied powers here. And then in order to change this thing, you've got a unanimity requirement. Every state has to agree if you want to change the rules of the game.
Sean Beienburg:
[26:48 - 26:50]
Policy is super majority, amendment is unanimous.
Matthew Brogdon:
[26:50 - 26:54]
And you can imagine this even as a family, you know, trying to adopt
Sean Beienburg:
[26:54 - 26:55]
House rules board game.
Matthew Brogdon:
[26:55 - 27:08]
Imagine if it was like, everybody has to agree, we're adopting this House rule. We would never be capable of improving a game in my house. There would always Be some dissenter to blackball what was obviously a needed change in the rules.
Sean Beienburg:
[27:08 - 27:11]
So you've got a Rhode island in your family. Is that your challenge?
Matthew Brogdon:
[27:11 - 27:44]
Everybody has a. Don't they? We call this the square wheel. Right. No matter where we go, there's going to be a square wheel. And that's true of the Union too. Okay. So that's kind of what we have with the Articles. And you know, it does seem like that does reflect, at least at the basic level, reflect, something about this. So what is it that we gain whenever we move from the Articles to the Constitution? Is that an improvement in terms of the Union? I mean, generally speaking, it's taught as an improvement. We tend to think it's an improvement. We like our Constitution. I don't know of many proposals to go back to the Articles of Confederation.
Sean Beienburg:
[27:44 - 27:47]
You see a few of them once in a while of some curmudgeons, but
Matthew Brogdon:
[27:47 - 27:49]
yeah, that's a lot of traction.
Sean Beienburg:
[27:49 - 28:38]
No, for good reason. Yeah, Yeah. I mean, Federalist 39 is my favorite Federalist paper for a reason. Because Madison in 45, he sort of alludes to some of this as well, but it lays out the case that the Constitution gives you. Because a federal limited government model has disadvantages, it has advantages. Right. Conversely, a unitary model, again, advantages and disadvantages. And I think Madison spells out where in a way that, yeah, the Brits are going to say the sovereignty splitting doesn't make any sense. But if you have a government that is fundamentally one of limited powers, limited and enumerated powers that has a liberty protection component to it, this government can't do what you didn't authorize it to do in the first place. So that's liberty protecting the disadvantage. If you were then to have. Under a purely federal model where it doesn't have its own execution force. Right. The Congress asks Massachusetts to enforce something or send it taxes or whatever.
Matthew Brogdon:
[28:38 - 28:38]
And this would be the article.
Sean Beienburg:
[28:38 - 29:25]
This is the Articles model. That's right. Right. And so you have sort of a principal agent problem where the people who are making the policy then don't get to. Basically, you know, Massachusetts is going to say, we got potholes to fix, we got schools to fund. Like, we don't want to pay taxes, we want to pay this. Right. And so Madison says the optimal is that you have a limited federal government in terms of its scope of its powers, but a national unitary model in terms of the execution of the powers so that you get the efficiency of the more centralized government while still protecting the liberty protections of a federal model. And so you get to keep the scope question from the Articles. Although then they say in his Madison notes in Federalist 45 they've added a commerce power. But he says nobody's worried about that one because the commerce power isn't going to do very much or anything.
Matthew Brogdon:
[29:25 - 29:26]
It's obvious what this is.
Sean Beienburg:
[29:26 - 30:02]
It's obvious what it is. It's not a big deal. Which of course maybe suggests how we should properly think about the Commerce Clause power. If the skeptics of the Constitution that freak out about every little thing. I mean, there's a lot of Federalist papers that no one ever needs to read again because they're refuting some completely obscure, tortured argument that's being dragged against the Constitution. Or some of the other arguments like by Brutus are quite thoughtful and they need more response. But Madison makes the case to say that the Articles did conceptually a few things well, but it did some things very poorly. And so we can re engineer this to get the best of all worlds, even if this is theoretically messy.
Matthew Brogdon:
[30:02 - 30:07]
So we get an actual power in the federal government to enforce the laws it makes.
Sean Beienburg:
[30:07 - 30:10]
We still have limited power and institutions to do it specifically.
Matthew Brogdon:
[30:10 - 30:18]
So we need to hook you up with some of the lawyers that have started arguing this enumeration of powers doesn't mean anything. So we still have a government of limited powers.
