FederalismChapter 2

© 2009 Pearson Education, Inc.

Federalism

Background: Federalism is the constitutional division of authority between a national government and states or constituent governments. The Constitution enumerates federal powers but does not define them. This has brought about an endless debate over the definition of the boundaries of national authority.

Federalist 16, 17: Alexander Hamilton

Federalist 16• The goal is to construct a federal government

capable of regulating common concerns and preserving general tranquility

• Government should be empowered to execute its own resolutions

• Commerce, finance, negotiation, and war should be in the hands of a national government

• Local governments must have jurisdiction over the administration of private justice, agriculture, etc. • The national government would never encroach on such

issues since it would be troublesome and nugatory

Federalist 16: Alexander Hamilton

• Greater possibility for states to intrude upon the national authorities• States have a greater degree of influence over people• People of each state are apt to be more biased toward local

governments

The Anti-Federalist Papers

Background: All the Federalist Papers were signed under the nom de plume Publius. The Anti-Federalists were disjointed, with no unified direction and would be signed under various names: Brutus, Country Boy, Cato, etc. Nonetheless, both recognized the importance of a nation of law, not of men.

Anti-Federalist 17: Brutus

• The necessary and proper clause provides absolute and uncontrollable powers to the national government

• It will control protection, security, and defense, possible weapons for oppression and tyranny

• The supremacy clause of the national Constitution nullifies the laws of every state that are inconsistent with it

• A small degree of power is left to the states• The national government has unlimited power to

raise taxes• States will see their power dwindle as their authority

to raise taxes diminishes

Anti-Federalist 17: Brutus

• The necessary and proper clause will abolish the state legislatures

• The national courts will eclipse and swallow up the powers of the state courts

• The Constitution’s goal is to revert to a unitary government

Federalist 44: James Madison

• Without the necessary and proper clause, the Constitution would be useless

• Enumerating all the powers would have been disastrous

• Omitting powers could be interpreted as automatically granting them

• State legislatures will be quick in their vigilance of the national government and to exert their power to prevent any infringement over their jurisdiction

Federalist 45: James Madison

• Not one of the powers granted to the federal government is unnecessary or improper

• If the Union is essential to the security of the people, the power to secure against oppressive factions should be under the national government

• The supreme objective of the national government is to protect the welfare of the great body of people

• The state and national governments will be interdependent

• The states are regarded as the constituents of the national government• Senate will be elected by state legislatures• The president of the Union will be elected with the

assistance of the states

Federalist 45: James Madison

• The number of people working for the national government will be by far less than those working for the states

• Powers delegated under the Constitution to the federal government will be few and defined• War, peace, negotiations, and foreign commerce

• Powers reserved under the Constitution to the states will be numerous and indefinite• Lives, liberties, properties of the people, internal order,

improvement, and prosperity of the states

• The new Constitution is not proposing new powers for the central government but the strengthening of its original powers

Federalist 39: James Madison

• Definition of Republic:• A government that derives its powers from the people• The government is administered by individuals holding

offices for a limited tenure

• In state governments:• Tenure of highest offices is extended to a definite period• Tenure for justices based on good behavior

• At the federal level:• House of Representatives is elected directly by the people• Senate is elected indirectly by the people• Judges are a remote choice of the people• The president may be impeached at any time

Federalist 39: James Madison

• States appointed delegates to ratify the Constitution on behalf of the people

• The proposed government has enumerated powers. All other powers belong to the states.

The Merits of the Federal System: James Bryce

A federal system:• Offers the means to unify a country at the same

time that it respects the uniqueness of the different institutions or levels of government

• Supplies the best means of developing a new country in a natural and spontaneous way

• Prevents the rise of a despotic central governmentFederalism and local self-government:• Self-government stimulates the interests of the

people; sustains local political life; educates citizens in their duties, teaches perpetual vigilance to attain the goals of a good administration; liberty and collective prosperity

• Federalism diminishes risks

The Merits of the Federal System: James Bryce

• Federalism enables people to experiment• Federalism distributes power in such a way that it

relieves the national legislature of duties that would prove otherwise too heavy for it

• The American Constitution provides the national government direct authority over all citizens while at the same time empowering the states as well• Both states and the national government look for

mediation through an independent body

Implied Powers and the Supremacy of National Law

Background: The Supreme Court has played a determinant role in developing the federal system. Often, its most historic opinions have upheld the national power at the expense of the states by applying the doctrines of implied powers and the supremacy of national law.

