I. Dueling Sovereign Powers in the United States: Now & Then
Several conflicts between individual states and the federal government are discussed, including slavery, child labor, and right-to-die issues such as in the case of Terri Schiavo. Efforts by Congress to regulate in-state activity under the Commerce Clause were first struck down by the courts, but later upheld during the Depression. The Civil War was the only time state/federal conflict ever erupted into war, but there were many smaller conflicts. All are eventually resolved, though not forgotten.
II. What Is Federalism?
A federal system (“Federalism”) is one in which power is divided between a central authority and political subunits. Both tiers of government are linked, but they also maintain their own integrity/independence. Each is assigned specific powers.
This division of power is maintained by resort to courts (and other methods) to define proper bounds of authority
A major task in federalist systems is determining sovereignty—the supreme political power of a government to regulate its affairs without outside interference. In federal systems, both the states (subdivisions) and central government are technically sovereign, which can cause confusion. (Especially since such governments must both achieve unity for national projects and preserve local autonomy.)
A. Comparing Federalism to Other Systems of Government
Federalism exists on a government spectrum. At one end is a confederation (a loose association of independent states), similar in structure to the Confederacy, European Union, or United Nations. These tend to be fairly weak, which can lead to disorder. On the other end is a unitary system, in which all real sovereignty and power exist in the central governments (such as in Britain and France). These sometimes lack the ability to respond to specific local needs.
Federalism lies in between, giving states significant power but subordinating them to the national government. More than twenty countries may be considered federal, but the U.S. brand of federalism (since the Constitution in 1788) represents a major breakthrough in the evolution of this government type.
B. Government Powers in a Federal System
1. Under the Constitution, the national government was formed to serve the thirteen states, which delegated certain powers to the central government while retaining full powers within its own sphere. (This was a product of necessary political compromise at the time.)
2. Powers delegated to Congress under the Constitution are called enumerated powers. Powers retained by the states are called reserved powers. Powers shared by both are called concurrent powers.
3. Specific national or enumerated Congressional powers include economic powers (taxing, borrowing, regulating interstate commerce, coining money); military powers (declaring war, raising armies/navies, regulating the militia); and legislative powers. Congress also has the right to make all laws “necessary and proper” to carrying out the above powers.
4. Technically, the Constitution draws clear lines between the powers given to state and national governments. The national government is given responsibility for matters of national importance (economic interests, foreign affairs, and military security), while all local or internal matters (including health, safety, and welfare) are technically reserved to state governments. In fact, the Tenth Amendment explicitly states that any specific power not assigned to the federal government may be exercised by the states unless constitutionally prohibited.
5. The framers thought Congress should legislate only within its enumerated Article 1 powers, and should avoid using the Necessary and Proper Clause to unduly expand legislative power. However, new interpretations of this Clause would soon give the national government far more discretion and power.
C. The Supremacy Clause
The Supremacy Clause of Article VI overlays the system of divided powers, holding that the Constitution and Congressional laws shall be “the supreme law of the land,” overriding conflicting state provisions. Also, state courts cannot conflict with the Supreme Court in their interpretation of the Constitution. The Preemption Doctrine further holds that federal law in a given area supersedes state laws.
D. Relations between the States
1. A federalist system must also manage relations between member states. The “Full Faith and Credit” clause [FFC] (Section I, Article IV of the Constitution) requires states to respect the judicial and other decisions of other states. Contracts entered into in one state must be enforced in others, and marriages/divorces in any state must be recognized in all. The issues of gay marriage and civil unions have placed a strain on the FFC, with thirty states expressly denying recognition of same-sex marriages from other states. This is supported by the 1996 Federal Defense of Marriage Act. The Supreme Court may have to resolve the issue.
2. The “Privileges and Immunities” clause of Article IV also ensures equal treatment of out-of-state citizens with regard to travel, residence, and commerce/trade. Article IV also requires respect for other states’ criminal laws, and extradition of criminal suspects.
3. Article III, Sec. 2 gives the Supreme Court the power to resolve disputes between states.
III. The History of American Federalism
Different conceptions of federalism have prevailed at different times, reflecting changes in the country and its global role. Technological and population changes, as well as individual leaders, have also encouraged it to adapt to changing times. There have been roughly five periods of federalism, reflecting shifts in the relationship between national and state governments:
A. State-centered Federalism, 1789–1819
Unless clearly specified as national powers, things were left to the states. Very limited national power. Thomas Jefferson reinforced this when he took office in 1801.
B. National Supremacy Period, 1819–1837
Chief Justice John Marshall, appointed by Federalists, oversaw an expansion of national power highlighted by McCulloch v. Maryland. McCulloch upheld the constitutionality of a national bank, interpreted the “necessary and proper clause” very loosely, and thus greatly expanded national power. It also emphasized the supremacy of the national government over the states.
Some leaders opposed this national supremacy doctrine, including Andrew Jackson, who opposed the national bank. However, even he denied the right of individual states to nullify national tariffs during the “nullification crisis” of 1828.
C. Dual Federalism, 1837–1937
1. Marshall’s successor, Chief Justice Roger Taney, returned federalism to the role envisioned by the framers, holding the Constitution a “compact of sovereign states.”
2. The Civil War was at core a struggle about the relationship between states and the federal government. The Union’s victory undermined the “compact of states” idea by rejecting their authority to leave, and underscored national dominance. However, states retained authority to regulate internal economic affairs, including child labor.
3. In the 1930s, the court initially continued this trend, striking down many Depression-era New Deal laws as overly intrusive in state matters.
D. Cooperative Federalism, 1937–1990
Franklin D. Roosevelt responded by threatening to “pack” the court with supporters, causing the court to moderate its position, allowing greater national intervention. Ultimately, it was held that almost any link to interstate commerce would justify congressional action, and the actions of state and national government became increasingly intertwined. This power was later used to justify civil rights laws in 1964.