Sean Beienburg:
[30:18 - 30:32]
There's just no way that you can read that and think that anybody would have signed this Constitution. Like aha, we found the one trick that nobody knew in time of the founding and suddenly 150 later they would not have gotten it through. We would still be back in the Articles and or the British would have captured us.
Matthew Brogdon:
[30:32 - 30:51]
Well, I think the folks doing this make a lot out of the anti Federalist argument that anti Federalists were reading these clauses maximally, you know, sort of painting a really scary picture giving us the parade of horribles. If you ratify this Constitution, the federal government will be able to do anything because look at this broad language about welfare and other stuff.
Sean Beienburg:
[30:51 - 31:01]
But the Federalist doesn't say, oops, you got us, you're right, we can do whatever we want. They spend pages in oceans of ink saying no, it is actually fundamentally limited. Stronger but not strong. Settle down.
Matthew Brogdon:
[31:01 - 31:01]
That's right.
Sean Beienburg:
[31:01 - 31:02]
So.
Matthew Brogdon:
[31:02 - 31:48]
So I want to go back to something you said just a bit ago as a segue into things that happen later in American politics. You mentioned that it was self governing states, the fact of a federal system that each state could govern itself after independence in this period between 1776 and then into the 1780s, when we write the Constitution, the 1790s, whenever we get into the early Republic, you pointed out that it's because we have this federal system that states are able to abolish slavery, adopt gradual emancipation and so forth. So I've seen you show a nice map before that shows, you know, 18. If we went to 1776, we'd see that one state, it's Vermont, which isn't
Sean Beienburg:
[31:48 - 31:50]
even really a state at the time. Right.
Matthew Brogdon:
[31:50 - 31:56]
It's not technically a state. It was a territory or thought to be a territory. Everyone but Vermont still has slavery.
Sean Beienburg:
[31:56 - 31:57]
Yep.
Matthew Brogdon:
[31:57 - 32:02]
Even Massachusetts has some, some language in its Constitution that's going to be used later.
Sean Beienburg:
[32:02 - 32:04]
But that's in 1780.
Matthew Brogdon:
[32:04 - 33:18]
But that's 1780. And somehow between then you've got one free state up there and everything else are slave states from Georgia all the way to New England. And between then and 1804, we go through a process where these states each abolish slavery until we have about half the Union is free and half of it is still slave. And if we had had national uniformity in that period, if we hadn't had state independence in these areas, the whole Union would have been slaveholding, not half free and half slave. So the fact that we find this emphasis on local self government, these principles of federalism, so deeply rooted in the opposition to the Stamp act and the opposition to other British encroachments on local self government in America and at the root of these efforts, what does that do for the way that we look at federalism in subsequent debates in America? Yeah, I think the predominant framework, and you've talked about this a good bit, if you say federalism or states rights, people think, oh, that's sort of a cover, an outer garment for slavery and segregation. Right. But you give a much different account, American federalism.
Sean Beienburg:
[33:18 - 35:58]
I don't want to say that the other, that the sort of conventional account isn't accurate in describing some political participants or actors. Like, I don't want to say that it is never a cover or anything like that. But the argument that I am making is that constitutional federalism is again, I'm going to, I'll take the strong version and say the foundational motivation for the American Revolution, but you can take the softer version and just say a foundational for the Revolution and Constitution, et cetera. Isn't it more rhetorically compelling to say we're on the side of the Constitution than the actual sort of under the hood arguments? So it's not surprising that that's an argument that gets Invoked by folks wanting to maintain white supremacy or whatever. I get that we've taken the argument and basically, in some sense, for two generations, I think particularly folks have more or less exclusively understood that say, these are the only people who were citing this. And I just, I don't think that's accurate. I don't think that's accurate. At the founding, northerners cared about federalism, and I don't think it's even accurate during the Civil War. I mean, as you alluded to something that I think is important, the radical Republicans and the folks before and after the Civil War did not view federalism as their enemy. They viewed federalism as their friend because it had been what had shown societies could abolish slavery. It had given them the institutional authority to do it. But then they also could put it into practice so that if you are, you know, the fifth state interested in anti slavery, anti slavery activists could say, well, it didn't end the world when Massachusetts ended slavery. It didn't end the world when Pennsylvania did. Right. And so it creates, you know, what, like a sort of political scientists call it policy diffusion. But you can see something worked in a state and copy it. But then jumping into the 19th century, right. Northerners are using federalism in some sense to guarantee slavery doesn't happen in their borders. And so they're not having, you know, their state courts assist with slavery. I mean, if you look at the secession manifestos from the Southern states, they are as angry or angrier at northern states invoking federalism against slavery, like they're mad that the northern states aren't participating in extradition or the Fugitive Slave act kind of stuff. Right. I mean, you even have the most striking example is Wisconsin in 1857 breaks out straight up nullification, saying, we're going to have state courts, free people in federal court that have been basically involved in slavery stuff. And so the north Southerners are angrier at northern invocations of states rights. And so this is again where I get really prickly about the narrative that the Civil War is about states rights. No, it's about slavery. And the northern states don't think they're getting rid of slavery. The Republican platform of 1856 and 1860 is explicit. We're constraining slavery's expansion to the territories.