McCulloch v. Maryland (1819)

Does Congress have a right to incorporate or charter a national bank even though it is not stipulated anywhere in the Constitution?

• Government of the Union is supreme within its sphere of action

• The incorporation of a bank is not stipulated in the Constitution; nonetheless, the powers to collect taxes, borrow money, regulate commerce, raise an army, and declare war are

• The federal government should have the means to execute its ample and vital powers

• The intent of the framers was not to deprive the national government of the means to carry out its enumerated powers

McCulloch v. Maryland (1819)

• The Constitution must allow the national legislature the discretion to carry out the powers it confers to it• The power to tax is a concurrent power• The power to create implies a power to preserve• When powers are concurrent, the authority which is

supreme must control• The states have no power to burden or impede the

operations of a constitutional law enacted by Congress• Thus, the act of incorporating the bank is constitutional

Interpretation of the Commerce Clause

Background: Gibbons v. Ogden is the first major case interpreting the commerce clause. In 1798, the New York legislature granted R. Livingston a monopoly over the navigation of its state waters by steam boats. In 1793 Congress passed an act providing for the licensing of vessels engaged in coastal trade and Gibbons obtained under this new law a license to operate boats between New York and New Jersey. Ogden was engaged in a similar operation under a license granted by Livingston and wanted to prevent Gibbons from further operation.

Gibbons v. Ogden (1824)

Gibbons contends that the New York law is unconstitutional because Congress has the right to regulate commerce and to promote the progress of science and the useful arts

• The last of the enumerated powers gives Congress the right to do anything that is necessary and proper to carry out its enlisted powers

• From its very beginning, navigation has been regulated by the national government with the consent of all

• The power to control commerce does not stop within the jurisdictional lines of the several states

• Congress has the power to control commerce with foreign nations, among states, and with Indian tribes

Gibbons v. Ogden (1824)

• Laws created by the states have validity insofar that they do not interfere with those acts enacted by Congress

• Insofar that the laws of New York contradict the Constitution, they are null

National Power Over the States:a Recurring Constitutional Debate

Civil War Amendments• 13th: Abolishes slavery• 14th: grants citizenship to those born in the country;

establishes due process; bars states from denying privileges and immunities to citizens

• 15th: prohibits both federal and state governments from denying the right to vote on account of race, nationality, or previous condition of servitude

• The enforcement clause of the Civil War gave Congress the ability to create the appropriate legislation to enforce the 13th, 14th, and 15th amendments, thus expanding its power over the states on the issue of civil rights

National Power Over the States:a Recurring Constitutional Debate

Gibbons v. Ogden Revisited: Federalism and the Commerce Clause

• After 1836, the Court adopted a more restrictive view of the national commerce clause. However, this changed in 1937 with Franklin D. Roosevelt’s New Deal. Congress turned to the commerce clause for the legal authority to enact the Civil Rights Act of 1964. Government argued that racial discrimination in public accommodations impedes interstate travel by those discriminated against, causing disruption in interstate commerce.

• The road has not been easy for either the states or the national government, both of which have defended their sphere of power enormously

The Supreme Court Redefines “Necessary and Proper”

Background: In 1994, Congress passed the Violence Against Women Act, stipulating that all people within the U.S. shall have the right to be free from crimes of violence motivated by gender. This law was based on the right of Congress to regulate commerce. Although the law had general support, had Congress gone too far?

United States v. Morrison (2000)

In 1994, Cristina Brzonkala, a student at Virginia Tech, was assaulted and raped repeatedly by two football players. In early 1995, she filed a complaint with the school against the two football players. The school found one of the students guilty (Morrison) but had insufficient evidence against the other student (Crawford). Morrison was suspended for two semesters. In July 1995, Morrison appealed and was found guilty again, not of sexual assault but of using abusive language. By August of 1995, the VP of Virginia Tech set aside Morrison’s punishment and Ms. Brzonkala decided to sue Morrison, Crawford, and Virginia Tech in a U.S. District Court. The District Court dismissed her case, stating that Congress lacked the authority to pass the Violence Against Women Act.

