General Overview - Federalism
Federalism denotes a system of government in which power is divided by constitutional right between national and local units of government in regions. A state that follows the federal system is known as a federation. Examples of federal systems include the governments of the United States, Canada, Australia, Germany, Switzerland, Malaysia, the former Yugoslavia and the former Soviet Union.
Unlike unitary systems, in which the powers of the local units of government are granted to them and can be varied or taken away by the national legislature, in a federal system the local units of government have their own independent constitutionally guaranteed authority. However they remain sub-units of one overall state, and thus do not have national sovereignty and have no standing under international law. In general, the local units of government cannot undertake an independent foreign policy, nor can they have standing armies.
The distinction between unitary and federal governments is not always clear, as the national government in a formally unitary system of government may make large grants of power to local units resulting in a system that becomes de-facto federal. An example of this is the United Kingdom. In theory, any of the regional devolved authorities created could be abolished, though politically that is exceptionally unlikely to happen once the citizens in each region accept the authority's legitimacy over them. This system of devolution that evolves into a form of de-facto federalism can sometimes occur without formal legislation, as is the case with the People's Republic of China in which largely informal grants of power to the provinces to handle economic affairs and implement national policies has resulted in a system which some have termed "de-facto federalism with Chinese characteristics." In strict constitutional terms, however, regional authorities which have no constitutional right to exist are referred to as devolved assemblies, while those that have a constitutionally guaranteed right to exist are federal authorities (often called 'states').
Often, the division of power between federal and local governments is outlined in the national constitution, as is the case with the United States and Australia. It is also common for the regional governments to have existed longer than the national government and for the national government to have come into being as a result of a union of local governments. This was the case with the United States, Switzerland, Canada, and Australia. Indeed many 'states' within federal systems may themselves have their own constitutions.
The precise division of power varies from system to system. In the case of the United States, the Federal government has powers over areas enumerated in the United States constitution with the remaining powers belonging to the states. (In practice, the enumeration and the "remaining powers" are both fairly broad, and have been interpreted differently at different times.) In the case of Germany, the division is less one of content than of administration: the national government issues directives and the regional governments (Lander) have broad discretion as to how to implement them.
There are a number of issues that are common to federal systems. One is that the exact division of power and responsibility between national and local governments is often a major source of conflict. Often, as is the case with the United States, such conflicts are resolved through the judicial system which delimits the powers of federal and local governments.
Another common issue in federal systems is the conflict between local interests and regional interests. In some cases, such as Canada, these interests become entangled with differences in language or ethnicity. The ability of a federal government to create national institutions that can mediate differences that arise due to language, ethnic, religious, or other regional difference is major challenge, and the inability to meet this challenge has been the cause of the collapse of some federal systems such as Nigeria, the Soviet Union, and the Federation of Rhodesia.
Almost all federal systems have mechanisms such as the United States Senate, United States Electoral College[?] or the Australian Senate which give numerically less numerous regions a larger share of power than their numbers suggest. However, in some cases even these mechanisms break down, and in these situations the local governments may become the focus of efforts at secession. Faced with a serious secession movement, the national government may simply dissolve, as was the case with the Soviet Union or may otherwise find it necessary to resort to armed force to preserve the federation as was the case of the United States during the American Civil War.
United States and Federalism
There are three major types of government in the place in the world today. The most prevalent is the unitary system. In a unitary system, power is held at the national level, with very little power being held in political subdivisions, such as provinces, counties, parishes, or towns. The least common is the confederation. Confederations are unions of equal states, with some power being held at the national level. Generally, it has been found that conflicting interests lead to the break-down of confederations.
The third major system is the federal system. In a federal system, the national government holds significant power, but the smaller political subdivisions also hold significant power. The United States, Canada, Australia, and Brazil are examples of federal systems.
Is any one of these better than the other? That is a matter of opinion. Suffice it to say that each has its positives and negatives, and as such, the choice for which to use in any particular nation depends on the nation, its people, its existing political subdivisions. The United States was a series of colonies under the British unitary system; upon the execution of the Revolution, the United States became a confederation under the Articles of Confederation; and when that system proved unsuccessful, it was transformed into a federal system by the Constitution.
Federal systems are chosen for a number of reasons. The size of the nation might be one concern; the diversity of the political subdivisions might be another. The United States combines a bit of both: the size of the continental United States made a unitary system unwieldy, and the diverse interests of the states made confederation impossible. Nations like Switzerland have a population split by language, and despite its small size, found federalism to be a better choice than the others. China, being an extremely large and extremely diverse nation, finds the unitary system more suited to its political ideology. However, communism does not require a unitary system: the former USSR was a federation, at least in its internal structure.
Federalism in the United States has evolved quite a bit since it was first implemented in 1787. In that time, two major kinds of federalism have dominated political theory.
The first, dual federalism, holds that the federal government and the state governments are co-equals, each sovereign. In this theory, parts of the Constitution are interpreted very narrowly, such as the 10th Amendment, the Supremacy Clause, the Necessary and Proper Clause, and the Commerce Clause. In this narrow interpretation, the federal government has jurisdiction only if the Constitution clearly grants such. In this case, there is a very large group of powers belonging to the states, and the federal government is limited to only those powers explicitly listed in the Constitution.