Matthew Brogdon:
[35:58 - 35:58]
Right.
Sean Beienburg:
[35:58 - 36:19]
We hope, therefore, this will eventually choke out slavery everywhere else. But that's their position. And you know, Lincoln's in the first inaugural address says, I have no legal authority to touch it. I mean, the irony in some sense is the slave states by seceding sort of guaranteed their own destruction of slavery because then Americans were able to push through a 13th Amendment to terminate it across.
Matthew Brogdon:
[36:19 - 36:31]
Well, even before the Civil War, if we look at the party platforms, you're referencing Republicans, but if we get Republicans and Democrats, they share for the most part, a conviction about local self government. That's right.
Sean Beienburg:
[36:31 - 36:36]
And if there was, as do the Whigs, I mean this is not just a narrow partisan thing, but if there
Matthew Brogdon:
[36:36 - 36:42]
was a faction in American politics that wanted national uniformity, it was actually slave. The slave power.
Sean Beienburg:
[36:42 - 36:43]
Slave power. It's the slave power.
Matthew Brogdon:
[36:43 - 37:02]
In fact, most of it. You mentioned the manifestos on secession and so forth. Their principal complaint is the federal government is not protecting slave holding from these northern states sufficiently. Yep. And you know, the whole gist of Dred Scott and the things that slaveholding interest.
Sean Beienburg:
[37:02 - 37:10]
Dred Scott alienates. Dred Scott alienates a lot of people who are concerned about its federalism implications, even if some of them don't care that much about slavery in and of itself.
Matthew Brogdon:
[37:10 - 37:34]
Because the result was, I mean, Lincoln's complaint about Dred Scott was by saying you can't ban slavery in the territories and therefore slaveholders can take their slaves anywhere in the Union, he thought, you're going to break down the ability of free state to keep slaves out. So the slaveholders might be saying, we just want to take our slaves to Kansas and Nebraska, but next they're going to bring them to Massachusetts, Illinois and Ohio.
Sean Beienburg:
[37:34 - 37:34]
Right.
Matthew Brogdon:
[37:34 - 37:42]
So if you wanted to pin the badge of national uniformity on somebody, it would be slaveholders.
Sean Beienburg:
[37:42 - 37:43]
Yeah.
Matthew Brogdon:
[37:43 - 37:53]
And in a way it's free states bearing the torch of state sovereignty, state police power, immunity from congressional efforts to create national uniformity.
Sean Beienburg:
[37:53 - 37:54]
Yeah, I mean a lot of the
Matthew Brogdon:
[37:54 - 38:03]
Republicans, really a neat, clean narrative in the sense of federalism weighs in the balance for the slave power. And somehow the free states want.
Sean Beienburg:
[38:03 - 38:12]
A lot of the Republicans are old Jacksonian states rights Democrats. I mean, one of the dissenters in Dred Scott is McLean, who is very, very committed to federalism and states rights.
Matthew Brogdon:
[38:12 - 38:27]
So people might say the rejoinder to that is, but didn't we expand federal power dramatically in response to the Civil War? Wasn't that the upshot that Republicans won the Civil War and that meant they got to create national uniformity on a whole bunch of issues?
Sean Beienburg:
[38:27 - 38:41]
I mean, there is an expansion of federal power, but the way that I think of this is the original US Constitution. Article 1, Section 10 is a list of states Thou shalt not. Here is a list of things that we think are foundational and we want uniformity across the Union.
Matthew Brogdon:
[38:41 - 38:42]
No titles of nobility.