United States v. Morrison (2000)

• The interpretation of the commerce clause has changed to fit the times

• Gender-motivated crimes of violence are not in any way economic activities

• The interpretation by Congress that it would be able to create such a law based on the impact violence against women has on employment, production, transit, or consumption is too broad since it would mean that it would be able to regulate murder or any other type of violence

• Family law traditionally has been a reserved power• Ms. Brzonkala deserves reparation from the state of

Virginia• The Violence against Women Act exceeds congressional

power

California Medical Marijuana Law

Background: California voters, though a state initiative, passed a proposition in 1996 that would allow the use of marijuana for limited medical conditions. The California law conflicted with the federal Controlled Substance Act under Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970.

Gonzales v. Raich (2005)

• California is one of at least 9 states to authorize the use of marijuana for medicinal purposes

• The question is whether California’s law is in conflict with Congress’ right to do anything necessary and proper to carry out its powers

• The law creates an exemption from criminal prosecution for physicians, patients, and primary caregivers who posses or grow marijuana for medical reasons under the approval of a doctor

• Angel Raich and Diane Monson were patients protected under the state law

• In August 2002, the DEA and county deputy sheriffs seized and destroyed their cannabis plants

Gonzales v. Raich (2005)

• Raich and Monson were seeking injunctive and declaratory relief

• Congress has the right to control local activities that have an effect on interstate commerce

• Enforcement of federal laws would be difficult when trying to distinguish locally grown marijuana from that grown elsewhere or resulting from illicit channels

Modern Federalism in the Madisonian System

UP-TO-DATE IN KANSAS CITY: REFLECTIONS ON AMERICAN FEDERALISM

by Martha Derthick

Meaning of Federalism

• By American federalism I mean an arrangement whereby the functions of government are divided between one national government and numerous sub-national ones, all resting on popular consent and written constitutions.

States and National Government

• American states are not creatures of the national government. State governments derive authority from their respective constituent communities.

Constitutional Protections for the States

• the guarantee of a republican form of government

• the reservation of powers in the Tenth Amendment.

• the assurance of equal representation in the Senate, which is secured against amendment,

• and the assurance that the states’ boundaries will not be changed without the consent of their legislatures.

Horizontal and Lateral Distribution of Power

• First the power surrendered by the people is divided between [national and state] governments

• then [under the separation of powers doctrine] the portion allotted to each is subdivided among distinct and separate [legislative, executive, and judicial] branches.

Hamilton Federalist 28

• Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments,

• and [state governments] will have the same disposition toward the general government.

Federalist 28

• The people, by throwing themselves into either [federal or state] scale, will infallibly make it preponderate.

• If their rights are invaded by either, they can make use of the other as the instrument of redress.

Madison on Evils of Consolidation of the states into one government

• Congress would be unable to deal with the vast universe of local problems and pressures

• Consolidation would increase the power of the president by compelling a legislative delegation on practical grounds

Federalism Reduces the Legislative Burden of Congress

• Federalism reduces the burden on Congressional governance

• which leads to less Congressional incentive to delegate excessive power to the President

Federalism Advances Popular Control of Government

• “Were the State governments abolished, the same space of country that would produce an undue growth of the executive power, would prevent that control on the Legislative body which is essential to a faithful discharge of its trust. . . .”

The Madison of 1791 thus points us in two

directions:

• he invites us to look at how federalism affects the roles of and relations among the institutions of the national government,

• and, second, to consider how federalism affects the relation between the people and the national government, its legislature in particular.

Evolution of Federalism

Federalism did not evolve in a way that helped to sustain popular control of national governing institutions.

• One major effect of federalism was the growth of judicial power.

Federalism Requires an Umpire

• Most obviously, federalism enhances judicial power in two main ways. By dividing power among governments, it necessitates an umpire.

• Courts often, although not necessarily, perform that function. They do so in the United States, as the byzantine history of Commerce Clause interpretation amply attests

Court Interpret Constitutional Prohibitions Against the States

• Second, American federalism has been characterized by sweeping constitutional prohibitions against the states, which are cast in language that invites judicial interpretation:

• “No State shall . . . pass any . . . Law impairing the Obligation of Contracts. . . .”

• “[No state shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

State Legislatures Expected to Exert Great Influence on Congress

• Madison expected the institutions of federalism to help control the national legislature

• Parties and elections early proved more efficacious than address by the state legislatures to deter Congress from pursuing “a self-directed course.”

Federalism Failed to bring about National harmony

• In the end federalism failed to bring about the social harmony and national community Madison wanted.

• The Civil War was the greatest failure of federalism.