The second, cooperative federalism, asserts that the national government is supreme over the states, and the 10th Amendment, the Supremacy Clause, the Necessary and Proper Clause, and the Commerce Clause have entirely different meaning. A good illustration of the wide interpretation of these parts of the Constitution is exemplified by the Necessary and Proper Clause's other common name: the Elastic Clause.
Dual federalism is not completely dead, but for the most part, the United States' branches of government operate under the presumption of a cooperative federalism. The shift from dual to cooperative was a slow one, but it was steady.
One of the earliest examples of a shift was in the Supreme Court's Gibbons v. Ogden decision, which ruled in 1824 that Congress's right to regulate commerce under the Commerce Clause could be "exercised to its utmost extent, and acknowledges no limitations, other than those prescribed in the constitution..." The Court did not expand the powers of the national government much over the next century. But in the 1930's, a wave of feeling of social injustice began to sweep the nation as the Depression began. Federal laws concerning labor, civil rights, and civil liberties began to take on a new priority. National laws, and amendments to the Constitution, have taken away many powers from the states, such as the ability to significantly restrict voting rights or the ability to draw political districts at the whim of political party bosses.
Some advocate a return to an emphasis on dual federalism as a returning of power to a government closer to the people, and hence under better popular control. There are many problems with this, however, as many states found in the Reagan era. President Reagan was a strong advocate of states rights, and wanted to return many of the powers taken up by the federal government to the states. But in many cases, this created more bureaucracy, as each of the 50 states had to establish offices to administer programs the federal government handed over. Worse, the transition was often unfunded, meaning that the costs of the programs were shifted to the states, but federal taxes were not reduced accordingly, leading to a higher tax burden on the people as states raised taxes to fund the programs. Worse, when federal taxes were cut, federal aid to the states that did exist was cut as well.
But despite the appeal of cooperative federalism, there is an on-going appeal to a degree of dual federalism. The failure of President Bill Clinton's national health care initiatives is a perfect example of an area of politics that the people feel is best held more closely, in spite of some of the benefits of a national system.
Regardless of the kind of federalism current the Constitution does provide some very specific powers to both the states and the federal government. These powers are traditionally divided into three categories.
Reserved powers are those that have been reserved specifically for the states or are of a traditionally state scope. These consist mostly of police powers, such as providing fire and police protection, establishment of health regulations, licensing, and education.
Granted powers, also known as express, enumerated, implied, delegated, and inherent powers, are those specifically listed in Article 1, Section 8, such as the power to coin money, to raise an army and navy, to provide for patent and copyright protections, to establish a post office, and to make treaties and war with other nations. An express, delegated, or enumerated power is one specifically listed; an implied or inherent power is one that exists to carry out an express or enumerated power. For example, Congress can raise an army; this implies the ability to specify regulations concerning who can join the army.
Concurrent powers are those held to some extent by both the federal and state governments. Both, for example, have taxation power, the ability to construct and maintain roads, and other spending for the general welfare.
Many things are denied of both or either levels of government. States, for example, have no authority to coin money or wage war. Neither may pass a bill of attainder or any ex post facto law. Much of the Bill of Rights applies restrictions to both states and the federal government, while all of the Bill of Rights applies restrictions to the federal government. Note that the Bill of Rights originally had no effect of restriction on the states, but judicial interpretation of the 14th Amendment's due process clause has incorporated much of the upholding of civil rights to the states.
Federalists versus Anti-Federalists
As explained in a previous post, the Constitutional Convention was convened in Philadelphia, Pennsylvania in May 1787. The purpose of the Constitution was to replace the Articles of Confederation with a more effective form of governance – a Constitutional Republic. The Constitution was completed in September, 1787.
James Madison, the “father of the Constitution,” developed the plan for having the states ratify (approve) the new governing document. Instead of having the legislature of each state vote to ratify the Constitution, Madison had each state set up a special convention to allow the voters to elect delegates to attend their state’s ratifying convention. This followed along with the ideal set forth in the Preamble – “We the People…do ordain and establish this Constitution for the United States of America.” Per Article VII, only nine states were required to approve the Constitution. The Framers were unsure that all thirteen would unanimously agree.
It not ratified immediately upon completion, however. Why? There were many disagreements over what was NOT in the Constitution. The seven articles established the branches of government and specified the powers given to each branch, set the rules for the relationships among the states, the process for admitting new states, detailed the process for amending the Constitution, made the Constitution the supreme law, and explained how the Constitution was to be ratified by at least nine of the states. So, what was missing, that caused several American citizens to question the new governing document? There was no listing of guaranteed individual rights, and many believed that the federal government could grow too large and too powerful.