Sean Beienburg:
[38:42 - 40:09]
No titles of nobility. I mean, the big one is the no screwing with contracts that have been already made. Right. And so the way that you can think of it, and this is the way that the Republican architects of Reconstruction, the 14th Amendment, thought of it, we're adding a list of thou shalt nots, most of which is. I mean, there's occasionally still somebody who says that it doesn't incorporate or apply the Bill of Rights to the states. But I think basically everybody thinks that it does at this point. Look, the stuff in the Bill of Rights was mostly in state constitutions anyway. They would just have a sort of racial clause on, like the arms provisions or something like that. Right. And so it's. It's not, from their perspective, a major rebuilding of American federalism to say we're expanding the list of states thou shalt not to basically be things that are mostly in most of your state constitutions anyway. We just now want to create an additional federal backstop. And you can't have basically racially discriminatory legislation, which is an argument that basically citizenship itself, you're supposed to be sort of equal across citizenship. So that's a move. But so they expand federal power, that's to be clear. Like, they're not saying it's back to status quo ante, but they do remain committed to the basic idea that the federal government is fundamentally limited and that the states retain sovereignty. Except we're told, no. The list of no's is longer. And just as an example of that, if you look at the Reconstruction debates, they're really convoluted and kind of funny. Like Thaddeus Stevens and them are trying to figure out how can we justifiably govern the south in an interim basis. They don't want to hang on to it forever.
Matthew Brogdon:
[40:09 - 40:10]
Yeah. For the unacquainted.
Sean Beienburg:
[40:10 - 40:11]
Sorry.
Matthew Brogdon:
[40:11 - 40:13]
Thaddeus Stevens is Tommy Lee Jones in the Lincoln movie.
Sean Beienburg:
[40:13 - 40:22]
That's right, Tommy Lee Jones in the Lincoln movie. So he's the leader of the Radical Republicans, basically the leader of Congressional Reconstruction or one of the two or three. Right. You appreciate the Tommy Lee Jones reference there. That's right.
Matthew Brogdon:
[40:22 - 40:30]
He's the one that's so radically committed to abolition that, you know, Lincoln has to go make a personal appeal to tone it down so that we can get this pass.
Sean Beienburg:
[40:30 - 40:55]
And yet Thaddeus Stevens is concerned about building a federal government that will start pushing his Pennsylvania around because he wants Pennsylvania to still be governed by the 10th Amendment and the sort of the basic limited federal powers. And so they create all these theories to say, well, why can we govern the South? And they have different versions, but they're all variations of the south forfeited the Constitution. The south is either a territory which Congress has authority to Govern under Article 4 with.
Matthew Brogdon:
[40:55 - 40:56]
They cease to be states.
Sean Beienburg:
[40:56 - 41:29]
They're not states anymore. Yeah, they're. They're not states. They're either a territory or captured land or something. If they want the 10th amendment back then they can become states. And to become a state now, you have to basically sign off on this minimal floor of rights. But that doesn't mean that they suddenly think that the federal government has the police powers to set whatever regulations they want on whatever they want. And so. But those debates don't make sense. Why did they spend pages and pages trying to figure out these weird, funny name theories if the Civil War is just. South was for states rights, north was for big government, north wins, south can
Matthew Brogdon:
[41:29 - 41:30]
suck it up, and now we've got big government.
Sean Beienburg:
[41:30 - 42:21]
Yeah, but that's not what happened, and that's not what they were doing in Reconstruction. And then they say afterward, in the. In the years afterward, yeah, nullification is off the table. Secession is off the table. But this is why the early populists and progressives and even some of the sort of the folks who'd been involved in the Civil War in Reconstruction. Yeah, the states can regulate stuff. Yeah, the federal government is still limited. They're still making the same kinds of C. 10th Amendment arguments, which wouldn't make any sense. If the Civil War is what the lost Causers say it is, it might be worth the second on that. So the narrative originally is, yeah, the Civil War is about slavery. 20, 30 years afterward. Many of the leaders of the Confederacy, like Alexander Stevens, gives a famous speech called the Cornerstone Address early in the Civil War. And he says, yeah, it's about slavery. It really is about that idea. The Declaration of Independence is cornerstone being. Because he said, slavery is the cornerstone of our Confederacy.