Positive aspects of Cooperative Federalism include more money for national projects, and wealth redistribution for poorer states. Negative aspects include less state sovereignty and freedom, with federal funds sometimes used to coerce state compliance in various matters.
E. The “New Federalism,” 1990–Present
1. Ronald Reagan sought to return more power and control to the states (“Devolution”). While not completely successful, he did set the stage for a shift in relations with his judicial appointments. New Supreme Court judges favored state’s rights, and struck down more coercive and intrusive laws, such as those requiring state officials to act in certain ways (Printz).
2. Cases such as Lopez also restricted the authority of Congress to act under the Commerce Clause, striking down restrictions that did not meaningfully implicate commerce. Other cases have scaled back the preemption doctrine and struck down laws allowing private suits against state governments.
3. Political developments have also reduced the national role somewhat. This occurred partly in the Reagan years, but also after the 1994 Republican takeover of Congress (“Contract with America”). This shifted some power to states, though not as much as desired by “Devolution” supporters.
IV. Why Federalism? Advantages and Disadvantages
A. Advantages of Federalism
1. Accommodation of Diversity
States have different cultures and characters. Various state laws can reflect those different cultures. Local officials can respond better to specific local needs.
2. Strengthening of Liberty through the Division of Powers
Federalism avoids undue concentration of power. Corrupt agreements between different governments are unlikely to survive long. Federalism is thus an additional “check” on the power of government, along with the other separations of power. The different government levels can challenge each other when either seeks to restrict freedom (as during the civil rights era).
3. Encouragement of Laboratories of Democracy
States can try different social and economic experiments, which can later then be adopted by other states or the national government (or avoided, if they prove ineffective).
4. Adaptability to Changing Circumstances
State and local governments tend to be more nimble and flexible in adapting to change, unlike the larger national government. Smaller bureaucracies may also be easier to manage.
B. Disadvantages of Federalism.
1. Fiscal Disparities among the States
States have different incomes, creating inequalities. The smaller the national role, the greater the inequality.
2. Lack of Accountability
Both governments may expect the other to deal with certain problems, especially during budget crunches.
3. Undue Reliance on Courts to Define the Rules of Federalism
Because of inherent ambiguities, courts must define the roles of the respective governments in federalist systems. However, most judges are appointed, not elected, which makes this process less democratic than legislative acts.
V. Current Problems in American Federalism
The Republicans in the 1980s identified with shrinking national government and transferring responsibility to states. However, the potential source of this money for state programs was never made clear. The funding issue has become key in the federalism debate.
A. Unfunded Mandates
These are federal directives requiring states to perform tasks at their own expense. By placing conditions on federal grants, the national government can impose many such mandates. These can impose considerable economic hardship on state budgets. (Federal environmental requirements cost state and local governments $19 billion a year by 1990.)
The 1995 Unfunded Mandates Reform Act was designed to reduce such mandates, but had limited success.
B. The Growing Crisis in Big Cities
Large cities are particularly affected by federalism. Big-city programs and services are expensive, and suburban flight weakens the local tax base. Education is especially costly for large cities for various reasons.
The structure of American federalism does not proportionately benefit cities. The Senate disproportionately benefits less-populated states (who may oppose spending on large cities), while the House has little interest in spending more on cities than other areas. Grant aid increased during Cooperative Federalism, but has declined with the reduction in the national role.
VI. Now & Then: Making the Connection
Our system celebrates state identities. All states get two votes in the Senate, which must approve all laws. The 2000 presidential election came down to the vote count in one state, where state laws figured prominently in the outcome. Each state has its own laws and regulations.
States often push the boundaries of state authority (commuter taxes, foreign boycotts), just as Congress historically pushes the limits of national authority (child labor, Schiavo). Those supporting state authority have resisted this, to avoid being swept aside. The founders likely intended such resistance.
VII. Chapter Summary
What is Federalism?
A. Under American federalism, the central government is linked to all fifty state governments, with sovereignty residing concurrently in both. Federal systems are distinguished from confederations (loose alliances) and unitary systems (where states are completely subordinate to the central government).
B. The framers assigned the national government matters of national importance (foreign/military affairs, etc.), and assigned the states all local and internal matters (health, safety, welfare).
C. The Supremacy Clause (Article VI) means that the Constitution and other federal laws override conflicting state laws. The Full Faith and Credit Clause (Article IV) requires states to respect the acts and proceedings in all other states. The issue of same-sex marriage poses tension in this area.
The History of American Federalism
A. In 1819, Chief Justice Marshall shifted the country from state-centered federalism to a National Supremacy Doctrine. (States had very limited sovereignty, and Congress was supreme.) This began with McCulloch, which broadly interpreted the power of Congress under the Necessary and Proper Clause (Article I, Section 8).
B. In 1837, a system of “Dual Federalism” (state authority limited Congressional power) began, continuing until the 1930s. However, activist efforts to combat the Great Depression eventually led the Supreme Court to allow more expansive national authority, creating an era of “Cooperative Federalism” from 1937–1990. At this point, Congress was barely limited, and gave huge sums of money to the states. This, however, led to the potential for federal coercion over states.
C. Reagan sought federal deregulation and increased state responsibility, and his Supreme Court appointees helped usher in an era of “New Federalism,” with state sovereignty revived against some forms of congressional coercion.
Why Federalism? Advantages and Disadvantages
A. Federalism has advantages of diversity, greater individual liberty, experimentation, and flexibility. However, there are also disadvantages, including fiscal inequality, lack of accountability, and reliance on unelected courts.
Current Problems in American Federalism
A. American federalism places financial burdens on states, including unfunded mandates, underfunded cities, and reduced federal support for states.