The Declaration of Independence eloquently phrased the beliefs and values of our Founding Fathers: that life, liberty, and the pursuit of happiness are the fundamental rights of all people from birth. These basic rights are not given by the government, and good government may not deprive the people of those rights. In fact, the role of government is to protect the people’s free exercise of their rights:
That to secure these rights, Governments are instituted among Men – Thomas Jefferson
The American colonists had learned to distrust a strong, centralized government under British rule. The various Acts, Writs, and excessive punitive taxes passed by Parliament after the French and Indian War took liberties and freedom away from the colonists. Their loss of liberty, combined with having their grievances to Parliament ignored, spurred the American movement for Independence.
The Framers of the Constitution established the three branches of federal government with specifically enumerated powers. The purpose for this was that if it was not in the Constitution, then the government does not have that power. The Constitution was not written to give people rights, but to establish a limited central government that had clearly defined and limited powers; thus, protecting the people by keeping out government interference with individual liberties.
However, many Americans still distrusted the document and the centralized government it created. These Anti-Federalists included George Mason, Patrick Henry, Richard Henry Lee, John Hancock, Samuel Adams, and Edmund Randolph. All of these men were leaders in the War for Independence, and were (with the exception of Randolph) signers of the Declaration of Independence. They held that the new federal government would grow and take more powers than were expressly given to it. The absence of a list of the rights of the individual was viewed as an open-door for the federal government to suppress the rights to life, liberty, and property.
The Federalists - those in support of the new government – anticipated the objections of the Anti-Federalists, and had a head start in the campaign to gain public support for states’ ratification of the Constitution. The Federalists wrote a series of 85 articles that were published in New York newspapers. These Federalist Papers, written under the pen-name Publius (a Roman leader and supporter of the Roman Republic) by Alexander Hamilton, James Madison, and John Jay, explained how the new government was specifically limited in its powers and contained checks and balances between the three branches.
The Anti-Federalists also produced articles (using pen-names such as Brutus and Cato – defenders of the Roman Republic against Julius Caesar), expressing the reasons for opposition to ratification of the Constitution. One such argument by Brutus (Judge Robert Yates of New York) stressed that the Supreme Court could easily abuse its powers, since the justices were outside the control “both of the people and the legislature” and were not subject to being “corrected by any power above them.” It was not only conceivable, but highly likely, that Supreme Court justices could interpret clauses of the Constitution however they saw fit. Brutus objected to the fact that the justification for removing judges did not include their giving judgment that exceeded their constitutional authority – which would pave the way to judicial tyranny.
Anti-Federalists opposed ratification the Constitution because the checks and balances on federal power would be overridden by unrestrained interpretations of the government’s role in promoting the “general welfare” and other clauses, creating a federal government that would abuse the specifically listed powers, and claim more power than it was originally given. They warned that the government that would evolve under the Constitution would infringe on the individual’s rights.
The debates for and against ratification of the Constitution lasted ten months.
Arguments of the Anti-Federalists, and Rebuttals of the Federalists
History has shown that the republican form of government works best in small areas, where the citizens are similar in wealth and values. Those people are more likely to have the civic virtues necessary for working towards the common good of their area. These United States cover a vast amount of territory, and includes very diverse people with many different interests. They will not be able to agree on what is necessary for the good of all states.
History has shown that small republics are destroyed by the self-serving interests of a few, rather than all working towards the common good. An organized central government with checks and balances and with power divided between the federal and state governments will work. This form of government will make it difficult for special interest groups to pursue their objectives against the will of the people.
Under the Constitution as written, too much power is given to the federal government, and too much power is taken away from the states. The Supremacy Clause makes all federal laws superior to the laws of each state, opening the door to the destruction of state sovereignty.
The federal government will have more power under the new Constitution than it did under the Articles of Confederation; however, those powers are limited. The only tasks the federal government may address are those that affect the nation as a whole, such as defense, trade, and currency. A strong central government is necessary in order to complete those tasks. The Constitution will protect the governments of the individual states.
The Necessary and Proper Clause is too vague, and can be interpreted in too many ways. This clause gives too much power to the federal government – there are many dangers of the federal government using this clause to gain more power over the states and individuals. There must be a list clearly defining the powers of the federal government, in order to place clear limits upon it.
The Necessary and Proper Clause is needed, so that the federal government is able to address the tasks for which it is responsible.
The Constitution provides the Executive branch of the federal government with too much power, enabling it to potentially become a form of monarchy.
The Executive branch of the federal government needs to be strong, so that it can perform its duties. The federal government is divided into three branches, with checks and balances, so that no one branch can overpower the others.
A free and republic government must have the active involvement of the people it represents. The seat of the federal government is too far away from the majority of the people, which prevents them from being active participants. This can lead to tyranny.
The federal government will be effective and fair in protecting the rights of the states and of the people, thus earning their trust. The limits imposed upon the federal government through the separation of powers and checks and balances will prevent it from becoming tyrannical.
There is no list of rights held by the people and states in the Constitution. Such a list is necessary to protect the people from abuses by the federal government.
There is no need for a list of rights guaranteed to the individual and the states. The powers of the federal government are limited, and to include such a listing would suggest that the individual can only expect to have those rights listed protected.
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