Matthew Brogdon:
[42:21 - 42:22]
Of the Confederacy.
Sean Beienburg:
[42:22 - 42:51]
This is what. We're building it around. We're building it around. And he says, the Declaration of Independence is obsolete. Like, we are undoing the American Revolution. Twenty years later, he's like, actually, we were just the good guys defending federalism and states rights. And the really glib version of, yeah, it's easier to say grandpa was fighting for the Constitution than Grandpa was fighting for slavery. And so I understand why the Lost Cause gets sort of propped up, but it's an anachronistic attempt to, like, retroactively make the Civil War something that the participants didn't think that it was.
Matthew Brogdon:
[42:51 - 43:39]
So maybe a good way to land the plane with this would be for you to help us understand other disputes in American politics. Just very briefly, what are some other places where we see participants in debate over the extent of federal power, drawing on these principles of federalism, the idea that we have a limited federal government that has to find a warrant for its power in the text of the Constitution for whatever it wants to do, and states that have presumptive power over everything else. Where else has that popped up? The story that you're telling us is federalism wound up being a convenient or opportunistic source of legitimacy for slaveholding interests, later for Southern efforts to combat desegregation. So where else does this argument show up? That gives us a bit of a counternarrative.
Sean Beienburg:
[43:39 - 47:13]
You see it in a few places. You see it one in the populist slash progressive era. They're not quite the same, but they sort of have some overlap in which state governments want to pass what they call protective legislation. But, you know, they view. I'm not an economic historian, I'm not commenting on the merits of this, but the belief increasingly is in this era that big corporations are basically too strong and able to basically push workers around the 2000s. Here this is, you know, 1880s to whatever era you want to do that. But. And so they want to pass. So they want to. They want to pass things like minimum wages, maximum hours, safety conditions, etc. And they want to say, look, we can do this under the 10th amendment. You might not like this policy in Washington. And there are a few cases where the Supreme Court strikes some of these down. The state courts tend to be more aggressive, striking it down on their own state constitutions. So I want to just caveat that by saying the narrative that we have is this, like Lochner era, which is a case from this era that the Supreme Court is just laying waste the state's police powers. That's not the case. But they are striking some things down that the states want to say, or due process Clinton. The states want to say, look, we can regulate this. If we want to set maximum hours legislation in Ohio or in Arizona, like, fine, that does. That's no problem for another state. And so you see it there. So populists and progressives saying, we want to have economic regulations that the federal government wouldn't like, great, we get to do that. You do that. You leave us alone. And they often sound like very sort of states rightsy, almost Originalist in saying, like leave us alone. The 10th amendment says we can do this. The founders wouldn't have a problem with this, like leave us be. So you see it in that, you see it very briefly in a moment when there's a protest against this, arguably the first welfare provision at the federal level, arguably, which is the Shepherd Towner Maternity act, which is a grant in aid. Medicaid would be sort of a model of this today where the states are given some money to do something by the federal government that the federal government can't itself do. And this gets protested and Calvin Coolidge helps kill this off. And then obviously the New Deal is a big sort of fight about this, where the federal government is asserting more power. I'll come back to that one. But I think actually the best case of this in this era is Prohibition, which we tend to think of prohibition as, you know, cool hats and gangsters and speakeasies and all that. But the striking thing is if you look at the political debates, it's almost all actually federalism debates, at least until very late when it's during the Depression. And they say it's about money, we need the tax revenue back. But for most of it it's a debate about we recognize the states can ban alcohol. Does that mean that we should set a national alcohol policy? But strikingly the defenders of prohibition say look, we need to do this by a constitutional amendment. And so they go through and they it's an amendment is hard, it's not impossible. People think they're impossible, but only like six amendments have actually failed in American history after Congress proposed them. It's not very many. So we've sort of convinced ourselves don't even bother. It's impossible, but it's a self fulfilling prophecy. But they passed the 18th amendment and the protests are mostly not I have a human right to alcohol. It's the federal government has no business basically setting morals policy, even though they have the power now because of an amendment, but they have no business doing it. And so throughout the 20s, it really is basically a debate about federalism and Prohibition. And the 1932 election is as much about prohibition as it is basically about what will become like the New Deal or something. If you look at the 1932 party platforms, the Democratic Party platform is not saying we're going to sweep in a New Deal, it's saying we're going to have some increased federal spending for roads and we're going to kill prohibition on states rights grounds.
Matthew Brogdon:
[47:13 - 47:23]
So help me understand, because we got a constitutional amendment Bringing prohibition along, a ban on intoxicating liquor, which many of
Sean Beienburg:
[47:23 - 47:26]
the states have been doing that in their own state constitutions. First, worth noting that.
Matthew Brogdon:
[47:26 - 47:30]
Okay, and so what was the federalism dispute that came with that?
Sean Beienburg:
[47:30 - 47:31]
The federalism?
Matthew Brogdon:
[47:31 - 47:32]
I mean, once you got the.
Sean Beienburg:
[47:32 - 48:44]
Yeah. So there's a brief legal moment to argue, I think sort of naively, idealistically, but feudally that the amendment itself was unconstitutional. And the argument is that this so fundamentally changes the constitutional order by setting a police power policy mandate that you needed to like go back to a constitutional convention for this. The Supreme Court dismisses this very quickly and says like, no, there is no such thing as an unconstitutional constitutional amendment. So it falls away from being, strictly Speaking, a like 10th Amendment claim to saying this is inconsistent with the basic principles of federalism. Now, the one wrinkle that you do have that keeps it legal, though, keeps the debate legal, is generally speaking, the federal government cannot dictate policy to the states. This is called the non commandeering principle. This is arguably a result of the Articles of Confederation change. The federal government now has its own execution authority. So generally speaking, the feds can't make the states do their dirty work. The question is, does the 18th Amendment modify that rule also? And so, you know, because the 18th Amendment says alcohol is banned as a federal policy, the 18th Amendment isn't. Congress shall have the authority to suppress intoxicating liquor.
Matthew Brogdon:
[48:44 - 48:44]
Right.
Sean Beienburg:
[48:44 - 49:23]
It's intoxicating liquor is banned. And then they use this strange language where they say congress and the states shall have concurrent authority to enforce this. And so then they debated and said, what does concurrent authority mean? And if you go back and read the debates about this, they don't debate it. There are several of the, like leading legal people that say we have to vote no on the 18th Amendment because we don't know what this provision means. Does this mean that the states and the feds have to concur in agreeing on what counts as an intoxicating liquor? Does this mean that they just have concurrent in the sense of they both have power to suppress it? And so some of the states want to say we're not going to help with prohibition anymore.
Matthew Brogdon:
[49:23 - 49:24]
Right? Yeah.
Sean Beienburg:
[49:24 - 49:32]
No. See, traditional non commandeering and the prohibitionists argue that's generally the rule, but the 18th Amendment is an exception.
Matthew Brogdon:
[49:32 - 49:36]
And so in that case, you'd have to get federal law enforcement come out here and do it themselves.
Sean Beienburg:
[49:36 - 49:37
Yeah, yeah.
Matthew Brogdon:
[49:37 - 49:43]
And for folks who may be trying to understand this, I mean, this is directly analogous to sort of the immigration
Sean Beienburg:
[49:43 - 49:44]
marijuana is even the better one.
Matthew Brogdon:
[49:44 - 49:52]
Or marijuana. Yeah, you've got a federal band. The state says, well we don't really care if people are smoking and selling marijuana. So we're not going to help you enforce it.
Sean Beienburg:
[49:52 - 49:53]
Right.
Matthew Brogdon:
[49:53 - 49:53]
If you'd like to arrest somebody for that under federal law, by all means send out the dea.
Sean Beienburg:
[49:58 - 49:58]
Right.
Matthew Brogdon:
[49:58 - 50:03]
And do it yourself. The local sheriff is not right. Going to assist you. Right.
Sean Beienburg:
[50:03 - 50:13]
And so that's what the debates are happening at the state levels when the states are trying to legalize it. And some of the critics of that say this is nullification because we have to help enforce this because of the
Matthew Brogdon:
[50:13 - 50:16]
weird text of the, because of the concurrent enforcement.
Sean Beienburg:
[50:16 - 50:22]
But they're always explicit in saying this is because of the weird context of the 18th Amendment. This is not the normal rule.
Matthew Brogdon:
[50:22 - 50:22]
Right.
Sean Beienburg:
[50:22 - 50:28]
So the 18th amendment is very weird and all sorts of reasons, which is also why it is the only constitutional
Matthew Brogdon:
[50:28 - 50:37]
amendment that gets repealed that was then repealed. Yeah. The Utah by the way, was the deciding vote in repeal. Yep, Utah was the wet vote.
Sean Beienburg:
[50:37 - 50:43]
It was over determined it was going to happen anyway. But it was just ironic making it go into effect.
Matthew Brogdon:
[50:43 - 50:47]
I don't know what the number was that the time, but past the three quarter mark.
Sean Beienburg:
[50:47 - 50:48]
Yeah.
Matthew Brogdon:
[50:48 - 51:06]
Utah cast the vote. Okay. Well, I mean this has been fascinating because what we've learned from this conversation is that federalism is not just something created in response to independence. It's not just an American innovation that we kind of had to make up.
Sean Beienburg:
[51:06 - 51:09]
Americans may have, Americans may have, it
Matthew Brogdon:
[51:09 - 51:12]
did, but it was already something we were arguing about with the British.
Sean Beienburg:
[51:12 - 51:13]
Yes.
Matthew Brogdon:
[51:13 - 52:02]
Many of these basic debates about what the shape of it, what it means to have local self governing communities or states in a larger union was already a constitutional question under the British Empire before we declare independence. And we're struggling with what that means now that we have federal central government that is closer to us than the British Empire was and in which we can be represented. We have Congress, but still want to retain this status as local self governing states within a union, not just a nation. And so this has been a question from the beginning, one that we start trying to answer with the revolution. We give it a go with the Articles Confederation, we get a structure that sticks with the Constitution. And then we've been arguing about it ever since. And I don't think that's gonna change.
Sean Beienburg:
[52:02 - 52:03]
Probably not.
Matthew Brogdon:
[52:03 - 52:34]
And in fact, I mean your own work has pointed out, you've got this book on the progressive federalism has pointed out and our conversation has made clear that this is not sort of one directional issue. In fact, People from all over the map, pursuing all kinds of aims, find themselves needing to draw on these constitutional principles to protect themselves or their priorities from federal intrusion. And that certainly is the case now as we navigate this conflict.
Sean Beienburg:
[52:34 - 52:43]
Constitutional federalism is a part of all of our constitutional heritage. And I think that we've sort of lost track of that. And I hope that that's something that American will continue to rediscover, because I
Matthew Brogdon:
[52:43 - 52:58]
do see people kind of sneer sometimes. Gavin Newsom suddenly has discovered state sovereignty and is promoting the idea of state independence. Or, oh, look, Minnesota is now arguing about its immunity from federal intrusion. But that shouldn't surprise us.
Sean Beienburg:
[52:58 - 53:23]
No, it shouldn't. You can argue about the exact cases, whether the lines across to nullification or something like that, and that's sort of beyond the scope of our conversation today. But the basic concept of folks across the ideological or regional spectrum saying, yeah, this is a part of our heritage, we can claim it like, you know what? Even if they might be disingenuous, they might get in the habit and decide they, like, try it, you might like it. Constitutional federalism is a pretty good thing.
Matthew Brogdon:
[53:23 - 53:34]
Well, that too is a founding principle. I mean, what Madison said about the separation of powers in Federalist 51, that you had to identify the interests of the man with the constitutional rights of the.
Sean Beienburg:
[53:34 - 53:34]
That's right.
Matthew Brogdon:
[53:34 - 53:41]
Had to make it so that the office holder had a personal interest in doing what his office required. Applies to federalism, too.
Sean Beienburg:
[53:41 - 53:42]
That's right.
Matthew Brogdon:
[53:42 - 53:52]
You need folks to promote their own interest by appeal to constitutional principles. Well, thank you for joining us today, Sean. This has been really enlightening. Appreciate it, and I hope we get to have you back again soon.
Sean Beienburg:
[53:52 - 53:55]
My privilege. Thanks very much.
Matthew Brogdon:
[53:55 - 54:42]
The Constitution is more than parchment under glass at the National Archives. It's a blueprint for American self-government that shapes every part of our civic life, from the rights we cherish to the laws we live under. We explore the ongoing battle over the meaning and relevance of America's founding document. This Constitution will equip you to engage the most pressing political questions of our time. Join us every two weeks as we hash out constitutional questions together. This podcast is ordained and established by the Center for Constitutional Studies at Utah Valley University, the home of Utah's Civic Thought and Leadership Initiative.